Volume 33 — Arkansas Reports

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

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

<p>1. Contract — Bill os’ Exchange.</p> <p>A contracted with B to do certain work and receive in full consideration therefo an order on C who owed B. After the completion of the work this order, the body of which was as follows: “ Please pay to * * * the sum of $550 and the same will be credited on your joint note to me ” was delivered t'A, who held it for nearly two years before presenting it to the drawer. Held, that the order was a bill of exchange, payable on demand, that it was the duty of the payee to present it in due time, and if dishonored to give due notice to the drawer; that the delay in the presentment was unreasonable and discharged the drawer from liability; held further, that A could not recover the value of the work under the contract.</p>

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

<p>1. Vendor's Lien: Waived by taking mortgage.</p> <p>Where a vendor of land takes a mortgage upon it, to secure the purchase money, he thereby waives his equitable lien.</p> <p>2. VENDOR and Vendee: Rescission, cancellation of deed,’etc.</p> <p>A sold and conveyed land to B, taking from him a mortgage on the land for payment of the purchase money, and stipulating that if the purchase money was not promptly paid at maturity, B should reconvey the land to A, and A should deliver to him his note for the unpaid purchase money. After the purchase note matured, B being unable to pay, they agreed to rescind as agreed in the mortgage, by destroying the deed, mortgage and note, and to meet afterward and burn them. A died soon afterward and before the papers were destroyed. His administrator knowing of the agreement to rescind, afterward united with B in burning the deed, note and mortgage, B at the time concealing from him the fact that he had a few days before caused the deed to he recorded. B subsequently sold the land to D, who was cognizant of all these facts, for about one-third its value. Held: First, that the destruction of the papers did not destroy or -divest the title conveyed by them. Second — That actual notice of the unrecorded mortgage did not defeat the titfe of the subsequent purchaser. Third — But that the agreement of B to rescind precluded A from having the mortgage recorded, and equity would enforce the agreement to rescind, against him or his vendee who purchased with notice of the facts.</p>

<p>APPEAL frm Lonolce Circuit Court.</p> <p>Hon. J. W. MartiN, Circuit Judge.</p>

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

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

<p>APPEAL from Nevada Circuit Court,</p> <p>Hon. J. K. YouN.g, Circuit Judge..</p>

<p>EEEOE to Lincoln Circuit Court.</p> <p>Hon. J. A. Williams, Circuit Judge.</p>

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

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

<p>APPEAL from Bradley Circuit Court.</p> <p>Hon. Peter Moseley, Special Judge.</p>

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

<p>'Certioraei : Practice in.</p> <p>The better practice in certiorari, is tor a transcript of the record to he exhibited with the petition, and a writ regularly issued and returned. And where it does not appear that the record sought to bo quashed was before the court, it did not acquire jurisdiction.</p>

<p>APPEAL for Desha Circuit Court in Chancery.</p> <p>Hon.-, Circuit Judge.</p>

<p>1. CRIMINAL Law — In jeopardy. lies judicata.</p> <p>Where an indictment is quashed on demurrer, the defendant is not in jeopardy under it, and may be prosecuted under a second indictment for the same offense. To make a judgment sustaining a demurrer to an indictment a bar to further prosecution for the same offense, matter must appear on the face of the indictment, which, in its character, is a legal defense or bar to a further prosecution for the same offense.</p> <p>It is an essential requisite of a conclusive judgment that it he upon the merits.</p> <p>2. Criminal Pleading: Statute Limitations.</p> <p>An indictment is not demurrable because it shows that the offense was committed back of the period bar of the statute of limitations. Matter to avoid the bar may be proven without being- averred ; and the bar is available to the defendant under the plea of not guilty.</p>

<p>APPEAL from Izard Circuit Court,</p> <p>Hon. Wm. Byers, Circuit Judge.</p>

<p>APPEAL from Izgrd 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 Washington Circuit- Court.</p> <p>Hon. S. W. Peel, Special Judge.</p>

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

<p>1. New TRIAL: Limitation on, for grounds newly discovered.</p> <p>The limitation of three years upon an application for a new trial, in cases appealed to the Supreme Court, runs from the date of the judgment of the Circuit Court.</p> <p>2. Same : Bill of review not superseded by</p> <p>The hill of review is not superseded by the statute which authorizes the Circuit Court to vacate or modify a judgment for grounds discovered after the term at which it was rendered. The statute extends to cases at law a new remedy, without taking away any which existed in equity, and as to the latter is cumulative.</p> <p>3. Judgments of Supreme Court: Review by inferior court; injunction against.</p> <p>A judgment or decree of the Supreme Court cannot be reviewed, altered or modified lw an inferior court for error upon the record; but for matters arising after the judgment or decree of the Appellate Court, and which would . render it inequitable to carry it into execution, it may be enjoined.</p> <p>4. Bill of Kevlew : After affirmance in Supreme Court; Prohibition against.</p> <p>A bill of review for new matter discovered after affirmance in the appellate court, is permissable; but leave to file it must first be obtained, if not from the Appellate Cowt, at least from the Chancellor. It rests in his sound discretion to grant or refuse it. But, if he should err or abuse his power in thisiegard, the remedy is not by prohibition fro m the Appellate Court.</p> <p>5. Same : limitation on.</p> <p>Against bills of review for newly di covered evidence, there is no positive statutory bar.</p>

