Volume 31 — Arkansas Reports

<p>ERROR to Arkansas Circuit Court.</p> <p>Hon. John A. Williams, Circuit Judge.</p>

<p>1. —Promissory Note: Assignment; Set off.</p> <p>A negotiable promissory note is, under the Act of April 24, 1873, governed by the law merchant, and an endorsee for value before maturity in due course of business, without notic-e, takes it free from any set off in favor of the maker or against the assignor.</p> <p>2. —Endorsement in Blank: Evidence to fix the date of admissible.</p> <p>The provision of sec. 570 Gantt’s Digest that all blank assignments shall be taken to have been made on such a day as shall be most to the advantage of the defendant, merely changes the former rule of presumption to be applied in the absence of evidence, and it is competent for the plaintiff to prove the actual date of the assignment.</p>

<p>APPEAL from Montgomery Circuit Court.</p> <p>Hon. L. J. Joynee, Circuit Judge.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>Bailment: Rights acquired, by a pledge.</p> <p>In a proceeding by attachment, and levy on personal property, an interpiea was filed by parties claiming- that the property had been pledged to them by the defendants, to secure indebtedness due them, etc., held, that the pledge created a special property in the interpleaders, which was good as against the pledger or his creditors, and the interplea should have been sustained.</p>

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. T. C. Peek, Special Judge.</p>

<p>APPEAL from Nevada Circuit Court.</p> <p>Hon. James K. Young, Circuit Judge.</p>

<p>APPEAL from Hempstead Circuit Court.</p> <p>Hon. Jas. K. Young, Circuit Judge.</p>

<p>JFmns, Penalties, etc. : Payable in County Warrants.</p> <p>Under the provision of the Act of December 14th, 1875, requiring fines, penalties, etc., to be paid into the County Treasury, such fines, penalties, and forfeitures are to be treated as debts accruing to the county, and are payable in county warrants.</p>

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. J. R. S. Burbridge, Special Judge.</p>

<p>APPEAL from Miller Circuit Court.</p> <p>Hon. James K. Young, Circuit Judge.</p>

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

<p>Bailment: Stranger receiving premiums on policies of insurance.</p> <p>Where premiums on policies of insurance are collected, and held by a third person, and the amount placed to the credit of the agent of the insurance company, the holder becomes the bailee of the company, and must account to it, or its agent, for the money so held; he cannot apply the same to a discharge of debts due him by the agent, or deliver it to the agent after his authority has ceased.</p>

<p>1. Practice: Qtiardiau ad litem, appointment of, etc.</p> <p>It is not proper to appoint an attorney ad lilem for minor defendants, the court should in such cases, after service, appoint a guardian ad litem.</p> <p>2. Presumption: Misprision, etc.</p> <p>Where the record shows an order of the court below appointing an attorney ad litem for non-resident minor defendants, the court will not, therefore, presume that there were minors in the case, in the absence of allegations in the pleadings to that effect, but will treat it as a misprision.</p> <p>3. Jurisdiction: Acquired by appeal.</p> <p>■When a party appeals to this court, he thereby enters his appearanc-e, and the court, as to subsequent proceedings, acquires jurisdiction of his person.</p>

<p>1. Mortgage: Bill of Sale construed to be.</p> <p>An absolute bill of sale, 'executed to secure a debt, operates as a mortgage, and will be postponed to a subsequent, and recorded, mortgage.</p> <p>2. Trust: When advances by cestui que trust repodd out of trust fund.</p> <p>When one of several beneficiaries of a trust fund at the request of the trustee, advances means necessary to preserve the trust fund, he is entitled to re-imbursement out of the fund for such advances.</p> <p>3. -:</p> <p>A land owner who had let his land to laborers for one-half the crop, mortgaged his share to secure debts due various parties, and among others to secure future advances and a debt due to A. The laborers afterward gave to the land owner a lien on their shares to secure future supplies and other debts due him, he transferred this lien to A, who at the time took a mortgage from the laborers to secure the supplies; held, that A did not take the lien, and latter mortgage, as collateral to the original security, but as independent security for the supplies to be furnished the laborers, and the other creditors were not entitled to have it brought into the trust fund.</p>

<p>APPEAL from Monroe Circuit Court in Chancery.</p> <p>Hon. W. H. H. Crayton, Ch’cuit Judge.</p>

<p>APPEAL from Drew Circuit Court in Chancery.</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p>

<p>1. Benia fide purchaser, etc.</p> <p>So long as the vendor retains the legal title, a purchaser from the vendee cannot allege want of notice of the vendor’s lien for unpaid purchase money.</p> <p>2. "Foreclosure or Vendor’s Liex: Who is hound by.</p> <p>Where a vendor files a bill against the vendee to foreclose his lien for unpaid purchase money, and fails to make subsequent purchasers or incumbrancers parties, they are not bound by the decree, and their right to redeem is not barred.</p> <p>3. -: By the State,.</p> <p>"Under the provisions of the Act of July 16th, 1868, providing for the foreclosure of the State’s lien for purchase money of public lands, a purchaser from the State’s vendee, who is not made a party, or served with notice of the proceeding on the part of the State to foreclose, may, after decree and sale thereunder, and before a confirmation of the sale, apply to redeem; and the fact that the purchaser under the decree has procured a patent from the Governor, before confirmation of the sale, will not divest the chancellor of the power to set it aside, and permit the land to be redeemed.</p> <p>4. Marshalling or Securities: When purchaser not entitled to.</p> <p>Where a vendee sold a tract of land subject io the vendor’s lien for unpaid purchase money, and the subsequent purchaser mortgaged one parcel, and afterwards sold the remainder of it, without covenants against the incumbrance in either case; held, that the lien should be charged rateably upon the two parcels according to value.</p>

<p>1. Pleading; Answer in Chancery, burden of proof, etc.</p> <p>Under an answer containing denials of the allegations of the complaint, and affirmative averments, the burden of proof is on the plaintiff as to the former, and on the defendant as to the new matter.</p> <p>2. Descent:</p> <p>Where one dies without issue, seized of a new acquisition, the mother, being the sole surviving parent, takes an estate for life, with remainder, first to the line of the paternal ancestor in postponement of the maternal line, until the former becomes extinct, and then to the maternal line.</p> <p>3. Conveyance: Relinquishment of dower.</p> <p>A deed executed by the husband of a tenant for life, in which the latter joins in a relinquishment of dower merely, does not convey her estate.</p> <p>4. -- — : Acknowledgment.</p> <p>Where the certificate of acknowledgment omits the name of the grantor, but shows that the party who appeared before the officer "was the grantor, and refers to him by name in the wife’s acknowledgment, it is sufficient.</p>

