Volume 30 — Arkansas Reports

<p>1. Certiorari. The record is conclusive, etc.</p> <p>On certiorari the record is conclusive as far as it extends.</p> <p>2. Husband and wire. Confession of judgment between.</p> <p>A judgment by confession, rendered against a husband in favor of the wife, is void, and will be quashed on certiorari.</p> <p>3. Dower. Relinquishment of.</p> <p>A wife can only relinquish dower by joining the husband in a deed to a third person. The relinquishment cannot be made directly to the husband.</p>

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

<p>APPEAL from Prairie Circuit Court in Chancery.</p> <p>Hon. Jesse N. Cypejrt, Circuit Judge.</p>

<p>1. Appeal: Time for filing transcript in criminal cases. Waiver, etc.</p> <p>This Court -will not take jurisdiction of an appeal in a criminal cause where the transcript is not filed within sixty days after the judgment; and an agreement of the Prosecuting Attorney who tried the case to waive the time will not he regarded.</p>

<p>1. Criminal Jurisdiction: Is local.</p> <p>Under the provisions oí the Constitution of 1S74, the Legislature cannot invest a court with jurisdiction of crimes committed beyond the limits of the county.</p>

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

<p>1. Contbaot: A stranger-not liable for the failure of.</p> <p>Where two persons contract with reference to an event that is contingent upon the act of a stranger, the latter cannot be held liable for damages resulting from a iailure of the contract, though it may have grown out of his omission to perform the act upon which the contingency depended.</p> <p>2. Damasks: When too remote.</p> <p>A creditor who procures the debtor’s agent to pay him the money of his principal by promising to apply a part of it to certair indebtedness and to accept the draft of the debtor for the residue, and afterward refuses to accept the draft, but applies the money to other indebtedness of the principal, is not liable to the agent fbr loss of commissions and a debt which he would have secured by the performance of the promise to accept the draft. Such damage is too remote and speculative.</p> <p>3. Set oee:</p> <p>Unliquidated damages is not the subject of set off.</p> <p>4. Contbaot: Consideration.</p> <p>A promise will not be implied from the performance of that which the party was under a legal obligation to do, even though it may have been at the request of the party benefited.</p>

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

<p>1. Conveyance: Escrow.</p> <p>A deed to real estate deposited with a third person, to be delivered to the grantee on payment of notes executed by the grantees in consideration of the conveyance, operates as an escrow; and the conveyance thereof by the grantee, or sale under execution against him, prior to the delivery of the deed, is inoperative.</p> <p>2. Portion: Charge on land for payment of .</p> <p>Where a parent, in order to make provision for several children, executed a deed to real and personal property in favor of hi$ two sons, and deposited the same as an escrow to be delivered on payment by the grantees of certain notes executed by them to other children of the grantor for their portions, it was held that the' notes constituted a charge on the land, enforceable in equity,</p>

<p>1. Chancery Jurisdiction: To open a Settlement in the Probate Court for fraud.</p> <p>If an Administrator charges himself in settlement with the appraised value of the estate, while the sale bill returned by him shows that the amount for whieh the property sold exceeded its appraised value, or if he applies the money of the estate to the purchase of property in his own name and right, a Court of Chancery will open the settlement for fraud.</p> <p>2. Parties in Chancery: Sureties on an Administrator’s bond.</p> <p>In a proceeding in Chancery, to open the settlement of an Administrator for fraud, the sureties on his bond may be joined as defendants.</p> <p>3. Resujgtinq- Trust: Attaches to property bought with trust funds.</p> <p>Lands purchased by an Administrator in his own name with money belonging to the estate, are equitably the property of the estate.</p>

<p>1. Pasties. Capacity of county treasurer to sue collector.</p> <p>The county treasurer has capacity to sue the collector on his official Jiond for a failure to pay over money received by him at a delinquent tax sale, in excess of taxes, penalty and cost.</p> <p>2. Pbesumptions. In favor of officers.</p> <p>Every act required by law of an officer will be presumed to have been performed until the contrary is shown.</p> <p>3. CoIiIiEotoe. Payment to the County Treasurer of proceeds of delinquent tax sale.</p> <p>It is the duty of the collector to pay into the county treasury the sum received by him in excess of taxes, penalty and cost at a delinquent tax sale at once, and without waiting for a settlement with the county clerk, or demand by the county treasurer.</p>

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. W. I. Warwick, Chancellor.</p>

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

<p>1. Chancery Jurisdiction: Where the court having jurisdiction for one purpose may dispose of the whole case.</p> <p>When a Court of Chancery takes jurisdiction of a case for a purpose within its jurisdiction, it may, with the consent of the parties, retain it and dispose of the whole case.</p> <p>2. Waiver of objection to.</p> <p>Tf objection to the jurisdiction is raised in this Court for the first time, and there was any vestige of jurisdiction, the cause will not be dismissed.</p>

<p>1. Vendor and vendee. Purchase by vendee, at tax sale.</p> <p>A vendee in possession of land under a title bond, and those claiming under him after his death, as the widow in right of dower, the heirs at law, etc., are bound to pay the taxes, and cannot, either directly or indirectly, acquire title under a sale for taxes that accrued during the time they were bound to .pay them.</p>

Hon. William N. May, Circuit Judge. An insufficiency of first and fourth causes of demurrer, and defective nature of last clause of eighth cited. Civil code, sec; 112 ; Myers’ Codes (Ky.), p. 361 N. C.; 3 Metcalf, 61; 8 How., 177, 258. The second ground for demurrer is only ground for motion to strike out names of those improperly joined. See code, sec. 155; 17 B. Monroe, 602; 1 Duval, 84; 18 B. Monroe, 132.

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

Hon.--, Circuit Judge. The appellant. The demurrer being general, could only put in issue the jurisdiction as based upon the facts as they appear in the bill. Gantt’s Digest, section 4565. It admits the allegation of a lien. State v. Stephenson, 2d Ark., 260; Keith v. Pratt, 5 Ark., 661. This gives jurisdiction for want of adequate remedy at law. See Conway ex parte, 4 Ark., 303; Witter v, Arnett, 8 Ark., 57. Lien defined £d Bouvier’s L. Biot., 47.

<p>APPEAL from Lincoln Circuit Court.</p> <p>Hon. Read Fletcher, Special Judge.</p> <p>Cited and relied upon Constitution of 1868, art. 12, sec. 6; Gantt’s Digest, ch. 93, secs. 4193-94; Bush v. Vaught, 55 Penn. St., 437; JBrummet v. Weaver, 2 Oregon, 168 ; Schwrman v. Marley, 29 Ind., 458; Spaulding v. Lay, 10 Allen (Mass.), 96; Vreeland y. Vreeland, 1 Green (N. J.), 572; Buckley v. Wells, 33 N. Y., 518 ; Jennings v. Lavis, 31 Conn., 134; Kirkpatrick v. Buford, 21 Ark., 268. The act of 28th April, requiring registration, was not passed when the right of action accrued.</p> <p>The act in Gould’s Digest, if it ever applied to require a schedule of a married woman’s personal property, was impliedly repealed by the Constitution of 1868. The Constitution should receive a liberal construction. Cooly on Con. Lim., p. 61, and cases cited. See Goldman v. Clark, 1 Nev., 607.</p> <p>In absence of proof, the laws of a foreign State are presumed to be those of the forum. Cox v. Morrow, 14 Ark., 603; Tatum v.. Hines, 15 Ark., 180.</p> <p>Husband does not acquire title to wife’s property by possession and use. White, admr., v. Zane, 10 Mich., 333; Wales v„ Newhould, 9 Mich. 45.</p> <p>The verdict of the jury will not be disturbed where there is not total want of evidence. Rose’s Digest, p. 562.</p> <p>The act of 1873 only'required the real estate to be scheduled.. See pamphlet act, p. 379, sec. 10, although different in the Digest. There has been no act making Gantt’s Digest the law of' the land.</p>

Hon. T. D. W. Yonley, Chancellor. The act of 11th January, 1853, exempting the road from taxation was not repealed, and could not be, constitutionally; reference made to the Chancellor's opinion, and authorities therein cited. State of Arkansas v. County Court of Crittenden County, 19 Ark., p. 360-72, and cases cited; Tomlinson v. Branch, 15 Wallace, 460, which shows that this exemption passes to a new company.

