Volume 32 — Arkansas Reports

<p>1. Railroad: Right or Way: Proceedings to assess damages for.</p> <p>Under the provisions of the act of January 22d, 1855 (ch. 140, Gantt’s Dig.), either the land owner or the corporation could apply for an assessment of damages for right of way; written notice, as prescribed by the statute, should be given before the appointment of commissioners to assess the damages.</p> <p>2. --: Same.</p> <p>Where the defendant in a proceeding under the statute fails to appear, it is not necessary to enter a default before appointing commissioners to assess damages.</p> <p>3. Corporation : Service of process upon.</p> <p>Under a statute providing that, a summons against a corporation may be served on the president, chairman of the board of trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent, etc.; when the service is nqt upon the chief officer, the return must show that he could not be found in the county, also upon whom the summons was served, naming the person and his office.</p> <p>4. Constitutional Law: Right of trial by jury, etc.</p> <p>A provision in the Constitution of 1836, that “ the right of trial by jury shall remain inviolate,” related to the trial of issues of fact in civil and criminal causes, and not to a statutory proceeding for the assessment of damages for the appropriation of a right of way.</p> <p>5. ---: Same.</p> <p>The provision of the Constitution of 1868, requiring that damages for the-appropriation of a light of way should be assessed by a jury of twelve men, did not, as to the Cairo and Fulton Railroad Company, a prior existing corporation, repeal the act of January 22d, 1855, providing for the-assessment of damages by five commissioners, in the absence of a statute authorizing the land owner to proceed in conformity to the new constitutional requirement.</p> <p>6. Appeal: Motion to correct error in court heloio, etc.</p> <p>When the defendant is actually served with process, and the writ or return is defective, he should appear and move to quash, or if judgment is taken by default, move to set it aside before appealing; but this rule does not apply when the defendant has not been served with notice.</p>

<p>1. Service and return of jtrocess against a corporation.</p> <p>See preceding case.</p> <p>2. Assessment of damages.</p> <p>Section 4712, Gantt’s Digest, does not authorize the appointment of a commissioner to assess damages, upon the failure of defendant to answer, in an action of trespass.</p>

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

<p>1. Pleading: Nultiel record.</p> <p>To p complaint upon a Foreign judgment, of which profert is made, the defendant pleaded, that there was no such record on file, or exhibited to the court as that mentioned in the complaint. This was not a plea of nul tiel record, and did not constitute a defense to the action, and judgment nil dicit, was properly rendered for the plaintiff.</p> <p>2. Practice: Filing exhibits.</p> <p>Under the provisions of the Code, a party relying on a deed or other writing, should file the same with the complaint, and may be required to do so upon motion of the opposite party.</p>

<p>APPEAL from tbe Circuit Court of White County.</p> <p>Hon. John 'Whytock, Circuit Judge. •</p>

<p>1. Collateral Security: Authority of holder.</p> <p>The assignee ol a note held as collateral security for a dobt due from the assignor, has no power to deal with it, except to accomplish the purpose for which he holds it. He cannot bind the assignor by a contract with the maker for forbearance.</p> <p>2. Consideration:</p> <p>His ability to perform such contract is dependant upon the will of the assignor, who may pay his debt and take back the collateral at any time, and, therefore, a promise of the maker to pay a larger interest, in consideration of such forbearance, is without consideration and not binding upon,him.</p> <p>3. Solder of Collatei'al Security a Trustee.</p> <p>Such assignee is a trustee for his assignor, and all profit, benefit, or advantage, made by him, by his dealing with the note, belongs to the assignor, and not to himself, and must be applied to the satisfaction of the assign- or’s debt, and the excess, if any, paid to the assignor.</p>

<p>1. Contract: Construction of.</p> <p>A promise to pay for property purchased, “out of the proceeds of tLe first cotton ginned,” is evidence conducing to show the time of payment, but does not prove, or tend to prove, that the seller of the property is to look for his pay, alone to the profits made in ginning that season.</p> <p>2. Instruction : When party not prejudiced by.</p> <p>A party is not prejudiced by the court’s refusal of his instruction, if the jury finds as asked by the instruction.</p> <p>3. Mechanic’s Lien: Machinery.</p> <p>No statute, prior to that of 25th April, 1S73, gave any lien for machinery placed in a building, or otherwise, on land. That act made important changes and enlargements of the lien law.</p> <p>4. --: Limitation, etc.</p> <p>The account for which the lien is claimed, must be filed within ninety days from the time the machinery is placed upon the premises, to be charged with the lien.</p> <p>5. -:. Construction of Statute.</p> <p>It is immaterial whether the building for which the machinery is purchased, is being erected, or already completed, at the time of the purchase — tho lien attaches alike in both cases.</p> <p>6. --: Judgment under, who affected by.</p> <p>If the owner of the land, at the time the machinery is placed upon it, is not a party to the proceeding for the enforcement of the lien, the judgment against, and sale of the lands, will not effect his title.</p> <p>7. --: From what time it dates.</p> <p>When the lien is fixed by filing the account in the clerk’s office, it relates to the time when the machinery was placed upon the premises, and is superior to intervening incumbrances or conveyances.</p> <p>8. --: What interest subject to.</p> <p>A less interest than the fee, may be subject to the mechanics’ lien.</p> <p>9. --: Extent of.</p> <p>The mechanics’ lien is limited to two acres, and a judgment condemning more than two acres is erroneous.</p>

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

<p>1. Right of Action: To set aside fraudulent settlements by Administrator.</p> <p>The administrator or executor of a deceased legatee only, and not his heirs, should sue to set aside the settlements of the administrator of his testator’s estate.</p> <p>But the-heirs may sue concerning the land descended to them from him.</p> <p>2. --; For loaste, conversion, etc.</p> <p>A suit for waste or conversion of personal property of an estate, or to have the title to real property, purchased with the money of the estate, declared to be held in trust for the estate, must be brought by the administrator or executor.</p>