<p>APPEAL from Prairie Circuit Court in Chancery.</p> <p>Hon. P. C. Dooley, Circuit Judge.</p>

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

<p>APPEAL from Conway Circuit Coui;t in Chancery.</p> <p>Hon. W. N. May, Circuit Judge. •</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>APPEAL from Independence Circuit Court.</p> <p>Hon. W. B. Padgett, Special Judge.</p>

<p>APPEAL from Lonoke Circuit Court in Chancery.</p> <p>Hon. J. J. Clendenin, Circuit Judge.</p>

<p>APPEAL from Monroe Circuit Court in Chancery.</p> <p>Hon. J. Cole Davis, Circuit Judge.</p>

<p>1. Contract: Conntraction, arc.</p> <p>The vendors of real estate, against whom an action of ejectment was pending at the time of the sale, convoyed the land to the vendee, with general and special covenants of warranty. Tho vendees paid a part of tho purchase money, and executed their note for the residue, and the vendors executed to them a bond reciting the ale, the payment, and the pendency of the action of ejectment, and conditioned to become void ii the action . should be finally determined in their favor; or, in case it should be determined against them, if they should refund the purchase money so paid them: Held, that the bond was designed merely as a security for the cash payment, in case the vendor’s title should fail; and, as to tho deferred • payment, that the vendees relied alone on the covenants contained in the deed.</p> <p>•2. Pleading: Defect of title.</p> <p>A vendee who resists the payment of the purchase money on the ground of an outstanding title, must show the nature of the title, and that it is paramount to his vendor’s title.</p> <p>3. Rescission: Must be entire.</p> <p>If a vendee of land, who is placed in possession by his vendor, desires to rescind the contract on account of a defect in the title, he must restore the vendor possession.</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>1. Salts: Ruffing.</p> <p>Mere commendation, or puffing, on the part of the vendor of goods, is noi ’ such a representation as will bind him.</p> <p>2. Frattit, Misrepresentation, etc.</p> <p>Fraud consists in the misrepresentation or concealment of material facts., forming an inducement to the making of the contract, and in regard to which, from the relative position of the parties, their means of information, etc., the opnosite party must necessarily be presumed to have contracted in reliance oil the representations; for if the means of information are alike accessible to both, they must be deemed to have relied on their own knowledge.</p> <p>3. ----: Rescission fur fraud.</p> <p>Where there is no warranty, and the sale is made under the false and! fraudulent representations of the seller, the purchaser may return, or offer to return the goods, and avoid the contract.</p> <p>4. Misrepresentation.</p> <p>An untrue representation, in order to be fraudulent, must have been knows by the party making it to be false.</p>

<p>APPEAL from Little, River County in Chancery.</p> <p>Hon. Thomas M. McCray, Special Judge. .</p>

<p>APPEAL from Craighead Circuit Court.</p> <p>Hon. David Nicholls, Special Judge.</p>

<p>X. Sureties on Appeal Bone: Jurisdiction over.</p> <p>Upon the affirmance of a decree for money by this court, the decree goes against the sureties in the appeal bond as of course, and, if omitted at the time, may afterward be entered mtne pro lime. The sureties are not entitled to notice before decree against them.</p> <p>2,--,. Practice when excessive judgment rendered against.</p> <p>The sureties in an appeal bond stipulated to pay any decree that might be rendered by this court against their principal, not to exceed the amount of the decree below. The bond recited the amount of the decree excessively, and was followed by the decree in this court: Ordered, that a remittitur he entered as of the date of the decree, and certified to the sheriff, in whose hands an execution has been placed, with directions to enter the amount remitted as a credit on the execution.</p>

<p>APPEAL from Drew Circuit Court.</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p>

<p>1. Marshalling or Siscubities:</p> <p>When one creditor has a security upon two funds, anotL er having a security on one of them, may, if necessary to the protection of his security, compel the other to resort to the fund not embraced in it, if it can be done without prejudice to the other creditor, or injustice to the common debtor or third persons having interest in the fund.</p> <p>2. ---: Same.</p> <p>A held a mortgage on two tracts of land, B also' held a mortgage on one of the tracts; in a proceeding by A to foreclose, B sought to compel him to exhaust the tract not embraced in his mortgage first. The widow of the mortgagor, who was also a party, claimed a homestead in the latter tract: Held, that by reason of the widow’s equity, the securities should not be marshalled.</p> <p>3. Pleading: Gross-Bill.</p> <p>To entitle a defendant in equity to relief by reason of new affirmative matter set up in the answer, it should be made a cross-bil, and the parties to-be affected by the relief sought, should be made defendants.</p>

<p>1. Evidence.</p> <p>Where a witness is rejected for incompotency, it is not necessary to set out what the party expected to prove by him.</p> <p>--- — ■: Same.</p> <p>The rule which excludes the husband or wife as witnesses, does not extend to persons who cohabit together as husband and wife without lawful marriage.</p>

<p>1. Parties.</p> <p>In a proceeding against the trustee in a trust mortgage, affecting the subject matter of the trust, the cestui que trust should be made a party, and for a failure to do so, leave should be given the plaintiff: to amend, or the complaint should be dismissed without prejudice.</p> <p>2. Mortgage: Powers of sale, etle.</p> <p>A power of sale contained in a mortgage is not suspended by a resort to the process of garnishment on the part of the creditor.</p>

<p>APPEAL from Ashley Circuit Court.</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p>

<p>Certiorari to Chieot Circuit Court in Chancery.</p> <p>Hon. J. E. Robinson, Special Judge.</p>

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. Sam. W. Williams, Special Judge.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge. •</p>

<p>APPEAL from Jefferson Circuit Court in Chancery.</p> <p>Hon. Read Fletcher, Special Judge.</p>