Hon. James K. Youñg, Circuit Judge. It was not necessary to allege the name of the game, or that money was bet State v. Graee, 21 Ark., 227; Stoelcden v. State, 18 Ark., 186. Whatever is not essential is surplusage. 1 Whar. Am. Crim. Law Book 1, sec. 624-6, Rev’ed.

Hon. John A. Williams, Circuit Judge. The plea of usury had been abolished by act of the Legislature. Woodruff v. Scruggs, 27 Ark., 26. There was no partnership’as to the $9,000. The two instruments of writing must be construed together. Vaugine, et al. v. Taylor, et al, 18 Ark., 65. The foreclosure for that is all that is claimed. The contract was usurious.

WRIT of Certiorari to Randolph, Circuit Court. Hon. John McCoy, Special Judge. Certiorari is the correct and only remedy. McKay & Fisher were not proper parties in the cause below, neither could have appealed. This case distinguished from Allston ex parte, 17 Ark., and McKay v. Jackson, 21 Ark.; Redmond v. Anderson, 18 Ark. No transcript from the County Court was filed. The Circuit Court had no jurisdiction. Dicus v. Bright, 23 Ark., 107.

Hon. Henry B. Morse, Circuit Judge. The endorsement without recourse deprives the assignee of the lien, 27 Ark., 229; lb., 292; lb., 518; lb., 557; 26 lb., 617; 27 Ark., 563, and cases cited. Marlcin v. Lynman, 15 ves. (1 Lead. Ca. in Eq., 113), Adams Eq., 126 et seq. The deeds merged and destroyed the lien if one existed, and the purchasers were innocent. They will be protected. 15 Ark., 55; 18 lb., 142; 1 Lead.

Hon; Henry B. Morse, Circuit Judge. The judgment is irregular, being against one of the defendants “as executrix” and against the other personally. ■ The lease may be explained by parol evidence of the extent, and meaning of the covenants. Glanton v. Anthony, 15 Ark., 543. The court erred in giving instructions, Thompson v. Bertrand? 23 Ark., 731, and the proof did not sustain the verdict.

Hon. L. L. Mack, Circuit Judge. The indictment sufficiently charges the offense of assault and battery; Gantt’s Dig., 1295; as also it sufficiently indicates the person injured; Gantt’s Digest, sec. 1786, and see Commonwealth v. Keleher, 3 Met., 485. '

Hon. J. J. Clendenin, Circuit Judge. Omission of defendant’s first name will not vitiate an indictment. Commonwealth v. Keleher, 3 Metcalf, 485. Gantt’s Digest, sec. 1785. The indictment shows the offense was committed in Lonoke county.

Hon. P. C. Dooley, Circuit Judge. The note never was secured by a lien on the lands sought to be subjected. 2 Washburne R. P., 91. John Wells is an assignee of the note. Co. Lit., sec. 12; 2 Blacks Com., 241; 2 Redf. Wills, 356. Vendor’s lien does not pass to him. Shall v. Biseoe, 18 Ark., 142; Williams v. Christian, 23 lb., 255; Simpson v. Montgomery, 25 lb., 372.; Heeht v. Spears, 27 lb., 229; lb., 518. Abbott’s testimony concerning conversations with DuBose is incompetent.

Hon. P. C. Dooley, Circuit Judge. Argued that, at the date of the judgment before the justice, when the appeal was prayed and granted, no affidavit was necessary. The act of 1873 was not approved until 29th of April. The appeal was properly perfected under the laws in force when taken. Cited act of 29th April, 1873, which repealed all practice acts then in force, applying to cases like this in justices’ courts. This act required an affidavit on appeal.

Hon. John Whytock, Circuit Judge. The exhibit of the contract shows no mutuality and overrules the averment that plaintiff was bound. Newman’s (Ky.) PI. & Pr. 252 and cases cited. No consideration as to complainant, 2 Parson’s Con. No value of services shown rendered at defendant’s request. Plaintiff changed the contract, without showing assent of defendant. For these reasons the demurrer should have been sustained.

The appointment of Mrs. Bellows as administratrix was equivalent to a judicial finding that Ellis’ letters were forfeited. Broom’s Legal Maxims, 729. The decisions in Penn v. Tolleson, 26 Ark., 546, and others on the same line, holding void the acts of the courts after May 6, 1861, are questioned. The courts and officers are to be held as having acted under authority of the Constitution of 1836. The acts of the Convention of 1861 were void.

Hon. J. J. Clendenin, Circuit Judge. The Circuit Court erred in rendering judgment de novo against • defendant, where there had been no appeal from the judgment by default below. Gantt’s Digest, 3820. No garnishment could issue againfet the R. R. except as incident to an attachment, or after judgment. Gantt’s Digest, 2991;. 5 Ark., 214.

Hon. E. L. Ham, Circuit Judge. There was no evidence of fraud, and Marshall will not be heard to say he did not know what the contract contained. 2 Phil. Ev. Cow. & Hill, ch. 8, sec. 1, note 495; Wilson v. Stray-horn, 26 Ark., 28. Properly shown that Marshall, when making the assignment, was administrator of his father’s estate according to the laws and customs of the Creek nation of Indians. Barkman v. Hopkins, 17 id., 154, although he was bound by it if he were not.

Desha Circuit Court in Chancery. Hon. M. L. Stephenson, Circuit Judge. The sale of the land under Randolph's execution, whilst subject to the mortgage of Trevor & Colgate, was, at least, of very doubtful propriety. Kissem v. Nelson, 2 Heiskell's Rep., (Tenn.). Inadequacy of price should be of great weight to set aside execution sales. Cummings v. Little, C. E. Greene's Chan. R. (N. J.), p. 51.

Hon. John Whytock, Circuit Judge. The bill should have been dismissed absolutely. It is not within the cases where a bill may be “dismissed without prejudice.” Code, sec. 402. Nor was it proper by any rule of practice. The dismissal of a suit without prejudice is a matter within the discretion of the court. The authorities are meagre, but the following are cited in argument. ■ Danl.

Hon. David W. Carroll, Circuit Judge. It does not appear that the increased assessment was not made by the Board at an adjourned day. The act of 1871, section'65, is only directory, and the functions of said Board not limited to the time. Regina v. Cor. of Durham. There are no negative words.

Hon. Read Fletcher, Special Judge.. Called the attention of the court to act of 23d July, 1868, sections 18, 20, 21, 32. No estimate by trustee was made. The law is mandatory. Ciarle v. Crane, 5 Mich., 154. Shawner v. Carter, 2 Han., 115; Cooley’s Const. Lim., 75. County Court could not exceed a levy of five mills. Act of 25th March, 1871.