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

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

<p>APPEAL from Clark Circuit Court.</p> <p>Hon. L. J. Joyner, Circuit Judge.</p>

<p>1. Criminal Law: Voluntary Escape.</p> <p>A voluntary escape, is where one having a felon lawfully in his custody, voluntarily permits him to escape from it, or to go at large: and this is felony, if the person be imprisoned for felony, and treason if he be imprisoned for treason, etc.; but the person, or officer voluntarily permitting such escape, is not to be tried until the party escaping is convicted.,</p> <p>2. --: Negligent Escapes.</p> <p>Negligent escapes of felons, are not felonies, but punishable by fine and imprisonment upon the officer or person that suffers them, and he may be punished for a misdemeanor, before the conviction of the principal party.</p> <p>3. --: Same; How Indicted.</p> <p>The statute provides for the punishment of voluntary escapes, but negligent escapes are indictable only as common law offenses, and punishable under the general statute adopting the common law, etc., by a fine not exceeding $100, and imprisonment not exceeding three months.</p> <p>4. --: Indictment; Magistrate.</p> <p>The term “magistrate” is not confined to an officer authorized to issue warrants of arrest, and an indictment charging that a warrant was issued by a magistrate, does not show that it was issued by a Justice of the peace, or other officer having lawful authority to issue it.</p> <p>5. --: Same.</p> <p>No indictment can be maintained against an officer for permitting the escape of one held under arrest by warrant, unless the officer issuing the warrant had jurisdiction, or legal authority to issue it, and this should appear on the indictment.</p> <p>6. --: Warrant, sufficiency of.</p> <p>A warrant commanding an officer to arrest one on a charge of felony, without designating the species of felony, is not void, and the officer can not legally refuse to arrest the accused, and will be liable to indictment if he permits him to escape by negligence.</p>

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

<p>1. Practice : Appeals; Construction of statute to reverse, vacate, or modify judgments.</p> <p>By sec. 566, Civil Code, concurrent jurisdiction is given to the Supreme and Circuit Courts for correction of errors of the Circuit Courts, in some, but not in all cases. Errors of law in rendering judgment, must be corrected by the Supreme Court, by appeal or writ of error, and a motion to correct in the Circuit Court is unn ecessary; misprisions, or other irregularities enumerated in subsequent sections, must be corrected by the Circuit Court, and motion or complaint to correct them must be filed and determined in the Circuit Court before an appeal will lie to the Supreme Court.</p> <p>2. Interest:</p> <p>A note bearing interest over 10 per cent, per annum, from due until paid, carries the stipulated interest to the date of the judgment, and the judgment bears 10 per cent.</p>

<p>i. Alteration.</p> <p>The alteration of the date of a note by the holder, without the consent and to the prejudice of the maker, is a forgery and renders the note void.</p> <p>2. Acknowledgment; Mortgage.</p> <p>A mortgage is binding between the parties to it, whether acknowledged or not.</p> <p>3, Malicious Prosecution; Malice.</p> <p>If a party makes a full statement of the facts to his counsel, and acts under his advice in the prosecution of an attachment against the property of his debtor, this is evidence, but not conclusive, of a want of malice.</p> <p>4. Malicious Prosecution; Malice.</p> <p>Where a party has a good cause of action, and prosecutes it under process from a court of competent jurisdiction, there is no presumption of malice; and the omission, by mistake, to state in the proceedings some act necessary to bring the case within the purview of the law authorizing the action, does not make the action without probable cause, nor subject the prosecutor to an inference of malice; but if a creditor sues out process of attachment without a legal debt, or before it becomes due, and when there is no fraudulent intent of the debtor to avoid it, these facts are evidence, but not conclusive, of malicious prosecution.</p> <p>5. ---; Same.</p> <p>In a legal sense any unlawful act wilfully done, to the injury of another, is as against that person, malicious. Proof of malice need not be direct, but may be inferred from circumstances.</p> <p>6. Attachments; Jurisdiction of justices of the peace.</p> <p>Justices of the peace have no jurisdiction under see. 441, Gantt’s Dig., which provides for attaching mortgaged personal property. That section refers alone to Circuit Courts.</p>

<p>ERROR to Mississippi Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>1. Ckiminai, Pleading: Indictment.</p> <p>An indictment for stealing a pocket book and contents of the value of twenty dollars, without describing the contents, charges no larceny except of the pocket book; and if the proof shows it to be worth less than two dollars, will not support a conviction for grand larceny, nor justify the admission of evidence of the contents.</p> <p>2. Same: Evidence.</p> <p>Evidence of the contents of a stolen article is not admissible, when they are not described in the indictment.</p>

<p>APPEAL from Sharp Circuit Court.</p> <p>Hon. William Byers, Circuit Judge.</p>

<p>Cbiminal Law: Unlawful Cohabitation.</p> <p>Living or dwelling together in the same house, is an essential element of the crime of unlawful cohabitation as husband and wife.</p>

<p>1. Evidence: Admissibility of.</p> <p>Oral evidence is admissible to prove -what a witness testified at a .coroner’s inquest, if his testimony was not reduced to writing.</p> <p>2. --: Materiality in perjury.</p> <p>The materiality of testimony alleged to be perjury, must be established by evidence and not left to presumption or inference. And when there is no dispute about the facts, its materiality is a question of law for the court to decide, and not of fact for the decision of the j ury.</p> <p>3. Peb.tujry:</p> <p>To constitute perjury the false oath must b9 taken wilfully and corruptly.</p> <p>4. Same: Indictment,. •</p> <p>The indictment for perjury must allege the crime to have been committed feloniously.</p>

<p>Fine: Payment of.</p> <p>Neither a justice of the peace, nor constable, nor any other person or officer, has any legal authority to take a mortgage for a fine adjudged to the State in a criminal prosecution, and treat the judgment as “ paid or collected;” and such mortgage is not such payment or satisfaction of the judgment of the justice, as will prevent an appeal from it by defendant.</p>