<p>S'jsatu'I’HS: Enactment of under the Constitution of 1868.</p> <p>The first section of an act of the Legislature entitled “An Act to enlarge the jurisdiction of Probate Courts,” approved the 16th of March, 1871, declares the subjects of which the Probate Court shall have jurisdiction; the second and third sections regulate the manner of taking an appeal to the Circuit Court: Held that they were not foreign to the subject indicated in the title to the act, or repugnant to section 22, article 5, of the Constitution of 1868, which provides that no act shall embrace more than one subject, which shall be embraced in its title. Neither was it repugnant to section 23, of said article, which provides that no law shall be revised, altered or amended by reference to its title only.</p>

<p>Tkndob’s Lien, Assionment, Evidence, etc.:</p> <p>A vendor of real estate executed a bond ibr title, taking' tlie vendee’s notes for the purchase money. These he afterward assigned, in the usual form, without any restriction. The assignee, after the payment, and without any consideration, executed an instrument releasing the assignor from personal liability by reason of the assignment. The evidence shows that he knew the estate of the vendee, who had died, to be insolvent, and took the notes, relying solely on the vendor’s lien. Held: That the release of the assignor from personal liability did not discharge the lien, or prevent it from passing to the assignee; that the intention of the parties might be shown by proof of the facts and circumstances attending the transaction.</p>

<p>1. Reformation of Deed, Decree, etc.:</p> <p>A conveyed land in trust to secure a debt to B; by mistake a tract intended to be conveyed was omitted. The land was subsequently sold, under a decree in foreclosure of the deed of trust, and purchased by B; the mistake was carried into the decree and commissioner’s deed. B took possession of the entire tract, including the part omitted: Held, that B was entitled to have the decree and deeds reformed so as to embrace tl.e omitted tract, as against a judgment creditor, who had had it sold and bought it under an execution on his judgment.</p> <p>2. Execution Sams:</p> <p>One who buys at execution sale, is not an innocent purchaser without notice, he takes the estate subject to all equities existing against it at the time of the purchase.</p> <p>3. Admissions:</p> <p>An admission by a grantor, of a mistake in the deed, is competent evidence against a subsequent purchaser, under an execution against him.</p> <p>4. Execution Sale: Redemption.</p> <p>A purchaser at execution sale, who accepts money paid for the redemption of land, cannot compliin that the party redeeming had no authority from the defendant in execution, to redeem.</p> <p>5. --: Et/ed of MedPiiijrtion.</p> <p>Redemption by the judgment debtor, of land sold under execution, restores the lien of the judgment in the same condition as if there had been no-sale.</p>

<p>1. Mandamus: Practice in.</p> <p>Under the provisions of the Code of Practice all questions of law and fact arising upon an application for mandamus should be submitted together, and disposed of at the same time.</p> <p>2. --: Parties.</p> <p>Where the writ of mandamus is sought for the enforcement of a public right, common to tire whole community, it is not necessary that the relator should have a special interest in the matter, or be a public officer; the statute, however, requires that the proceeding shall be in the name of the State.</p> <p>3. Mukioipai. KnuunATiox: Contract, etc.</p> <p>Section 2(), of chapter 44, U-ould’s Digest, which provided that when a county seat had been established for four years it should not be removed without the assessment by the County Court of a sufficient tax to pay the lot owners for their lots and improvements, was a mere municipal regulation, subject to repeal by the Legislature, and not a contract within the meaning of section 10, article 1, of the Constitution of the United States.</p>

<p>Attorneys;</p> <p>Attorneys appointed by the court, to defend persons charged with crime and unable to employ counsel, are not entitled to compensation.</p>

<p>1. Appeal from Justice of the Peace:</p> <p>Where an appeal is taken from the judgment of a justice of the peace, it is his áuty to file a transcript in the office of the Clerk of the Circuit Court on or before the next term of that court, and it is incumbent on the appellant to see that the transcript is filed and the case docketed. If he neglects to do it, it is in the discretion of the Circuit Court to affirm the judgment of the justice.</p> <p>2. Descent and Distribution, etc.:</p> <p>Under the provisions of sec. 7, Gantt’s Digest, if a woman dies, leaving a minor child, and an estate under the value of ®300, the estate will vest in the child, who may be substituted as plaintiff in a suit instituted by the deceased parent. If the motion to substitute is made within one year after the death, the opposite party is not entitled to notice.</p>

<p>1. Statute of limitations applicable to judicial sales.</p> <p>A proceeding instituted for the purpose of having a judicial sale of laud set aside, and the property re-sold, or a trust established in the plaintiff’s favor, and title to one half the land vested in him, on account of the fraudulent conduct of the purchaser, is not a suit for the recovery of the land, or within the provisions of section 4116 of Gantt’s Digest, which provides that all actions against the purchaser for lands bought at judicial sale, shall be brought within tive years.</p> <p>2. Implied Trust.</p> <p>A held two notes of equal amount for the purchase money of land; he transferred one of them to B as collateral security for a debt. A after-wards died, and proceedings to foreclose (he vendor’s lien was brought in the name of his administrator upon both notes. Under a decree of foreclosure, the land was bought in by the heirs of the decedent, and no money paid: Held, that a trust was created in favor of B ag to one half the land.</p> <p>3. Judicial Sale: Payment, re-sale, etc.</p> <p>Under a decree which directs land tobe sold for cash, the purchaser acquires no title until he pays the amount of his bid; and, upon his failure to pay, the land should be re-sold.</p>

<p>APPEAL from Marion Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p>

<p>3. Pleading: Allegations of value in trover.</p> <p>In an action of trover, the failure to allege the value of the property converted, will be cured by a verdict for the plaintiff.</p> <p>2. Tboveb: Bur dm of, proof in.</p> <p>Where scrip was deposited with a bailee, for safe keeping, proof of the bailment, in an action of trover for its conversion, does cast on the bailee the burden of showing a re-delivery to the bailor, the plaintiff must prove the conversion as well as the bailment.</p> <p>3. Damages: Measure of, in, trover.</p> <p>ffhe measure of damages in an action of trover, is the value of the property at the time of its conversion.</p>