Hon. M. L. Rice, Special Judge. The court erred in sustaining demurrer to the plea of illegality ■on account of Confederate money. Latham v. Clark, 25 Arle., •574; Jordan v. Walker, 26 id., 1; ILingv. Carnall, ib., 36; Carl Lee v. Carlton, 27 ib., 379. It was good at least to reduce the amount of recovery under act of March 5th, ’67, which it is argued was not obnoxious to the objection made in Leaeh v. Smith, 25 Ark., 248.

Hon. John Whytock, Circuit Judge. The second plea was simply one of set off and tender, and answered tne whole demand. The judgments were proper set offs, also the other debt mentioned. Higgs v. Warner, 14 Ark., 193; Burke’s adm’r, v. Stillwell ex’r, 23 Ark., 294; Belfour v. Haney, 8th Ark., 479. As to second cause of demurrer see Gould’s Digest, ch. 4, section 42. Debts accruing against the administrator after death of intestate need not be probated.

Hon. John J. Clendenin, Circuit Judge. Prisoner should have been present when his case was set for trial below. Bishop’s Crim. Pro., 265-9,270, and cases cited; Henry v. State, 33 Ala., 389; Hall v. State, 40 ib., 698-705 ; Kelly v. State, 3 Sm. and Mar., 518-28; Prim v. Com., 6 Harris, (Tenn.,) 103 ; Hamilton v. Com., 4 ib., 129; Hooker v. Com., 13 Grat., 763; 2d Leading Crim.

Hon. John Whytock, Circuit Judge.. The judgment upon the appeal bond in the Circuit Court was an extinguishment of the bond given in the attachment before-the justice, and released all liens given by the judgment of the justice. See Briscoe v. Sandefur et al.r 14 Ark., 569 ; Phillips et al. v. Wills, Pease & Co., ib., 595; Dougherty v. McDonald, ib.. 597: Rector v. Harris, Norton & Go., 19 Ark., 265; Neele vJeter, 20 Ark., 98.

M. D. Kent, Circuit Judge. ■ Appellant had a future interest in the product of the land, and was entitled to the attachment. Gantt’s Digest, sec. 441. The contract did not create a partnership. Christian v. Croaker, 25 Ark., 327. Demurrer not the proper way to object to want of bond. Complainant shows no interest, or lien, in the property, asks no personal judgment. The proceeding in rem is the primary object, not ancillary. No prayer for relief. Newman’s PI. and Pr., 451.

<p>APPEAL from Ouachita Circuit Court.</p> <p>Hon. Jambs T. Elliott, Circuit Judge.</p> <p>The refusal to continue for the evidence of Atkins was, under the circumstances, an abuse of discretion. McDonald v.' Smith, 21 Ark., 460; Hensley, et al., v. Tuaher, 5 Eng., 528; Evans v. Parsel, 30 Miss., (9 Jones,) 235 ; Payne v. Cox, 13 Texas, 480; Welsh v. Savary, 4 Iowa, 241.</p> <p>Tax books not proper evidence of solvency. Taylor v. Auditor, 4 Ark., 574.</p> <p>Court erred in overruling the questions asked to lay a foundation for impeaching the testimony of Bozarth and Bandel. fir own v. State, 24 Ark., 620; Milan v. State, 24 Ark., 354. Also in overruling question concerning conversation with Leake. Hill v. Bush, and cases cited, 19 Ark., 522.</p> <p>As to representations, see Dugan v. Cureton, 1 Ark., 31; IlawJcins v. Campbell, 1 Eng., 531; Dillard v. Moore, 2 Eng., 167; Yeates v. Pryor, 11 Ark., 58; Hilly. Bush, supra; Wilson v. Strahorn, 26 Ark., 31.</p> <p>The court erred in instructions. ■ Bank v. Hubbard, 3 Eng., 183; Worthington v. Curd, 15 Ark., 492, et passim-, Armstead v. Brooks, 18 Ark., 521; Bertrand v. Byrd, 5 Ark., 65; Grider and wife v. Glopton, 27 Ark., 256 ; and in refusing instructions asked by appellant.</p> <p>Verdict is against law, and instructions, and unsupported by evidence, and should be set aside. Dodd v. MeQraw, 8 Ark., 83. No fraud without knowledge of the falsity. Plant v. Condit, 22 Ark., 454; Morton v. Seull, 23 Ark., 289.</p> <p>The damages are not supported by the evidence, and are obviously excessive.</p>

<p>APPEAL from Ashley Circuit Court.</p> <p>Hon. J. T. Elliott, Circuit Judge.</p> <p>As to right of action, cited Rose’s Digest, p. 799, secs. 38-7-8 — 9-40-1, and cases cited; 9 Ark., 569 ; and as to validity of reply, Code of Pr., p. 54, sec. 124; Bertrand v. Byrd, 5 Ark., 658.</p>

<p>Appeal: From Justice of Peace.</p> <p>The provision of section 3811 Gantt’s Digest, that proceedings in actions by attachment, and actions of replevin before Justices of the Peace shall be regulated by the Code of Practice, does not apply to the mode of appealing, which is regulated by the provisions of that chapter.</p>

<p>1. Amendment: When in the discretion of the court.</p> <p>In a proceeding by attachment to recover rent, after answer alleging payment, the plaintiff asked leave to amend by adding a paragraph on an account for supplies furnished the defendant, which was by the court re- “ fused: Held, that the right to amend after answer is in the discretion of the court, and will not bo controlled where no abuse is shown.</p> <p>1. Payment: Appropriation of.</p> <p>Where a tenant, who had contracted to pay the rent out of the first cotton picked, ginned and baled, and was indebted to the landlord for supplies, delivered enough cotton to pay the rent, but not the other indebtedness, without any directions as to its application, it will be applied to the payment of the rent.</p> <p>4i. Production op private writing: The cowrt will not compel.</p> <p>It was not error in the court below to refuse to compel the defendant to produce a private writing at the trial, to be used as evidence. The plaintiff should have served him with notice to produce it, and, upon his failure to do so, have proven its contents by parol evidence.</p>

Hon. John Whytock, Circuit Judge. Assignors need not be made parties unless assignment is denied. 2 Paige, 295 ; and 7 Johnson, oh. 114, in explanation of the reason; Swan’s Pleading, 102, Assignability is now the-rule, non-assignability the exception. Meeoh v. Stoner, 19 N.. Y., 26; Allen-v. Miller, 11 Ohio St., 374, 377; Durgin v. Ireland, 4 Kernan, 322; Meelcer v. Cleghorn 44 N. Y., 349. Waived for want of objection. Johnson v. Chandler, 15 B..

<p>I. Condition ai» Sauk: Property does not pass by until the condition is performed.</p> <p>A sale and delivery of personal property on condition that the title is not to pass until the purchase price is paid, does not vest the title in the vendee until the condition is performed, and one who purchases the property from the vendee with notice, is bound by the condition.</p>

<p>Amendment:</p> <p>Where an account in proper form is filed before a Justice of the Peace as the foundation of an action, and is lost, and a substituted account is filed, in which the name ot the creditor is omitted, he should be permitted to amend at any time, either before trial or after judgment, and an appeal to the Circuit Court.</p>