<p>1. Indictment: Joinder of distinct larcenies.</p> <p>Under the statute, separate and distinct larcenies cannot be joined in the same indictment, and where more than one offense is charged in an indictment, the prosecuting attorney may on -demurrer, be required to elect for which he will prosecute.</p> <p>2. --:</p> <p>Where two or more counts are used in order to charge the ownership of the property in different persons, so as to meet contingencies of the evidence, as to the ownership, the prosecuting attorney should state that fact to the court on the demurrer, and make it appear of record that only one offense was intended. But under sec. 1786, Gantt’s Dig., it seems to he unnecessary to add a second count to obviate uncertainty in the evidence, as to the name of the party injured.</p>

<p>APPEAL from Howard Circuit Court.</p> <p>Hon. L. J. Joyner, Circuit Judge.</p>

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

<p>1. Evidence: Admission of co-conspirator, ate.</p> <p>The admission of one of several conspirators, in the absence of the others, is admissible in evidence against them, if made during the progress and in furtherance of the common design, but it is necessary that the State should, first lay the foundation for such evidence by proof of the conspiracy, unless the court in its discretion under peculiar and urgent circumstances, should dispense with the prior proof of the conspiracy, upon the undertaking of the State'to produce it afterwards.</p> <p>2,-- — ■: Of previous reputation for truth and morality.</p> <p>Evidence of the reputation of a witness for truth and veracity two years prior to the time of the trial, and at a different place, is admissible for the purpose of impeaching him.</p>

<p>Instructions: How exceptions to saved.</p> <p>A general exception to a series of instructions without specification, will not be sustained if any one of the instructions is good.</p>

<p>1. Gaming: What evidence sufficient under indictment for.</p> <p>Under an indictmsnt for betting on a Faro Bank, proof that the defendant bet chips representing money on any day prior to the finding ot the indictment and within the pe.riod of limitation, is sufficient.</p> <p>j2. Criminal Law: JZeasonable doubts, etc.</p> <p>The rule that the guilt of the accused must be established to the exclusion of every other hypothesis, only applies in eases depending on circumstantial evidence.</p>

<p>APPEAL from Ciarle Circuit Court.</p> <p>Hon. L. J. Joyner, Circuit Judge.</p>

<p>Larceny: Felonious intent necessary; presumptions, etc.</p> <p>A felonious intent is an essential constituent of larceny; it is as necessary to be averred and proven as the taking and carrying away; the mere fact of the taking does not raise a presumption of guilt, or that it was to steal; the felonious intent must be shown by circumstances connected with the taking; the law presumes in favor of innocence, and the burden of proving the criminal intent is on the State.</p>

<p>APPEAL from Clay Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>1. Rleadinoj: Amendment, when not allowed.</p> <p>A party should not toe permitted to file an amended answer cenlradiotory of and inconsistent with the original answer in material matters, without showing by affidavit, that the original answer was filed under a mistake • as to the facts.</p> <p>2. Vendor’s Lien: Assignment, parties, eta.</p> <p>When a vendor, who has executed a deed to the land, assigns a note executed for the purchase money, to a firm as collateral security for a claim of smaller amount, it is competent for the surviving partner of the firm,, and the administrator of the vendor, he having died in the mean time, to join as plaintiffs in a proceeding to enforce the vendor’s lien.</p>

<p>1. Ehatti>ui,e:nt Conveyance: Notice to the purchaser.</p> <p>It is well established that a third party may, with a knowledge of the failing circumstances of a debtor, buy property of him upon a fair consideration actually paid, unless he was aware that the debtor intended by the-sale to defraud his creditors.</p> <p>2. --: Same. Pleading.</p> <p>Knowledge by the purchaser of the fraudulent intent, or of circumstances, sufficient to put him upon inquiry, before the payment of the purchase-money would defeat his title. And an answer denying knowledge should, extend to the time of paying the consideration.</p> <p>3. --: Circumstances indicating fraud and knowledge.</p> <p>The purchase at an inadequate price by a minor son without means, who. was at the time residing with his father, the grantor, a debtor generally known to be in failing circumstances, who had previously transferred other-property to his other children in fraud of his creditors, held to be invalid.</p>

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

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

<p>APPEAL from Columbia Circuit Court.</p> <p>Hon. J. K. Young, Circuit Judge.</p>

<p>1. Circuit Court: Special terms.</p> <p>The Circuit Court may, under the statute, provide for a special adjourned term to be held after the time for holding the next regular term in another county of the circuit.</p> <p>2. Amendment of process.</p> <p>Where, iii an action of forcible detainer, the names of the parties are properly set out in the complaint and bond, but wholly omitted from the writ, the plaintiff, pending a motion to quash the writ, should be permitted to amend.</p>

<p>1. PíjB-Adinw: Recoupment, counter claim, etc.</p> <p>Only such matters as are connected with or grow out of the plaintiffs cause of action, can be pleaded by way of recoupment, or as a counter claim.</p> <p>X--: Counter claim mid cross complaint.</p> <p>The only distinction between a counter claim and cross complaint is, that the former is a cause of action in favor of the defendant against the plaintiff, and the latter against a co-defendant.</p> <p>", Rimitatioií: Statute of, as between attorney and client.</p> <p>If an attorney is guilty of negligence or want of skill in the performance of his professional duties, a cause of action immediately arises in favor of the client and the statute of limitation commences to run.</p>

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

<p>1., Claims aoaksst Estates : When not necessary to authenticate.</p> <p>It is not necessary for a mortgage creditor to authenticate his claim against the estate of the deceased debtor, before filing a bill to foreclose the mortgage. ,</p> <p>2.--: Probate of, no bar to foreclosure.</p> <p>The fact that the creditor has probated his claim against the estate and obtained an order for its payment, constitutes no bar to a proceeding to foreclose the mortgage.</p> <p>:>. Parties : Heirs necessary to bill to foreclose mortgage.</p> <p>The heirs at law of a deceased mortgagor are necessary parties to a hill to foreclose the mortgage.</p> <p>4. —---: JDefect of, in ecpiity.</p> <p>The non-joinder of parties in equity may be taken advantage of by demurrer or answer, or the objection may b8 raised at the hearing; and if the objection is not made, the court may refuse the relief sought; if the defect appear on the face of the proceedings the decree may be reversed in the Supreme Court therefor. The provision of the Code, that the failure to object by demurrer or answer to a defect of parties, shall be deemed a waiver of the same, does not apply to equitable proceedings.</p>