<p>Exemption: What law governs as to wife's debt dum sola.</p> <p>A married in 1870, his wife owed a debt which was contracted in 1866, upon which judgment was recovered against both of them: Held, that as to the husband the debt was contracted at the date of the marriage, and he was entitled to the benefit of the exemption law then in force, while the-exemptions of the wife, as to her separate property, would be governed by the law in force at the time she contracted the debt.</p>

<p>1. Unlawful Detainer:</p> <p>The act of March 2d, 1875, to establish the law of forcible entry and detainer, is but a re-enactment of Ch. 72 of Gould’s Digest, under which it was held by this court* that unlawful detainer would not lie on the right of possession meroly, but the relation of landlord and tenant, express or implied, must exist between the iilaintiff and defendant.</p> <p>2. ----: Sheriff’s Deed, eta. :</p> <p>The sheriff is not authorized to make a ueed to land sold under execution, until the expiration of twelve months from the sale, and a deed made less than twelve months from the sale will not entitle the grantor to maintain unlawful detainer for the land. It is by no means clear whether sec. 2709 of Gould’s Digest, authorizing purchasers at execution sale to resort to that remedy, was not repealed by the act of March 2d, 1875, regulating the action, or that it applies to sales under proceedings by attachment, or under judgments not in personam.</p>

<p>1. Demurrer.</p> <p>Where a general demurrer is filed to an answer containing several paragraphs, the demurrer should be overruled if any one paragraph presents, a good defense. The court must pass upon the demurrer as an entirety, and cannot overrule it as to one paragraph and sustain it as to another.</p> <p>2. ——-.</p> <p>In an action of trespass, the complaint alleged that property of the plaintiff which was exempt from execution, was unlawfully seized and sola by the defendants, under an execution against the plaintiff, but tailed to show the date of the debt; that a schedule was filed under the statute, etc., upon demurrer to an answer filed to the complaint: Held, that the latter was defective, and, by relation, the demurrer should have been sustained as to it; but qurrce-. If a demurrer had been interposed to the complaint, should.the allegations in regard to the levy, exemption, etc., have been treated as surplusage, and the remaining allegations sustained as a good cause of action?</p>

<p>1. Deposition: Authentication, etc.</p> <p>Where depositions are taken before a justice of the peace in another State a certificate of authentication of his official character should accompany the deposition.</p> <p>2. Evidence: Burden of proof under issue of devisavit vel non.</p> <p>•Under the issue of devisavit vel non, where the inquiry is whether the testator was of sound and disposing mind, and free from undue influence, at the time of executing the will, the burden of proof is on the plaintiff.</p> <p>3. Devisavit vel non: Evidence, etc.</p> <p>An instruction to the following effect held correct under an issue of devisavit vel non: Evidence that the testator was weak and imbecile from age and disease to the extent that he was incapable of attending to his ordinary business, and in that condition was induced'to abandon attorneys previously employed by him, that the will was written by the attorney of the principal devisee, and witnessed by said attorney, and the wife, and a relative of said devisee when other disinterested parties were near and could have been conveniently called to witness it, may be considered by the jury in determining whether the will was obtained by undue influence or not.</p> <p>4.--: Same. Instruction upon.</p> <p>An instruction under an issue of demsavit vel non which coupled together a number of circumstances having a bearing on the capacity of the testator at the time of making the will, and announced that they were all strong circumstances to disprove capacity, was erroneous; the circumstances being admitted, their weight should have been left to the jury.</p> <p>(For various circumstances admissible under the issue of devisavit vet non, as bearing upon the capacity and ¡freedom of will of a testator, see the opinion.)</p>

<p>1. Tax Sale:</p> <p>Under the revenue law in force in 1S67, it was only as to lands owned by-non-residents, that the County Court was authorized, upon the failure oí the collector to sell on the day appointed by law, to direct the sale to be had on a different day.</p> <p>2. --: Collector’s deed.</p> <p>Where a tax deed relied on in an action of ejectment, fails to show for what year the lands were assessed, that the tracts were assessed separately, or the amount of taxes due on each; and shows that the several tracts were sold together, it is illegal and void.</p> <p>3.---: Tender before suit; waiver, ete.</p> <p>In an action to recover land held by the defendant under a tax sale, a failure on the part of the plaintiff to make the tender required by statute, before bringing the suit, must be pleaded in abatement, or it will be regarded as waived.</p>

<p>1. Conveyance: Statutory covenants.</p> <p>The words grant, bargain and sell in a deed of conveyance, when not limited by express words in the deed, must, under the statute, be construed as an express covenant against incumbrances done or suffered by the grantor.</p> <p>2. ---: Recoupment. Defenses to action for purchase money, etc.</p> <p>Where the grantees, in a deed containing covenants against incumbrances, permit the land to be sold under prior liens against the grantor, and procure a third party to buy it, for the purpose of strengthening their title, they will be permitted to recoup from the purchase money the amount expended in removing the incumbrance, but cannot set up title in the purchaser to defeat a recovery by the grantor of the residue of the purchase money.</p> <p>3. Payment: Option to pay in money or property.</p> <p>Where the vendee of real estate contracts to pay the purchase money in cash or by the delivery of cotton of a specified class at a designated place, as the payments become due, at his option, the right of election is not lost by the failure to deliver the cotton at the time and place where it is brought about by the conduct of the vendor.</p> <p>4. Abatement by death of a party pending appeal, etc.</p> <p>The death of a party to the appeal having been suggested subsequent to the decree of this court, ordered that further proceedings in execution of the decree, so far as affecting his interest, be suspended until the cause is revived against his legal representatives.</p>

