Volume 3 — Arkansas Reports

On certiorari to Pulaski County Court. Absent, Dickinson, Judge, the County Court of Pulaski Lawson, Jr., Sheriff of that are fully stated in the opinion. It was argued here by This case came up on a certiorari to County, issued on the petition of James county; the allegations in which petition and by

Bill in Chancery for dower. On the 6th February, 1844, Mary E. Menifee filed a bill in the chancery side of the Conway Circuit Court, in substance as follows: Complainant, a resident of said county, was lawfully married to Nimrod Menifee, late of said county, who died .in January, 1842.

<p>Appeal from Phillips Circuit Court.</p> <p>Absent, Dickinson, Judge.</p> <p>This was an action of ejectment, brought by the heirs of Sylvanus Phillips for the recovery of a parcel or fraction of land containing three acres and eighty-two hundredths, as its quantity is stilled in the declaration; but which, owing to the abrasion of the Mississippi river, had been reduced, as shown by the plat, to three acres and seventy-one hundredths of an acre. The case was submitted to a jury on the general issue; and the facts and evidence in the case were agreed upon, and stated in writing, by the counsel for the parties; of which agreed case, a plat was a part, which must be referred to, in order fully to understand the facts, arguments, and decision.</p> <p>The facts agreed upon were as follows: The tract or fraction sued for of 3.82 or 3.71 acres, is part of a tract of 640 acres, originally patented to William Russell, as assignee of Patrick Cassidy. The tract of six hundred and forty acres lies on the Mississippi river, is irregular in its shape, and is correctly delineated in the annexed plat, on which the fraction sued for is marked C.</p> <p>[[Image here]]</p> <p>By agreement between Russell and Sylvanus Phillips, the ancestor of the plaintiffs, made prioi’ to 1820, about 275 acres of the tract were to be laid off to constitute the town of Helena; and 273,59 acres were actually by them laid off as said town, as represented in the plat, not including the three fractions A. B. and C. By deed dated Dec. 3, 1821, Russell conveyed to Phillips fraction A., containing 18 acres. By deed of July 13, 1825, acknowledged August 13, 1825, Russell conveyed to Phillips, among other lots and tracts of land, the same fraction of 18 acres,. 335 lots in the town, and the 340 acres, the western part of the tract. And by deed of August 1, 1825, also acknowledged August 13, 1825, Russell conveyed to Phillips sundry lots in the town, and also fraction C., in controversy.</p> <p>By deed dated October 1, 1830, Phillips conveyed to Austin Kendrick and Arnold Fisher, (through whom the defendants claimed,) a vast-number of lots in the town, and tracts of land situated in different places; and among others, according to the language of the deed, “one other tract containing three hundred and sixty-six acres of land, being part of a six hundred and forty acre tract originally owned by Patrick Cassidy, and confirmed to William Russell under Patrick Cas-sidy, and patented by the President of the United States to William Russell under Patrick Cassidy, and to his heirs, by patent, recorded in the General Land Office, volume 4, pages 243,244, and dated the 26th day of March, 1824, which said tract of land was conveyed by William Russell to Sylvanus Phillips, by deed bearing date the 13th of July, 1825, situate in the County of Phillips and Territory of Arkansas, adjacent to the town of Selena.”</p> <p>By deed of August 22, 1831, Kendrick and Fisher conveyed fraction C. to Porter, the defendant. All these deeds were admitted in evidence. It was admitted that the land in controversy was fraction C., and correctly described in the declaration; that the plaintiffs were the sole heirs of Phillips; that Phillips had full title to the land in controversy on the 1st of October, 1830; and it was agreed that if the jury should find upon a proper construction of the deed of October 1, 1830, fraction C. was included in the 366 acres conveyed by that deed, taking that deed in connection with all the other deeds referred .to, and in connection also with the fact that all the'western part of the tract, containing 340 acres, with the three fractions A., B., and C., (all of which were on the 1st of October, 1830, owned by Phillips,) made up the quantity of 368.82; then they would find for the defendants: but that if they found, taking all those matters in connection, that fraction C. was not so included, then they would find for the plaintiff.</p> <p>Various instructions were given and refused, which it is unnecessary to notice, further than to say that they declared the construction of the deed to be as contended for by the defendants.</p> <p>The jury found for the defendants. The plaintiffs then moved for a new trial; and their motion being overruled, they appealed.</p> <p>The universally acknowledged rule, in the construction of a deed, is, that it must be as near to the minds and apparent intention of the parties as may be.</p> <p>Every deed shall inure as much as may be according to the intention of the parties. Jackson vs, Clark, 7 J. R. 223.</p> <p>The intention of Phillips must be inferred from the language used, to express it. The direct and special reference to the deed of the 13th July, as embracing the identical tract intended to be conveyed, shows conclusively, that the land acquired by that deed, and that alone, formed the subject matter of the grant on the trust deed.</p> <p>If it had been the intention of Phillips to convey his entire interest, remaining of the 640 acres, would he have made this pointed and emphatic reference to the deed of the 13th of July? He well knew there were two fractions not embraced by that deed, but to which he had acquired title by a subsequent deed, bearing date the first of August, 1825; and is not the inference, under this state of facts, irresistible, that Phillips did not intend to include, in the trust deed, the two fractions to which he acquired title by the deed of the 1st of August — that he meant to convey only the land comprehended by the deed of the 13th of July? The principle is well settled, that where one deed refers to another, as that by which the grantor derived title to the land conveyed to the grantee, the deed so referred to will be regarded as a material feature in the description, and will be looked to to clear up any obscurity or uncertainty which may exist in any other parts of the description. Jackson vs. Ranson, 18 J. R. 107; Jackson vs. Moore, 6 Cowen 721, note.</p> <p>Where a purchaser cannot make out a title but by a deed which leads him to a fact material, he will not be deemed a purchaser without notice of that fact. Johnson vs. Ckuathmey, 4 Lit. 317; Ward vs. Trotter, 2 Monroe 4; Cuyler vs. Bradt, 2 Caines 327.</p> <p>General expressions in a deed of “ all estate, real, personal and mixed,” may be restrained by a schedule, to which reference is made; Scott vs. Coleman, 5 Lit. 353. The recital of an agreement in a deed is, in law, equivalent to an agreement made by the deed. Bank of Kentucky vs. Vance’s Admlrs, 4 Lit. 172. Recitals in a deed of land are evidence against the party making them, or any person claiming under him. They estop parties and privies in blood and estate, and in law. A person entering into possession of land, under a party thus bound by a recital, is a privy, in law, of such party, and is bound by whatever would conclude or affect him. Jackson vs. Park-hurst and Guerney, 9 Wend. 209; 2 P. W’ms, Annandale vs. Harris 434; Ford vs. Grey, 1 Salk.' 286; Carver vs. Jackson, 4 Peters; in which the effect of recitals in a deed is fully examined, and in which the court declare that the recital constitutes a part of the title, that it works upon the interest in the land, and creates an estoppel which runs with the land against all persons in privity with the grantor. It is as much a muniment of the title as any covenant therein, running with the land. Kendrick and Fisher, and all those who claim under them, are presumed, in law, to have a knowledge of the deed of the 13th of July, its contents, and the identical lands therein embraced for the very deed under which they derive title, expressly refers to it, and declares that the tract of land, therein conveyed, is the same to which Phillips acquired title from Russell, by virtue of that deed. The recital deed is a part of the muniments of their title, and defines and marks out the particular tract intended to be conveyed by the grantor. Knowing, then, as the defendants, in law, are presumed to do, the contents of this deed, and the exact locality and boundary of the lands therein embraced, with what pretence of justice or legal right can they now claim lands not included in that deed, and to which Phillips acquired title by other deeds of a subsequent date? The fact that the trust deed calls for a greater number of acres than' is contained in the deed of the 13th of July, will not give to the defendants a right to make up the deficiency out of the lands embraced in the deed of the 1st of August, and which are not referred to or. embraced in the trust deed. It was not the intention of the deed of the 1st of October, 1830, to convey a precise and definite number of acres, but a certain tract of land. The deed expressly states the thing to be conveyed to be “ one other tract.” The tract, then, is the subject matter of the conveyance, and the number of acres, the prior conveyances, patent and deed referred to, are all descriptive circumstances, inserted to identify the tract and define its boundaries and location.- The rule of construction, sanctioned alike by authority and common sense, is, that where there is a contradiction in the description,, we ought to take that'which is the most stable and certain. Jackson vs. Loomis, 18 J. R. 87. If there are certain particulars once sufficiently ascertained which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant, idem 85; Jackson vs. Clarity 7 J. R. 223; Loomis vs. Jackson, 19 J. R. 449; Worthington, et al., eaPrs, vs. Hylyer, et al.t 4 Mass. 205.</p> <p>Where lands are first described generally, and afterwards a particular description is added, that shall restrain the general words. 4 Com. DigFait, E. 4,p. 289, note b. A thing certain may be diminished, though not wholly made void. Stukeley vs. Butler, Hob. 171, b. To what parts of this description, then, are we to look for those features which give most stability and certainty to the grant, ■ and best illustrate the intention of the parties? To the description by quantity, or that contained in the reference to the deed of July the 13th. Keeping in view the important rule, that those features of the description which mark out and define with most certainty and particularity the land conveyed, will always be preferred to those of a more general and indefinite character, can the court entertain a moment’s doubt as to which shall be preferred and which rejected? By reference to the deed of the 13th of July, such descriptions are given of the trad as leave no doubt of its identity and boundary. The deed of the first of October reciting the deed of the 13th of July, and declaring that the tract which the grantor was conveying is the very same to which he derived title by that deed, will have the same effect as if the calls and descriptions of the recited deed had been inserted verbatim in the trust deed of October. We have, then, in support of the position., that the fraction in controversy was not conveyed by -the trust deed, all the weight and force that a certain and definite description of the land can impart. For the rale id cerium est quod cerium reddi potest will here apply, and we have also the farther advantage, that the description for which we contend is true, that the lands in the deed of the 13th of July are the same embraced in the patent; it is, however, false that they contain three hundred and sixty-six acres. All the authorities concur in regarding the description by the number of acres as the lowest kind of description. In Jackson vs. Barringer, 15 J. i?. 472, the court say, 66 it is a well settled rule, that when a piece of land is conveyed by metes and bounds, or any other certain description, this will control the quantity, although not correctly stated in the deed.” Jackson vs. Wilkinson, 17 J. R. 147; Powell vs. Clark, 5 Mas. 357. When the quantity is mentioned in addition to the description of the boundaries or other certain designation of the land, without an express covenant that it contains that quantity, the whole is considered as mere description. The quantity being the least certain part of the description must yield to the boundaries or number, if they do not agree. In construing deeds, effect is to be given to every part of the description, if practicable; but if the thing, intended to be granted, appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description, shall prevail over that which is less material and less certain. Jackson vs. Moore, 6 Cowcn 717.. The enumeration of quantity is not of the essence of the contract, it is merely matter of description. Mann and Toles'vs. Pierson, 2 J. R. 40. ■ The description by quantity, must, from its very nature, be vague and indefinite, and unless taken in connection with other cir- . eumstances of the description fixing the locality of the land, it can, of itself, áscertain nothing. And in a case already cited, the learned Judge, in conclusion, says, “I will only add, that, in my own experience, and I may say with propriety, in the universal opinion of conveyancers, enumeration of quantity, after a description of the subject, is superfluous and immaterial, and in every view only matter of description.” But it may be said that the fact of the quantity of acres being first mentioned in the description, gives to that circumstance a controlling influence; but the court will remark that the whole clause is one continuous sentence, and it is not material what circumstance is first mentioned, for the intention of the parties is to be collected from the whole, and not from any one particular. In Doughty’s case, referred to in Stukeley vs. Butler, Hobart 171, the Duke of Northumberland was seized of divers houses and cottages in the parish of Saint Sepulchres, London, and bargained and sold all his tenements in the parish of St. Andrews, Holborn, in the tenure of William Gardiner, unto Lou Lea, and the grant was judged void, though the houses were in the tenure of Gardiner; it wa3 added, in in that case, that the court was of opinion that if he had begun with the tenure of Gardiner, which was true, and ended with the parish mistaken, that the grant had been good by the rule, utile per inutile non vitiatur. “I hold it,” says the learned Judge in reviewing that case, “ plain to the contrary, for the several circumstances and descriptions circumscribe and ascertain the grant; and it is a good rule, incivile est, nisi tota sententia perspecta, de aliqua parte judicarep which opinion was fully sustained in Doddington’s case, to which reference is also made, and in which it was adjudged that the first part of the description, as it was placed in the patent, was true, yet the latter part being false marred all, even if it were the grant of a a common person; and the Judge very truly remarks that, in one sentence it is vain to imagine one part before another; for though words can neither be spoken or written at once, yet the mind of the author comprehends them at once, which gives vitam ■ et modum to the sentence. It makes no difference, therefore, in what part of the sentence the quantity of acres is mentioned, so that it be inserted as matter of description, and it is always so regarded (as will be seen in the cases above cited,) unless there are direct and express cove - nants to convey a particular quantity.</p> <p>No peculiar force, therefore, is to be given to the number of acres because of its position in the sentence. No matter where it may appear as a circumstance of description, it will be subject to the same rules before adverted to; and that which is most material and most certain in the description, will take precedence in the construction of the deed, although it may appear after in the sentence. The important and material point of enquiry is not to ascertain the quantity in the tract, but to ascertain and identify the tract itself. The quantity is descriptive of the tract, and not the tract of the quantity. If there is any thing in the deed of the 1st of October which manifestly indicates that it was the intention of Phillips to convey only the fraction A, and the 340 acres west of the town of Helena., then, although the deed may call for a greater number of acres, nothing more will pass. And that such was his intention is abundantly evident from the fact of his referring to the deed of the 13th July, in which those parcels were conveyed to him. In a note to the case of Jackson vs. Moore, 6 Cowen 720, already referred to, it is stated, “ when a man has a manor called A, extending into the several parishes of B and C, and he grants all his manor in the parish of B, the words, {in the parish of B’ would be restrictive, and so much of the manor as is situate in the parish of B would pass.” Now Phillips has several fractions or parcels of land in the 640 tract patented to Bussell, to which he acquired title by two deeds, one bearing date of the 13th of July, and the other the first of August, 1825; ana he conveys one tract, part of the 640 acre tract, patented to Russell, which said tract he expressly slates to be the same conveyed to him by Russell, by deed bearing date the 13th of July. Can the court doubt but these latter are words of restriction, and does it not present a state of facts strikingly analogous to the precedent above quoted? In the same note it is farther stated, when there is a grant of all lands which were of the inheritance of A B, and conveyed by C D, the lands will not pass unless they were conveyed by C B, and also were the inheritance of A B. And so we contend that no lands pass by the clause of the trust deed mailer consideration, unless they were contained in the 640 acres patented to William Russell, and also included in the deed, of tbe 13 th July, from Russell to Phillips. It is evident that the reference to this last deed was inserted to repel the idea that the fractions acquired by the deed of August, were included in the trust deed; no other consistent and rational construction could be put upon it. The description by number of acres does not correctly describe the several tracts included in the trust deed even according to the construction of the defendants, for these tracts together make up the quantity of 366.82 acres, and the deed calls for only 366. And if, according to the view we take of it, the deed conveys a specific number of acres, and not a certain tract, then they can claim no more than the exact number of acres of mentioned in the deed. And so large a fraction as 82-100 of an acre, situated in what is now nearly the heart of the town of Helena, is worth a large sum of money; and to this, if the conveyance is for a specific number of acres, the heirs of Phillips are clearly entitled; but here we are met at the very threshold with the difficulty of determining this: out of which one of those several fractions shall this 82-100 acre be stricken off ? And even could we fix upon the parcel, there is the further difficulty of determining from which side of the parcel this small fraction shall be taken. In this view of it tbe deed would be uncertain and vague; and the court should incline to that description which would define and mark out the object of the grant with precision and certainty.</p> <p>Of the several rules laid down as governing in the construction of deeds, there are two which need to be applied in this case, and bear directly upon the question presented to the court.</p> <p>1st. All deeds shall be construed as near the apparent intention of the parties as possible, consistent with the rales of law.</p> <p>2d. If there be room for two constructions, that shall be taken which makes most strongly against the grantor.</p> <p>See as to the first rule. Bridge vs. Wellington, 1 Mass. 219; Worthington, et al., vs. Hylyer, et al., 4 Mass. 205; Bott vs. Burrell, 11 Mass. 163; Hatch vs. Dwight, 17 Mass. 289; Ludlow vs. Meyer, 3 J. R. 383; Troop vs. Blodget, 16 J. R. 172; Cholmondeley vs. Clinton, 2 Ba. A. 625.</p> <p>As to the second; Troup vs. Blodget, 16 J. R. 172; Adams vs. Frothingham, 3 Mass. 352; Watson vs. Boylslon, 5 Mass. 411.</p> <p>The principle is admitted, that a tbs description of land in a deed by specific boundaries is conclusive as to the quantity; and if the quantity be expressed as a part of the description, and is incorrectly stated, it will be inoperative; and it is immaterial whether the quantity contained within the specified boundaries is greater or less than the quantity expressed.”</p> <p>But as the appellants rely almost exclusively upon this principle, it will be necessary to examine some of the cases in which it is laid down; and so ascertain whether it is applicable in the present instance.</p> <p>In Powell vs. Clark, 5 Mass. 355, Paesqhs, C. J., said that55 each tract is definitely limited, and any surveyor could easily ascertain its contents, and the plaintiff might have known the quantity of land contained within the limits described, before he concluded his purchase, by taking the proper measures. In his purchase he must be considered as relying on the boundaries described, and not on the contents mentioned. In a conveyance of land by deed, in which the land is certainly hounded, it is very immaterial whether any, and what, quantity is expressed, for the description by the boundaries is conclusive.”</p> <p>So in Jackson vs. Defmdorf, 1 Caines R. 493, the deed was for “ one certain lot of land, known as lot No. 10, in the new patent, &c., bounded and described as can be more fully made to appear by a map of said patent; the said lot No. 10 said to contain 200 acres, more or less.” The court said,66 the intent was to convey the whole lot. It referred to the map. When the quantity of acres is mentioned, it is only description of the lot according to common acceptation.”</p> <p>So in Lodge's lessee vs. Las, 6 Crunch. 237, a grant of a certain whole island was held to convoy the whole, though the courses, distances, and quantity mentioned in the deed would exclude part of the island,</p> <p>These three cases embody the rule laid down in all the cases upon the point: and the rule, as laid down, may be definitely stated to be, that where it plainly appears to have been the intention of the grant- or to convey a whole tract or lot, known by a certain name, definitely specified on a map or plot, or described with certainty by courses and distances, or boundaries, there, though the courses and distances, boundaries and quantity given, do not agree with the specified tract or lot as it exists; or where the quantity does not agree with the courses and distances or boundaries specified; the grantee will take according to the intention, without regard to the quantity mentioned. Mann vs. Pearson, 2 J. R. 27; Jackson vs. Barringer, 15 J. R. 471; Jackson vs. ■Wilkinson, 17 J. R. 14G; Jackson vs. Freer, 17 J. R. 29; Dogan vs. Seekright, 4 Hen. and Man. 125; Jackson vs. Moore, 6 Cow. 717.</p> <p>And the rule is the same though neither courses nor distances correspond with specified boundaries. The boundaries will govern. Pernamvs. Wead., 6 Mass. 131; Gerrish vs. Bearce, 11 Mass. 193; Howe vs. Bass, 2 Mass. 380; Aiken vs. Sanford, 5 Mass. 497.</p> <p>But though quantity always yields, yet I apprehend no case goes so far as to decide that the quantity called for never governs; or that if A sells so many acres in such tract, without further specification, and has just that number of acres in the tract, and no more, the grant would not be operative, and that the grantee would not take by acres.</p> <p>The principle is also admitted that where a purchaser cannot make out his title except by a deed leading him to a fact material, he will not be deemed in equity a purchaser without notice. But we are utterly unable to perceive what possible bearing this principle can have upon the present. It is laid down in cases where there is a question of fraud or lien, and where the conscience of a purchaser is to be affected; but if it is claimed as being applicable to this case, it must certainly be also assumed that, no matter how certainly the land may be described, whether by numbers or metes and bounds, yet if subsequently a reference is made to a prior deed j that deed will control every thing, and the purchaser will only take in accordance with it. It is certainly a novel idea to press into service, in construing a deed between grantor and grantee, a decision made in equity between parties standing in a different attitude, and upon the subject of fraud or lien; and to assume that because if a purchaser, claiming to have purchased bona fide and without notice, cannot make out his title without reference to a deed leading him to a fact material, as of a charge on the estate, he will be deemed against creditors, &c., to be a purchaser with notice of such fact; therefore, if a grantor mistakes, in referring to a previous deed to himself, the contents and tenor of such deed, the grantee shall be bound by the mistake, as against the grantor himself.</p> <p>The authorities quoted to show the effect of recitals are not denied to be correct, but it is admitted that they do conclusively establish the principle that a recital in a deed, lease, or release, is conclusive and an estoppel against the grantor, lessor or releasor, and all persons claiming under them by privity of estate; but how the conclusion is thence deduced, that the recital is also conclusive against the grantee, or a person not privy in estate, we do not hazard a conjecture.</p> <p>The cases referred to in 6 Cow. 721, and Hob. 171, will be considered hereafter.</p> <p>In the present case, the land is first conveyed by quantity — so many acres in such a tract. The grantor did not, as in the cases quoted in support of the tv/o rules which we first kid down, first grant a certain tract of land; nor did he first grant land by certain courses and distances, or included within certain boundaries — and then add that the lands so conveyed contained so many acres. Not so. He first conveys so many acres of land, and then refers to a certain deed, (if he refers to it at all in reference to the grant,) to explain what land he intended to convey.</p> <p>Before laying down the rules, which, as we conceive, govern this case, we refer the court, in order to present our views fully and intelligibly to them, to the case stated, the deeds and the diagram in this case, by which the following facts will appear.</p> <p>The whole tract of 640 acres, of which the land in dispute is a small fraction, was confirmed by the United States to William Russell, as assignee of Patrick Cassidy. Phillips had become part owner of portions of it before the patent issued; and upon the issuance of the patent in 1824, Russell again conveyed to Phillips, in order to perfect his title, such portions of it as be had conveyed before the patent issued.</p> <p>For the purposes of this case we have only to examine the situation of the whole tract on the 1st of October, 1830. 273.59 acres of it had been laid off by Russell and Phillips, as joint proprietors, and constituted the town of Helena. With this portion we have nothing to do. Phillips himself owned on the 1st of October, 1825, all the residue of the tract. That residue consisted of 340 acres lying west of the town. Fraction A, on the diagram, containing 18 acres, fraction B containing 5 acres, and fraction C containing 3.82 acres, making that residue 366.82 acres. The 340 acres west, and fraction A, were conveyed by Russell to Phillips, by deed of July 13, 1825, together with 335 lots in the town. The two fractions B and C, the latter of which is in dispute, were conveyed by Russell to Phillips by deed of August 1st, 1825, and both these last mentioned deeds were acknowledged on the same day, to wit: August 13, 1825.