<p>1. Parties: To ejectment by mortgagee.</p> <p>In an action of ejectment by the mort gagee to obtain possession of the mortgaged premises, and take the rents and profits in satisfaction of the debt, he is not obliged to make-the legal representatives of the deceased mortgagor defendants. A judgment of recovery in such action does not bar their right of redemption.</p> <p>2. --: Defendants in ejectment cannot, on motion, require the plaintiff to make other parties, not alleged to have been in possession of the land at the commencement of the suit, defendants.</p> <p>3. Practice: Time of pleading.</p> <p>Where the defendants tail to plead at (he day the cause is set for trial, an offer by them to plead after (liat day,is addressed to the discretion of the court, which will not be controlled unless palpable error is shown.</p>

<p>Oriminal Procedure: Suspension of trial, etc.</p> <p>During the trial of a felony the court, against the defendant’s objection, suspended the trial and allowed the jury to separate for three days that the State might procure the attendance of a witness. Held, that it was not an abuse of the discretion of the court; under the provisions of the Criminal Code the court is authorized to permit the jury to separate either before or after the cause is submitted to them.</p>

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

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

<p>Saab by Guardian : False representations as to title.•</p> <p>A sale by a guardian of his ward’s land under an order of the Probate Court, is a judicial sale, and the rule caveat emptor applies; but if the land is purchased upon the representations of the guardian that the purchaser would acquire a good title, which turn out to be untrue, the purchaser will not be held at law or in equity, although the guardian ina,y not have known of the falsi tv of his representations.</p>

<p>1. Pleading.</p> <p>The allegation in an answer to a proceeding on a note, purporting to have been executed by the defendant, that she could not read or write, and if she executed the note did not know that it was a note, is not a sufficient denial to put the plaintiff upon proof of the execution.of the note, nor is it a sufficient allegation of fraud or imposition in obtaining its execution.</p> <p>2. Homestead: Mortgage upon, schedule, etc.</p> <p>Under the provisions of the Constitution of 1868, a married man or thehead of a family, could not encumber the homestead by mortgage, except for taxes, laborers’and mechanics’liens and purchase money; it is not necessary in such case for the mortgagor to file a schedule of the homestead.</p>

<p>APPEAL from Crittenden Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

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

<p>APPEAL AND CROSS APPEALS from Mississijopi Circuit Court in Chancery.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>1. Vendos and Vendee: .Title Bond, effect of.</p> <p>When the vendor of land executes to the purchaser a bond for title upon payment of the purchase money, an equitable title to the land vests in the vendee, while the vendor retains the legal title as security for the purchase money, and upon his death the legal title descends to his heirs at law.</p> <p>2. --; Judgment lien; Jlemedy of vendor, etc,.</p> <p>Upon the assignment by the vendee, of the bond for title, the equitable estate passes to the assignee, and a judgment at law against the vendee for the purchase money constitutes no lien bn the land; the only remedy by which the lien for purchase money can be enforced is by bill in equity.</p> <p>S.--:</p> <p>Where, after an assignment of the title bond, the land is sold under a judgment for the purchase money against the vendee, an allegation that the assignee of the bond agreed, after the execution sale, for a valuable consideration, to deliver possession of the land to the purchaser, does not ■strengthen his title; the execution sale being void it was necessary to allege a purchase from the holder of the equitable title.</p> <p>4,--: Bankruptcy, fraud, etc.</p> <p>The question as to whether the sale of an equitable title to land by one about to become a bankrupt was a fraud upon his creditors, must be raised in the bankruptcy proceeding, and cannot be collaterally raised in a proceeding between a third party and the purchaser, concerning the title.</p>

<p>I. Sow defective complaint cured 6y answer.</p> <p>A bill to quiet title to land did not show such color of title in the defendant as cast any cloud upon the plaintiffs title, but the answer set up a title in the defendant under a deed that was good on its face and would require proof of extrinsic facts to shew its invalidity; held, upon demurrer reserved in the answer, that the averments-of the answer cured the detects of the complaint, and the demurrer was properly overruled.</p> <p>2. Evidence: Depositions, when suppressed.</p> <p>Depositions may be suppressed on account of some irregularity in the mode of taking them, but not for irrelevancy, or because of the matter deposed to.</p> <p>3. --: Competency, etc.</p> <p>When land is erroneously assessed twice, in different names, the collector, who returns it as delinquent, is a competent witness to prove the payment of the taxes by the owner of the land.</p> <p>4. Taxes: Forfeiture.</p> <p>■ Where lauds upon which the taxes have been paid are erroneously returned delinquent and forfeited to the State, the forfeiture is void, and a purchaser from the State acquires no title.</p>

<p>APPEAL from Mississippi Circuit Court in Chancery.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>1. Common Carrier: Restriction of Liability by Contract.</p> <p>A railroad company which gives a bill of lading for the transportation of goods over its own line, and other connecting carriers, to a point beyond the terminus ol its line, may stipulate against liability for loss of, or damage to the goods, while in the custody of a connecting carrier.</p>

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

<p>1. Mechanic’s Lien: When Property in hands of Receiver.</p> <p>Tiie fact that property is in the hands of a Receiver, in an equitable proceeding, is no defense to an action to enforce a mechanic’s lien against it.</p> <p>2. Claims against Estates: Lien, Probate, etc.</p> <p>When a creditor has acquired a specific lien on particular property during the life of the debtor, 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>3. Process : Defect in Summons.</p> <p>In an action against an administrator his representative capacity was not stated in the summons; held, that the omission did not render the writ void, and the court should have directed it to have been amended, and not have quashed it.</p>