<p>1. Bill of Exceptions.</p> <p>Where the evidence is not embodied in the bill of exceptions, but reference is made therein to the pages of the transcript upon which it is entered, it is sufficient, though the better practice is to embody it in the bill of exceptions.</p> <p>2. Ejectment; Evidence.</p> <p>In ejectment, proof of possession, under claim of title by the plaintiff’s ancestor, is sufficient to entitle plaintiff to recover, unless the defendant shows a better title.</p> <p>3. Dower; Transfer before assignment, evidence, etc.</p> <p>The widow cannot transfer her estate by dower in the land of her deceased husband before the same has been set apart to her; and a deed executed by her before assignment of dower, is not admissible in evidence to establish title in her vendee.</p> <p>4. Taxes: IAen for; Sale by ex-collector, etc.</p> <p>Under the provisions of sec. 105, Oh. 148, Gould’s Digest, the lien of the State and county for taxes was transferred to the collector, who should pay the same, with power to collect such taxes for three years after payment, notwithstanding the expiration of his term of office. By an act approved the 13th of March, 1867, the time was extended one year. It is questionable whether the Legislature had power to extend the time during which the officer could act, or the lien on the property charged with the taxes, so as further to encumber it.</p> <p>5. ----: Same.</p> <p>The power to sell under this act depended upou the pre-existing fact that the collector had settled with the State and county officers, and paid all the taxes due for the particular year for which the taxes were charged, within the time prescribed by law, and had settled the particular tax which he failed to collect; the remedy provided by the’statute must be strictly pursued.</p> <p>6. Tax deed: When void.</p> <p>Where a tax deed, under a sale of land for the non-payment of taxes for the years 1859, ’60 and 61, does not recite the assessment of the land for those years, but shows that the assessment was made and filed in 1867, the deed is void,* and cannot be cured by parol evidence. (For other irregularities which will vitiate the sale, see the opinion.)</p> <p>7. --: Power of cleric to make tax deed.</p> <p>The clerk had no power to execute a deed to land sold for non-payment of taxes, under the provisions of sec. 105, Oh.' 148, Gould’s Digest. The act authorizing him to execute tax deeds did not relate to that class of sales.</p> <p>8. --: Effect of purchase at tax sale by one claiming title.</p> <p>One who buys land at tax sale to which he claims title, does not thereby strengthen his title, but only removes the incumbrance created by the non-payment of taxes.</p> <p>9. Ejectment: Bents and profits.</p> <p>Upon a recovery in ejectment, the plaintiff is entitled to judgment for rents and profits during the time the defendant was in possession.</p> <p>10. ---: Improvements by defendant.</p> <p>A defendant in ejectment, who claims under a tax title, also under a conveyance from a third party, and who made improvements before the tax title accrued, cannot recover the value of his improvements from the plaintiff'.</p>

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

<p>APPEAL from Clark Circuit Court in Chancery.</p> <p>Hon. John A. Kingston, Circuit Judge.</p>

<p>APPEAL from Fulton Circuit Court.</p> <p>Hon. J. M, Butler, Circuit Judge.</p>

<p>APPEAL from Boone Circuit Court.</p> <p>Hon. J. H. Huckelbery, Circuit Judge.</p>

<p>1. Lien : Not displaced by the debtor’s death.</p> <p>Where a creditor lias acquired a specific lien on particular property of this debtor during his life time, it may be enforced after his death, and the creditor need not resort to the general assets of his estate through the Probate Court.</p> <p>2. Execution, Levy, etc. lAen of, may be enforced after debtor’s death.</p> <p>An execution was issued and levied on land during the life of the debtor, after his death the judgment was revived against the administrator and a writ of vend. ex. issued to sell the land levied on: Held, that by the levy a specific lien was fixed on, the land which could be enforced by a sale under the vend. ex.</p>

<p>Miles Killian, and Elizabeth, his wife, for a nominal consideration expressed in the deed, conveyed certain land belonging to the wife, to Badgett, upon the following trusts: “That the said Killian and wife, for and during their natural lives, respectively, without impeachment of or for an37 manner of waste, should have, hold and enjoy said tract of land, * * and receive and enjoy the rents and profits thereof; and, upon trust also, that the said Badgett, upon the written request of said K. and wife, or the survivor of either of them, may, at any time, and shall, upon such request, mortgage or sell the said tracts of land, or any part thereof; and the said K. and wife, or the survivor, to receive the entire consideration received upon such mortgage or saler And said trustee, or any one that may be appointed, shall have full power to make valid title in such cases, and if no such disposition shall be made thereof, then, at the explication of said life estate, the remainder' shall descend to the heir of'said Elizabeth Killian.” The wife had no children by K., and died, leaving one daughter, the issue of a former marriage; K. married again, and, for a nominal consideration, conveyed the trust estate to one Moore who, on the same day, for the like consideration, conveyed it to K.’s second wife; the trustee died without having executed his trust by mortgage or sale. Held:</p> <p>First — That Killian was merely a nominal party to the deed of trust, and not properly a cestui que trust, because the legal estate did not pass from him to Badgett, the trustee, but from the wife, in whom the equitable estate remained.</p> <p>Second — K. acquired a life interest in the rents and profits of the land, and, upon sale or mortgage, in the money realized therefrom.</p> <p>Third — There being nothing for the trustee to do under the provisions of the deed, but to carry out its directions according to the letter, it created an executed trust: and it seems rather to have reserved the rents and profits to the grantors, than to have entrusted the collection of them to the trustee.</p> <p>Fourth — The effect of the deed was to separate the legal from the equitable estate; to vest the first in the trustee; the second in the cestui que trust, Mrs. Killian.</p> <p>Fifth — Declarations of trust are construed in the same manner as common law conveyances, and the trust estate is governed by the same rules; the cestui que trust is seized absolutely of the freehold, in contemplation of a court of equity.</p> <p>Sixth — A trust once created attaches to the legal estate, and cannot be detached from it and extinguished, except by the union of the two estates in one person, when the equitable, will merge into the legal estate. This rule excludes the idea of the legal and equitable estate uniting in K., he never having been seized of a legal estate, could not, as cestui que trust, hold an equitable estate. The only estate held by him at the time of the execution of the deed to Moore, was the life interest acquired under the deed of trust.</p> <p>Seventh — Badgett could not, by denying the validity of K.’s deed, renounce the trust. A trust, once accepted, cannot be renounced by the trustee, or his heirs, upon whom it is cast at his death; nor can he discharge himself of it without the consent of the cestui que trust, or the court.</p> <p>Eighth — The power to sell was to be invoked by a request in writing. It must be a request to mortgage or sell, not to ratify a sale made by another As regarded price, and time, and manner of sale, a discretion was vested in the trustee.</p> <p>Ninth — Upon proper application, the trustee might have been required to mortgage or sell; but this not having been done during his life, the estate in remainder passed to and vested in the heirs of Elizabeth Killian.</p> <p>Tenth — The deed from Killian to Moore was inoperative, and, upon his death, Mrs. K. having died previously, the purposes of the trust were completed ; nothing remained to be done, and the legal estate passed to, and united' with the equitable estate, in the heir of Mrs. K., to whom the estate was limited in remainder.</p>