</p> <p>Phillips, an original proprietor of the town, knew how many acres there were in the town, and how many in the whole residue of the tract. He knew that the tract west of the town contained but 340 acres, and he further knew that he owned the whole tract except the town, and that the residue of the tract not included in the town made the quantity of 366 acres- — rejecting the fraction of an acre, which at that day no man thought of mentioning in a deed. He therefore conveys, by deed of October 1, 1830, to Kendrick and Fisher, 366 acres of land, in that particular tract, which was all he had to convey, and just what he had to convey, in the tract. Had he stopped here the description of the land conveyed would have been certain enough, for he would have conveyed the whole tract except the town, and no one would have doubted but that the grant included the fraction in dispute. But it is assumed that he subsequently refers to the land which he was convoying, (which we shall hereafter dispute,) and adds, “ which said tract of land was conveyed by William Russell to Sylvanus Phillips, by deed bearing date July 13, 1825.” And it is contended that only the land described and specified in that particular deed passed by the grant.</p> <p>The court will not fail to remark that no tract is conveyed by that deed, containing 366 acres; but it conveys two tracts, one of 340, and the other of 18 acres, and 335 lots. When Phillips granted “ the tract” of 366 acres named in that deed, did he mean the tract of 340 acres, or the fraction of 18 acres, or the 335 lots, or any two of them, or all together ? For if the construction contended for be correct, the court can presume one of these just as well as the other. And therefore the reference to the deed of July 13th, 1825, if that reference restricted the prior grant, did not render that certain, which was uncertain before, but directly the reverse.</p> <p>The court will also remark, that the deed of July 13th, was not acknowledged until August 15th, the same day on which the deed of August 1st was acknowledged; so that it may naturally be contended, that as Phillips, in making a conveyance, manifestly intended to cover all his property, by a voluminous deed, he might easily mistake or forget the date of a prior deed, and refer' to both deeds, from the same person, and acknowledged the same day as being one deed of a particular date.</p> <p>Having premised so much, we may now proceed to deduce from the authorities the precise rule of law applicable to this case. For it all depends upon the simple question, whether the clause referring to the deed of July 13, (if it relate back to the grant at all,) is a limitation and restriction of the previous description of the premises granted, or merely an explanation.</p> <p>The general rule is laid down in Dowtie’s case, 3 Co. 10, and Dyer 292 &., as in Com. Dig. Fait 4, to be, that if the description of the tenements granted, comprehends several particulars and circumstances in the same sentence, all ought to be true, otherwise the grant will be void; and the instance given us, if a man convey “ all his tenements in the parish of B, in the tenure of A,” there nothing passes, unless the tenements are both in the parish and tenure mentioned.</p> <p>And this rule depends upon the common construction of such a sentence, according to the rules of grammar. For where the expression is, <{ I convey to you all my lands in the city of Little Rock, in the county of Pulaski,” the meaning of the sentence is, that Í convey to you such lands as I have in that city and county — and if the lands are in the county, but not in the city, nothing passes.</p> <p>So in Dyer 292 6., an instance is given, as where I convey u the manor of A in the county of B.” If there be no such manor in that county, but there be such an one in the county of C, nothing passes. And for the reason that it is all one short, connected sentence — it is all description, and no part of it is added as explanation. And because if I have lands both in the manor of A and the county of B, and the manor is not in that county, it is utterly uncertain which lands should pass by the grant.</p> <p>A remarkably clear illustration of the rule is given in Doddingtori’s case, 2 Co. 33. The grant there was of u omnia ilia messuagia in tenura Johannis Brown, scituaf in Well’ nuper prioratui de W. spect-iant/’ and in truth, the lands lay in D. And it was adjudged, that “ because the grant is general, and is restrained to a certain town, the grantee shall not have any lands out of the town to which the generality of the grant doth refer.” “ And this case,” it was resolved, “ is the stronger, by reason of this pronoun (ilia) for '•omnia ilia messuagia,’ &c. makes such a necessary reference, as well to the town as to the tenure of John Brown, that if one or the other fail, the general grant is void: for (ilia) is not satisfied till the sentence is ended, and (ilia) governs all the sentence till the full stop.</p> <p>So in Bozouris case, 4 Co. 35, where the grant was, of “ totam illam porlionem of tithes in Longham, in county of Norfolk, with all all other tithes whatever in Longham in said county of Norfolk, then or lately in the occupation of John Corbet;” it was decided that the whole sentence was to be taken together; “ because the pronoun (illam) shows plainly that there ought to be words subsequent to reduce and explain what portion should be granted; s. c. that which was in the occupation of Corbet; and, therefore, this pronoun (illam) is not satisfied till it is come to the full end of the sentence, and that, with the conjunction (with) couples the whole together, and makes the subsequent part of the sentence refer to the former.”</p> <p>Having thus explained the general rule, we now arrive at the rules which govern the present case.</p> <p>Comyn lays it down, in his Digest? Fait E., 4, as follows: “ If the thing described is sufficiently ascertained, it is sufficient, though all the particulars are not true: as if a roan conveys his house in B, which was Thomas Cotton’s. And the reason is that the words “which was” show the last clause to be an explanation, and not a component part of the description.</p> <p>So Lord Bacon says, Lazo Tracts, 102, “ varitas nominis tollit er-rorem demonsfrationis.'” And, therefore, he says, if lands are described in the first instance by their proper names, as “ the manor of Dale;” or by their abuttals, as, “ a close of pasture bounded on the north by, &c.or if the general boundary is mentioned, and the grantor has no other lands in the same precinct; or if the lands are described by their appendancy to other lands more notorious, as, parcel of the manor of A: in all these cases, if there be an error in any addition made to these names or descriptions, it will have no effect.</p> <p>The present case comes precisely within the rule as laid down by Lord Bacon — for in the grant to Kendrick and Fisher, the general boundary is mentioned, and Phillips had no other land, except town lots, in the tract — and, moreover, it is described as “ appendant to a tract more notorious.”</p> <p>So in Plozod. 191, where a lease was made of “ all that the farm of Brosley, then in the tenure and occupation of R. Wilcox,” which was not the fact, the court said that <he word « farm” had a certainty in itself; and when the description went further, and said, “ in the tenure and occupation of Wilcox,” this was of no effect; for though it was not in his occupation, yet it should pass; because there was a certainty in the thing devised, viz: the farm of Brosley: and so another certainty put to a thing which was certain enough before, was of no manner of effect.</p> <p>The case of Stukeley vs. Butler, Hob. 168, referred to with so much confidence by the appellants, was upon a deed, whereby the grantor sold “ all the trees growing upon a certain manor, to wit: the trees in five certain groves named therein,” which five groves did not include all the trees on the manor; and the question was, whether the latter clause should restrict the general grant; and it was held that it should not, but was void. And one reason assigned therefor is, “ that in grants of particulars, sufficiently once ascertained, another mistaking will not frustrate, though it be false.”</p> <p>The reference to Siukcly vs. Butler seems to be for the purpose of showing that it is no importance, as to this question, that quantity is named first, instead of last. And to this point Dowtie’s case and Dod-dington's case, referred to in Hobart, are quoted. We have already mentioned both, and shall return to Dowtie’s case yet again. At present it is only necessary to observe that it was upon a. grant “ of all my tenements in the parish of St. Andrews, Holborn, in the tenure of William Gardiner;” and as the grantor had no houses in the parish, the grant was adjudged void. Coke thought it would have stood, if the tenure of Gardiner had been first named, because then the true part of the description would have come first. He was clearly wrong in this, as Hobart says, and according to his own restrictions in other cases. It is all one description, in one short sentence, and must all stand or fall together. But neither Stukely vs, Butler,nor Docldingion’s case, sustain the position assumed by the appellants upon strength of them: because the question in both cases was, whether the whole grant were void or not; and not whether the latter clause should limit or explain the former.</p> <p>The principle which does apply where the whole is not void, is, as-declared in the Bishop of Ely's case, Shop. Touch. 88, “ that where there are two clauses in a deed, repugnant to each other, the first shall be received, and the last rejected, except there be some special reason to the contrary.” So in Cother vs. Merrick, Hardres, 94.</p> <p>So in Mason vs. Chambers, Oro. Jac. 34, Popi-iam, C. J., said, “if the Queen should let the manor of D quod quidem manerium is of the annu-value of five pounds, where it is not let for such a rent, and the rent or value is misrecited, yet the lease is good, because there is a certainty before, and the addition of quod quidem,” &c. is not material. But if she let “ the manor of D, of the annual rent value of five pounds,” which is intended to be of such a value, and is let at a greater rent, or appears upon record to be of a greater value, it is void, because in the first case she intended to pass the manor, and the addition of the quod quidem, &c. is but to add another certainty: but it is in one sentence, that it is of such a value, and that in tali parte, her intent appears not to grant a thing above such a value; and therefore it is otherwise.”</p> <p>The position here assumed, as to the grant of the manor of D, of such a value,” is doubtless correct, in the case of a grant by the Crown, because in such case the grant is not taken most strongly against the grantor — and the nice distinction drawn by the court shows how they would have decided even the last point, had it been a grant by an individual.</p> <p>So in the present case, if we now delay for a moment, and view it by the light of the authorities already before us, there is sufficient certainty in the first part of the grant. It is of 366 acres of land, part of the Cassidy tract. Phillips granted the exact number of acres owned by him in the tract: he had so much which he could grant, and no more., and he granted all. If the grant had stopped there, could it have been ascertained what land passed by the grant? most certainly; and if so, there was a certainty. The subsequent expression, (if referring to the grant at all,) is not a part of the sentence connected with the first clause by a conjunction. It is an explanation. It is adding certainty to what was certain enough before; and it may therefore be rejected. Had the grant been, of “ the land conveyed to me by deed of July 13th, containing so many acres;” then the grantee would have taken according to the deed, with regard to quantity — but as it is, the first part of the grant always governs, if it is certain enough without the addition. See 4 Cruise 365-6.</p> <p>So in Dowtie’s case, 2 Co. 10, which we first quoted, and which is also relied upon by the appellants, the court after laying down the general rule as we first stated it, go on to say, “ but otherwise had it been, if a true certainty had been in the first place, as if he had bargained and sold ‘the tenements,’ &c., in the tenure of William Gar-diner, in the parish of St. Andrew. However, there it was agreed that the tenements should pass well enough, notwithstanding the addition of the falsity: for utile per inutile non mtiatur.”</p> <p>So in Dyer 50 b., it is laid down by Harwood, Attorney General, that “ if I release all the right which I have in “ White Acre, and name the land certain which I bought of such a man, and in truth I bought it of another, yet, because the land is certainly named at first, the release is good, notwithstanding the misrecital afterwards; but where it is made general, it is otherwise.” As, for instance, if it had been, “ all my land which I bought of such a man,” having bought none of him, in that case there would have been no basis of certainty laid, to have “ given effect by reference to the other words.” And see Banks vs. Denshire, 1 Ves. Sr. 63; and Roe vs. Vernon and Vyse, 5 East, 40.</p> <p>We may now proceed to a further modification of the rule, and that is that “ where words of addition are mistaken, and contrary to the real fact, they will not operate as a restriction on the preceding words,” 4 Cruise, 325; which is■ exemplified as follows: “a corporation demised in these words — all that their glebe land lying in Chesterton, viz: 78 acres of land, and also the demesnes of the said 78 acres, with all the tithes of the said Parish of Chesterton, and also the tithes of the said 78 acres; all which lately were in the occupation of Margaret Peto, deceased.” The tithes of the land demised never were in the occupation of Margaret Peto, and the question was whether they passed to the lessee. It was urged for the plaintiff that the words “ in the occupation of M. Peto,” were a clause of restriction, which showed an intent that nothing should pass but what was in her occupation. But all the Judges held the lease good, and no restriction of the first words, because there were three distinct clauses before: — 1st. The grant of the 78 acres of glebe. 2d. The grant of the tithes predial and personal; and 3d. The grant of the tithes of the 78 acres of glebe; which were till distinct several clauses by themselves. And the clause, “ all which,” &c., did not depend on any of them; for the words “which were,” &c., was a restriction only when the clause was general, and was all but one and the same sentence, and not ended or certain before the end of the sentence. But where the clause was not in one entire sentence, but distinct and disjointed from the other, as here it was, there could not be any restriction. Also, this being in the case of a common person, (that is, the King not being a party,) addition of a false thing, viz: false possession, shall never hurt the grant: for the addition of a falsity shall never hurt where there is any manner of certainty before. Wherefore they all con-eluded that the grant was good, and observed that though the words “ which were in the tenure of M. P.,” when they are in one and the same sentence, may bo construed to be a restriction, yet in these words “ all which were,” ore., the word “ all,” so disjoined, could not be a restriction, but an explanation. Swift vs. Eyres, Cro. Car. 546.</p> <p>The rule is then thus defined by Cruise: “ When the lands are first described generally, and afterwards a particular description is added, that shall restrain the general words. Thus, if a man grant “ all his lands in D, which he has by gift and feoffment of J. S.” nothing will pass but lands of the gift and feoffinont of J. 8. But if he grant all his lands in D called IT, which was the estate of J. 8. there the lands called N shall pass, though they never were the estate of J. S.” 4 Cruise, 337.</p> <p>The distinction here laid down, though at first view somewhat nice, is perfectly sound, and sustained as well by reason as authority. For if I convey to you “ all my lots in Little Nock which I hold by deed from A B,” I mean all such lots as I hold by that deed — but if I convey “lot No. 10, in Little Nock, which I hold by deed from A B,” there the latter clause is mere explanation, and will be rejected if I do not hold the lot by such deed. And so it would be if I were to convey two hundred feet front, in block 10, running back at right angles, which I hold by deed from A B, and it appeared that I had two hundred feet front in that block, and no more, but that I only hold a part of it under the deed from A B, yet you would take the whole; for there loo “ the latter clause is but explanation,” there being “ sufficient certainty before.”</p> <p>In Lawes vs. Beaston, 5 Taun. 207, where the deed was for land lying in Camberwell, containing so many acres, and in the possession of A. B. and C., Lord Maksiwblb said, “ this deed sufficiently shows the seller’s intent to pass all these lands; it describes in whose possession they had been, and the number of acres, and therefore the lands do pass by the deed. No man can doubt of the intent of this deed to pass those lands. It has conveyed so many acres in the possession of A, B and C, the name of the parish only is mistaken, the party having been informed the land was in Camberwell. Why did the parties mention the parish at all in the deed 2 It was unnecessary.”</p> <p>So it is laid down in Connolly vs. Vernon, 5 East, 80, that “ when there is a grant of a particular thing once sufficiently ascertained by some circumstances belonging to it, the addition of an allegation, mistaken or false, respecting it, will not frustrate the grant.”</p> <p>The same rule has been often affirmed in the United States.</p> <p>7 In Worthington vs. Hylyer, 4 Mass. 205, Pahsohs, C. J. said, “if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.- Thus, if a man convey his house in D, which was formerly C’s, when it was not C’s but B’s, the house in D shall pass, if the grantor had but one house in D, because by the description of his house in D, his estate intended to be conveyed is sufficiently ascertained.”</p> <p>So in Bott vs. Burnell, 11 Mass. 167, the court said “ general words are not restrained by restrictive, added ex majori cautela, or by affirmative words more restrictive; but which have no tendency to render a general description ambiguous or uncertain.”</p> <p>The case of Cutler vs. Tufts, 2 Pick. 272, would be conclusive, even if we had no other case to sustain it. By the deed in that case, the grantor conveyed “ all his right and title and interest in and to one undivided moiety or half part of certain real estate, situate in the towns of West Cambridge, Lexington, and Cambridge, the same being a part of the real estate of the late William Cutler, deceased, and set off as dower to the widow, Rebecca Cutler.” Had the description stopped here, say the court, no”question “ could have arisen which could not have been settled by the records of the Probate office showing what lands had been set off for dower to Rebecca Cutler.” But a clause was added which produced the controversy, viz: “meaning hereby to reconvcy to said Cutler the same premises, with their appurtenances, that the said Cutler conveyed to me, by his deed dated Sept. 25, 1811.” This latter clause conflicted with the former. ■ It was doubtful whether it would not reduce the moiety to a fourth part. And the court said, “ is not this repugnant? And if it is so, then most clearly, by reason as well as by the authorities, the latter clause ought to be rejected. It is not an explanation, but a direct contradiction. The words cannot stand together, and the grantor shall not have the benefit of such an unjust interpretation of words, which he has himself introduced into the instrument, as would give him the right to destroy his own grant.” See this case confirmed in Sprague vs. Shaw, 4 Pick. 54.</p> <p>So in Jackson vs. Clark, 7 J. R. 217, the rule is laid down to be that “if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant.” And see Jackson vs. Moore, 6 Cow. 717.</p> <p>In Jackson vs. Root, in which case the deed was for “ the 600 acres of land due me from the public, as a soldier in Col. Lamb’s regiment of artillery,” the rule laid down in Jackson vs. Clark was affirmed. The grantor was not a soldier in Col. Lamb’s regiment, but in another and different regiment; and the latter clause was rejected because there was sufficient certainty before, as he owned 600 acres of land by grant from the public.</p> <p>In Jackson vs Loomis, 18 J. R. 84, the same rule was again affirmed; and also in Jackson vs. Crafts, 18 J. R. 107, where there was a mistake in the number of the lot conveyed.</p> <p>We have been arguing this matter, thus far, upon the hypothesis and assumption of opposing counsel, that the words “ which said tract,” in the reference to the deed of July 13,1825, are intended to designate the tract which he was conveying to Kendrick and Fisher. We now proceed to show that this is but a hypothesis; and we assume and think we can demonstrate that Phillips did not refer to the deed of July 13th in order to designate the land he was conveying to Kendrick and Fisher, but in order to. designate the whole tract of which that was a part; and that he referred to it as a deed whereby" the whole Cassidy tract was conveyed to him by Russell. In order to explain our meaning it will be necessary to quote the whole of the grant, which is as follows:</p> <p>“ Also one other tract, containing three hundred and sixty-six acres of land, being part of a six hundred and forty acre tract, originally owned by Patrick Cassidy, and confirmed to Wm. Russell under Patrick Cassidy, and patented by the President of the U. States to Wm. Russell under Patrick Cassidy, and to his heirs, by patent, recorded in the General Land Office in vol. 4, pages.243 and 244, and dated the 26th day of March, 1824, which said tract of land was conveyed by William Russell to Sylvanus Phillips, by deed bearing date the 13th of July, 1825, situate in the county of Phillips, and Territory of Arkansas, adjacent to the town of'Heléna.”</p> <p>It is admitted by all, that whether the expression “ which said tract” refers to the first tract mentioned, or to the second, there is a like mistake, because the deed of July 13, 1825, neither conveys 366 nor 640 acres — nor is it a deed conveying but one tract, as would appear by the reference, but it conveys two, and 355 lots in the town. As upou either construction it is manifest that Phillips had forgotten what the deed of July 13 did convey, we are equally at liberty to suppose that he thought it conveyed the whole Cassidy tract, as that he thought it conveyed but one tract alone, or a tract of 366 acres. More so, indeed, because every deed is to be taken most strongly against the grantor.</p> <p>But we cannot found a legal conclusion on a mere hypothesis that he had forgotten one thing and not another, or that he was mistaken in one respect rather than in another. We must construe the grant by legal rules, and as no construction can make the reference to the deed of July 13th correct, we must take the grant by itself, and ascertain what would befits construction standing entirely alone, and without our knowing what was in fact conveyed by the deed of July 13,1825.</p> <p>First, then, we understand it to be a general rule of law, as well as of grammatical construction, that when the word “ said” is used, and there are two precedents to which it would apply, it has relation to the one next preceding it. Thus in the Queen vs. Halford, 3 Salk. 199, which was an information against the defendant for subornation of perjury, setting forth “ that whereas in the court of our lord, the King, before the King himself at Westminster, in the county of Mid-dlesex, one Rhodes, lately of D, in the county of Surry, had implead-ed-the defendant, Holford, for that whereas he wasfindebted to the plaintiff, in the parish of St. Clement’s Danes, in the county aforesaid,” and on arrest of judgment, it was contended that the cause of action was laid in Surrey; and the rule is thus laid down: “It is true, it i» said, that the defendant was indebted to the plaintiff in the parish of St. Clement’s Danes, in the county aforesaid, which must be the county of Surrey, because that was the county last named, and therefore it must relate to that county, which is very true, viz: ad proximum ante-cedens fiat relatio; but that rule hath an exception, viz: nisi impediat sententia, as it plainly doth in this case.</p> <p>In the present case the rule applies to the full extent, because by applying the rule the sense is no way impeded; or rather, because the meaning of the sentence doth not hinder the application of the rule.</p> <p>Second. These words are naturally connected with those immediately preceding them, and a description is commenced, which, unless they form part of it, is incomplete. Take the grant by itself, without reference to any thing extrinsic, and we find that it first conveys 366 acres of land. The tract so conveyed is stated to be part of a 640 acre tract, and here the description stops, and a description of the whole commences, and of the grantor’s title to it. The 640 acre tract is, it is stated, a tract originally owned by William Russell under Cassidy, and confirmed to said Russell under Cassidy, and to his heirs, by patent bearing date a certain day and year, and recorded in a certain book and page. Does the description of the whole tract cease here? If it does, why was the grantor so particular in stating Russell’s title to it? It is perfectly clear that the grantor still goes on to complete what he had begun, by deducing to himself title through Russell to the whole tract. Put the whole sentence before any man who has a common acquaintance with language, without informing him of the contents of the deed of July 13th, and he would at once say ■it is all a description of the whole tract, for it cannot be construed otherwise without doing violence to every rule of grammatical construction.</p> <p>Observe then further the conclusion of the sentence. Connect it as it stands; “ which said tract of land was conveyed by William Russell to Sylvanus Phillips, by deed bearing date July 13, 1825, situate in the county of Phillips, and Territory of Arkansas, adjacent to the town of Helena.” Now if both parts of this clause refer to the same tract, it would have read “ which said tract was conveyed, &c., and is situate,” &c.</p> <p>But read it as we contend it should be read — put within a parenthesis all the sentence from being part,” to “July, 1825,” inclusive, and the whole sentence is perspicuous, clear, and drawn with sufficient attention to legal accuracy. Construed differently, no sentence could be more inartificial and clumsy.</p> <p>How then did the idea ever originate that this expression in the latter part of the grant referred back to the first tract named, passing by one intermediately named? Manifestly it is a mere notion, taken up without thought, and entertained from the sheer necessity of the case; and because, unless some such hypothesis was assumed, their claim, shadowy and unsubstantial enough at the best, would at once drift away from them, and dissolve into thin air.</p> <p>If they travel out of the grant, and allege that the expression refere to the tract first named, because the deed of July 13th does convey part of the 366 acres — still the consequence they desire does not follow — because the same deed also conveys a part of the whole tract— and in either aspect he was mistaken. Admit then that the sentence ■ might even be construed either way, and yet our construction must prevail, because it is most strongly against the grantor.