<p>APPEAL from Monroe Circuit Court in Chancery.</p> <p>Hon. W. H. H. Clayton, Circuit Judge.</p> <p>There can be no estoppel as to Jones. Boggs v. Mercer, 14 Cal., 279-366 ; Green v. Pettyman, 17 Cal., 401. There was on his part no negligence, n )r design to mislead. Brown v. .Wheeler, 17 Con., 345; Kinney v. Farnesworth, id., 345; Rangely v. Spring, 21 Me., 130; Cummings v. Webster, 43 id., 192; Preston v. Mann, 25 Con., 118; Whitenere v. Culver, 8 Minn., 133 ; Heath v. Derry Bank, 44 N. H., 174; 29 Ga., 312; Davidson v. Young, 38 111., 145; Wilson v. Custro, 31 Cal., 420; Anderson v. Lyons, 11 Allen (Mass.,) 349; Hazelton v. Butehelder, 44 N. H., 40; Lawrence v. Brown, 5 N. Y., (1 Seld.,) 394; Jewett v. Miller, 10 N. Y., (6 Seld.) 402; Byers v. Farwell, 9 Barb., N. Y., 615 ; Hawley v. Griswold, 42 id., 18; Garlingham v. Whit-well, 51 id., 208 ; Brubaker v. OJceson, 36 Pa. St., 519; Biller v. Brubaker, 52 id., 498; Barr ah v. Bryant, 56 id., 69; Williams v. Chandler, 25 Tex., 4; Hicks v. Crany, 17 Vt., 449; and the person claiming the estoppel must have changed his position by reason of the acts. Copeland v. Copeland, 28 Me., 525 ; Califf v. Hillhouse, 3 Minn., 311; Taylor v. Zepp, 14 Mo., 482; Martin v. Angelí, 7 Barb. (N. Y.,) 407; Otis v. Sill, 8' id., 102; Carpenter v. Stillwell, 12 id., 128; Commonwealth v. Moltz, 10 Pa. St., 527; Eldrod v. Hazlett, 33 id., 307; Shaw v. Beebe, 35 Vt., 205; Wooly v. Edson, id. 214.</p> <p>The security of Loftis’ debt was transferred to Jones, and he was subrogated. Kaufman v. Batesville Institute, 18 Wal., 151; Lead. C. in Eq., 400-417; Watts v. Kinney, 3 Leigh, 272; Lowndes v. Chrisholm, 2 Mc’s Ch. Rep., 455; Worthington v. Ferguson, 4 Har. & John’s, 522; Gregu/r v. Bengle, 5 ib., 234; Neimceweicz v. Gahn, 3 Paige, 614; Epps v. Randolph, 2 Cal., 125; Hatcher v. Hatcher, 1 Randolph, 53; Williams v. Washington, 3 Dev, Eq., 137.</p> <p>Debt not barred. The period of the war not counted. U. S. Statute at Large, p. 811, app.; Semmes v. Hartford Ins. Co., 13 Wal., 158; U. S. v. Wiley, 11 Wall., 508; Hanger v. Abbott, 6 Wall., 632; The Protector, 12 Wall., 70Ó; Hall v. Benkla, 28 Ark., 506.</p> <p>Payments revived the debts, Gould’s Digest ch. 106, sec. 23; Hunt v. Bridgemen, 2 Pickering, 581; Sigourney a. Bowry, 14 ib., 387; Lawrence Co. v. Bwnkle, 35 Mo., 375 Whitaker v. Rice, 9 Minn., 13; Trustees v. Hartfield, 5 Ark., 551; Burr v. Williams, 20 Ark., 189 ; Hicks v. Lusk, 19 Ark., 692; also 51 Mo., 31. Statute runs from date of payment provided in deed of trust Am. Bank v. Baker, 4 Met., 164. Mortgage not barred with note. Belknap v. Gleason, 11 Con., 160. See also Getehell v. Jewett¡ 4 Greenleaf, 350; Baker v, Morris, 10 Leigh, 284; McKinner v. Smith, 2 Greenleaf, 14; Nelson v. Carrington, 4 Mumf., 332; , Reardon v. Searcy, 1 Sitt., 653; Chapman v. Batle, 22 Maine, 191; Spear v. Newell, 13 Vt., 288 ; Rogers v. Rathhorn, Johns. C. R., 367; 2 Sto. E. Ju., sec. 1521, 1028; Bondv. Hopkins, 1 Sch. and Leif., 430-435; 2 Hilliard onMort, 4; Hughes v; Edwards, 9 Wheat, 467; White v. Ewer, 2 Vent., 340; Robinson v. Fife,3 Ohio (U. S.,) 551; Ch'ittenden v. Brainard, 2 Root, 485; Dick v. Batch, 8 Pet., 30; Davis v. Evans, 5 Iredell, 525 ; Giles v. Baremore, 5 Johns. C. R., 545.</p> <p>On limitations see further: Owings v. Norwood, 2 Har. & Johns., 96; Jaekson v. Delany, 11 Johns.,; 365 ; Jackson v. Hudson, 3 J. R., 375; Collins v. Terry, 7 Johns., 278; Jaekson vPrcdt, 10 Johns., 114; Jackson v. Slater, 5 Wendell, 295; Mppieion v. Edon, 8 Vermont, 241. Presumption of payment may be overcome by counter proof: Evans v. Huffman, 1 Halstead Ch. (N. J.), 354; Boyd v. Harris, 2 Md. Ch. 210; Robert v. Welch, 8 Ind. Eq., 287; Whitney v. French, 2 Vermont, 663; Chich v. Robins, 44 Maine, 104; Wright v. Eaves, 10 Rich. Eq. 582; Howard v. Hildreth, 18 N. H., 105; Hughes v. Blackwell, 6 Jones’ Eq. (N. C.), 73; Hicks v. Lusk, 19 Ark., 692.</p> <p>On the point of limitation cited: Gantt’s Digest, sec. 4113, applies in equity to deed of trust; Sullivan v. Hadley, 16 Ark., 145; Guthrie v. Field 21 Ark., 386; Hall v. Denakla, 28 Ark., 506, Begins to run January 1, 1857; Jettsr. Hempstead, 25 Ark., 462; Grey v. Givens, 26 Mo., 291; Trapnall v. Burton, 24 Ark., 389. Remedy against the land is barred, excluding time of the war, Met. JB. v. Gordon, 28 Ark., 115; 2 Brightly’s Dig. Laws, 295. The oases depend wholly on exclusion from the courts. j3ee Hangerv. Abbott, 6 Wall., 534; The Protector, 9ib., 687; Levyv. Stuart, 11 ib., 244, 493; Brown v. Hyatt, 15 ib.., 182.</p> <p>Payments after sale could not affect Cartwright. Broom’s Leg. Max., 917-18 and 926; 1 Greenl. Ev., sec. 109; note l,sec. 180; Gullett v. Lamberton, 6 Ark., 110; Finn v. Hem/pstead, 24 Ark., Ill; Prater v. Frazier, 11 Ark., 249; Steinbaehv. Stewart, 11 Wall, 566 ; Pearson v. Hern, 53 111., 144; Weinrieh v. Porter, 47 Mo., 363; Vaneev. Smith, 2 Heiskell, 344; Merrillv.Dawson, Hemp., 576-7. As to policy of the statute, see 1 Gr. Ev., secs. 15, 16 and 32; Angelí on Lim., 397-9; Conway v. Kinsworthy, 21 Ark., 9 ; Guthrie v. Field, ib., 379 ; Trapnall v. Bwrton, 24 Ark., 389.</p> <p>Mayo is estopped: Sto. Eq., secs. 384^-85; Shall v. Biscoe, 18 Ark., 142; Trapnall v Burton, 24 Ark., 399.</p>

Marriage was a good consideration for the deed. 2d Bl. Com., 297; (Co. Lit., 9 v.) Or will support and make valid an executed deed, which was voluntary or fraudulent. 1 John. Ch. Rep., 271-72; 1 Sid., 133; 1 East., 95, and cases cited; 1 Co. Lit., 9 v., sv/pra; 12 John. Rep., 536 ; 2 Kent's Com., 11th ed., p. 169, no. 2; Frazer y. Thompson, 1 Giff., p. 49; Campion v. Cotton, 17 Vesey, p. 263. Fraud is never presumed.