<p>APPEAL from Jefferson Circuit Court in Chancery.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>Mandamus will not lie to compel Commissioner of State lands to execute a second patent.</p> <p>In a proceeding by mandamus against the Commissioner of State lands to compel him to issue a patent to the petitioner to certain lands described, it was alleged that he had, subsequent to the entry under which petitioner claimed, issued a patent to another person who had been permitted to enter the land; Held, that by the issuance of the patent the State had parted with her title, and the petitioner’s remedy was by a proceeding in equity to divest the title of the patentee.</p>

<p>APPEAL from Washington Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p>

<p>APPEAL from White Circuit Court in Chancery.</p> <p>Hon. John Whytock, Circuit Judge.</p>

<p>1. The r ight to bear arms — Constitutional provision.</p> <p>The provisions of Article ii of Amendments to the Constitution of the United States, guaranteeing to the citizens the right to keep and bear arms, was not intended as a restraint on State legislation.</p> <p>2. ---: Same.</p> <p>The provisions of Article ii, sec. 5, of the Constitution of this State, securing to the citizens the right to keep ana bear arms for their common defense, relates to such arms as are used for purposes of war; and does not prevent the legislature from prohibiting the wearing of such weapons as are not used in civilized warfare, and would not contribute to the common defense.</p> <p>3. --: Construction of the act prohibiting.</p> <p>The act of February 16th, 1875, which prohibits the carrying of any pistol whatever, as a weapon, refers to such pistols as are usually carried in the pocket, and of a size to be concealed about the person, and used in private quarrels; and not to such as are within the provisions of the Constitution.</p>

<p>Liquor License: Municipal authority.</p> <p>The provisions of sec. 12 of ilie act of March 9fch, 1875, providing for the incorporation of cities, towns, etc., which authorizes them to li'cense, regulate, tax, or suppress tippling houses and dram shops, and other places of habitual resort for tippling, etc., does not confer upon them the power to prohibit the sale of ardent or vinous spirits, in any qualities, or by any persons, without license from the corporation. Nor have they such power by the provisions of the 22d section of the act. The general powers therein conferred do not enlarge the special powers conferred in the 12th section.</p>

<p>Honjsstead : Occupancy and dwelling essential to.</p> <p>A mere intention to build a dwelling house on a tract of land and occupy it as a homestead, does not impress it with that character, until the intention is carried into effect. A house or dwelling upon the land is necessary to place it within the protection of the law as a homestead.</p>

<p>Landlord and Tenant: Estoppel.</p> <p>A lessee, or one who comes into possession of the land under him by the-assignment of the lease, and recognizes the right of the landlord by the payment of rent, cannot, so long as the title remains as it was when the tenancy accrued, deny the title of the landlord.</p>

<p>1. Injunction of proceedings at low.</p> <p>A bill in chancery filed to enjoin tlie institution of proceedings at law to deprive the plaintiff of the possession of land, in which it is alleged that i the defendant has no title to the property, or right of possession, presents no grounds for relief.</p> <p>2. ---: Same.</p> <p>A party seeking to enjoin proceedings at law, must suffer judgment to go against him, and proceed to enjoin the enforcement of the judgment.</p> <p>3. --: Dissolution.</p> <p>Upon the dissolution of an injunction to restrain proceedings at law for the recovery of land, and dismissal of the bill, it is error for the court to decreee possession of the property to the defendant, where no cross bill is filed, or claim for possession asserted on the part of the defendant.</p>

<p>1. Evidence: Variance, etc.</p> <p>In an action by a corporation on a bond, it was ’ alleged in the complaint that the name of the corporation had been changed since the execution of the instrument: Held, that under the allegations the bond was admissible in evidence.</p> <p>2. --: Finding of the court not disturbed on weight of evidence.</p> <p>The finding of a court sitting as a jury will not, where there is a mere conflict of evidence, be disturbed .any more than the verdict of a jury would be under similar circumstances.</p> <p>3. Accord and satisfaction:</p> <p>An answer, in bar of an action of debt on a bond, that the defendant effected a policy of insurance on his life, which was held by the agent of the plaintiff as security for the debt, presents no defense, and is demurrable.</p> <p>4. Corporation: Forfeiture of franchise, plea of, etc.</p> <p>An answer to an action by a corporation, that it had forfeited its charter by non user, without averring that a forfeiture had been declared by judicial proceedings for that purpose, is demurrable.</p>

<p>Parties: Waiver, etc.</p> <p>Misjoinder of parties plaintiff cannot be taken advantage of in this court, unless the objection was raised in the court below.</p>

<p>APPEAL from Ashley Circuit Court. ■</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p>

<p>1. Usury.</p> <p>Usury is the charging of unlawful interest, and unless there is a law which limits the rate of interest to be charged for the use of money, there can be no usury.</p> <p>2. --.</p> <p>In a proceeding to foreclose a mortgage, held, that a contract for interest at the rate of 2% per cent, per month, executed while the provisions of the-Constitution of 1868 in regard to usury, and the laws enacted thereunder, were in force, was valid, and the subsequent enactment of a usury law did not affect it.</p>

<p>Mechanics’ Lien: Jurisdiction of Circuit Court.</p> <p>The Circuit Court has jurisdiction to enforce a mechanic’s lien for a sum under §100; proceedings to enforce liens on land, or in which the title, or possession thereof, are involved, are expressly excepted from the jurisdiction conferred by the Constitution on justices of the peace.</p>

<p>Appeal: Affido.vit, waiver, etc.</p> <p>Where, upon an appeal from the Probate to the Circuit Court, the appellee submits to try the cause anew in the Circuit Court, without moving to dismiss for want of an affidavit for appeal, the failure to file such affidavit is thereby waived.</p>

<p>1. Tax Sale:</p> <p>A tax deed which recites the sale of several tracts of land en masse, for a gross sum, is void.</p> <p>2. Purchaser pendente lite:</p> <p>One who takes a mortgage on land pending a suit to foreclase a vendor’s lien thereon, and his assignees, are chargeable with notice of the lien.</p>