</p> <p>The whole argument of-the appellants then has no basis; for if the expression “ which said tract,” and the reference to the deed of July 13, do not relate both to the tract intended to be conveyed by Phillips, but to the whole tract, of course the reference does not qualify or limit, or even explain the grant by quantity; and then, if the grantor owned the quantity of acres granted-in that particular tract, and no more, as he did, the grantee takes by. quantity.</p> <p>It is not our intention to controvert the correctness of two rules, laid down by the plaintiff in the opening of his argument, for our direction in the construction of deeds. It is by the application of the first rule that we believe ourselves warranted in coming to the conclusion that the fraction in controversy was not conveyed by the trust deed; we must, however, express our dissent, if by the second rule counsel for the defendants intend to convey the idea that the courts will, in every instance, where there is a contradiction in a deed, or where a skilful casuist may raise a doubt, adopt a construction most unfavorable to the grantor. If in any instance the court can, by the application of those rules by which we must be guided in the construction of deeds, arrive at the intention of the parties, they mil give effect to that intention, although there may be much in the deed obscure and contradictory. The rule above referred to only applies in those instances where it is impossible to arrive, by any of the ordinary rules of construction, at the intention of the parties, and is most frequently applied in those cases where a doubt is raised whether any estate at all passes or not, or when doubts exist as to the quantity of estate, whether for years, for life, or in fee. In these instances, rather than the grant should be frustrated, the court would presume against the grantor, and adopt such construction as would give effect to the deed, and not such an one as would make it a nullity. So if there be an estate granted without any, limitation as to time, or if the quantity of estate is uncertain and cannot be determined by the words of the deed itself, then the courts would construe it most favorably to the grantee and he would take the greater estate.</p> <p>We cannot perceive that this rule can rightfully have any material bearing upon the question now in issue, which is simply whether the fraction in controversy is embraced in the tract conveyed by the trust deed or not; and that is to be determined by the description of the tract contained in the deed itself. If by applying the legal rules of construction to the circumstances set out in the deed as descriptive of the tract, it shall appear that it was not the intention of Phillips to include it in the trust deed, then the plaintiffs will be- entitled to recover; if on the contrary it shall appear that it was his intention to embrace it, then their claim must fail. We are then brought back again directly to the question, what circumstance referred to in the trust deed, descriptive of the land, is entitled to the most weight and consideration according to the received and well settled rules of legal construction? Is it in the description by number of acres, or by reference to the deed of the 13th of July? It is unnecessary to refer again to '-he^authorities, showing’the weight and influence of these different circumstances in the scale of construction; those already quoted are ample and to the point.</p> <p>Nor do we think the position we have assumed in regard to the ef-feet of recitals in the deed, in the least shaken by the arguments of defendants’ counsel. It is true that some of the cases referred to were suits in chancery, but others were actions at law; and the court will find, by reference to all the cases cited, that the principle is the same, both in law and in equity/ The defendants’ counsel very readily admits that the recital of one deed in another biuds the grantor, but is unwilling to hazard a conjecture as to its effect upon the grantee. Had he examined the case of Carver vs. Jackson, ex dem., Astor, etal., he would have found the principle stated so clearly as to leave no room for conjecture. In that case, page 83, it is laid down, that a recital of one deed in another binds the parties, and all those who claim under them. The grantor and grantee are evidently alike embraced within the rale. They are the parlies to the deed. Thus we say, that Phillips and Kendrick and Fisher were all bound by the recifal in the trust deed of the deed of July 13th: by reference to that deed the boundaries of the land can be definitely ascertained, and if it had embraced a thousand acres instead of 366, still it would have been obligatory on Phillips, and neither he or his heirs could have recovered one acre of the surplus; and so if it contains less, Kendrick and Fisher, and all those who claim under them, are es-topped by it, and cannot set up claim to a single acre not embraced in that deed. The counsel for the defendants says, “ that the land is first conveyed by quantity — so many acres in such tract.” If the court will look to the phraseology of the deed they will find that this is mere assumption. The language of that instrument is, “ also, one other tract containing 366 acres.” It is the conveyance of a certain tract, and not a definite and certain number of acres “ in such a tract.” And the authorities already referred to, show conclusively the statement of the number of acres in such cases is merely matter of description, and is never regarded as a grant of a defined and certain quantity, except in those instances where there are direct and positive covenants to that effect. But because the deed of July 13th conveys one fraction of 340 acres, and one of 18, and 335 town lots, the plaintiffs contend that this reference does not render that certain which before was uncertain, but directly the reverse; and that it would be impossible to tell whether the 340, or the 18 acres, or both were on the town lots. Whatever credit such reasoning may have for its subtlety and ingenuity, it certainly cannot be regarded as sound and practical, for who ever heard of town lots being described and designated as a certain tract of land? As both the fractions were conveyed by the same deed, Phillips may very well have fallen into the mistake of calling them one tract. And the court might, as against Phillips, very correctly decide, that all the land to which he acquired title by that deed,should pass, so to as make up as nearly as possible, if not altogether, the specified number of acres.</p> <p>But suppose the mistake should be fatal to the construction for which we contend, would it not fall with a more crushing weight upon the construction contended for on the other side? For if they be regarded as separate tracts, their construction would embrace four instead of two. If the term, one other tract, is likely to raise a doubt as to whether the two fractions in the deed of the 13th of July pass or not, be it so. We might plausibly contend that only one did pass, and that the description by number of acres, though not exactly accurate, would yet sufficiently manifest that it was the intention of the grantor to convey the largest fraction, and thus restrict the grant to the 340 acres. We might suggest other reasons in support of this view, but as the question is not before the court, we will not further pursue it.</p> <p>We cannot conceive how the argument of counsel can be strengthened by the fact, that both the deed of the 13th of July and first of August, were acknowledged on the 15th of August. The deed is referred to by the date it bears, and not by the date of its acknowl-edgement. And if this circumstance can make any figure in the cause at all, with all due deference we think it must be in our favor.</p> <p>If he had intended to convey all those fractions, he would perhaps have referred to the date when those deeds were acknowledged, and declared that the land was the same embraced in the deeds of that date. But he is particular to designate the deed by the day it bears date, thus excluding the idea that any thing more was intended than the land embraced in that particular deed.</p> <p>Counsel for defendant have endeavored to point out, by reference to numerous authorities, the distinction between a limitation or restriction in a deed, and an explanation, and to show what words will be regarded as words of restriction, and what as words of explanation. It would protract this argument to too great a length were we to examine each separate authority cited. . We must, therefore, content ourselves with examining a few, of the most prominent.</p> <p>We will remark in the outset, that all the decisions upon this point have been made in those cases where the question was, whether the grant should entirely fail or not; and in those cases the courts have decided that, where the thing to be ascertained has once been truly described' by words sufficient to ascertain and identify it, it shall pass, although there may be added an explanation that is false.</p> <p>Suppose we admit, for the sake of the argument, that the reference to the deed of July is.but an explanation, and not a restriction, we have yet to find the first case in which the courts have gone so far as to reject the explanatory words when there was a subject matter upon which the grant could act, and when the question was not whether the grant should entirely fail, but to which of the several things did the grantor intend it to apply. The distinction, it is important the court should keep in view. The authority quoted in Comyri’s Dig. F. E. 4, very clearly illustrates' the truth of the distinction: “if the thing described is sufficiently ascertained it is sufficient, though all the particulars are not true; as if a man conveys his house in B which was Thomas Cotton’s, and in fact it was not, it will pass.” But suppose he had two houses in B, one which had been Thomas Cotton’s, and one which had not, and a question should arise which house was was intended by the grantor, would the courts reject the explanation? Or would they not rather look to it as a decisive feature in the description? Suppose A should convey a tract containg two hundred acres of land, lying in Pulaski county, which said tract was lately in the occupation of B, and conveyed to him by B, by deed bearing date the 13th of July, 1825, but in fact there should turn out to be but 190 acres; A also had other tracts of land in the same count}’, lying adjacent to the one sold, to which he had acquired title by deed from various other persons, would the court, in'Seeking to ascertain and identify the tract, reject those latter words altogether, even though they might regard them as words of explanation, and permit the grantee to claim and hold land lying without the tract, not conveyed by B, nor included in the deed referred to, to make up his 200 acres? In the case referred to in Worthington vs. Hylyer. 4 Mass. 205, the court lays a particular stress upon the circumstance that the grantor had but one house in D, evidently implying if he had more, and one had in truth been in the possession of C, that circumstance must be looked to to determine which house was granted. A great deal of authority has been adduced to show that a false addition will not vitiate or frustrate the deed if there has been sufficient certainty before.</p> <p>1 must here again press upon the court the fact, that the question is not whether the deed shall be frustrated, but it is to what lands does it apply. And the court will also remark, that what is regarded as an addition here, is not a false circumstance, but it is true that there was a deed from Russell to Phillips, bearing date of the 13th of July, 1825, conveying to him a tract of land, part of the 640 acre tract patented to William Russell, and the falsity is not in that reference, but the mistake consists in supposing the land conveyed by that deed to contain 366 acres. Now, even according to the argument of the defendants’ counsel, Russell had more than one tract or parcel of land comprehended in the 640 acre survey. To these he acquired title by deeds of different dates — he conveys one tract containing 366 acres, and refers to the deed of 13th of July as limiting the grant to the lands therein contained, or as explaining, Í care not which, with more precision and certainty the particular tract conveyed, will the court now say, when this explantion is true, and there is a subject upon which the grant shall act, that they will attach no weight, in ascertaining the intention of the parties, to those circumstances to which they have themselves expressly referred to illustrate their intentions, and say that they meant to convey ail the lands acquired by deed of the 1st of August, when they have themselves declared it was only the tract conveyed by the deed of the 13th of July?</p> <p>But the counsel for the defendants seems to regard the reference to the deed of July as merely an addition, and that because 366 acres are not contained in the tract granted in that deed, that it is therefore a false addition. It is evident they h.ave fallen into this error from the common notion that that which comes last is an addition to that which was first. But this is certainly not the legal and technical sense of the term. “If there is an error in the principal description of the thing intended to be granted, though there be no error in the addition, nothing will pass.” 4 Com. Dig., note A, and the example cited in illustration of the rule is from Bac. Tret. 165. That if a person grants tenementum suum, or omnia tenementa sua, in the Parish of St. B. without Alágate, where, in truth, it is without Bishopgate in tenura Gulielmi A, which is true, yet the grant will be void because that which sounds in denomination is false, which is the more worthy, and that which sounds in addition is true, which is the less. And though the words in tenura Gulielmi A, which is true, had been first placed, yet it had been all one. Now we venture to affirm that no case can be found in which the mention of the number of acres will be regarded as constituting any part of the denomination, but the cases to which we have already adverted abundantly show that it is always looked upon as addition. If it was considered as denomination, then it would be fatal in all those cases in which the quantity has been falsely stated in the deed, for a misdescription in that respect, as we have seen, will defeat the grant alogether. We donate land not by the quantity of acres,, for that would designate no particular land, but by reference to its natural boundaries, its situation in counties, and the township, and range, and section, by reference to patents and deeds 'by which its locality can be definitely ascertained and fixed in the general map and survey of the country. The circumstances of denomination in this deed are, first, that it is a tract of land in the 640 acre tract patented to Wm. Russell, under Patrick Cassidy, by patent bearing date',&c., and which said tract is the same conveyed, by deed of 13th July, by Russell to Phillips. The number of acres, although it may come first, is but addition. Suppose Phillips had not owned a foo.t of land in the 610 acre tract, and no land contained in the deed of 13th July, would it for a moment be pretended that the grant would operate upon other lands which he might own elsewhere? Would not the grantee be put to his action upon the covenant in the deed to recover any damages he might sustain? Are not these the features of the description which are the more worthy? They are the terms of denomination, it is by these that the land is known and denoted. In examining the authorities it will be perceived that the distinction drawn between the individual instances, put in illustration of general rules, is often extremely subtle and refined, depending upon a very slight change in the phraseology. Hence there is great danger of falling into error, unless we note with the most exact critical attention the peculiar structure of the sentence in each individual case, and the particular change of phraseology which gives rise to the distinction. It does seem to us that counsel for the defendants has fallen into many material errors from not having observed this rule with sufficient care.</p> <p>Many of the cases which they have cited from the authorities, and the instances put by themselves to illustrate the construction for which they contend, are liable to the weighty objection of not being analogous in point of fact to the case presented before the court. The peculiar phraseology and structure of the sentence do not exist in this case which gave rise to the rule of construction under cover of which the defendants now seek to shelter their claim.</p> <p>The case referred to in 4 Cruise, 337, with so much emphasis, furnishes an instance of this error. When the lands are “ first described generally, and afterwards a particular description is added, that shall restrain the general words. Thus, if a man grants all his land in D, which he has by gift and feoffment of J. S., nothing will pass but lands of the gift and feoffment of J. S. But if he grant all his lands in D called N, which was the estate of J. S., the lands called N shall pass though they never were of the estate of J. S.” Let us examine the latter clause of this sentence, and extract from it the reason of the rule. The court will perceive that “ all the lands in D called N” are the subject matter of the conveyance, and the deed first grants all those lands absolutely, the addition therefore of the clause, which was of the estate of J. S.” will not vitiate because the lands which were of the estate of J. S. did not form the subject matter of the conveyance, but was introduced merely as an additional circumstance descriptive of those lands. The phrase « all the lands in D called N,” sounding in denomination would, ns we have before shown, be regarded as the most worthy, for it is evident the grantor intended to convey all those lands known by that denomination, and whether they were of the estate of J. S. or not, is immaterial, because that was an addition, with a view of giving a more definite description to the land, and not a statement of the thing itself to be conveyed. If the deed from Phillips to Kendrick and Fisher had said, also all the land containing 366 acres, &c„, then there might have been some plausibility in the argument of defendants’ counsel, and some apparent support from the authorities. Then, the subject matter of the conveyance, that which sounded in denomination, would be all the land which Phillips owned in the 640 tract patented to Wm. Russell, &c., &c., and whether the land was acquired by deed of the 13th of July, or by other deeds, would not be material, inasmuch as the grant was of all the land forming a part of the 640 acre tract. But the language of the deed is very different. It is, “ also.one other tract,” evidently showing it was his intention to convey only a part, and not the whole, and the reference to the deed, of the 13th of July was for the purpose of ascertaining and identifying more certainly the particular parcel Phillips intended to convey out of the several parcels owned by him in the 640 acre tract. If we were to change the example quoted from Cruise so as to make it analogous to the case before the court, it would read “ also one other tract containing 366 acres in D, called N, which was the estate of J. S.” To make the parallel complete, suppose the grantor had several tracts in B. called N, one of which was of the estate of J. S. Should the question arise whether the deed conveyed all the tracts in D, called XT, or not, would the court hesitate in confining the grant to the tract which was of the estate of J. S. ?</p> <p>The case of Cutler vs. Tufts, 3 Pick. 272, is referred to with much confidence by counsel for the defendants, but we feel convinced when the case is critically examined, it will be found to turn upon a principle which can have no application to the question before the court, and that it also presents a state Of- facts materially different from those of the case under consideration. The court will find in the case referred to,, that the grantor first conveyed an estate absolutely. The estate so conveyed was so clearly and certainly described as to leave no doubt of its identity. In the subsequent part of the deed a clause was added, by which a large portion of the estate conveyed was defeated, and the case turned upon the well settled principle, that one shall not destroy his own grant. The court expressly declare that the clause added is not an explanation, but a direct contradiction. It was in a distinct sentence, and formed no part of the description of the estate previously granted. Such, however, is not the case with the deed now under consideration. It is all one continuous and connected sentence. The thing to be conveyed is a certain tract of land. The •number ef acres and the patent end deed referred to, are all introduced to describe and identify this tract. And the true question •which arises upon this deed is, as we have already stated, whether the description by quantity of acres, or by reference to the deed of 13th of July, shall govern. It cannot be said that the reference to that deed defeats an estate already granted absolutely, and fully described and ascertained, for the description of the estate flows on continuous and unbroken even to the end of the sentence. The most that can be said is, that in the particulars, which make up the description, there is some mistake or disagreement, and then the rule which we have already insisted upon applies. That which is most permanent and certain shall control that which is less. Indeed the argument of counsel seems to proceed upon an assumption of the very point in dispute. Assuming that the trust deed conveys, absolutely, the four tracts or parcels remaining of the 640 acre tract, although the language of the deed expressly restricts the conveyance to one, they then go on to reject altogether the reference to the deed of the 13th of July, because it defeats a part of the estate they imagine already conveyed. On the contrary, we insist the reference to this deed is not repugnant to, or contrary to any which preceded it: it does not defeat an estate already granted, but it ascertains and fixes the estate actually conveyed. We have heretofore shown that the enumeration of quantity is regarded as description, unless there are direct and special covenants to convey a specified quantity; and the counsel for defendants, seizing upon the description by number of acres, regarded by all the authorities as the lowest and least to be relied upon, endeavor to give it precedence over that description esteemed the highest and most conclusive. There is only one other argument which we deem it necessary to notice, and that is, that the words, M which said tract,” in reference to the deed of the 13th of July, 1825, were not intended to designate the tract which Phillips was conveying to Kendrick and JFishcr, but that they referred to the 610 .acre tract. It does seem to us an extraordinary stretch of the' imagination to suppose for one moment that Phillips could have fallen into the mistake of believing that he had acquired title to the whole 640 acres by the deed of the 13th of July; more particularly so, as he never did acquire title to the 640 acres, as one connected tract, by any deed. Some time before the 13th of July, 1825, the 640 acre tract had been split up into various sub-divisions; the town of Helena had been carved out of it, and small fractions were left on every side, separated and disconnected from each other, each forming a separate and independent tract of itself. So far as we can be guided by these material facts, in arriving at the intention of the grantor, we cannot doubt but what the words, “which said tract,” were designed to refer to the first mentioned tract, which formed the subject of conveyance. We can much more readily imagine that Phillips may have mistaken, by a few acres, the contents of the tract conveyed by the deed of the 13th of July, than we can suppose that he had fallen into the very gross error of believing that he had acquired title to the whole 640 acre tract by that deed. Nor can we regard as entitled to much weight, the argument drawn from the grammatical structure of the sentence. In construing deeds, the courts will not defeat the obvious meaning and intention of the parties, by a too rigid adherence to the nice rules of grammatical construction. Even the example quoted, so far from establishing any fixed and inflexible rule, shows clearly that the court will direct the relative pronoun either to the first or last mentioned subject, as its antecedent, accordingly as the sense o,f the sentence may direct. Were the sentence correctly marked and punctuated, all that part of it beginning with “ being part of a six hundred and forty acre tract,” down to “March, 1824,” inclusive, would be included in a parenthesis, and indeed the whole of it might be stricken out, and yet the deed would be equally certain and definite. It contains no description of the particular tract granted, but breaks the connection of the sentence for a moment to insert a description of the entire original tract, of which the one granted constitutes a part, and that description ends at “March, 1824.” The origina! connection o/ the sentence is then resumed, and it proceeds on to complete the description of the particular tract which forms the subject of the conveyance. But the opposite counsel insist that the description of the 640 acre tract does not end until it reaches “ July, 1825;” and that the parenthesis should be extended so as embrace those words; and the reason assigned is, first, that as Phillips had commenced by setting out Russell’s title to the 640 acres, we must presume that it was for the purpose of deducing to himself, through Russell, title to the whole tract. Now we would ask if it was necessary that Phiiiips should make out title in himself to the 640 acre tract to enable him to convey the traction granted in the trust deed? Most clearly it was not. St is sufficient for the purposes of the conveyance, to show title in Russell for the 640 acres, of which this fraction forms a part, and then a deed from Russell to Phillips for this part, which is done by reference to the deed of 13th July. No man can read the sentence without seeing that the description of the 640 acre tract, and the statement of Russell’s title to it, ends with “ March, 1824,” and that the sentence returns at that point from the digression, to resume the description of the particular tract granted. This view gives additional strength to the construction for which ws contend, and shows most deafly that the deed of the 13th of July forms an important and indispensable link in the chain of the defendants’ title; strike out this link and the chain which unites their title to that of the original patentee is broken forever. They cannot trace a regular and connected title back to the original grantor, but by and through the deed of the 13th of July. Will the court permit them, when it becomes necessary to trace back their chain of title to the patent, to avail themselves of the benefit of this deed, and yet disregard and reject it altogether from the description, when it may suit their purposes to do so? We cannot believe the court will tolerate so whimsical and capricious a construction. The other argument for extending the parenthesis to “July, 1825,” is founded upon a trifling grammatical inaccuracy, such as can have no material weight in the cause. If such refined and fastidious criticisms are to prevail — if the obvious intention of the parties is to be defeated, because the draftsman of the deed has used a verb in the wrong tense, or omitted altogether the auxiliary verb — then, there is not a man in this state who does not hold his'land by a title frail and precarious indeed. /</p>