<p>APPEAL from Clark Circuit Court.</p> <p>Hon. George A. Kingston, Circuit Judge.</p> <p>All gaming contracts are void. Gantt’s Digest, sec. 2987; 51 111., 473; 23 ib., 493; in re Chandler, Am. Law Register, May, 1874, p. 315; 3Bacon’s Abr., 343, Lit. gaming; Clayton v. Jennings, 2 Blk. Reps., 706; 2 Wils., 36; ib., 309; ib., 220; 41 111., 382 ; 2 Swan, Tenn., 146.</p> <p>Sec. 2986 merely restores the common law maxim, of leaving the parties alone, who are “ in pari delicto ” in turf racing. 20 Eng. Com. Law, 185. (*405); Smith contra, *169; 2 Parsons Cont., 139; Dunlap’s Paley’s Agency, 66; 23 Ark., 221; 26</p> <p>111., 404; 13 Ind., 178; ib., 344; 4 Mich., 329; 3 Dutch.-(N. Y.), 55; 5 Herning (Del.), 347; 19 Maine, 335 ; 18 Vt., 9 ; 15 Conn., 28; 16 Sergt. and Rawl., 147 ; .5 T. R., 405; 7 ib., 531; 2 Esp., 629 ; 4 Tannt., 474; 2 B. and T., 467.</p> <p>The courts have been reluctant to recognize wager contracts. Le Costa v. Jones, Cowp. 729 ; 4 Camp., 39, n.; 2 Mass., 1; 1 Bailey 486; 1 Stobbart, 82; 3 N. H., 152; 3 Penn., 468; 15 Conn., 28 ; 2 Vt., 144; 1 Nottand McC., 178 ; 52 N. H., 507. Plaintiff could not recover even his deposit, without disaffirming the contract. Harris v. Foster, 19 Ark., 356, et seq.; 3 Ark., 227; 35 Mo„ 418 ; 6.Wis., 468.</p> <p>A demand before suit was necessary. Story’s Bailments, secs. 107, 120; 10 Ind., 161; 8 Ark., 109 ; 13 ib., 28 ; 16 Minn., 299 ; 3 Pitts (Tenn.), 28. The stakeholder became responsible to McLelland after notice. 11 Ind., 447 ; ib. 59 ; 10 ib., 161; 15 B. Monroe, 634 ; 18 Tenn., 329 ; 2 Pars. (sup.).</p> <p>The race was not decided and the testimony fails.</p> <p>Horse racing not illegal at common law. Smith on Cont., 256, etseq.; Fhansv. Cooley, 42 Eng. Com. Law Eep., 759; Mc-Flroy v. Carmichael, 6 Ga., 456. Here it is excepted from the gaming act.</p> <p>•Turf racing was not intended to be discouraged by law. Stith v. State, 13 Aik., 680; Martin-y. State, 15 ibid, 71; State v. Rorie, et al., 23 ibid, 726 ; 1 Morris (Iowa), 169; McElroy v. Cao •onichael, (sup.).</p> <p>The stakeholder was a bailee for winner — the wager being legal. 2 Parsons on Cont., 626, et seq. No demand was necessary. Ib., 628. The burden of proof was on defendant to show it was not a turf race. Nelson v. Waters, 18 Ark., 573.</p>

Hon. William Byers, Circuit Judge. Yerdict excessive, Gantt’s Digest, sec. 3192, unless malicious sec. 1381 does not govern. . Instructions that malice was implied was erroneous.

<p>APPEAL from the Pulaski Circuit Court.</p> <p>Hon. R. A. Howard, Spec. Circuit Judge.</p> <p>Circuit Court had jurisdiction. Gantt’s Digest, secs. 1198-99; Floyds. Gilbreath, 27 Ark., 675; Greedv/p v. Franklin County, ante; Murphy y. Harbison, 29 Ark., 340; Vaughn v. Bowie, ante; Dillon on Mun. Cor., 740, et seq.; Hilliard on Taxation, 451, secs. 21, and n; Cooley on Taxation, 530, et seqentia.</p> <p>• Court in certiorari cannot look beyond the record. Redmond v. Anderson, 18 Ark., 449 ; Jefferson County v. Hudson, 22 Ark., 595; Miller v. MeCollough, 21 W., 426 ; Dious v. Bright, 23 ib.,</p> <p>107; Counts v. Markling, ante; Cooley on Taxation, 535.</p> <p>As to power, Const, of 1874, art. 12, sec. 4; acts 1875, p. 223, sec. 4; Dillon on M. C., secs. 55, 107, and cases.</p> <p>The limit of taxing power in the city was not greater than it is when the contract was made on which the judgment was rendered which the mandamus was issued to pay. See Gantt’s Digest, secs., 3295 and 5062.</p> <p>Other authorities cited as applicable. Cooley on Taxation, 209, and cases 524, 526; Dillon on Mu. Cor., sec. 605, n 2, 610; Cooley’s Const. Dim., secs. 17, 8, 520, 285, 287; Supervisors v. United States, 18 Wall., 71; Rees v. City of Water ton, 19 ib., 120; id., 122; Ruseh v. Supervisors of Des Moines County, 1 Woolw. 313; High on Ex. Cy. Rem., 281 and note; Buts v. City of Muscatine, 8 Wall, 582; Riggs v. Johnson County, 6 Wall, 166; ■United States ex rel. v. Council of Keokuk, ib., 514 ; Kaufman & Co. v. Bari, 26 Ark., 24.</p> <p>Cited, in support of the mandamus, Riggs v. Johnson County, 6 Wall, 166. Commented on Const, of 1874, art. 12, sec. 4; sec. 4, Rev. act of 1874-75, p. 223.</p> <p>Argued that the power to levy five mills for general indebtedness was independent of and over and above what it might be compelled to levy by mandamus, citing Hoffman v. City of Quincy, 4 Wall, 55; English v. Oliver (MSS.); Rees v. City of Wateeton, 19 Wall., 116; State v. Douglas, 33 N. J., 363.</p> <p>The taxes of two and three mills may be supported on independent grounds, viz., that of contract based on the act of Feb. 15, 1859, amending the charter of the city to raise funds to pay bonds issued to Memphis and Little Rock Railroad Company. See sec. .17, charter 1869.</p> <p>Other authorities. Burton v. Platt County, 2 Dillon, 4; Clark v. Davenport, 14 Iowa, 494; Butz v. Muscatine, 8 Wall., 580; United States v. Burlington, 2 Am, L. Reg. (U. S.), 394.</p> <p>In any event, only the excess over ten mills can be quashed. State v. Kingsland, 23 N. J., 823 ; King v. King, 2 T. R., 235 ; Lawton v. Commissioners, etc., 2 Caines, 182; 3 Green., 322; O’Kain v. Treat, 25 111., 557; People v. Nichols, 44 Gilman, 307; Cooley on Taxation, 296.</p>

Hon.-, Circuit Judge. The doctrine of election applies only where it is necessary for substantial justice. 2 Sto. Eq. Ju., 1077, 1088; Birmingham v. Kirwan, 2 Schoales & Lefroy, 449-50. Not against creditors enforcing legal claims Sto. Eq., 1090; 1 Swanston, 407, and authorities. A court may settle equities amongst beneficiaries Sto.

Circuit Court. Hon. P. C. Dooley, Circuit Judge. The appellant has a lien by force of the former decision of this court in this case. See same case in 27 Ark., 538. The case here will be determined by the evidence, without following the finding of the chancellor. Ringgold v. Patterson, 15 Ark., 209. Rest also upon the decision in Refeld v. Ferrell, 27 Ark., 534.