<p>APPEAL from White Circuit Court.</p> <p>Hon. John J. Clendenin, Circuit Judge.</p>

<p>APPEAL from Independence Circuit Court.</p> <p>Hon. Charles Minor, Special Judge.</p>

<p>1. Sunday Contract: By livery stable keeper.</p> <p>A contract by a livery stable keeper to hire a horse on Sunday, for purposes of business or pleasure, is void; otherwise, if it is for purposes of charity or necessity, etc.</p> <p>2. Bailment:</p> <p>Although a contract made for the hire of a horse on Sunday is void, the hirer wall be liable in tort for any injury accruing to the horse from misuse or carelessness, and will be held to the highest degree of care.</p> <p>3. --.</p> <p>One who hires a horse for a definite time, and continues to use him after the time has expired, is liable for any injury that may accrue to the horse.</p>

<p>1. Ejectment: Pleading, ete.</p> <p>Under the provisions of the act of March 5th, 1875, regulating the practice in actions of ejectment, it is not necessary for the parties to copy their deeds in the pleadings; it is sufficient to state the substance of the deeds relied, on and file copies as exhibits. ■*</p> <p>2. --; Title requisite to maintain.</p> <p>The purchaser of lands from the United States, who obtains a patent certificate, does not acquire the legal title; but he may, under our statute, maintain qjectment thereon.</p> <p>3. Practice.</p> <p>The failure of an administrator, suing in his representative capacity, to file his letters, or a copy thereof, should be reached by a rule on him to produce the letters, or a copy, and is no cause of demurrer.</p> <p>4. Donation: Setting anide, notiee, etc.</p> <p>If the donee of land forfeited to the State for taxes fail to pay for the improvements thereon, as provided by sec. 3905 Gantt’s Digest, he is not entitled to notice of an application by the owner of the improvement to set aside the donation and purchase the land; but the deed of the auditor to the owner of the improvement will not be conclusive against the donee.</p> <p>5. --.</p> <p>The law requires the donee from the State to pay for improvements, whether they were made before or after the forfeiture of the land.</p> <p>6. --.</p> <p>If the owner of an improvement on land forfeited to the State for taxes, and subsequently donated, dies, his administrator is entitled to be paid by the donee for the improvements; and, upon failure of the donee to pay for the same, may purchase the land in his representative capacity for the benefit of the creditors and heirs.</p>

<p>APPEAL from Lee Circuit Court in Chancery.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. T. F. Sorrels, Circuit Judge.</p>

<p>1. Fbaudulent Conveyance:</p> <p>To entitle a creditor to set a conveyance by the debtor aside as fraudulent, he must show an unsatisfied judgment upon a cause of action that accrued prior to the conveyance, the issuance of process and inability to find property out oi which to make the debt; and that the defendant, being possessed of prdperty out of which it might have been satisfied, altogether, or in part, conveyed the same for the purpose of defrauding his creditors.</p> <p>2. Judgment: Conclusiveness.</p> <p>In a proceeding by a judgment creditor to set aside a fraudulent conveyance by the judgment debtor, the judgment is only prima facie evidence of the validity of the debt, as against the grantee in the alleged fraudulent conveyance; but the failure of the defendant to plead the statute of limitations, or matter in abatement, is a waiver of those defenses, and the grantee cannot avail himself of them,</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. J. A. Pittman, Circuit Judge.</p>

<p>APPEAL from Ashley Circuit Court.</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p>

<p>1. Fraudulent Conveyance:</p> <p>The fact that a person selling his goods is at the time indebted, and does not intend to apply the money he receives for them to his debts, is not of itself sufficient to establish a fraudulent or dishonest purpose. A sale, to be void as to creditors, must be made with the intent to hinder, delay or defraud them, in which the purchaser must participate by purchasing with a view to abet the fraudulent design.</p> <p>2. --.</p> <p>Fraud must be proven; circumstances of mere suspicion, leading to no certain result, are not sufficient ground to establish it.</p> <p>3.--.</p> <p>It is incumben^ on a party who attacks a conveyance on the ground that it was made to defraud creditors, to show that if it had not been . made the goods would have been subject to seizure and sale upon execution.</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>1. Chancery Jurisdiction: In action for contribution between tenants in common.</p> <p>Where one tenant in common, on the refusal of the other to join him, makes necessary repairs for the benefit and preservation of the joint property, he may maintain a bill in equity against his co-tenant for eontribut'on.</p> <p>2. Practice : Verification of pleading.</p> <p>The reply to a counter claim must be verified.</p>

<p>Payment on contract within the statute of frauds.</p> <p>Where a party has paid money, or delivered property on a parol contract for the purchase of land, which is void by the statute of frauds, he cannot maintain an action for the money or property so paid or delivered, so lose; as the other party is able and willing to perform the contract.</p>

<p>APPEAL from Jackson Circuit Court.</p> <p>Hon. H. S. Coleman, Special Judge.</p>

<p>APPEAL from Lee Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>APPEAL from Lincoln Circuit Court in Chancery.</p> <p>Hon. Jno. A. Williams, Circuit Judge.</p>

<p>APPEAL from Jefferson Circuit Court in Chancery.</p> <p>Hon. John A. Williams, Circuit Judge.</p>

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

<p>APPEAL from White Circuit Court.</p> <p>Hon. J. N. CyPERT^Circuit Judge.</p>

<p>Circuit Clerk: Tax on original writs, etc.; how paid.</p> <p>It is the duty of the Circuit Clerk to pay the tax on original writs, executions, deeds, etc., to the County Collector; and he cannot setoff allowances mad,e him by the County Court against the amount of such taxes in his hands. 'i</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>CROSS APPEALS from Lee Circuit Court in Equity.</p> <p>Hon. W. W. Smith, Special. Judge.</p>

<p>Interest:</p> <p>A note which contains the following stipulation as to the interest, viz: “ With interest at the rate of sixteen per cent, per annum from date,” leaves the legal, and not the conventional rate of interest, after maturity.</p>

<p>APPEAL from Washington Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p>

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

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

<p>APPEAL from Arkansas Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>Exemption or chose in action:</p> <p>Under the provisions of the Constitution of L86S, choses in action may be selected by the owner as exempt from a garnishment process.</p>