The facts are stated by the Court. The decision in favor of the appellee is erroneous, for the following reasons: The seizure of property in execution is no satisfaction when the property does not remain in the possession of the officer, but is re-delivered to the defendant, on his giving a delivery bond. 7 Mass. Rep„ 506. 4 Bibb's Rep. 409. 2 Ark. Rep. 578.

<p>Appeal from the Chancery side of the Crittenden Circuit Court.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

Bill in Chancery by Charles E. Witter against William Arnett, determined in die Hempstead Circuit Court, at the Nov, term, 1846, before the Hon. George CoNavay, Chancellor. The facts are sufficiently stated in the opinion of this court. Witter maltes out a clear case for an account, and it is difficult, if not impossible, to perceive on what ground the demurrer Avas sustained.

Bill for an injunction filed by tbe Bank of the State of Arkansas, against Tilman R. McJunkin, determined in the Chancery side of the Independence Circuit Court, at the February term, 1846, before the Hon. Wm. Conway B., than one of the Circuit Judges. The facts are stated in the opinion of this court. ;.

<p>Absent, Dickinson, Judge.</p> <p>This was a motion to quash a fee bill.</p>

Bill in Chancery by William H. Wolf, against Polly Irons, as admin-istratrix, with the will annexed, of William Irons, deceased; determined in the Chancery side of the Montgomery Circuit Court, at the Sept, term, 1846, before the Hon. William H. Feild, Chancellor. The bill alleges, in substance, thqt on the 19th Sept., 1842, said Wm.

This was an indictment for dealing faro. Held: that on an indictment for high'treason, on the 8 and 9 W. 3 c. 38, by one section of which it was provided, that no prosecution shall be made for any offence “against this act, unless such prosecution be commenced within three months after such offence was committed,” it was incumbent on the prosecutor to show that the prosecution…

The facts are stated by the court. moved to dismiss on the ground that no appeal would lie from the interlocutory decree of the court below.

Bill' to foreclose a mortgage, by William H. Etter against Chambers Etter, John S'. Spence, surviving partner of the Arm of Spence' and Mathews, Taylor & Hadden, partners, Ephraim Myrick and Grandison D. Koyston, determined in the chancery side of the Hempstead Circuit Court, at the November term, 1846.

The plaintiff in error commenced this action against the defendant before a Justice of the Peace, on the following writing: u Mr. Saugrain, Please let Mr. Chambers have thirty-two dollars and thirty-eight cents, in merchandize, in your store, and charge the same to my account, and oblige yours, this 30th of October, 1838. 11. M. Robekts.” Endorsed on the back of which is the following, viz: “ I assign the within order to Joseph Gwinn.

Writ of Error to the Circuit Court of Pulaski County. Debt by a sheriff upon the bond of his deputy, determined in the Pulaski Circuit Court, in December, 1845, before Clendenin, then one of the Circuit Judges.

Error 16 Pulaski Circuit Court. Absent, Ringo, Chief Justice. This is an action of assumpsit. The declaration contains six counts upon promises by the defendants to sue and collect for the plaintiffs the seyeral notes in the several counts mentioned, and alleges that by the negligence and default of the defendants, the plaintiffs were prevented from recovering the moneys due to them upon those notes. The declaration also contains a count for money had and received.

Writ of Error to Pulaski Circuit Court. This was an action of replevin, in the cepit et detinet, for a female slave named Harriet, brought by James M. Dodd against Pleasant McCraw, determined in the Pulaski Circuit Court, at the October term, 1845, before the Hon. J. J. Clendenin, then one of the Circuit Judges. The suit was commenced in 'White county, and the venue changed. The defendant pleaded, first, property in himself, second, property in one John Humphries.

EkkoR to the Circuit Court of Chicot County. An indictment was preferred against Mathis, in the court below, containing four counts; the first charging the defendant, Martin R. P. Mathis, with knowingly and wilfully permitting certain persons to frequent the house kept by the said defendant, and knowingly permitting them to exhibit a certain unlawful gaming table, commonly called faro table, at which persons were betting, winning and losing, &c. The second count charges the…

EeboR, to Phillips Circuit Court. This was a suit by petition and summons, against McPherson, who demurred to the petition, and for grounds of demurrer assigned: First: That the petition did not follow the form of the statute. Second: That in declaring on the bond sued on, it was neceessary to make averments, which are not here made. The petition states that Biscoe was the legal owner of a writing obligatory against the defendant by the name of Wm.

This was originally a motion for allowance made by the appellees in the County Court of Independence county, against the appellant as administrator of Charles Kelly, deceased.

<p>Where the father told the son “ he would let him have one of three negro boys, he might take choice,” and then, after selection being made, “ remarked that he would let him have the boy he had selected as a loan to be re-delivered when called for,” the transaction is clearly a loan and not a gift, and it cannot be affected by the subsequent declarations and conduct of the son. A sale by the son conveys no title.</p> <p>In such case the right of possession of the slave remained in the son until dema11^ 'made by the father for the re-delivery, and until then no right of action accrued.</p>

This was a suit brought by John H. Leech, City Constable of Little Rock, against Sam Waters, before Hawkins, Justice, where he obtained judgment for the sum of ‡25 00, upon an account rendered January 21st, 1840, for official seryices, (as directed by an ordinance,) in attendance at theatre ten nights, at ‡2 50 per night, from which judgment the plaintiff in error appealed to the Pulaski Circuit Court.

Writ of Error to the Lafayette Circuit Court. Assumpsit by Matthew Watson against Richard Pryor, on a bill of exchange, drawn in this State, by Pryor, in favor of Robert Carring-ton, upon Blunder, Williams & Co., of New Orleans, for $>1942 96; dated 27th May, 1843, payable ten months after date, and endorsed by Carrington to plaintiff.