<p>1. Private Seals: Abolished by the Constitution of 1868; Statute of Limitations.</p> <p>The Constitution of 1868, contained the following provision: “ Private seals are hereby abolished, and hereafter no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals.” Its effect was to reduce all sealed instruments executed after the adoption of the Constitution to the grade of simple contracts, and a note executed under seal was, in legal effect a promissory note, and subject to the statute of limitation of five years, applicable to unsealed instruments.</p> <p>2. ---: Same; Constitution of 1874.</p> <p>The Constitution of 1874, contained the following provision: “ Until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals, executed ' since the adoption of the Constitution of 1868. Provided, that the statute ¡ of limitations with regard to sealed and unsealed instruments, in force at , the time, continue to apply to all instruments afterward executed, until , altered or repealed.” Its effect was to continue in force, subject to legislation, the provision of the Constitution of 1868, abolishing private seals, but to limit its application to instruments executed after its adoption. It also renewed the application of the statute of limitations of ten years (existing at the date of the adoption of the Constitution of 1868,) to sealed instruments executed after the adoption of that Constitution.</p> <p>3. -: Power of the Convention to change the period of limitation,</p> <p>The Convention of 1874, had the power to restore the application of the statute of ten years to sealed instruments executed after the adoption of the Constitution of 1868, when the instrument was not barred at the time by the limitation applicable to unsealed instruments.</p>

<p>1. County Warrants: What county tax not receivable for.</p> <p>County warrants, issued since the adoption of the Constitution of 1874, for liabilities incurred by the county subsequent to that date, are not receivable, either under the Constitution, or the statute, in payment of a tax levied to pay county indebtedness existing at the date of the adoption of. the Constitution.</p> <p>2. Legislation: Amendment; Constitutional provision, etc.</p> <p>An amendment to a bill, which limits or extends its scope, but embraces no new matter not germain to its original purpose, is not within the provision of the Constitution prohibiting the amending or altering a bill, so as to change its original purpose.</p>

<p>Attachment; Judicial Garnishment.</p> <p>A filed an account, and affidavit as in case of attachment, with a justice of the peace, against B, and, without process against B, sued out a writ of garnishment against O. At the return day of the garnishment a summons was issued against B, was served, and judgment was rendered against him by default; held, that the proceeding was begun by attachment, and the garnishment pending the judgment was void; held, further, that aa no writ of garnishment was issued after the judgment, there was no seizure of any debtor effects belonging to the defendant in the garnishee’s hands, and a judgment against him would not have had the effect- to release him from liability to the defendant.</p>

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

<p>1. Replevin: Action against assignee of bankrupt.</p> <p>An action of replevin against an assignee in bankruptcy for wrongfully detaining the plaintiff’s goods in his possession, cannot be maintained, unless he has given to the defendant twenty days’ notice of the action as required by see. 5056, of the Revised Statutes of the United States. (Sec. 14 Bankrupt Act). Aliter where the action is for taking from the plaintiff’s possession. In such case the assignee is a mere trespasser, and this act does not apply.</p> <p>2. Pleading:</p> <p>The common law rule that matter in abatement is waived by pleading in bar, is not the rule under the Code, but both may be pleaded in separate paragraphs in the sam'e answer.</p> <p>3. Same:</p> <p>The averment in the answer of an assignee in bankruptcy that he has no knowledge or information sufficient to form a belief of the plaintiff’s title, is sufficient to put the plaintiff on proof of his title.</p>

<p>1. Mechanic’s Lien: Homestead exemption.</p> <p>A homestead was not exempt under the Constitution ol' 1868, from the mechanic’s lien for the value of lumber furnished by the manufacturer from his saw mill, for the improvement of the homestead.</p>

<p>1. Shake Cropper: Tenants in Common.</p> <p>When one lets land for the purpose of having a sing1 e'crop raised on it, of which the land-owner is to have part for the use of the land, and the cultivator a part for his labor, and there is no evidence that it was the intention of the parties that the relation of landlord and tenant should exist between them, the parties are tenants in common in the crop.</p> <p>2.--:</p> <p>A agreed to let land to B lor the purpose of raising a crop on it, and to furnish part of the team, and provender and supplies for making the crop, which was to be the property of A; but after a certain portion of the crop had been reserved for rent, and certain indebtedness due from B to A was paid, B was to have what remained; held, that B had no interest in the crop that he could sell or mortgage.</p>

<p>APPEAL from Conway Circuit Court in Chancery.</p> <p>Hon. J. M. Smith, Circuit Judge.</p>

<p>1. Dower in Personalty:</p> <p>The wife has uo inchoate right of dower in the personalty of her deceased husband before his death, as she has in his real estate; and he can mortgage and dispose of the same free from dower.</p> <p>2. --: Mortgage.</p> <p>The widow does not, by the assignment of dower, in personalty which was mortgaged by the husband during his life, acquire a title that she can set up against the mortgage.</p> <p>3. Claims against Estates: Mortgage Probate.</p> <p>A mortgagee need not probate his claim against the estate of a deceased mortgagor, but may proceed under a power contained in the mortgage, for its satisfaction.</p>

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

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

<p>1. Depositions in Criminal Cases: Mandamus.</p> <p>Defendants in criminal cases are, under the statute, entitled to take the deposition of witnesses residing out of the State; and the Supreme Court will award a writ of mandamus to compel the Circuit Court to make the necessary order to enable the defendant to take the deposition in such a case.</p> <p>2.--.</p> <p>It is in t-tie discretion of the Oireuit (louvt to have a competent witness, who is confined in jail, brought before it by habeas corpus, to testify in behalf of the defendant in a criminal canse, or to allow the defendant to take his deposition, and the Supreme Court will not control the discretion of the Circuit Court by matulavvux.</p>