<p>APPEAL from Benton Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p>

<p>APPEAL from Lafayette Circuit Court.</p> <p>Hon. Myron D. Kent, Circuit Judge.</p>

<p>APPEAL from St. Francis Circuit Court.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

<p>Indictment:</p> <p>In an indictment, under the act of January 21st, 1875, to protect enclosures, etc., it is sufficient to charge the offense in the language of the act. And, although it would be better to allege, definitely, the áay on which the offense was committed, the failure to do so cannot prejudice the substantial rights of the accused, and will not vitiate the indictment.</p>

<p>1. Dower; Release to husband void.</p> <p>A married woman cannot release dower in favor of her husband; she can only release it by joining with the husband in a deed to a third person. •</p> <p>2. Husband and wife:</p> <p>Are incapable of contracting with each other.</p> <p>3. --: Construction of a deed of settlement.</p> <p>A conveyance by a husband to a trustee upon the following trust, viz: “ In trust, nevertheless, for the use and benefit of said (the grantor’s wife) as a separate estate and property for her support,” clearly indicates that the object of the settlement was the support and maintenance of the wife during her life; and it makes no difference that the conveyance was to the trustee in fee, the trust terminated when the iiurpose for which it was created was accomplished, and the estate reverted to the grantor.</p> <p>4. Practice in Chancery: Decree, ete.</p> <p>Upon the dismissal of a complaint in equity to cancel a deed executed by the plaintiff, and alleged to cast a cloud on his title, on the ground that the deed appears upon its face to be inoperative, the decree should, where the deed contains peculiar provisions and recitals, set out the ground of the dismissal.</p>

<p>1. Statute op Limitations:</p> <p>In an action at law, the statute of limitations cannot be availed of by demurrer, but must be pleaded in bar, unless the complaint show that a sufficient time has elapsed to bar the cause of action, and, also, the nonexistence of any ground of avoidance.</p> <p>2. Evidence: Competency of husband and wife.</p> <p>The exclusion, at common law, of the husband and wife as witnesses, for or against each other, was based on grounds of public policy, for the protection of the marital relation'. Seos. 2480-1-2-3, etc., Gantt’s Digest, excluding husband and wife from testifying for or against each other, is not in conflict with the provisions of the Constitution of 1874, prohibiting any exclusion on the ground of interest, etc.; and it was error to permit the husband, in a suit by the wife for breach of a promise of marriage, to testify as to matters that occurred previous to the marriage.</p> <p>(The case of Magness v. Walker, 26 Ark., 470, reviewed and qualified.)</p> <p>3. Evidence: Competency of admissions to a physician.</p> <p>The admissions of a patient to a physician, while the latter was in attendance during her illness, and which were not necessary to enable him to prescribe for her, or do any act as a surgeon, may be proven by the physician.</p> <p>4. --: Admissions.</p> <p>Where a party to a suit becomes a witness, it is not necessary to lay the usual foundation for proving previous admissions, contradictory to the party’s testimony.</p> <p>5. Measure oe Damages: In an action for breach of promise of marriage. An action for breach of a promise of marriage, embraces the injury to the</p> <p>feelings and affections, as well as the loss of marriage; and the jury, in estimating the damages, may take into consideration all the circumstances of the case.</p> <p>The measure of damage, in an action for breach of a promise to marry, is not to be measured by the wealth of the defendant; though evidence of his rank and wealth may be pertinent to the issue, as illustrating the injury sustained by the plaintiff by loss of the marriage.</p>

<p>1. Railroad Aid Bonds: Construction and effect of the statute, and Consti- ' tutional provisions, under which they were issued.</p> <p>The act providing for loaning the credit of the State to aid in the construction of railroads, was passed by the General Assembly the 21st of July, 1868, and, two days thereafter, each house, in pursuance of a concurrent resolution, adjourned to meet on the third Tuesday in November, 1868; and, pursuant to said resolution of adjournment, did meet on that day, and continued in session until the 10th day of April, 1869, when both houses adjourned sine die. Held:</p> <p>First — That, there being no special provision in the act as to when it should take effect, it did not become operative, or take effect as a law, for any purpose, until “ ninety days from the expiration of the session at which it was passed” (Art. 5, sec. 22, Const, of 1868); that the session of the General Assembly that passed the act, expired on the 10th day of April, 1869, when both houses adjourned sine die-, and that the act did not take effect until ninety days from that date.</p> <p>iSecond — That the election held on the 3d day of November, 1868, under the provisions of said act, to take the sense of the people on the question of loaning the credit of the State, as therein provided, was held before said act, or any provision of it, was in force, and was a nullity.</p> <p>ThirdsThat the “ consent of the people, expressed at the ballot-box,” required, by sec. 6 of Art. x of the Constitution, to authorize the loan of the credit of the State, as in said act provided, not having been obtained at an election held for that purpose in pursuance of law, the bonds of the State issued in pursuance of said act were issued without authority of law, and in contravention of the provision' of the Constitution, and created no liability on the part of the State, and are void in the hands of innocent holders.</p> <p>2. Legislation: Must be complete, etc.</p> <p>A legislative enactment must be complete in all its parts. It cannot take effect fbr one purpose, and not for another.</p> <p>3. --: Jownals of the Senate and House of Representatives.</p> <p>Effect of as evidence that an act was not passed in the manner required by the Constitution, discussed, but nothing decided.</p> <p>4. Estoppel:</p> <p>There can arise no estoppel to deny the existence of a law.</p> <p>5. Amendment:.</p> <p>A void enactment cannot be validated by subsequent amendments.</p>

<p>Right or action:</p> <p>The distributees of an estate, or their assignee, cannot maintain an action to recover a legacy or other chose in action due the intestate: The right of action is in the administrator.</p>

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

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. T. F. Sorrells, Circuit Judge. ■</p>

<p>1. Vendob’s Lien: Notice, Me.</p> <p>A vendor’s lien, for purchase money, is solely the creature of equity, and does not depend upon stipulation or contract; and a purchaser, with notice, is bound by it.</p> <p>2. Release: Pleading, etc.</p> <p>A release must be in writing, and for a consideration; and, in pleading it, the defendant must set out the consideration.</p>