Levy appeared to the motion, and the court, after hearing evidence, ordered him to file his account for final settlement, and to pay over the balance in his hands, when the amount should be determined on his settlement, to the said attorney in fact of said Esther. Levy filed his account accordingly, and at a subsequent term the court ascertained the balance in his hands, entered up judgment therefor in favor of said Esther, and ordered him to pay it over to her said attorney.

Writ of Error to the Hempstead Circuit Court. Scire facias to revive a judgment, sued out of the Hempstead Circuit Court, by Hannah as administrator of Harris, against Carrington as Administratrix of Carrington. The defendant pleaded mil tiel record, and plaintiff took issue. The court, on inspection of the record, gave judgment for defendant.

<p>Justices of the Peace possess no jurisdiction in actions for use and occupation where the title to the land comes in controversy, as held in Fitzgerald v. Beebe, 2 Eng. R. 305.</p> <p>But where there is no controversy as to title, it is not essential to the jurisdiction of a Justice of the Peace, that there be an express agreement or contract for rent: the action will lie upon an implied as well as an express agreement.</p>

Ekkok to Pulaski Circuit Court. The plaintiff, in an action of debt instituted in the Circuit Court of Pulaslp, declared against Thomas T. Tunstall, of the county of Independence, and Richard C. Byrd and George Waring, of the county of Pulaski, and sued out two separate writs of summons, each against all the defendants, one to the Sheriff of Pulaski, and the otlier to the Sheriff of Independence, both of which were executed more than thirty days before the return day; the…

Writ of Error to Pulaski Circuit Court. Debt by Eustis & Co., against Turner, in the Pulaski Circuit Court. Writ served 26th Feb. 1846. The declaration contains three counts on three several promissory notes.

Writ of Error to the Pulaski Circuit Court. Debt, determined in the Pulaski Circuit Court, May term, 1843, before Clendenin, Judge.

In July, 1843, John D. Hoy, William Hoy, John Pattee and Henry Pattee, partners under the firm name of Hoys & Pattees, sued John M. Tuttle, before a Justice of the Peace of Washington county, on the following instrument: “Prairie Township, Washington county. $40,00 On or before the first day of July, 1843, I promise to pay to Hoys & Pattees, or their order, the just sum of forty dollars, without defalcation or discount, with ten per cent, interest after the first day of…

This was an action of trover commenced by James, Thomas and Phillip Madden, against Tarlton Massengill and the plaintiff in error, for converting four lots or blocks of pine plank, containing sixteen thousand feet, of the value of four hundred dollars. The writ was served on both defendants. At November term, 1838, Gentry filed his plea of not guilty, and the case was continued.

Writ of Error to Pulaski Circuit Court. In November, 1845-, Mary George, as administratrix of Martin George, deceased, sued Eucled L. Johnson, before a Justice of the Peace of Pulaski county, on a promissory note for sixty dollars, made by Johnson to Martin George, March 25, 1843, and due at two months.

. Replevin, in the cepit, for a slave, by 'Wiley Dixon against Samuel ' Thatcher, determined in the Pulaski Circuit Court. At the return term, May, 1844, the defendant excepted to the re-plevin bond executed by tire plaintiff to the sheriff, upon the ground that the security was insufficient, and moved for a rule upon the plaintiff to file a new bond. No action was taken upon the motion at the return term.

This suit was originally instituted against Oakley, Finley’s intestate. On the 31st day of July, 1839, a bond for costs and declaration was filed: on the same day the writ issued; upon which, until the fourth day after the suit was dismissed, was the following return: “Executed, &c. July 31, 1839, by, &c. Ro. H. Conway, D. S.” The writ was returnable to October term, 1839. At that term no step was taken, whatever, in the cause.

Writ of Error to Hempstead Circuit Court. On the 18th February, 1846, Williams & Blevins sued Bizzell, before a Justice of the Peace of Hempstead county, on the following instrument: “ On or before the first day of May next, we promise to pay Williams & Blevins, fifty dollars in notes of the Arkansas Banks, and if not paid on presentation, on or after that day, then to be paid in par funds: February 17th, 1842.” Signed by Bizzell and another.

Writ of Error to the Pulaski Circuit Court. This was an. action of debt brought by the Bank of the State of Arkansas, against Alvin McDonald and Fountain G. Stone, in the Pulaski Circuit Court, on a promissory note executed to the Bank by McDonald as principal, and defendant and another as securities.

Ebkor to Pulaski Circuit Court. Absent, Ringo, Chief Justice. In this case several bills of exceptions were taken at the trial by the plaintiff in error. He subsequently moved for a new trial, without incorporating the evidence, otherwise than by his bill of exceptions. The case was argued here at full length, by Pike for the plaintiff, and Tkapnall & Cocke, Ashley & Watkins, contra.

Writ of Error to the Ouachita Circuit Court. Covenant, by Green B. Hughes against Samuel D. Sloan, in the Ouachita Circuit Court, on two writings obligatory, one of which follows: “ On the first clay of November next, I promise to pay unto Green B. Hughes, one first-rate road wagon, to be made of good materials, complete, and both the woodwork andiron work to be executed in a good and workmanlike manner; the tire tobe not less than five-eighths of an inch in thickness, with…

Appeal ¿Prom, Saline Circuit Court. Walker, by his next friend, filed his bill in the court below, in which he stated that his grand… Held: that the surviving one took the whole of the deceased child’s share, in exclusion of the grand children, as the sole survivor of the four children of the testator; and that the children of the two deceased children were not survivors, within the intention of the will. These cases are again affirmed in Paterson vs. Ellis, 11 Wend. 259.

Writ of Error to the Pulaski Circuit Court. Richard' C. Byrd brought an action of assumpsit, by attachment, against Johnson & Lewis, in the Pulaski Circuit Court. The attach-' ment was levied on three slaves, Isaac, his wife Tena, and Abram, as the property of Johnson. At the return term, September, 1842, the Bank of the State of Arkansas filed an interplea, under the statute, alleging that said slaves belonged to her, and were not subject to the attachment.

Writ of Error to Benton Circuit Court. The facts are stated in the opinion of the court. The verdict was wholly unsustained by evidence or law, and should have been set aside. Even where a verdict is not wholly unsustained by law and evidence, but where the evidence so greatly preponderates against the verdict as to show that the latter is wrong clearly and at first blush, a new trial should be granted, especially in matters of contract. Howell v. Webb, 2 Ark. Rep. 364.

Assumpsit, by Ignatius Wilamouicz against Sterling H. Tucker, on a promissory note for $300, executed January 29th, 1845, by Jennings, as principal, and Tucker and Lincoln, as securities, to Baker, due six months after date, and endorsed by Baker to Brown & Fenno, and by them to plaintiff. • Tucker filed three pleas: first, non assumpsit: 2d, usury — that Brown & Fenno entered into a corrupt and usurious agreement with Jennings to loan him two hundred dollars for six months,…

Debt, determined in the Desha Circuit Court. Declaration: “Whitley Preston complains of Samuel H. Davis and Frederic Notrebe, of a plea,” «fee. &c. “For that, whereas, the said Samuel H. Davis, heretofore, to wit: on the 21st day of June, 1841, at the county aforesaid, made his certain wilting obligatory, sealed with his seal, and now here to the court shown, the date whereof is the same day and year aforesaid,by which he promised, sixty days after date, to pay to Whitley…

<p>Appeal from the Chicot Circuit Court.</p> <p>This was an action of debt brought in the name of the State for the use of William H. Gaines as administrator de bonis non of Bénj. Patton, against Ferguson, Rives, Bryant and Fisher, securities of John Clark, deceased, the original administrator of Patton, determined in the Chicot Circuit Court.</p> <p>The suit was upon the administration bond of Clark, executed 13th February, 1844. The condition of the bond is in the form prescribed by statute. The declaration set out the bond and condition, in the usual form, and assigned three breaches thereof: in substance:</p> <p>1st. That Clark, as administrator of Patton, collected and received the goods and chattels (specifying them) of his intestate to the value of $2000, to be administered according to law, but failed and neglected to administer the same, or account therefor to the Court of Probate; or to pay the debts of the said estate therewith as by law and the conditions of his bond he should — but on the contrary sold and converted the same to his individual use.</p> <p>2d. The second breach is similar to the first, except that the property alleged to have been received by Clark as administrator is more particularly described, and the value of each description thereof stated.</p> <p>3d. The third breach is like the two former, except that it alleges that Clark died on the — day of — 1845; that Gamer administered on his estate, and that neither Clark in his life-time, nor Garner since his death, had administered said goods and chattels according to law —paid the debts of said Patton therewith, or delivered the same to, or in any manner .accounted for them to said Gaines, for whose use suit was brought — and showing that Gaines obtained letters de bonis non, on the estate of Patton, 6 February, A. D. 1845.</p> <p>The court sustained a demurrer to the declaration, and plaintiff appealed.</p>

Writ of Error to Hempstead Circuit Court. Motion for judgment on a forfeited delivery bond by Fowlks against Hall, Stevenson, and Block, determined at the May term of the Hempstead Circuit Court, 1844.

Writ of Error to Pope. Circuit Court,. Debt, in the Pope Circuit Court, by Gregory against Bewly, Langford and Bruton, on a writing obligatory. The case has been to this court before. See Gregory v. Bewly et al. 5 Ark. JR. 318. At the September term, 1844, after the cause was remanded, the death of the defendant Langford was suggested, and the suit abated as to him. Defendant Bewly filed a separate plea of usury, and the cause was continued.

Writ of Error to Pulaski Circuit Court. Action of debt by James S. Dugan, as administrator of Ezekiel Dugan, against Absalom Fowler, on a forfeited delivery bond (taken under act of 7th Nov., 1831. Steel & Me Campbell's Dig. 345), determined in the Pulaski Circuit Court, October term, 1846, before the Hon. Wm. H. Feild, Judge. The facts are stated by the court.

Writ of Error to Washington Circuit Court. The facts are stated by tire court. The corrupt agreement is the essence of a usurious contract, and must be proved to support the defence.. McFarland et al. v. the State Bank, 4 Ark. R. 55. The defendants utterly failed to establish any corrupt or usurious agreement. The bonnwers may pay back in the paper of the Bank — the same paper borrowed — and there can be no unfairness or usury in the transaction.

Writ of Error to the Hempstead Circuit Court. Debt, determined in the Hempstead Circuit Court, at the May-term, 1846, before the Hon. George Conway, Judge.

Writ of Error to Yell Circuit Court. This was an action of ejectment brought by Washington Wicker and Jackson Wicker against James McClairen, in the Yell Circuit Court, and determined at the March term, 1845, before the Hon. R. C. S. Bit own, Judge. Suit brought 24th Feb., 1845. Defendant pleaded not guilty, plaintiffs took issue, the cause was submitted to a jury, and verdict and judgment for plaintiff.

Writ of Error to Pulaski Circuit Court. Debt by the State, use of DeBaun as administrator of Lemon, against Murray and his securities, upon his official bond as sheriff of Conway county, determined in the Pulaski Circuit Court. Judgment for defendants, and writ of error by plaintiff. After assignment and joinder, the death of DeBaun was suggested, and motion made to revive in the name of his administrator, upon which the court delivered the opinion which follows:

<p>The act of 9th Dec., 1844, repealing the appraisement act of 1840, is prospective-jit does not deprive debtors of the benefit of the law of 1840, under execution issued on judgments and decrees founded upon contracts existing at the passage of the repealing act.</p>

Writ of Error to Scott Circuit Court. Appeal from a Justice, tried before Hon. R. C. S. Brown, one of the Circuit Judges, in October, 1845. -v Reed sued Johnson “on an account for $44, for a barrel of whis- \ “ key, left at his house, containing 38 gallons, price per gallon, one “dollar.” The case was tried by a Justice’s jury, who found $22 50 for the plaintiff. The defendant appealed, giving Hemby as his security in the recognizance.

This was trover brought by Robert Waggoner against Wm. Stone for a mule, determined in Independence, before Hon. Wm. Conway B, then one of the Circuit Judges, in February, 1846. The cause was tried by a jury upon the plea of not guilty. The plaintiff proved by Noland, that he, in the winter of 1844-5, sold the mule to plaintiff, for $50, paid by cash and note: at the sale one Henton had the mule in possession and to whom witness had lent him.

Eeeoe to Monroe Circuit Court. The action, in this case, was in covenant, returnable to March term, 1838.

Motion to affirm decree in Chancery. This was a suit in Chancery, instituted in Pulaski Circuit Court, and heard before E. H. English, special judge, on the 15th June, 1846.

Assumpsit, determined before Hon. Wm. H. Sutton, in May, 1846. Davies & Gaines sued Costar & Harvick; the declaration containing the common indebitatus counts. The cause was tried by the court sitting as a jury, upon the plea of non assumpsit; and a verdict for plaintiffs for $555 92.

This was an action of assumpsit, instituted by Williamson against Alonzo C. Sadler, and Matthew T. Logan. The declaration contained three counts.

This was an application to this court for mandamus to Rives, the sheriff of Chicot county, to compel him to receive in payment of the county taxes due from the petitioner, the scrip or warrants issued by the county in payment of its own debts*. The facts sufficiently appear in the opinion of the court.

Kuykendall brought his action of debt against Gilbreath, by a declaration in the usual form upon a money bond, in every way technically and strictly correct. At September term, 1839, the record states, the defendant craved oyer of the writing sued on, which was granted by filing the original. He then demurred upon the record to the declaration, stating no special grounds of demurrer.

This was an indictment found in Crawford Circuit Court, and de - termined before the Hon. R. C. S. Brown, one of the Circuit Judges, in August, 1845.

Writ of Error to Crawford Circuit Court. Debt, determined in the Crawford Circuit Court, in March, 1844, before the Hon. Wm. W. Floyd, Special Judge. The declaration was upon a note payable to the R. E. Bank, and by it endorsed to the plaintiffs,’ proferí of the note was made, but no proferí of the endorsement.

EkRok to Lawrence Circuit Court. This was an action originally commenced before a justice of the peace, and by appeal taken up to the circuit court. The facts disclosed in the bill of exceptions show that Jeffrey and one Bagley agreed to bet -a saddle upon an election thereafter to take place, and being in the store of Ficklin and Bennett, inquired of Bennett the price of a saddle, and were informed by him that the price was $24 00.

Writ of Error to the Circuit Court of Pulaski County. Debt, by the Bank of the State of Arkansas against the Mayor and Aldermen of the city of Little Rock, determined in the Pulaski Circuit Court, in May, 1846.

Scire facias sued out by McCullough against Charles Caldwell and Wm. S. Lockert, to enforce a mechanic’s lien, determined in the Saline Circuit Court. The case has been to this couit before. See McCulloughs. Caldwell, 5 Ark. Rep. 237.

Petition for Mandamus. At the January term, 1847, William E. Woodruff filed a petition to this court for mandamus against Fredrick W. Trapnall, Attorney General pro tem., in substance as follows: On the 28th January, 1840, the State brought an action of debt in the Pulaski Circuit Court against petitioner and his securities, upon his official bond as late Treasurer of the State, for the recovery of money alleged to have been received by him as such Treasurer, between the…

Isaac Taylor brought an action of covenant in the court below, against Abner Á. Hamilton, on a covenant, of which the tenor is as follows: Taylor has bargained and sold to Hamilton his pre-emption right to the fractional quarter he lives on, with all his improvements and appurtenances belonging thereto; which pre-emption right Taylor is to prove up according to law, as is allowed him under the act of 1829, and convey to Hamilton, his heirs or assigns.

The facts are stated in the opinion of the court. This is a bill filed by heirs for distribution of an estate. It is neither stated in the bill or proven in evidence that all the debts have been paid and the answers expressly show the contrary. This is a fatal objection and may be taken on appeal, and is good ground for reversal. Story’s Eq. PI. 76, 77, 102. Colburn v. Thompson, 16 Ves. 325. Hichock v. Scribner, 3 J. cas. 311.

On the twenty-third day of November, 1839, the appellee obtained judgment in an action of ejectment, in the circuit court of Chicot county, from which the appellant, on the same day, prayed an appeal to this court, which was granted, and a recognizance, with security, entered into for the prosecution of the appeal.

This was an action for breach of covenant, on bond, with penalty for the performance of the covenant.

The facts are stated in the opinion of the court. The bare statement of the facts in this case raises the presumption' of legal or constructive fraud on the part of the appellees, which would necessarily subject the ne-groes to sale under the appellant’s bill. That negroes were not real estate so as to be subject to the lien of the judgment under which Geo.

Eeeoe to Chicot Circuit Court. The defendant in error, on the thirtieth day of April, 1838, filed, in the office of the clerk of the circuit court of Chicot county, his declaration in debt, against the plaintiff in error, with an endorsement, signed by them, as follows: “We, David Clary and Albert W. Webb, the within defendants, do hereby acknowledge service of the within declaration, and waive the necessity of any process issuing thereon.

EkroR to Pulaski Circuit Court. This was an action of debt, upon a note executed to Ann L. B. Byrd, in her life time. Held: that when a promisary note or bond is given to one, as executor or as administrator, though given to him as expressly such, he must declare on such a bond or note, in his own name; and so strong is this rule, that the executor or administrator cannot join a count on such note or bond made to him as executor or administrator, to a…

Motion to affirm Decree. The complainant^ John A. Jordan, filed bis bill in the Circuit Court of Arkansas county, sitting in chancery, against Thomas H. Tindall and others. The case proceeded to final hearing, and a decree was rendered in favor of the complainant, from which the defendant, Tindall, appealed to this court; but no recognizance was entered into to suspend the execution of the decree.

This was a bill in chancery, filed in the Circuit Court of Hemp-stead county, by William B. Ragsdale and others, against Joseph Stuart and others, determined at the May term, A. D. 1846, before the Hon. John 0. Hightower, Special Judge.