<p>Fraudui.knt Conveyance: Parties: Judgmknt Lien, Bankruptcy.</p> <p>Hartley filed his complaint in equity in White Circuit Court, against Oliphant and his wife, charging that he had recovered judgment against him in said court — that execution was issued thereon and returned nulla bona —that Oliphant had previously fraudulently conveyed to his wife, to defraud his creditors, certain real estate to her sole and separate use, with the limitation that if she should die without disposing of it, the title should revert to him, and if he should die without disposing of it, and without children of him and his wife, it should vest in the heirs of both equally. Afterwards she died, and the suit was abated as to her. After the institution of the suit, Oliphant was declared a bankrupt, and discharged. lie plead his discharge in bankruptcy as his only defouse to the suit. The complaint prayed that the conveyance be held void, and the property sold to satisfy the judgment. After the death of Mrs. Oliphant, the plaintiff filed a supplemental complaint, stating that the' land had been sold under an execution on his judgment, and was bought in by himself at less than its value ; and asking that the sale be set aside and the land resold, offering to make it sell for as much as before. Held :</p> <p>First — That neither the assignee in bankruptcy, nor the heirs of Mrs. Oliphant, were necessary parties to the suit; and beside, tire objection to not making them parties was waived, by not demurring for that cause.</p> <p>Second — The judgment was a lion which could not be discharged by bankruptcy.</p> <p>Third — The court did not err in ordering a resale of the property, the plaintiff having offered to bid as much as it had sold for under the execution.</p>

<p>1. Evidence: Admission.</p> <p>Evidence that the account sued on was shown to and examined by the defendant, and he acknowledged its correctness, or made no objection to it, and that the joint cotton of himself and the plaintiff was shipped with the understanding that the account should be paid out of his part of the proceeds, is not conclusive against him, of the correctness of the whole account. It was a circumstance to he considered with other evidence by the jury.</p> <p>2. Same:</p> <p>Evidence is not admissible in behalf of a party that disproves admission in, his pleadings.</p> <p>3. Tenants in Common: Sight to sue co-tenant.</p> <p>One tenant in common cannot sue his co-tenant for his part of the joint property or its proceeds until it is divided, or the co-tenant has done some-act inconsistent with the ownership in common, or amounting to a denial of his right.</p> <p>4. Argument: Might to begin.</p> <p>The plaintiff has the right to open and conclude the argument whenever it devolves upon him to prove any issue in the case to maintain his action.</p>

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

<p>1. School Tax: Levy of by County Court; Power, etc.</p> <p>The County Court has no power to levy a school tax independent of action on the part of the electors or officers of each school district for which the tax is levied; it can only cause to be placed on the tax books, and collected, such rates as are reported from the districts.</p> <p>2. --: Same.</p> <p>Under the provision of the Revenue Act of April 28, 1873, a school tax of fifteen mills was authorized to be levied in the rural school districts. An act passed on the 29th of April, 1873, for the maintenance of a system of free schools, limited the amount to be levied in the rural districts for school purposes, to five mills; held, that there was an irreconcilable conflict between the two acts, and the latter being the last expression of the legislative will, must prevail over the former.</p> <p>3. Excessive Levy: Effect of.</p> <p>An excessive levy .vitiates the whole tax; and the court, upon a bill to enjoin, cannot treat as valid.so much of the levy as is not in excess of the rate authorized by law.</p> <p>4. Statutes: Passage of, etc.</p> <p>„ It is well settled that the courts will look behind the printed statutes to the legislative records, to ascertain whether an act, purporting to have been passed and approved by the Governor, was in fact passed in accordance with the forms and in the manner provided for by the Constitution.</p> <p>5. --: Presumption in favor of legislative action.</p> <p>Where the House journal shows that an original bill was read a first and second time, and referred; that a substitute was reported and adopted in lieu of the original bill, and was read a third time and passed, but does ■ not show the first and second reading of the substitute, it not affirmatively appearing to the contrary, the court will presume that the substitute was read three times as the Constitution requires.</p> <p>6. ----.</p> <p>The seventh section of an act entitled “An Actio authorize certain counties to fund their outstanding indebtedness;” approved the 29th of April, 1873, provided, that the bonds of any county, named in the act, previously issued for the purpose of funding outstanding law'ful indebtedness of the county, should be valid, held to be germain to the subject and purposes of the act, and embraced in its title.</p> <p>7. County Court: IIow composed.</p> <p>The Constitution authorizes the justices of the peace to sit with the County Judge in levying taxes and making appropriations for the expenses of the county; in other matters the legislature cannot authorize the justices to sit with the County Judge, and an act attempting to do so is unconstitutional and void.</p> <p>8. . County Taxes: For public buildings.</p> <p>Where a County Court contracts for the building of a jail, and for that purpose levies a tax for county buildings, and after the tax book has gone into the hands of the collector the contract is rescinded; it is the duty of court to set aside the levy and stop the collection of the building tax, and if it fails to do it, any tax payer may enjoin its collection.</p> <p>9. Taxes: Penalty, etc.</p> <p>Under the provisions of an act of the legislature to suspend the sale of delinquent lands, approved the 16th of May, 1S74, no penalty could be charged against lands upon which the taxes for the years 1872-3 were paid by the 20th of April, 1875. The act of February 22d, 1875, to suspend the collection of taxes for 1873-4, provided a penalty of 15 per cent, on the delinquent taxes; under the provisions of the latter act the owners of delinquent lands who failed to pay the taxes by the 20th of April, 1875> were required to pay the penalty of 15 per cent, for two years, upon the delinquent taxes legally charged against the lands.</p> <p>10. Tax Sale: For taxes of several years.</p> <p>When land is sold for the taxes of several years, it should not be sold separately for each year’s taxes, but should be sold at one time for all the taxes charged against it.</p> <p>11. --: To the State, illegal; Remedy.</p> <p>Where lands against which illegal taxes are charged, are sold to the State, the title therero vests in .the State upon the making and recording of the certificate of conveyance by.the County Clerk after the expiration of the time allowed for redeeming, after which the owners would have no remedy as against the State; they are therefore entitled to enjoin the clerk from making the certificate.</p> <p>12. --: Terms upon which relief granted in equity.</p> <p>The owner of land seeking to set aside, or restrain a sale thereof for illegal taxes, must pay the legal assessments, if any, and the penalty thereon, before he can obtain relief in equity</p>