Francis Circuit Court. Hon. John W. Fox, Circuit Judge. A judgment of another State, sought to be executed here by suit, must be executed according to our laws, unless the effect of the judgment be shown by proof to be different in the State where rendered. Story’s Con. of Laws, sec-. 556, pp. 467-68; secs. 637-38, pp. 527-28; Wharton’s Con. of Laws, secs. 888, 780-. Execution could not here issue upon such á judgment before sale of land. Code, of Practice, secs. 406 and 422.

MANDAMUS to the Hon. L. L. Mack. The Board of Supervisors had no power to contest the election, their proceedings were void, Brooks v. Baxter, 29 Ark., 173. Court of Chancery has no jurisdiction, Moore v. Haismgton, 31 111., 243; State v. Judge, etc?, 13 La. An., 89; Bacon v. York Co., 26 Me., 491; Hart v. Harvey, 32 Barb., 55 ; O’Locherty v. Archer, 9 Texas, 295; Walker v. Tarrant Co., 20 id., 16 ; Bonner v. Lynch, 25 La. An., 267.

J. White, Clerk of the Circuit Court. . The act of March 27, 1871, was unconstitutional and void. Const, of 1836, art. 6, sec. 3- of 1864, art. 7, sec. 3; of 1868, art. 7, sec. 5 ; Code, ch. 2, sec. 18. There must be service of summons returnable to court and a day for trial. A note payable at a particular time and place must be then and there prosecuted before action will lie. Smith’s Mercantile Law, p. 275.

Hon. J. M. Pittman, Circuit Judge. By appellant. In support of demurrer: First — The indictment fails to charge that he was a regularly ordained minister of the gospel of any religious denomination authorized to solemnize marriage. Gantt’s Digest, secs. 4178 and 4179; also State v. Willis, 9 Ark, p. 196. Second — The indictment omits the word “ years,” in describing the age of the female married. 6 Ark., p. 165. Omits to state that her parents were residents of this State.

Hon. H. B. Morse, Circuit Judge. A parol contract for a lien on personal property, accompanied with possession in the claimant of the lien, is good. 3 Parsons An. Cont., 271; lien defined, ib., 234. Appellees not innocent purchasers. Possession was notice of appellant’s claim. Hardy v. Heard, 15 Ark., 184; Hamilton v. Fowllces, 16 Ark., 340; were without actual notice; Byers v. Engles, 16 Ark., 543; applies a fortiori to personal property; 3 Parsons on Con., 234, 272.

Hon. Henry B. Moese, Circuit Judge. The deed exhibited marked “B” is void for uncertainty in description, Doe, ex’r. of Phillips v. Benj. A. Parler, 3 Ark., 18. The deed filed with amended complaint does not show that the lands conveyed are the same as those intended in the former deed, so as to connect them with the note sued on. The supposed errors are frivolous. The appeal should be dismissed on authority of Sykes v. Lafferty, 26 Ark., 414.

Hon. T. F. Sorrells, Circuit Judge. An administrator is not an officer, and even if he were there are special provisions regarding him, which sureties must follow in order to be released. This action was based on sections 5705 to 5709 of Gantt’s Digest. See Dempsey v. Fenno, 16 Ark., 491, which may -apply as well to administrators as to guardians. ' Section 37 was for the benefit of persons interested in the estate to obtain a proper bond.

<p>APPEAL from Bradley Circuit Court in Chancery.</p> <p>Hon. James T. Elliott, Circuit Judge.</p>

Hon. John A. Williams, Special Judge of Circuit Court. Administrator can only be charged, above the statements of his account, by matter alleged and proved. 2 Brad. Sur. Reps., 165; 1 ib., 265; Williams on Ex’rs., 1874. Party cannot have more than is claimed in pleading. 5 Ark., 513; 8 Ark., 456. Error in the charge of $6,000. Due care taken of the cabins, and the administrator not responsible. Fudge v. Burn, 51 Mo.

Hon. T. F. Sorrells, Circuit Judge. ' The payment was voluntary, and cannot be recovered. Hall v. Schultz, 4 John. Rep., 240, note a, 2d ed.; Bank óf U. S. v. Bank of Washington, Curtis U. S., vol. 10, p. 3. Justice’s action valid. Hawkins v. Filkins, 24, 286. Affidavit was made and delivered to justice in due time. Acts 1873, p. 453, sec. 97. The appeal was not taken according to law, and should have been dismissed.

Hon. L. L. Mack, Circuit Judge. The proceedings, and practice were unauthorized. If the former suits had been revived, appellee could have had no relief, without cross bill. Sto. Eq. PL, sec’s 391, 391a. But the court could not reinstate. Miller v. Hemphill, 4 Eng., 488. • Want of proper parties. Thé answer admits all, but notice of complainants claim. Gantt’s Digest, sec. 4608. The record of the trust deed was notice of all trustees’ rights under it.

Hon. P. C. Dooley, Circuit Judge. The notice for application to sell lands is notice to the worldGantt’s Digest, 176, 4031, et seq. Ramsauer should have made himself a party; Marr., ex parte, 12 Ark., 84. Might have been corrected on appeal, and so certiorari will not lie. Allston, ex parte, 17 Ark., 580. As to parties. See Gantt’s Digest, sec. 4417. Proceedings legal. Sec “ Chapters of the Digest,” secs. 10, 23, .29, with Gantt’s Digest, sec. 1178. Confirmation cures.

Hon. J. T. Elliott, Circuit Judge. The last answer was arbitrarily stricken out. No cause appears. Newman’s PI. and Pr., 469, 474; Blackmore v. President, etc., 4 Ark., 454; Pennington v. Gibson, 6 Ark., 447; Crary v. Ashley, ib., 203; 1 Chitty Plead., 486, 508. The first answer contained a good defense.

<p>1. Pleading: Reversing demurrer in answer.</p> <p>Though the answer go to the whole of the complaint, a demurrer may be embodied in it, and it must be taken up and considered separately be-, fore the cause is called for trial on the issues of fact.</p> <p>2. --: Practice in failure to verify pleadings.</p> <p>The want of verification cannot be taken advantage of by demurrer, it must be by motion, or rule.</p> <p>3. Pleading : Bill for specific performance.</p> <p>In a complaint to enforce the .specific performance of a contract it is not necessary to allege the defendant’s ability te perform; it is sufficient, on demurrer, if the complaint state the facts constituting plaintiff’s cause of action. The jurisdiction of Courts of Equity to decree specific performance reviewed.</p>

Francis Circuit Court. Hon. J. N. Cypert, Circuit Judge. Treasurer’s certificates are bills of credit, and void under the constitution of the United States. Briscoe v. Bank of Ky., 11 Pet., 257; Byrne v. Missouri, 8 Pet., 40; Craig v. Missouri, 4 Pet., 410. It is an attempt to make a legal tender. Section 10,. article 1, of United States Constitution. The act impairs the obligation of contracts.

Hon T. E. Sorrejas, Circuit Judge. No complaint was necessary to obtain the writ of garnishment, only the account filed and affidavit. Acts 1867. The limitation of ninety days does not begin until the expiration of the contracted time of service. The demurrer was bad; there was good cause of action against defendants. ) The proceeding as to Barnett was in rem. He had nothing to do with the cause of action against the principal defendants.