This was a bill in chancery filed in the Circuit Court of Pulaski county, by Mary Ferguson, as widow, and Moses Ferguson and others, as heirs of Joseph Ferguson, deceased, against Benjamin Blakeney and the heirs of Sampson Gray, deceased, and determined at the November term, A. D. 1845, of said court, by the Hon. John J. ClendeniN, Judge.' The bill states that, on-the 5th day of November, 1827, the then sheriff of Pulaski county, in the then Territory, now State, of…

This was an action of debt instituted by “ Henry A. Engles, Sheriff and Collector of the revence for the county of Independence,” against Day and others. The declaration alleged that on the 28th of June, 1839, the defendants brought into the county of Independence, a stock of merchandise worth $10,000, but did not report the same to the Sheriff for taxation^ and claimed eight hundred dollars, as the tax upon the stock of goods.

This cause was determined at the April term, A. D. 1846, of the Pulaski Circuit Court, before the Hon. John J. Clendenin, Judge, on a bill in Chancery, filed therein by Aaron N. Sabin, as adm’r. of Belding, v. Richard C. Byrd, and on.cross bill filed by Byrd v. Sabin, as adm’r. The Circuit Court rendered a decree in favor of Sabin, as administrator, from which Byrd appealed to this court.

This was an action of debt instituted upon two obligations and one note, in which the defendant recovered against the plaintiff's intestate, the aggregate amount of the several writings, with damages equal to the interest which had then accrued upon them. The declaration counts separately upon each instrument, one of which is for the sum of twenty-one dollars only.

This was a bill filed by the appellant, to foreclose a mortgage, and determined at the October term, A. D. 1846, of the Sevier Circuit Court, before the Hon. .loi-iN O. Hightower, Special Judge.

<p>A special judge appointed by the Governor, to sit in a certain court, in cases where the regular judge is incompetent to sit, cannot hold a special term; and all proceedings had before him at such a special term,are coram non judice.</p>

Woodruff, given by him as Treasurer of the State, with the other plaintiffs in error, as securities, dated October 27,1836. Breaches were assigned in the declaration according to the statute.

Motion by Jordan to docket the case of Thomas H. Tindall v¡ John A. Jordan, on appeal from the Circuit Court of Arkansas county, in chancery; and thereupon to affirm the decree of said court, or dismiss the appeal, for the failure of the appellant to prosecute his appeal, or assign errors within the time prescribed by law.

This was a bill filed by Bettison, against Jennings, for an injunction to stay the execution of a judgment at law, and determined in the Circuit Court of Pulaski county, at the October term, 1845, before the Hon. John J. Clendenin, Judge.

Bill by the heirs and administrators of William B. Patton against Chester Ashley, determined in the Circuit Court of Chicot county, at the November term, 1845, before the Hon. William H. Sutton, Judge.

Writ of Eiror to the Circuit Court of Pulaski county. This was an action of detinue in the Circuit Court of Pulaski county, by Isham Harrison against John Y. Lindsay, determined before the Hon. John J. Clendenin, Judge, at the May term, 1845. The case was submitted to a jury, who returned a special verdict, the material part of which is copied in the opinion of the court.

This was an action of debt. The original process was returnable to the December term, 1839, of Independence Circuit Court, at which time, as appeared by the record, the suit was tried and determined by the Hon. Joseph M. Hoge, Judge of the fourth judicial circuit, who had interchanged ridings with the Hon. Lewis B. Tully, Judge of the third judicial circuit, in which latter circuit the county of Independence is included.

This was intended to be a proceeding by scire facias against the appellant and one George A. McDaniel, as securities for one Natin, who had been indicted for larceny, in Saline Circuit Court.

This was an action of Trover, brought by Charles McLarren and Eliza McLarren, against Elizabeth Thurman, and determined in the Circuit Court of Washington county, on the 8th day of June, 1846, before the Hon. Sebron G. Sneed, Judge.

Motion to quash and set aside Writ of Supersedeas. The Circuit Court of Pulaski county, on the 8th day of March, 1841, the Hon. JohN J. CleNDEotn, Judge, presiding, rendered judgment on motion on a forfeited delivery bond against John R. Barkeloo, Henry F. Shaw, and Lorenzo Gibson, and Richard Coulter, their security, in favor of George C. Miller.

This was a proceeding by sci. fa. on a recognizance. The writ of scire facias sued out in the name of the State, after reciting that “whereas, at the term of the circuit court of Franklin county, holden on the first Monday in March, 1839, Samuel Wakard, defendant in an indictment for larceny, being solemnly called, appeared not; it was considered by the court that the State of Arkansas have and recover of and from the said Wakard and Blackwell, the sum of seventy-five…

Writ of Error to the Circuit Court of Pulaski county. This was a writ of scire facias to revive a judgment in the name of William Rainey, as administrator de bonis non of Manly Munson, against Isaie Alexander, and Absalom Fowler, and determined in the Pulaski Circuit Court, at the April term, 1846, before the Hon. John J. Clendenin, Judge.

Eiíror to Pulaski Circuit Court. Campbell complained of Manuel, in covenant.

<p>Writ of Error to the Circuit Court of Pulaski county.</p> <p>. This was an action of covenant, instituted by James W. Finley, as adm’r of Allen M. Oakley, against William E. Woodruff, and determined in tbe Pulaski Circuit Court,on the 18th Nov. 1848, before the Hon. JohN J. CleNtkeNin, Judge.</p> <p>The declaration contains two counts: The first sets out a covenant entered into on the 26th day of August, 1834, between the plaintiff’s-intestate, and .the defendant, which recites, that William Neal is entitled, under an act of Congress, to a donation of land not exceeding two quarter sections; that he has proved his right to the donation at the Land-office at Little Rock; that he has, by his bond or covenant, obligated himself to convey such lands as may be located by virtue of his right to a donation to Woodruff, his heirs and assigns, (and to do other matters in relation thereto, as by reference to the bond or covenant will appear), and that Woodruff obligates himself to convey a title to said lands to Oaldey; and Woodruff, in consideration of four hundred dollars paid to him by Oakley, binds himself, his heirs, &c. that Neal shall well and truly do and perform every article and clause of said covenant, to Oakley, his heirs, and covenants further,that a patent shall issue on the lands to be located by the donation to ■ Neal, and that Neal shall convey to Oakley a complete and perfect fee simple title to the lands that may be located; and further covenants that the donation claim is a legal and valid one, and that he is lawfully; entitled to locate therewith the quantity of three hundred and twenty acres; and further covenants, that if any further proof be necessary to establish said donation, that he will furnish the saqje at his own expense. The declaration then proceeds to assign as breaches of the covenant of the defendant, that Neal did not well and truly perform and do each and every article and clause of his covenant, but hath violated the same in this: that he was not justly and lawfully entitled to said donation; and in this: that said claim for donation was not law-. fully proven before the Land-officers at Little Rock; nor hath the said defendant kept and perform eds his said covenant, but hath violated the same in this; that the said donation claim of the said William Neal was not a legal and valid one, and that he was not entitled therewith to locate the quantity of 320 acres of land as aforesaid; and in this: that although additional proof was necessary to establish said donation claim, and was furnished by Oakley, and taken at the expense of two hundred and eighty dollars, of which the defendant had notice, yet he had not paid the same, but wholly failed to do so. The second count sets out a similar covenant and breaches, in every particular, except that the donation claim was purchased by the defendant of John Smoot.</p> <p>The defendant appeared and filed eight pleas — four to each count:</p> <p>1st. As to the first breach of the covenant, in the first count of the declaration, the defendant “says, that William Neal was justly and lawfully entitled to said donation, without this, that said William Neal was not justly and lawfully entitled to said donation,” <fcc.</p> <p>2d. As to the second breach of the covenant, in the first count of the declaration, he says, “ that said donation claim was lawfully proven up before the Land-officers in Little Rock, without this, that said donation claim was not lawfully proven up before said Land-officers at Little Rock,” &c.</p> <p>3d. As to the third breach in the first count, he says “that the donation claim of William Neal was a legal and valid one, and that he was entitled to locate therewith three hundred and twenty acres of land, without this," that said donation claim was not a legal and valid one, and that he was not entitled therewith to locate three hundred and twenty acres of land,” <fcc.</p> <p>4th. As to the fourth breach in the first count, he says “that no additional proof was necessary to establish said donation claim, nor was the same furnished by said Oakley, and taken at the expense of two hundred and eighty dollars, whereof the defendant had notice, without this, that any additional proof was necessaiy to establish said donation claim, and that the same was furnished by said Oakley,” &c.</p> <p>The 5th, 6th, and 7th pleas were similar to the 1st, 2d, and 3d; and applied to the breaches of the covenant set out in the second count. The 8th, is a denial that further proof was taken to establish the donation at a cost of two hundred, dollars to Oakley, as laid in the fourth breach of the covenant in the second count. "</p> <p>Tbe plaintiff entered bis demurrer, by consent, in short upon the record, but the court overruled his demurrer, and he then joined issue. The case was then submitted to the court, sitting as a jury; who found for the defendant, and rendered judgment accordingly.</p> <p>Pending the trial, the court decided that, under the issue joined to the first, second, and third pleas, to the first, second, and third breaches, of the covenants set out in each count of the declaration, the onus of proof was upon the defendant, who was bound to prove the validity of the donation claims, and that they had been proven up and allowed. The defendant excepted, and tendered his bill of exceptions, which was signed, and sealed by the court, and made a part of the record.</p> <p>The plaintiff moved for judgment non fybstante veredicto, but the court overruled his motion; he then filed his motion for a new trial, on the grounds: 1, That the court found contrary to law; 2, contrary to evidence; and, 3, that the court admitted incompetent testimony on die part of the defendant. The court overruled his motion, and he excepted, and obtained leave to file his bill of exceptions at a future day. He then filed a motion in arrest of judgment, and sets out for cause: 1st, That the pleading of the defendant admits the action of the plaintiff, and fails to set forth and show any matter sufficient in law to bar said action; 2d, That, in the record of this cause, nothing in bar of the action aforesaid of said plaintiff appears; 3d, That upon the matters appearing by the record of this case, the defendant is not in law entitled to judgment, &c. The court overruled his motion, and he excepted. The defendant thereupon filed his bill of exceptions to the order overruling his motion for a new trial, and set out all the testimony given on the trial.</p> <p>The testimony set out in the bill of exceptions, is in substance: That the defendant, to prove the issues on his part, offered to read in evidence the original affidavit and proceedings thereon of the Register and Receiver of the Land-office at Little Rock, in regard to the donation claims, first proving that they were the original papers. The. proof of die donation claim of Neal, is the affidavit of two persons, as to the settlement, &c., of Neal, and they also state that Neal is aged and diseased, which renders him unable to travel and attend in person. The affidavit purports to have been made before the Register and Receiver, both of whom sign the certificate thereof, and the endorsement, “confirmed 11th April, 1829.” The proof in relation to the donation of Smoot, was an affidavit of Smoot himself, and of one witness, and an affidavit as to the credibility of the witness. These affidavits purport to have been taken before the Register and Receiver, but the certificate is signed by the Register only; the endorsement, however, “examined and confirmed, the 2d of Feb’y, 1832,” is signed by both. The plaintiff objected to the reading of the affidavits and proceedings; but the court overruled his objection, and he excepted. The defendant then read in evidence a duly certified copy of “an extract of the abstract of settlers’ claims adjudicated at the Land-office at Little Rock, A. T., under the act of Congress of May, 1828, and January, 1829,” by which it appeared that both claims were “confirmed and allowed.” The plaintiff objected to this testimony also.</p> <p>The plaintiff then read in evidence the obligations upon which the suit was instituted, and the covenants of Neal and Smoot, referred to therein, and mentioned in the declaration. He then read in evidence duly certified transcripts of certain papers on file in the Land-office at Washington, in the State of Arkansas, whereby it appears that application had been made in due form of law to locate the claims at that Land-office, and that such application had been refused by the officers, and their reasons endorsed upon .the application, which were “because they were unwilling to act upon copies, when the originals were in existence, because they were not satisfied with tire proof; because they had no acquaintance with the claimants; and because they had no knowledge whether the claims were founded in fraud or not.” He then read in evidence two letters of the defendant, in relation to the claims, and the causes of their rejection by the Land-officers at Washington; one dated 24th March, 1838, and directed to the plaintiff’s intestate; the other dated 31st August, 1840, directed to the plaintiff; by which it appeared that the defendant had notice of the rejection of the claims by the Land-officers at Washington, and that they had not sufficient proof of the claims to authorize the location of the lands at that office. He also read the testimony of the then Register of the Land-office at Washington, showing that application had been made to locale the lands, at such office; and that the application had been refused for the reasons above stated, as endorsed upon the application.</p> <p>The plaintiff sued out a writ of error, and brought the case into this court for revision, and assigns for error the overruling of his objections to the testimony offered by the defendant; the refusal of the court to render judgment for the plaintiff, notwithstanding the verdict; the overruling his motion for a new trial, and his motion in arrest of judgment.</p> <p>The plaintiff submits the following statement of points presented by the record and assignment of errors, and authorities upon which they rely for the reversal of the judgment in this case, to wit:</p> <p>Upon the issues joined the onus of proving the validity of the donation claims in question, and that Oakley could locate them on lands in the Red River I/and District at the Land-office at Washington, was upon the defendant; who, to prove their validity, produced only certain affidavits and the endorsement thereon, and an “extract from the abstract of settlers’ claims, adjudicated at the Little Rock Land-office, A. T., under the act of Congress of May, 1S28, and Jan’y, 1829,” without proving, or offering to prove, that any application had been made at the Land-office at Little Rock to enter or locate lands in the Arkansas Land District; without which, said Register and Receiver were not authorized by law to administer any oath, or take any affidavit, touching the said claims to donations of land; nor any jurisdiction to adjudicate as to the right of either Neal or Smoot to a donation of lands, so as to confer upon them the right to enter or locate lands situated in any other Land District, by virtue of such illegal adjudication. But the whole proceeding as proven, was coram non judice, and void. Act 10 May, 1800, Land Laws, U. S., Vol. 1, p. 456, s. 4, 7; Act 26 March, 1804, ib. 496, s. 2; ib. 720, s. 1, 3; ib. 770, s. 2, 6. Matthews v. Mane’s Lessee, 5 Omnch 92. Matthevjs v. Zone et al., 7 Wheat. 164. Act 29 May, 1830, as to the proof of pre-emption, s. 3. Land Laxos, U. S., Vol. 2, 272; also ib. 364. Act, May 24, 1828, s. 8, 9, ib. 233, expressly in point to this question, authority to take proof expressly confined to officers to whom application is made to enter land.</p> <p>The testimony respecting the claim of Smoot, purports to have been sworn to before the Register only; which is wholly unauthorized by law. Act, 24 May, 1828, s. 9, Land Laws, U. S. 233. Fulton, Robb et al. v. Doe ex dem. McAfee, 5 Hoivard (Miss.) R. 751.</p> <p>The testimony respecting the claim of Neal purports to have been sworn to before the Register and Receiver both. There was no affidavit of the claimant as required by law, and the instructions issued to the Land-officers in pursuance of law. Yol. of Opinions, &c. 527.</p> <p>The paper purporting to bo an “extract from the abstract of settlers’ claims adjudicated at the Land-office at Little Rock, A. T., under the act of Congress of May, 1828, and Jan’y, 1829,” was incompetent to establish the validity of said donation claims, because: 1st, . It is not the best evidence of the adjudication (if there ever was one) in favor of Smoot and Neal, for it does not show how much or what lands they claimed or were entitled to take from the public domain; 2d, Said abstract is but secondary evidence of the facts stated in it, is founded upon an adjudication of Land-officers at Little Rock, whose sale, if ever made, is necessarily of record in their offices, and their record constitutes the primary and best evidence of the fact; 3d, This paper, on its face, is but an extract from and part of a record; therefore, by law, inadmissible for any purpose whatsoever.</p> <p>The Register and Receiver of the several Land-offices of the United States have jurisdiction to sell and appropriate, in the manner prescribed by law, any of the public lands of the United States situated within the territorial limits of their respective Land Districts — and, upon application made to them, to purchase or appropriate any specified portion of said lands, are bound to adjudicate upon the application, and, if the party is lawfully entitled, to sell or allow him to take them. But, without such application, they have no jurisdiction whatever to receive any proof whatever, nor to malee any adjudication as to the right of any party to purchase or locate any of the public lands. Nor can the Register and Receiver for one Land District sell or appropriate any lands situated in another district, or receive the application for the sale or purchase of lands in another district, or take any testimony or adjudicate any question in relation thereto, so as to bind the Land-officers in any other district. Matthews v. Zane et al., 7 Wheat. 164.</p> <p>The motion for a new trial ought to have been sustained, the record showing affirmatively: 1st. That the court received illegal testimony on the part of the defendant, and upon such illegal testimony, and no other j found for the defendant upon the issues joined upon the pleas to the 1st, 2d, and 3d, breaches; 2d. That application was made to the Register and Receiver of the Land-office at Washington, to locate certain lands situated in the Red River Land District, with - said claims, and that, upon such application, said Land-officers adju--dicated upon said claims, denied their right, and refused to allow any lands in virtue of said claims, and thus adjudicated said claims invalid, which adjudication remains in full force, and establishes the fact that Neal and Smoot were not entitled to a donation of the public land upon said claims; wherefore the finding of said court, upon the issues, was contrary to and unwarranted by the testimony; And, 3d. That the court, on the trial, admitted illegal and incompetent testimony on the part of the defendant, as shown above, wherefore the court erred in overruling and refusing the motion for a new trial filed by the plaintiff in error. Mays 6/ Meeks v. Johnson & Clark, 4 Ark. Rep. 613. Logan v. Moulder, 1 Ark. Rep. 313.</p> <p>The court erred in not rendering judgment for the plaintiff, notwithstanding the finding a verdict for the defendant, because no issue capable of trial was formed by the pleadings. Neal and Smoot respectively covenant “that they are justly and lawfully entitled to a donation of 320 acres of land, that their said claim was lawfully proven before the Land-officers at Little Rock,” &c. The principal breach assigned by the plaintiff, is to the effect that neither Neal or Smoot were justly and lawfully entitled to a donation, <fcc.; that their respective claim was not lawfully proven up before the Land-officers at Little Rock; that their respective claim is and was not a legal and valid one; nor were they respectively entitled lawfully to locate therewith the quantity of 320 acres each of land, &c. The pleas assert, in substance, as inducement to the supposed traverse, that, said Neal and Smoot respectively were “justly and lawfully entitled to said donation, without this, that they were not justly and lawfully entitled to said donation, as is in said first breach alleged,” (fee., concluding to the country. All the pleas being constructed in like manner — opposing a negative to the negative assigned in the declaration — that is, the plaintiff alleges that Neal (for instance) had no valid donation claim —and the defendant alleges by way of inducement that Neal had a valid donation claim, and makes his traverse “that Neal was not justly and lawfully entitled to said donation claim,” <fcc., which manifestly opposes the negative, “that Neal was not justly entitled,” to the negative in the declaration that Neal had no valid donation claim, and was not justly and lawfully entitled to a donation claim, &c., and forms no issue triable. So that, the breach of covenant assigned in the declaration stands unanswered, unavoided, and without negative or traverse; and judgment for the plaintiff ought to have been given upon the declaration, as if there had been no attempt to plead to or answer it. Stephens' PI. 97, 385, 386, 218, 230, 233 to 236, 169, 184 to 189, 175, 176.</p> <p>. And for the same reasons judgment on the verdict or finding for said defendant — as upon issues answering the action, when in fact there were no such issues — ought to have been arrested on the motion of the plaintiff.</p> <p>A motion for judgment non ob-stante veredicto upon a traverse is something new in the law! such a motion can be sustained only where the plea confesses the cause of action, and wholly fails to show an avoidance. A judgment of that kind is entered only in very clear cases, where there can be no doubt that the party against whom the issue was found, is, upon the whole record, entitled to judgment: for example, where a plea in bar confessing a good declaration is clearly frivolous, or so totally destitute of substance as to constitute no semblance of a legal defence. The judgment in such case is given as upon confession (the right of action being in law confessed by the plea), without regard to the verdict. Gould's PI. ch. x, sec. 46, and the authorities there cited; Stephens’ PI. p. 97; 1 Sound. Rep. 319, c. n. c.; 2 Tidd's Prac. 828.</p> <p>These authorities conclusively show that such a judgment can only be rendered in cases where the plea is by way of confession and avoidance, and that, in the very nature of the thing, it is utterly impossi-sible that such a judgment could be entered in case of a traverse. It may be objected, that the pleas are negatives pregnant, but still the motion cannot prevail, because, on issue joined, a negative pregnant is aided after the verdict by Stat. 32, Hen, 8, c. 30. 3 Saund. R. p. 319, note 6; Gould’s PI. ch. 6, sec. 34; and it has been repeatedly held by this court, that our statute of jeofails is equally as broad as, and cures all defects cured by, the several statutes of England. Martin & Van Horn v. Webb, 5 Arle. Rep. 73.</p> <p>It may be urged, that the pleas are argumentative; that the defendant, instead of denying that the claim was not lawfully proved, &c., should have affirmed that it was lawfully proved. This objection, if taken at the proper time, would have been tenable. Stephens’ PI. p. 387, but the objection comes too late, and has been waived. Argumentativeness in pleading is cured by verdict, or on general demurrer; for such defectiveness is not in the matter pleaded, but in the manner of pleading it, and i? therefore only a fault in form. Gould’s PI. ch. 3, sec. 30. Com. Dig. tit. Pleader (E. 3); 1. Saund. R. 274 (n. 1.) J. John. R. 314.</p> <p>The last proposition disposes of the motion in arrest of judgment, because, if the defects are aided by verdict, the motion in arrest comes too late. Did not the motion in arrest waive the motion for a new trial? Danley v. Robbins’ heirs, 3 Arle. R. 114; Cunningham et al. v. Bell et al., 5 Mason’s C., C. R. 173; Corlies v. Cummins, 5 Cowen 415; 1 J. R. 192; Wilsop, v. Foiolei', 3 Arle. Rep. 463; Bedford’s Ad’r v. Ingram, 5 Haywood ( Penn.) Rep. 160; 2 Penn. Rep. 240.</p> <p>There can be no question in tliis case but what die Register and Receiver at Little Rock actually allowed and confirmed both of these claims. If the act of-Congress conferred this power upon them, and they acted within their proper sphere, and did not exceed the jurisdiction thus given, their acts arc conclusive upon all parties, and cannot be questioned collaterally, either by a co-ordinate tribunal or by any court of justice. Wilcox v. Jackson, 13 Peters’ R. 490.</p> <p>The act of the 24th May, 1828, gives the Register and Receiver power, and establishes them to be the proper tribunal, to decide upon these claims, 1 Land Latos, p. 450; and having such power, their decisions are conclusive. Nicks'1 heirs et al. v. Rector, 4 Ark. Rep. 490. When we establish that they had jurisdiction of the subject matter, it is enough for our purpose, because, although their proceedings may be irregular, and they may have grossly erred, still their decision is conclusive until reversed. Elliott v. Perisoll et al., 1 Peters Rep. 340. The act of Congress conferred the jurisdiction, and the Commissioner prescribed the mode or manner in which drat jurisdiction should be exercised. A disregard or departure from the instructions might render the decision erroneous, but not void. For example, our constitution defines the powers of the several courts, and the legislature prescribes the mode of proceeding, but if a court has jurisdiction over the person and subject matter, tire judgment will not be void, although the mode of proceeding prescribed by statute may be disregarded. No adjudication, unless absolutely void, can be questioned collaterally.</p>