<p>1. Arrests: Authority to make, etc,</p> <p>A constable is a peace officer, and as such has authority to arrest offenders against the law; but he is not authorized to execute a warrant of arrest, •or other process, directed to the sheriff, unless deputized in the manner provided by law.</p> <p>2. Evidence: Admissibility.</p> <p>Where a killing occurred in an attempt to arrest a party in company with the deceased, and there are circumstances in the case tending to show improper motives in the arresting party, evidence of bad feeling between them and the party whose arrest is sought, is admissible; but statements that the party sought to be arrested had kept out of the way for fear of being killed by one of the arresting party, drawn principally from the statement of the former, are hearsay and inadmissible.</p> <p>3. Bill op Exceptions.</p> <p>If statements and papers exhibited by counsel to the jury in the argument of a cause are objected to, they must be brought into the record by bill of exceptions; if they are incorporated in the motion for new trial and not in the bill of exceptions, the objection will not be considered.</p> <p>4. Manslaughter: Instruction.</p> <p>An instruction to the jury upon a trial for manslaughter, as to the assessment of the punishment in case they should' find the defendant guilty of manslaughter, should explain the two grades of that crime.</p>

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

<p>APPEAL from Hempstead Circuit Court in Chancery.</p> <p>Hon. J. K. Young, Circuit Judge.</p>

<p>APPEAL from Jackson Circuit Court.</p> <p>Hon. William Byees, Circuit Judge.</p>

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

<p>APPEAL from Garland Circuit Court in Chancery.</p> <p>Hon. J. W. Martin, Judge, on exchange of Circuits.</p>

<p>1. County: Power of to subscribe to stock of railway companies.</p> <p>A county or other municipal corporation has no power, indenendently of an express grant of authority, to subscribe for stock in a railway company and issue bonds therefor.</p> <p>See. 52, of art. iii., ch. 101, of Gould’s Dig., provided that counties having or controlling internal improvement funds, granted to them by the State, might subscribe to the capital stock of any valid and duly organized railroad company; {his statute conferred no general authority on the counties to subscribe for stock on railway companies: the power given was to subscribe the internal improvement fund. The act contemplated that the bonds should be issued on the credit of that fund, to which alone the holders of the bonds could look for payment; and bonds issued by a county independently of the limitations contained in the act are void.</p> <p>Municipal bonds issued without authority, although negotiable in form, ■ are void in the hands of an innocent holder.</p>

<p>1. Evidence: Admissibility, etc. ■</p> <p>It is in the discretion of the court, upon the trial of a criminal cause, to permit the State to introduce additional evidence in chief, after the defendant has closed; and without some showing to the contrary, this court will presume that the discretion was properly exercised.</p> <p>2. Criminal Law: Self-defense.</p> <p>In order to justify homicide on the ground of self-defense, the party must have employed all means within his power and consistent with his safety to avoid the danger, and avert the necessity for the killing.</p> <p>3. Cbiminal practice: Discharge of the jury.</p> <p>On a trial for murder the jury brought in a verdict of guilty and the court announced to the jurors that they were discharged but immediately after, and before the jurors had dispersed or mingled with the by-standers, called them back and, against the objection of the defendant, directed them to retire and amend their verdict. Held, that there was no such absolute discharge of the jury as prevented the court from recalling it ior the purpose of correcting the verdict. '</p> <p>4. Verdict: General, where there is more than one count.</p> <p>Upon an indictment for murder in which there are two counts substantially the same, a general verdict of murder in the first degree is a findingupon both counts, and is sufficient.</p>

<p>Arg-tjJient: Order of.</p> <p>Where, in an action upon an account, the only defense interposed was that of payment, the burden of proof was on the defendant, and he was entitled to the concluding argument before the jury, and it appearing that there was a conflict in the evidence, the denial of the right is ground of reversal.</p>

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

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. J. W. Martin, Circuit Judge.</p>

<p>APPEAL from Pulashi Circuit Court.</p> <p>Hon. J. W. Martin, Circuit Judge.</p>

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

<p>APPEAL from Pulashi Circuit Court.</p> <p>Hon. J. W. Martin, Circuit Judge.</p>

<p>APPEAL from Lincoln Circuit Court.</p> <p>Hon. A. C. Jones, Special Judge.</p>

<p>APPEAL from Clark Circuit Court.</p> <p>Hon. L. J. Joyner, Circuit Judge.</p>

<p>Evidence: Bill of Lading.</p> <p>A bill of lading is prima fade evidence of the receipt by the carrier of the. articles enumerated in it, and of the terms of the contract of carriage.</p>

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

<p>ERROR to Drew Circuit Court.</p> <p>Hon. A. C. Jones, Special Judge.</p>

<p>1. Federal Courts: Mandamus to levy taxes, etc.</p> <p>While it is true that the United States Circuit Courts can, under the rulings of the Supreme Court, compel county officers by mandamus to levy a tax authorized by the laws of the State to pay their judgments, they cannot compel them to levy a tax or do any other act not authorized by the Constitution and laws of the State.</p> <p>2. --: Same.</p> <p>Sec. 9, art. xiv, of the Constitution, creates a limitation upon the taxing power of the counties, unless there be an exceptional case arising under prior contracts, and neither the Legislature or the State or Federal Courts can direct or force a county to make a valid levy in excess of such limitation. The collector, in attempting to collect such a levy, would be a trespasser, and no valid tax sale could be made under the warrant therefor.</p> <p>3. • Prosecuting Attorney: Duties of.</p> <p>It is the official duty of the Prosecuting Attorney to defend suits brought in the Federal Court against a county embraced in his district.</p> <p>4. County Court: Terms of; mandamus, etc.</p> <p>The County Court has no power to change or vacate its judgments or orders after the lapse of the term at which they arc rendered, or to convene again before the time fixed for holding the next regular term, and no such power can be imparted to it by virtue of a writ of mandamus from, the Federal Courts; it is not the office of the writ to impart power to the court, but to enforce the exercise of the powers conferred upon it by the laws of the State.</p> <p>5. Tax Levy: To pay county indebtedness; how payable.</p> <p>The County Court levied a tax of five mills for the purpose of paying indebtedness existing at the time of the adoption of the Constitution, but on a subsequent day of the term modified its order and appropriated the whole of the levy to the payment of a judgment rendered against it in the Federal Court. Conceding the latter order to have been an error, it was not void for want of jurisdiction of the subject matter, and could ■only be corrected on appeal. Held, further, that the levy as originally made would have been payable in county warrants issued prior to the adoption of the Constitution, but under the modified order, so long as it remained anreversed, the tax was payable in currency.</p>