<p>1. OxiFiOB: Power of the Legislature to abolish the office of Judge, etc.</p> <p>The provision of the Constitution of 1868 prohibiting the Legislature from interfering with the term of office of any Judge, did not deprive the Legislature of the power to abolish the office and thereby put an end to the term.</p> <p>2. Salary: Ceases after the office is abolished.</p> <p>When an office is abolished the salary of the officer terminates.</p>

. Hon. W. I. Warwick, Chancellor. A mechanic’s lien is exclusively the creature of the statute. Phillips on Mee. Lien, p. 15, and cases cited. Does not arise out of the contract for labor. 54 Maine, 345 ; Tilford v. Wallace, 3 Watts (Tenn.), 141; Peak v Hensley, 21 Ind., 344; 3Ion-tandcr v Dens, 14 Ala., U. S., 33. Nor depend on motives.

Hon. John A. Williams, Circuit Judge. Frank might file a bill to remove a cloud, and a fortiori may to restrain a sale. Christie v. Piale, 46 111., 122. He cannot invoke the remedy in secs. 2619, Gantt’s Dig., or 2670. Moore had an interest in the relief asked, from his covenants. Sec. 4475. Misjoinder no ground of demurrer. Sec. 4616, Dig. Moore is entitled to a homestead, and that cannot be taken with Frank’s land also.

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

Hon. W. H. H. Clayton, Circuit Judge. The remedy is complete at law, and the demurrer in the answers should have been sustained. Byers et al. v. Danley, 27 Ark., 90; Appaerson, etc., v. Ford et al., 23 Ark., 747; Moore et al v. Dmian, 27 Ark., 157; M. & L. R. R. R. v. Woodruff, 26 Ark., 649; Policy. Pendleton, 31 Md., 118; Chaplin v. Holanes, 27 Ark., 414. No title shown in complainant’s intestate, or in his vendors.

Hon. W. F. Henderson, Circuit Judge. Plea of no consideration threw the onus on complainants. Dickens v. Burke, 6 Ark., 412; Cheney v. Higginbotham, 10 Ark., 274; Williams v. Williams, 13 Ark., 421. The draft was not presented in reasonable time, and the drawers therefore released.

The injunction was simply to prevent a trespass, and would not lie. 8. B. Cockrell, in support of grounds of injunction, cited Howard v. Kennedy, 4 Ala., 595; Jones v. Chills, 2 Sand., 34; Chills v. Stephenson, 1 Marsh, 333; Kereheval v. Ambler, 7 J. J. Marsh, 626. An employee is not an occupant. Chiniquy v. Catholic Bishop, 41 111., 148; Hawkins v. Beichart, 28 Cal., 534. This is like enforcing judgment without notice, and subject of injunction.

<p>•APPEAL from Sebastian Circuit Court.</p> <p>Hon. W. W. Mansfield, Circuit Judge.</p>

Hon. W. I. Warwick, Chancellor. Cited Gantt’s Digest, 5233. The statute relates only to persons having control of land. Feilds was discharged by bankruptcy. No lien could thus be acquired on the homestead, by subrogation to the lien of the State. Const, of 1868, art. 12, secs. 2 and 3. Shall had no lien for the two per cent, interest, over statutory rates.

Hon. John J. Clendenin, Circuit Judge. The petition prays for general relief, which will authorize any relief consistent with the facts. 19 Ark., 62. Cited JRief v. Conner, 10 Ark., 241, as to power of courts to alter judgments after term, changed by the Code, secs. 571 and ■371, and special act of Feb. 21st, 1867, p. 139; Gantt’s Digest, sec. 5280. All the proceedings were within one year. 22 Ark., 236.

<p>Assessment: Illegal alteration of. Injunction on.</p> <p>The clerk and County Judge had no authority, under the revenue act of 1871, to change the valuation of land, as returnedby the assessor, after the adjournment of the board of equalization; and where the assessment is so altered, the clerk will be enjoined from entering it on the tax books.</p>

CROSS APPEALS from Phillips Circuit Court in Chancery. Hon. W. H. H. Clayton, Circuit Judge. Error to allow Chamberlin to testify as to his impressions of conversations with Rogers, 13th Ark., 46.2, or to admit depositions taken against objections on the fourth of July. Swinnyv. Johnson, 18 Ark., 534, or Brooks’ statements of conversations or transactions with Rogers. Giles v. Wright, 26 Ark., 476; Am. Law. Rev. July, 1870, p. 656 (Howland will case).

The important allegations of the bill are admitted and need not be proved. Pelham v. Floyd, 9 Ark., 530; Hardy v. Heard, 15 ib., 195. The averments of the answer made for avoidance should be. Stilwellv. Badgett, 22 Ark., 164; Hart v. TenEyoJc, 2 John. Chan., 88; Patton v. Ashley, 8 Ark., 297.

<p>1. Injunction: Of trespass on land.</p> <p>A court of equity will enjoin the commission or continuance of a trespass-on land, where the injury is irreparable, or of such a character that the-damage cannot be estimated.</p> <p>2. Deed : Certainly requisite in an exception out of the thing granted.</p> <p>The same certainty of description is required in an exception out of a grant,, as in the grant itself; and where a deed excepted out of the conveyance one acre of the land, and there was nothing in the exception, or evidence,, to locate it upon any particular part of the tract, the exception was void for uncertainty, and the grantee took the entire tract.</p> <p>3. Estoppel: When recital in a deed will not create.</p> <p>A recital in a deed that a part of the land described had been conveyed to-' another, inserted for the purpose of excepting such part out of the grant, but void for uncertainty, will not operate as an estoppel against the-grantor, in a subsequent action to recover the land referred to in the recital.</p> <p>4. Adverse Possession:</p> <p>Adverse possession, to constitute a bar to the assertion of the legal title by the owner of the land, must be actual, visible, open and notorious; It is-not the particular use of land that is requisite, an adverse holding maybe established by any acts and declarations that show a visible, open and exclusive possession; If obe enters upon, sets apart, and asserts an exclusive right to, a plat of land as a family -burial ground, for a series of years-as deaths may occur in the family of himself or his friends, it will constitute an adversé holding; actual residence upon, or continuous occupancy in such a case is unnecessary, but where the possession is not under color of title, it will be coufined to such parts of the land as is covered with graves.</p>

Hon. James T. Elliott, Circuit Judge. The uncertainty in the description of lands in the trust deed of appellant is a latent one, and may be removed by parol proof.

Hon. W. H. H. Clayton, Circuit Judge. Auditor’s deeds make prima facie case. ■ Gantt’s Digest, 5221; Merrick v. Hutt, 15 Ark., 338. The clerk was empowered to fix day of sale. Amendatory act of 1869, sec. 7. The acts of the clerk should have a reasonable construction. Bl. on Tax Titles, 310-11; Chandler v. Spear, 22 Vt., 398. The greater time of notice had no semblance of injury.

Hon.--, Circuit Judge. The State board of equalization was not constitutionally organized. Art. 4, sec. 2, Const, of 1868. Assessing taxes belongs to the executive department. Alh'» ex parte, 26 Ark., 12. The board could not be composed partly of senators. See Rev. Law of April 8th, 1869, sec. 68.

<p>APPEAL from Benton Cireuit Court.</p> <p>J. H. Huckleberry, Circuit Judge.</p>

Hon. J. N. Cypert, Circuit Judge. Cited as conclusive, Dobbins v. Oswalt, 20 Ark., 619-624; Oswalt v. Moore, 19 Ark., 257-262; Dobbins v. Hubbard, 17 Ark., 189-198; also act of 1873. The wife’s rights in this case are separate and distinct from her husband’s — not affected by the marital relation. Shoular, pp. 232-33 and cases cited, p. 238 and cases cited; Gee v. Lewis, 20 Ind., 149. Marriage releases the debt. Bright on Hus. and Wife, vol. 1, p. 18.