Eeeoii to Hempstead Circuit Court. This was a suit brought by E. J. Reed against the plaintiff in error, by petition and summons, to the April Term of the Hempstead Circuit Court, A. D. 1840.

On the 14th .day of February, 1840, Richard C. Hawkins presented to the Chief Justice and one of the Associate Judges of the Supreme Court, his petition, supported by affidavit, for a mandamus, in substance as follows: “Your petitioner, Richard C. Hawkins, in his capacity of administrator, with the will and codicil annexed, of Alexander Burton, dec’d, represents, that the said Alexander Burton having heretofore departed this life, testate, and having, by his last will and…

This was an action instituted in the Circuit Court of Jefferson; by A. Yell; Gov. cfcc., against Medicus R. T. Outlaw; Grant T. Fanning and Mary his wife, late Mary Fugate, Abraham Dardenne-, Ignace Bogy and Joseph Bonne, on the administration bond of Outlaw and Mary Fugate, as administrators of Joseph Fugate, and determined at the April term, 1846, before the Hon. William H. SuttoN,' Judge.

EkRok to Pulaski Circuit Court. This action was commenced by the defendant against the plaintiffs in error, by writ of attachment, issued by a justice of the peace, bearing date the 26th day of November, 1838, returnable to the nest term of the Circuit Court of the county of Pulaski. The sum sworn to and demanded by the defendant in error, as set forth in the writ, is three hundred and eighty-nine dollars and fifty-seven cents.

■ This was an action of forcible entry and detainer, under the Statute, brought by Josiah F. Horen and James B. Simpson, against Rebecca L. Fleeman and lames M. Leggett, and determined in the Franklin Circuit Court,, at the August term, 1846., before the Hon. Richard C. S. Brown, Judge. The writ was executed, and the plaintiffs put in possession of the improvement for which the suit was brought.

Writ of Error to the Circuit Court of Pulaski county. This was an action of assumpsit, brought by Turner and Woodruff, against Conway and Reyburn, in the Circuit Court of Pulaski county, and determined at the April term, 1846, before the Hon. John J. Clendenin, Judge. The suit was brought for a bill of goods, sold by the plaintiffs, who were merchants, trading in New-Orleans, to the defendants, and shipped, upon their order, to Little Rock.

This was a suit brought in the Circuit Gourt of Johnson county, by William S. Swigart, against Thomas Powers, and determined on the 4th day of Sept., 1846, before the Hon. Richard C. S. BrowN, Judge. The defendant filed a plea in abatement, as set forth in the opinion of this court] the plaintiff moved to treat the plea as a nullity, and the court sustained the motion. The defendant declining to plead over, judgment was rendered against him, and he appealed to this court.

During the present term, the Sheriff was fined five dollars, fbr not being in attendanee when it was required in the execution of an order of the Court. On the same day, an application was made by him to remit the fine, in support of which, he made an affidavit that his absence was but momentary, and occurred in the discharge of his official duties, and that said absence did not occur in neglect or disregard of his duties to said Court.

In chancery. Clements filed his bill in Phillips Circuit Court, to November Term, 1835, and by it alleged: That about September, 1829, he, having occasion for money, applied to S)lvanus Phillips to lend him the same, and Phillips then lent him $400; that to secure the re-payment thereof, Clements executed to 'Phillips an instrument in writing, purporting to be a bill of sale for four slaves, who are named, of the value of about $1500: that at the particular request of…

Writ of Error to the Circuit Court of Pulaski county. This was a scire facias to enforce a mechanics’ lien, issued by-Mark Rogers, against James Phillips and Mary Phillips, his wife, and determined in the Circuit Court of Pulaski county, on the 20th June, 1844, before the Hon. John J. Clendenin, Judge. Issue was made up and the cause submitted to a jury, who found for the defendant.

Writ of Error to the Circuit Court of White county. This was an action of covenant, brought by Washington Smith, against James Bird, and determined in the Circuit Court of White county, on the 13th day of October, 1846, before the Hon. William H. Feild, Judge.

Writ of Error to the Circuit Court of Union county. This case was determined in the Circuit Court of Union county, at the May term, 1844; and was removed into this court by writ of error. The facts relied upon for a reversal of the judgment, appear in the opinion of the court. The record and assignment of errors present in this case a single point; that is, whether, in the absence of any express consent of the parties thereto, a jury can consist of 11 persons only.

Writ of Error to the Circuit Court of Pulaski county. This was an action of debt, brought in the Circuit Court of Pulaski county, by George H. Bentley, against Absalom Fowler and Samuel D. Blackburn, and determined at the October term, 1846, before the Hon. John J. Clendenin, Judge.

Writ of Error to the Circuit Court of Pulaski county. This was a suit instituted by the State of Arkansas, for the use of Isaac Browning, against James Lawson, on his official bond as sheriff of Pulaski county; and determined in the Circuit Court of said county, at the October term, 1846, before the Hon. William H. Feild, Judge. The declaration sets out the bond and condition; and assigns two breaches of the condition.

This was an action of covenant, brought by Benjamin Johnson and James Clark, against Daniel Mays and John Meeks; and determined in the Circuit Court of Benton county, at the May term, 1846, before the Hon. Sebron G. Sneed-, Judge. An appeal from the judgment of the Circuit Court of Benton county, in a suit upon the same covenant, was decided at the July term,-1842, of this court; vide 4 Ark.

<p>Error to Crawford Circuit Court.</p> <p>On motion to quash the Writ or Error:</p>

Motion to set aside and quash a Supersedeas. This was a motion filed in this court, at the January term, 1847, to set aside and quash a supersedeas which had been previously granted to an execution in the hands of the sheriff of Pulaski county, by Chief Justice Johnson, in vacation. The facts appear in the opinion of the court. The supersedeas was granted in this case upon the erroneous supposition that a levy upon land or personal property is a satisfaction.

This was an action of debt, by Ford & Co., against Sumner. Held: that an averment of demand was unnecessary; that the time and place of payment were merely modal, forming no essential part of the contract; that it is incumbent on the defendant, whether the payee was at the time and place appointed, or not, to show, in his defence, that he was there, ready and willing to pay, and that the payee did…

'Writ of Error to the Pulaski Circuit Court„ filed a motion to quash the writ of error. The facts are slated by the court.

<p>In an indictment for rape, it seems that the words “feloniously” did “ravish” and “carnally know, forcibly and against the will” of the female, are necessary.</p> <p>In an indictment for an assault with intent to commit rape, the words did “assault,” &c., with air “intent,” &c., “feloniously'” to “ravish” and “carnally know, forcibly against the will,'” &c., are necessary.</p> <p>So an indictment charging that defendant “did feloniously attempt to commit a rape on me E. C.,” &c., without the other necessary technical words, is bad.</p> <p>On the trial for an assault with intent to commit rape, the prosecutrix deposed that “she awoke in the night and on extending her hand felt some person over her in the act of committing a rape — when she touched him he sprang from the bed,” &c., &c. Held that this testimony did not establish the corpus delecti: that the witness swore to a conclusion, whereas she should have stated the facts and circumstances, leaving the conclusion to the jury.</p> <p>In criminal cases, the venue must be proved as laid.</p>

Writ of Error to Hempstead Circuit Court. Action of trespass vi et armis brought by John Spear against Lewis Huddleston, in the Hempstead Circuit Court, and determined in Nov. 1846, before the Hon. George Conway, Judge.

Ekeok to Pulaski Circuit Court. This was an action of assumpsit brought by Dickinson vs. Field. The defendants pleaded non assumpsit and actio non accrevit within five years next before the institution of the suit. To this plea, Dickinson replied, that, when the causes of action accrued, he was beyond seas, to wit: beyond the limits of this State, and so had thenceforward ever continued to be, and then was, beyond seas. To this replication the defendant demurred.

The plaintiff below placed on the files a paper, purporting to be a declaration in debt. It was not signed by any attorney of the Court, nor by the plaintiff- in his proper p’erson. Upon the return of the writ, the defendants moved to strike the same from the rolls of the Court, upon the ground that it constituted no part of the record.

Writ of Error to Pulaski Circuit Court. This was an action of debt brought by the Bank of the State of Arkansas, against William D. Ferguson, George ftedman, Francis B. Need, and Wiley Lewis, and determined in the Circuit Court of Pulaski county, at the April term, 1846, before the Hon. John J. Clendenin, Judge.

This was an action of debt, upon a judgment of Christian Circuit Court, in Kentucky, brought by Bell & Graham against Hon. Charles Caldwell, who was, at the time suit was brought, Judge of the Pulaski Circuit Court. The record showed that the cause was tried before the Hon. Samuel H. Hempstead, commissioned as Special Judge, on account of the regular Judge being a party to the suit.

On Petition for Mandamus. At the July term of this court, 1847, Garret Williamson filed a petition for mandamus to the judge of the Hot Spring Circuit Court. The petition and transcript filed with, and made part of it, show the following facts: On the 27th April, 1846, John C. Hale brought an action of unlawful detainer, in die Hot Spring Circuit Court, agaifist Williamson, for possession of some improvements' situated in the valley of Hot Springs.

<p>The county of Pulaski, as well as every other county in this State, is bound to pay for • the board, nursing, medical and burial expenses, of any person who falls sick or dies within its limits, if he have not money or property to pay therefor.</p> <p>When such expenses have been incurred, the proper county court is bound to make such allowance therefor as may be just.</p> <p>Such county court must exercise a legal discretion as to the amount to be allowed, but is imperatively bound to exercise jurisdiction of the matter, and adjudicate the case.</p> <p>If it refuse to make any allowance, the expenses having been confessedly incurred, it will be compelled to do so, by mandamus.</p> <p>The corporation of Little Rock is not, under any circumstances, responsible for such charges.</p> <p>Where an inferior tribunal has a discretion, and proceeds to exercise it, that discretion cannot be controlled by mandamus; but if it refuses to act or exercise the discretion, a mandamus lies, to put it in motion.</p>

Writ of Error to Jefferson Circuit Court. Assumpsit by William Spears against Creed Taylor, determined in-the Jefferson Circuit Court, at the April term, 1847, before the Hon. Wm. H. Feild, Judge. The cause has been to this court before f See Taylor v. Spears, 1 English's Rep. 381, where the nature of the action, and the pleadings to that time, are stated in the opinion of the court. .

Erk'or to Pulaski Circuit Court. This was debt on a nóte. In the transcript sent up, the Clerk had attempted a fac simile of one of the words used in the declaration in stating the amount of the note, so that, from the transcript of the declaration alone, the note appeared to be for some hundreds of dollars, bat for how many, it was impossible to say.

Eeror to Chicot Circuit Court. This was an action of assumpsit, commenced in Chicot Circuit Court, at May Term, 1838. Held: that, since the practice has prevailed of not setting out the writ in the declaration, the only way in which the defendant could take advantage of a bad original, or a variance between the writ and Court, was by praying oyer, and setting out the writ.

At the October term., 1847, of the Oarroll Circuit Court, the grand jurors returned an indictment against Jackson A. Cox, charging that he committed an assault and battery on one James F. Crain, on the 10th day of December, 1846, in said county.

<p>The act of 16th Dec., 1846, conferring jurisdiction upon justices of the peace of assaults and batteries, &c., did not deprive the Circuit Courts of jurisdiction of indictments pending at its passage.</p> <p>It only declares that such offences shall not thereafter be indictable, and transfers jurisdiction thereof to justices of the peace, (a) </p>

Assumpsit, by attachment, determined in the Phillips Circuit Court, May term, 1846, before the Hon. Wm. C. Scott, Judge. The attachment was levied upon the goods of defendants, Gum-berts & Co., they gave bond, and the goods were released. At the return term, defendants entered their appearance to the aetion, demurred to the declaration, and filed exceptions to the affidavit made by plaintiffs on suing out the writ.

Appear from Conway Circuit Court. Murray sued Reeder in the Court below, and issued a writ of attachment. The writ being returned not served, he sued out an alias, which was executed; and Reeder gave bond and retook the property. At the return term, Reeder moved to quash the writ. His motion was overruled, and he making no further defence, judgment went against him.

Indictment for an assault with intent to commit murder, determined in the Conway Circuit Court, at the September term, 1847, before the Hon. W. W. Floyd, Judge.

.This was an action of debt. Tucker sued Byrd on a bond for one hundred and fifteen dollars. Byrd pleaded nil debel,. and a second plea of set-off, upon two notes; one for $105, given by Tucker to S. S. Sanger, and by Sanger endorsed to Byrd, on the 12th of December, 1840; and one for $37 50 cents, given by Tucker to R. C. Byrd, and by R. C. Byrd endorsed to the defendant, W. J. Byrd, on the 12th of December, 1840.

Writ of Error to Washington Circuit Court. Debt by the Bank of the State, against Lucius C. Pleasants, Henry E. Campbell and William M. Coats, determined in the Washington Circuit Court, in Pecember, 1845.