<p>Promissory Note: Accrual of right of action; Statute of limitations.</p> <p>Upon demand and refusal of payment of a promissory note on the last day of grace, a right of action accrues at once to the holder, and the statute of limitations begins to run from that date; but if there is no demand, the cause of action does not accrue until the succeeding day.</p>

<p>1. Rape.</p> <p>Torcéis an essential element of the crime of rape; it must be committed forcibly and against the will of the female upon whom it is committed.</p> <p>2. Burglary with intent to commit rape: Indictment.</p> <p>In an indictment for a burglarious entry, with the intent to commit a rape, etc., it is unnecessary to allege an assault. (For form of the indictment, see Op.)</p>

<p>Action, Right op: Against heir at law.</p> <p>No action at law can be maintained against the heir to whom assets have descended, upon the contract of the ancestor. Equity alone has jurisdiction in such cases.</p>

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

<p>ERROR to Benton Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p>

<p>ERROR to Jefferson Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

<p>1. Partnership.</p> <p>A person who permits himself to be held out as a partner is liable as such,, whether in fact a partner or not.</p> <p>2. Payment: By note.</p> <p>The giving of a promissory note in settlement of an account, does not operate as an absolute payment, unless the parties expressly or impliedly agree to treat it as such.</p> <p>3. Parties: Joinder.</p> <p>Where several persons are sued as upon a joint contract, but the proof! shows that only a part of them contracted, the plaintiff may recover against those who are in fact liable.</p> <p>4. Joinder oe Actions: In personam and in rem.</p> <p>A plaintiff proceeding in rem for the enforcement of a mechanic’s Hen may also count upon the personal liability of the defendant, and recover in personam, though he may fail in establishing the alleged lien.</p> <p>•5. Attachment: Judgment against sureties in discharging bond.</p> <p>Under the provisions of the Act of November 10th, 1875, a plaintiff in attachment may recover judgment against the sureties in a discharging bond upon the trial of the main cause.</p>

<p>1. Pledge: Sale of.</p> <p>Where the subject matter of a pledge is divisable, the pledgee has no right to sell more than is necessary to satisfy the debt; and if he does so is responsible to the pledgor for the damage he may thereby sustain.</p> <p>2. ---:' Waiver, etc.</p> <p>The acceptance by the pledgor of the surplus arising from an illegal sale of the articles pledged, is no waiver of his right to damages resulting from, the sale.</p> <p>3. --: Notice of sale.</p> <p>Where the pledgor, at the time of malting the pledge, waives notice of sale, he cannot after the sale of the pledge complain of a want of notice.</p> <p>4. ---: Measure of damages for illegal sale.</p> <p>Where a pledgee of scrip sells more than is necessary to satisfy his debt, and pays the surplus to the pledgor, who buys other scrip to replace what, has been sold, the measure of damages is the difference between the price for which the excess sold, and that paid by the pledgor to replace it.</p>

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

<p>APPEAL from Dorsey Circuit Court in Chancery.</p> <p>Hon. W. D. Johnson, Special Judge.</p>

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

<p>1. Jueobs : Discretion of Judge, etc.</p> <p>The judge who presides at the trial ot a cause possesses a discretion in past-sing upon the qualification of jurors.</p> <p>2. Verdict for one joint defendant, re-trial, etc.</p> <p>Upon the trial of an action for malicious prosecution against A and B, a, verdict was returned in favor of A and against B: a new trial was granted' B, the plaintiff did not move for a new trial as against A: upon the second trial the court, against the objection of B, treated both defendants as on trial. A was examined as a witness by both parties. Held, that the-whole record being before the court, it should have taken notice of A’s acquittal, without a plea to that effect; that by treating him as a defendant the court put him in the attitude of an interested witness, and inasmuch as it may have affected the weight of his evidence, it was sufficient ground for a new trial in favor of B.</p> <p>.3. Malicious Prosecution: Measure of damages.</p> <p>Where the plaintiff, in an action for malicious prosecution, has been prosecuted by the defendant maliciously and without probable cause, lie is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he has necessarily been subjected.</p> <p>■4.--: Malice: Probable cause.</p> <p>If a party prosecute another on a criminal charge, he will be protected in so doing, however malicious his private motives may have been, provided there was probable cause.</p> <p>•5. - — : Justification under process.</p> <p>Where an arrest is made under a writ regular on its face, and issued by an officer having jurisdiction, it will be a justification to the officer making the arrest, but not to a party who instigated the prosecution with malice and without probable cause.</p> <p>■6. Presumption of innocence.</p> <p>The legal presumption of innocence is to be regarded by the jury in every case, as matter of evidence, to the benefit of which the party is entitled.</p> <p>7. Malicious Prosecution: Probable cause; burden of proof.</p> <p>The want of probable cause is a material averment, in an action for malicious prosecution, and though negative in its form and character, it must be proved by the plaintiff, when put in issue, by some affirmative evidence. (As to what will constitute probable cause in a particular ease, see Op.)</p>

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. Theodoric F. Sórbeles, Circuit Judge.</p>

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