Hon. James K. Young, Circuit Judge. Relied on section 26, of the act to incorporate the Miss. Val. R. R. Co., passed June 12th, 1856, together with the charter of the Cairo & Fulton Co., sec. 13. The right of exemption from road duty for employes was not lost by consolidation. See act of 2d March, 1869, sec. 4. There was authority to consolidate before Constitution of 1868 was adopted. See sec’. 10 of original charter. The right cannot be withdrawn.

Hod. Myron D. Kent, Circuit Judge. It was error to strike out the amended complaint. Sillivant v. Reardon, 5 Ark., 140. The complaint was filed before the issuing of the summons. Pleadings up to ordinary standard before justice’s courts. The case should be remanded.

Hon. Thomas B. Hanly, Special Judge. Verdict erroneous, because it declares a lien on specific property,'.-. There should be general judgment only. It is not within the requirements of a mechanics lien. Gantt’s Digest, sec. 4067; Gould’s Digest, ch. 112, p. 768, sec. 8. No lien against a railway. Daño v. M., O. & R. R. R. R. Co., 27 Ark., 564; Eedfield’s Eailways, vol. 1, p. 443; Houck’s Law of Liens, p. 160, sec. 155; JrlePheters v. Mer.

Hon. James. H. Berry, Special Judge. Every action must be in name of the real' party in interest. Code, sec. 25; Initials not sufficiently specific. As to answer No. 3, see Williams et ais., v. Perkins, 21 Ark., 18.

Hon. P. C. Dooley, Circuit Judge. Error to award damages after the bond for title had been annulled. Todd v. Gee, 17 Vesey, 273; 2 Story’s-Eq., sec. 796 et seq; Bellows v. Cheek, 20 Ark., 437. Appellees had equal opportunity to examine the lands. Hill v. Bush, 19 Ark., 522 Vendee has a lien on rescission, for purchase money prematurely paid. Montesquieu on Liens, p. 100; 2 Sto. Equ.

Hon. William Byers, Circuit Judge. Mayor of Baltimore v. Baltimore & Ohio R. R., 6 Gill, 288. Rome R. R. v. Mayor of Rome, 14 Ga., 375, to show property part of capital stock. Legislation establishing a certain rate of taxation excludes a different rule. Lands cannot be taxed when stock is exempt. Augusta v. Ga. R. R. & B. Co., 26 Ga., 661. Capital stock includes all property, real and personal. New Haven v. CMy Bank, 31 Conn., 106. The courts incline against double taxes.

Hon. W. I. Warwick, Chancellor. The proceedings do not follow the requirements of th$ statute,. July 16, 1868, p. 76 of acts, see secs. 6, 5. This act was not changed by the Code'. No affidavit here for warning order. Gantt’s Digest, sec. 4527. No proper proof of publication. Gantt’s Digest, sec. 4033. Constructive service must be strict. Brodie v. Skelton, 11 Ark., 121. Personal decree erroneous. Cited Gantt’s Digest, secs. 3994, 3996.

Hon. P. C. Dooley, Circuit Judge. Court erred in excluding Halliburton's testimony even if inadmissible. Johnson v. Ashley, 7 Ark., 470; Phelan v. Ben-ham, 9 ib., 389; 15 ib., 345; 18 ib., 392; 23 ib., 131. But it was admissible. Gantt's Digest, 90. The authority of the administrator could not be questioned after the judgment of the Probate Court, and this judgment shocks the sense of justice.

Hon. W. H. H. Clayton, Circuit Judge. Section 8, of the act of April 28th, 1873, Pamphlet Acts, page 384, only provides that a married woman may be sued in “ the courts of this state,” and not that she may be sued at law. Therefore the principle that the contracts of a married woman, made during coverture, are void at law, is not affected by the statute.

' Hon. W: H. H. Clayton, Circuit Judge. ■ No deed was tendered before the announcement of the suit. This was fatal. Lewis v. Davis, 21 Ark., 239. ' ’ The tax deed is proof of its recitals, and of the regularity and legality of the sale. Gould’s Digest, ch. 148, sec. 130; 24 Ark., 460. This,, with the sales-book, shows the land sold for taxes of ’67 alone. An answer must be taken as true, not contradicted by-two witnesses, or one with corroborating circumstances.

Hon. A. C. Jones, Special Judge. A mortgage may be given in a specific sum to secure future advances, and future balances on settlements. Bank, etc., v. Finch, 3 Barb. Ch. Rpts., 303, 297; Shirras v. Caig, 7 Cranch. U. S., 50; McK. v. Babcock, 26 N. Y., 378; Langston v. McKinney, 16 Johns., 105; Truscott v.King, 2Seld., 157; 1 Hill. Mort., p. 206, secs. 58 et seq., and parol testimony is admissible to show the intent. Cases supra, and 2 Wash.

Hon. Myron D. Kent, Circuit Judge. The defect, of want of affidavit, was waived by appearance and answer to the suit. Motion to dismiss was a thing in abatement. This case comes within the principle of Borden v. Fowler, adm’r, 14 Ark., 471; Grimes, adm’r, v. Bush, 16 ib., 647; Maddin, adm’r, v. State Bank, 13 ib., 276. The motion to dismiss and order of dismissal are brought up only as part of the bill of exceptions. Nothing is before the court. Ark.

Hon. James K. Young, Circuit Judge. By accepting summons, the sheriff waived his right to a fee in advance. Officers should be held to a strict accountability. Hill v. Seioell, 27 Ark., 19.

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. John R. Eakin, Chancellor.</p>

<p>ERROR to Ouachita Circuit Court.</p> <p>Hon. James K. Young, Circuit Judge.</p> <p>Payee may sue one or more makers of a note at his option. Gantt’s Dig., secs. 4479, 4480, 572, 3587, 4702, 4704. Besides it has long been the law in this State. Hamilton v. Burton, 6 Ark., 24; Burgen -v. Dwinal, 11 ib., 320; Hides v. Manees, 9 ib., 701; Hides v. Branton, 21 ib., 191; Walker v. Walker, 7 ib., 543.</p>

<p>1. Paupers: Duty of the County Court and officials in regard to.</p> <p>Sheriffs, Coroners, Constables and Justices of the Peace are, bylaw, charged with the duty of ascertaining who are in needy and suffering circumstances, and reporting their condition to the County Court, and it is the duty of the court to inquire into the condition of such persons, whether brought to its notice by such officers or otherwise, and determine whether r not they are paupers.</p> <p>2.--: When the County becomes liable for the support of paupers.</p> <p>In order to charge the county with the support and maintenance of destitute persons, they must first be adjudged paupers by the County Court.</p>

Hon. L. H. Mangitm, Special Judge. As to liability of the wife, on her separate property. Dobbins & Wife v. Hubbard, 17 Ark., 189; Stilwell & Wife v. Keatt, ex’rs-, 29 id., 346. , The act of April 1873, was not retrospective and.does not apply. Previously she could only bind herself and be sued in equity. If brought on the wrong side of the court the suit should have been transferred. See Code.

Hon. John- R. Eaiiin, Chancellor. Striking the case from the docket of the Probate Court was no settlement of the administration. Gantt’s Digest, secs. 136 to 141. Widow cannot convey her dower interest until assigned. Car-nail v. Wilson, 21 Ark., 63; Jacobs v. Atkins, 14 Mass., 378; Wallace v. Hall, 19 Ala., 372; Pennington v. Yell, 11 Ark., 212; Graham v. Moore, 5 How. (Del.), 318; Nason v. Allen, 5 McC., 479.