Writ of Error to Pulaski Circuit Court. The facts are stated by the court. A plea that a bond or note had been assigned by the plaintiff before the commencement of the suit, and that he, at that time, had no legal interest in it, is good in bar of the action. Block v. Walker, 2 Ark. Rep. 4. Dickerson et al. v. Burr, 2 Eng. Rep. 34. By endorsement the payee divests himself of the legal interest in the bill of exchange. Jordan v. Thornton, use of Mewborn, 2 Eng. Rep. 224.

Debt by petition as follows: “State of Arkansas, County of Phillips, ) j In the Circuit Court within and for said county and State — to the term to commence on the 3d Monday in May, A. D. 1847.

This was an action of assumpsit, instituted in the Pulaski Circuit Court,1 by Absalom Fowler, as an attorney at law, for $¡1000, his fee for defending Wilson, who was indicted, for the murder of Joseph J. Anthony, a member of the House of Representatives of this State, in tbe Hall, whilst tbe House was in session; the said John Wilson being at the time Speaker of the 'House.

Writ of Error to Washington Circuit Court. Replevin in the cepit et detinet, by Wilson against Town, for a mahogany bedstead, determined in the Washington Circuit Court, in December, 1845. Defendant pleaded, in abatement, that plaintiff sued out his writ withoutfiling the affidavit required by law, {Rev. Stat., chap. 126, s. 4), but did not swear to the plea. On motion, the court struck out the plea, and defendant excepted.

Writ of Error to Johnson Circuit Court. In July, 1846, Willamouizc presented to the Probate Court of Johnson county, for allowance, an account in his favor against John H. Strong, as administrator de bonis non, with the will annexed, of Lorenzo N. Clark, deceased, as follows: “To this amount of balance unpaid arising out of sale of goods by M. F. Sadler, under agreement of 30th October, 1843, $160,14.” Which account had been duly probated, presented to Strong for approval…

Trespass quare clausum fregit by James Yell against Thomas Smith, determined in the Jefferson Circuit Court, at the October term, 1847, before the Hon. Wm. H. Field, Judge. The defendant pleaded, first, not guilty, and second, title to the land in himself.

This was an action of debt. The declaration commenced, “John Kittlewell and William Boggs, partners, &c., complain of Hewes Scull.” It then averred the making of a certain note, by Scull, to Richard C. Byrd, and its assignment by Byrd to them, with a breach that neither the debt nor interest had been paid to Byrd before the assignment, nor to the plaintiffs afterwards.

Writ of Error to Hempstead Circuit Court. Hubbard brought an action of debt against Nelson and Bankhead, upon a forfeited delivery bond, to the August terra, 1847, of the Hempstead Circuit Court.

John W. Onstott instituted an action of debt, as assignee of David Fulton, on an obligation executed by the plaintiffs in error, to “David Fulton, Receiver for the estate of Kirkwood Dickey deceased, or order.” The declaration alleged, that Fulton, on the first day of January, A. D. 1837, by the description of “David Fulton, Receiver,” assigned the obligation to Onstott.

Writ of Error to Sevier Circuit Court. Stone & McDonald brought an action of debt against Bizzell, Hawkins and Hemphill, in the Sevier Circuit Court, and took judgment by default at the July term, 1847. The defendants brought error, and assigned for error that the return of the sheriff upon the summons showed no legal service upon two of the defendants.

<p>The slave of the Administrator’s intestate was taken sick: the mother of the slave, who belonged to another, called the physician who attended the intestate in his last illness, to see the slave: he attended him during his illness: the Administrator was. several times present, and saw the physician administering medicine to the slave:_ Held that he was liable for the physician’s bill — that having been present and witnessed the attendance of the slave by the physician, and made no objection, it did not lie in Ids'mouth to say he was not employed.</p> <p>Where the value of the services are not proven, the verdict can only be for nominal damages.</p>

Writ of Error to the Circuit Court of Hempstead County. In May, 1833, Nathaniel M. Motby brought an action of assump-sit, by attachment, against Edward Peacock, under the Territorial attachment law, and summoned Edward Cross as garnishee. A.t the May term, 1834, Motby took judgment against Peacock.

On Habeas Corpus. John C. Slattery, being held in custody by the City Constable iu Little Rock, upon a conviction before the Corporation Court, for using indecent language in public, upon which conviction he had been committed until the fine and costs should be ¡paid, obtained a habeas corpus from the Supreme Court.

Assumpsit, determined in the Johnson Circuit Court, September term, 1846, before Hon. ft. C. S. Brown, Judge. Declaration: “Isaac N. Robinson, assignee of James H. Jones, complains of said James H. Jones of a plea of trespass on the case.

Eekoe to Chicot Circuit Court. Brown obtained judgment against Webb at the November term of the Chicot Circuit Court, 1839, andón the 14th of January, 1840, had a writ o f fieri facias issued upon the judgment returnable to the May term, 1840; which was placed in the hands of the Sheriff, and on the 23d of April, was levied upon several of Webb’s negroes.

<p>Appeal from the Ouachita Circuit Court.</p> <p>On the 13th April, 1846, Hiram Smart sued Amos Wakefield, on a promissory note for $41 10, dated 5th Feb., 1835, and payable on demand, before a justice of the peace of Ouachita. Judgment for defendant, and plaintiff appealed to the Circuit Court, where the cause was tried in April, 1847, before the Hon. Geokge Conway, Judge. Wakefield relied upon the statute of limitations as a defence, the cause was submitted to the court, sitting as a jury, and judgment for Smart for the amount of the note. Wakefield moved for a new trial, which was refused, and he excepted and set out the evidence as follows:</p> <p>Samuel Moore, esq., deposed that he received the note sued on, for collection, some four years ago', and about a year afterwards presented it to "Wakefield for payment — he said it was a hard case, and he would not pay it until compelled by law. Witness presented it as coming from, and belonging to, Mr. Smart, Wakefield’s old friend of New York; to which Wakefield made no definite reply. Witness had received several letters from Smart, two of which he presented to the court, post-marked Nashau, New Hampshire, and received by mail. Witness had always understood from the Crosses, as well as from tacit admissions of Wakefield — from the letters received from Smart as aforesaid, and from general report of all knowing any thing about it, that Smart had never been a resident of the State of Arkansas — had never been in the State at all.</p> <p>Dews, another witness, deposed that he had known Wakefield since the spring of 1835 or 1836, and he had been a citizen of Arkansas ever since he first saw him.</p> <p>This is the substance of all the material evidence in the case.</p> <p>Wakefield appealed to this court.</p>

Writ of Error to Pulaski Circuit Court. In' January, 1846, Ebenezer Cummins, as administrator of William Cummins, deceased, filed a motion, in the Pulaski Circuit Court, to quash ail execution, and set aside the return thereon, and the sale made by virtue thereof, which had issued from said court to the sheriff of Phillips county, at the suit of Bently against said E. Cummins as such administrator, and under which slaves had been levied on and sold to Swain and Maddox.

<p>A judgment is not the determination and sentence of the Judges, but of the law.</p> <p>The style of it, therefore, is not “It is ordered,” or '‘resolved by the Court,” for then the judgment might be their own; but, “ it is considered,” which implies that the act is none of their own, but the act of the law, pronounced and declared by the Court, upon determination and inquiry.</p> <p>And if the words “ it is considered” are wanting, there is no judgment, and no appeal will lie.</p>

This was an action of debt, on a constable’s bond, brought in the name of the State, for the use of Sayle, against Roper, the constable and principal in the bond, and Coolidge his security, determined in the Phillips Circuit Court, at the May term, 1847, before the Hon. Wm. C. Scott, Judge.

EkroR to Independence Circuit Court. A writ of error issued in this case, dated June 30, 1841, returnable on the first day of July, 1841, issued and signed by the Honorable Townsend Dickinson, Associate Judge, without the seal of the Court. moved to quash the writ, because it was so issued.

The declaration contained two counts; the first upon a bond for the sum of $110 26; and the second, upon an account for $22 94.

Writ of Error to Pulaski Circuit Court. Assumpsit by Percifull against Anthony, for contribution as co-security of Royster, determined in the Pulaski… Held: hired out, &c., subject to the determination of the suit, and that the case was still pending. That, on the 19th March, 1847, plaintiff brought suit against Royster for the whole amount of said judgment so settled by him to the bank, as security as aforesaid, which suit was still pending in the Pulaski Circuit Court.

Writ of Error to Pulaski Circuit Court. Debt, determined in the Pulaski Circuit Court, in November, 1847, before the Hon. Wit. H. Field, Judge. Henry S. Wilson sued Ambrose H. Sevier, on a writing obligatory for $504 56, alleged in the declaration to have been executed by Sevier to Wm. Norman, of Indiana, by him assigned (by his agent, Rieley,) to McClelland, and by him endorsed to plaintiff.

Writ of Error to Independence Circuit Court. This was an action. of debt brought by Ringgold & Hynson, as surviving partners of the firm of Ringgold, Redman & Co., for the use of Simpson, against Dunn, determined in the Independence Circuit Court, in November, 1847, before the Hon Wm. C. Scott, Judge. The plaintiffs declared on a writing obligatory executed by defendant to them on the 7th January, 1.832, for $>253 26, due two months after its date.

Debt, determined before the Hon. W. W. Floyd, Judge, in the Madison Circuit Court, May term, 1847. The facts are stated in the opinion of this court. As Phillips and Titsworth never appeared to the action, and pleaded, so as to cure defects in the declaration, any error in the declaration may now be looked into, and the judgment reversed therefor, if sufficient. 1 Ark. Rep. 52, Gilbreath v, Keykendall. 3 Ark. Rep. 560, Rutherford et al. v. State Rank.

Debt, by writ of attachment. Galloway, the defendant, moved to dissolve the attachment, and that the property be restored, because ho sufficient bond was filed before issuing the writ. The Court sustained the motion, and gave judgment that the attachment be dissolved, and the property restored, and that the defendant recover the costs.

Writ of Error to Bradley Circuit Court. This was an action' of debt, by attachment, brought by Joshua Mewborn against Jatnes S. Jordan, and determined in the Bradley Circuit Court, at the April term, 1847, before the Hon. Wm. H. Feild, Judge.

Ekkok to Pulaski Circuit Court. Debt. Declaration against James L. Dawson, James Scull, sen., and William R. Gibson, judgment by default. The writ was well served on Dawson ; as to Scull and Gibson the return was, “Executed the within writ on the within named James Scull jr., and Wm.

This was an action of debt by the Bank of the State against John C. Ward, Reese B. Ward, and Augustus M. Ward, determined in the Washington Circuit Court, in November, 1847, before Sneed, Judge. The action Was founded on a promissory note alleged to have been executed by the defendants to plaintiff. The defendants filed a joint plea of nil debet in the usual form, verified by the affidavit of Augustus M. 'Ward, one of the defendants.

Appealfrom the Washington Circuit Court. Debt, by Keller, Adison, and Clendennen, late partners, under the firm name of Jacob Keller & Co., against John W. Wilson, on a promissory note, determined in the Washington Circuit Court, in June, 1847, before the Hon. W. W. Floyd, Judge. The pleadings are stated by this court.

The defendants in error commenced, in the Court below, their action of debt, by petition against Robert.B. Francis, by suing out a writ of attachment from the Circuit Court, dated the 27th of June, A. D. 1840.

Writ of Error to the Circuit Court of Pulaski County.- This was an action of trespass on the case, for false imprisonment, by James De Baun against Roswell Beebe, determined… Held: from Gilbraith v. Kuykendall, 1 Ark. 50, to the present time, that personal service upon the defendant is necessary to vest the Circuit Court with jurisdiction, or authorize a judgment by default; and in Pirani v. Barden, 5 Ark. 90, tin's was directly decided concerning the action of reple-vin. 3.

Ekeok to Independence Circuit Court. Judgment by default. The writ was issued and served under the Territorial Statute.

Ekeor to Hempstead Circuit Court. Philip P. Johnston, one of the plaintifls in error, was indicted in Clark Circuit Court, for shooting.

<p>When cases cannot by law be brought from the inferior Courts into the Circuit Court by appeal &c., the superintending control of the Supreme Court may, if necessary be executed for other objects and purposes, as well as in aid of their appellative jurisdiction.</p> <p>In either case it acts directly upon the tribunal: and if necessary to effect this object, the Supreme Court, or one of the Judges, may issue writs of error and supersedeas, certiorari, and habeas corpus, mandamus and quo warranto, or other remedical writs.</p> <p>Every act of a Court of competent jurisdiction shall be presumed tobe rightly done until the contrary appears: and this rule applies to every proceeding, from the institution to the final termination of the suit.</p> <p>Whoever would complain of the proceedings of a Court must do it in such time as is allowed by law. If he objects to the mode in which he is brought into Court, he must do so before he submits to the process. If he pleads to the action generally, all irregularities, provided the Court has jurisdiction of the subject matter, are waived, and the Court can decide upon the rights of the parties.</p> <p>The judgment is conclusive, unless it appears affirmatively upon the record, that the plaintiff has no title to the thing demanded, or, that in rendering judgment the Court has erred in law.</p> <p>So long as the judgment remains in force, the plaintiff has a right to process to execute it. And the errois of the Court can only be examined by an appellate power, within the time, and in the manner fixed by law.</p> <p>But this is upon the supposition, that, however erroneous the proceedings maybe, they are founded upon some notice, either express or implied: and, that the Court, having first lawfully gained jurisdiction, its exercise must be respected, until an appellate tribunal shall reverse or annul i ts acts.</p> <p>The powers of the Supreme Court are two-fold — ordinary and extraordinary. Ordinary —those general powers of adjudicating between parties upon matters in which the inferior Courts have, in the manner prescribed by law exercised their judgment and discretion; and where the judgments of these Courts are authorized upon the parties until reversed: Extraordinary or special — where an inferior Court has passed the limits of its jurisdiction, by either assuming powers not conferred by the Constitution, or by an exercise of judgment or discretion in a manner not recognized by, or in contradiction to, the Constitution and laws.</p> <p>The record, to bind the parties, must show, not only that the Court has jurisdiction over the subject matter and the parties; but that it has gained such jurisdiction, and exercised its powers, in conformity to law. The mode is an essential ingredient, indeed a condition on which the power depends. In such case the act is binding or nugatory, as it pursues the mode oris done in disregard of it.</p> <p>The boundary between an error in judgment, and the usurpation of power, is too broadly marked to be mistaken. The one is reversible, within a fixed time — the other is an absolute nullity, irreversible for error. An execution, issued on a judgment obtained without process or notice, is such a nullity.</p> <p>The powers of the Supreme Court are sufficiently broad and expansive to reach every case, and correct every illegal judicial process.</p> <p>An execution issued by a justice of the peace, on a judgment obtained without process or notice, is illegal; and may be arrested by a writ of supersedeas, which may be issued cither by the Supreme Court or one of the Judges.</p> <p>Where the order for a supersedeas directs the proceedings to be immediately stayed, the execution having been improvidently and illegally issued; and the writ only directs them to be suspended, omitting to set forth the facts, for reason of which they are to be stayed, it is a variance for which the writ will be quashed.</p>

Ekeoe to Hempstead Circuit Court. This was an action upon a bond, executed by the defendants to the plaintiff, dated April 22d, 1839,… Held: that a separate demand, due one of the defendants by the plaintiff, could not be set-off in a suit at law, against that defendant and another, for a joint debt, and that the defendant who was credited must bring his cross suit. The counsel was not hardy enough to dispute but that such was the law, but on all hands broadly admitted it.

The declaration complained of Taylor & Cotheal “of a plea of tresspass on the casef> Two counts allege as cause of action that Taylor & Cotheal had, without any reasonable or probable cause of action, maliciously caused their goods and chattels to be attached, and the third count was in Trover. The writ was only executed by summoning the garnishees. At the return term of the writ, an order of publication was made.

‘Debt. The original writ, as transcribed, has no judicial seal. The defendant moved to quash it, without specifying any reason. Motion overruled, and he demurred. Demurrer overruled. Judgment against him on the demurrer, and against the others by default. It is contended that the writ was illegal, because it had no judicial seal, and that it imposed no legal duty on the defendants to obey its mandate; and that the appearance of Thomas McG.

This was an application for a writ of error to the Corporation Court of the city of Liüle Rock, to bring up to this Court the proceedings upon a conviction for an affray, wherein Frail was fined twenty dollars, and committed until fine and costs should be 'paid. Writs of error are writs of right, and, at common law, lie upon all judgments of any Court of record. See Comyn Dig., title Plea, 3 B. 7, and references there cited.

This was an action of covenant. The declaration -alleges that Lasater, Clark and Thomas, the defendants, on the 5th of June, 1838, made their covenant with the plaintiffs; which covenant is there set out verbatim, and is to this effect: It is stated to be articles of agreement made between Joseph Stewart and the defendants, in Johnson county, Commissioners and Trustees for the county, of the one part, and the plaintiffs and one John James, carpenters, of the other part.

On Quo Warranto. A writ of quo warranto issued against Carey A. Harris, requiring him to show by what warrant he exercised the office of President of the Real Estate Bank. Held: that the plea was bad, in not proceeding, after stating the award of stock, to show notice thereof given by the board of managers, the election of directories and of a central board, and the organization of the bank by the election of President.

Covenant, bj Goulding. The instrument- on which the suit was founded, was in substance as follows: “Articles of agreement, áte.

On Quo Warranto. A writ of quo warranto issued, commanding the defendant to show “ by what warrant he claims to exercise, and exercises, the office of Judge, in a certain cause pending in our Circuit Court in and for said county of Pulaski, wherein William E. Woodruff is appellant, and Eliza B. Howell, administratrix de bonis non of the estate of William C. Howell, deceased, is appellee, being an appeal upon exceptions from our Court of- Probate in and for the said county of…

This was an action of assumpsit. Byrd complained that Cummins, having brought suit, as attorney for Sarah Chandler, in Pulaski Circuit Court, against Byrd as security for Alexander W. Cotton, together with John H. Cocke as security for Cotton, in an action of debt on a bail bond, became indebted to Byrd by credit allowed him on his accounts with Byrd, and by cash, in the sum of $350, made a certain writing, dated-April 11, 1832, and thereby acknowledged to have received of…