<p>Iítdictjieot : Endorsemnnt of the names of witnesses on.</p> <p>The omission to endorse the names of witnesses examined before the Grand Jury, on an indictment at the time it is found, is no cause for quashing the indictment.</p>

<p>APPEAL from Baxter Circuit Court.</p> <p>Hon. Ejranklin Dos well, Special Judge.</p>

<p>1. Ckiminal Practice : Filing indictment.</p> <p>Where the record slows that an indictment was returned into court by a Grand Jury through its foreman, the Supreme Court will not reverse a conviction under it, because the entry fails to show that it was returned by the foreman “ in the presence of ” the Grand Jury. It will presume that the Circuit Court would not have permitted it to be returned in their absence.</p> <p>2. Same : Excusing jurors accepted by the parties.</p> <p>Where a juror discloses his incompetency after he is accepted by the parties it is not error in the court to then excuse him.</p> <p>3. Same : Admitting incompetent evidence by consent.</p> <p>A prisoner has no cause to complain of an admission of testimony, which he as well as the State reads in evidence.</p> <p>4. Juries : Slow judges of the law.</p> <p>In criminal cases the jury must take the law from the court, but where the issue involves a mixed question of law and testimony, they are necessarily the judges of the law and testimony, in order to determine the criminal intent, etc.</p>

<p>1. PROHIBITION, Writ or: Office of and when granted.</p> <p>The office of the writ of prohibition is to restrain an inferior tribunal from proceeding; in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation.</p> <p>2. Removal of County Seat; Jurisdiction over.</p> <p>The removal of the Oounty Seat is a matter of local concern, over which the County Court has exclusive original jurisdiction; the Circuit Court has no authority to determine the result of an election for removal in the first instance, and before the County Court has acted in the premises, and where it assumes to do so, a writ of prohibition will lie from this court.</p>

<p>1 Tax Title: Purchase by tenant; claim for penalties and improvements.</p> <p>Where land becomes forfeited to the State for non-payment of taxes by neglect of the owner, his tenant may terminate the tenancy by delivery of the possession, or protect himself from eviction by a future purchaser from the ¡State, by advancing the taxes and holding a lien for re-imbursement, or if the lands are sold for taxes at public sale, during the tenancy, without his fault, he may purchase and set up his title thus acquired, against that of his landlord. But he cannot use his possession which he holds as a tenant, as a basis to acquire title as an actual settler, and thereupon found a claim hostile to his landlord. Equity will regard him and all persons holding under him, except purchasers without notice, as trustees for the benefit of the landlord, and will not permit them to speculate on such a purchase, but will allow them only the actual amount paid in money to the auditor or the cost of scrips used, in the purchase. No per centum beyond the legal rate of six per cent, should be allowed him, nor any penalties or costs upon subsequent taxes paid by him. Beneficial improvements made by such purchaser may be allowed.</p> <p>2. PRACTICE in Equity: Limitation.</p> <p>Where such purchaser is the tenant of a receiver in court, it is proper to bring him in by rule, to compel him to surrender possession to the receiver, and the statute of limitations as to actions does not apply.</p>

<p>Mortgage. Unrecorded, void.</p> <p>A. mortgage or deed of trust not filed for record, is void, as against subsequent purchasers from the mortgagor.</p>

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

<p>1. County Seat: Removal, eta.</p> <p>Where an act providing for the removal of county seats is repealed, a provision of the act that there shall not be a second removal for ten years becomes-inoperative.</p> <p>2.-: Same,</p> <p>A provision of an act for the removal of county seats that whenever an election has been held in pursuance of this ad, and the county seat changed in compliance therewith, it shall not be lawful to change the couunty seat again under ten years, does not apply to a removal had under the provisions of A prior act.</p>

<p>CONTRACT TO Pay : None implied for gratuitous services.</p> <p>Services intended at the time to be gratuitous, cannot afterwards be used to raise an implied contract to pay for them.</p>

<p>Judgments : Correction of errors in, when and how may be made.</p> <p>When there is an error in the entry of a j idgment, which is clearly shown by other parts of the record, and its correction is necessary to make the record consistent, it may be corrected at any time, even after the term; and the court-will of its own motion correct it by nunc pro tunc order, and will annul all that may have been done under an execution issued on it.</p>

<p>1. PLEADING: Denials, how must he made.</p> <p>A denial must be direct, not argumentative. The former rules of equity in regard to answering the allegations of a pleading are the same under the Code. He who submits to answer must do so fully and fairly.</p> <p>2. Confedérate MONEY : Consideration.</p> <p>Confederate Treasury notes, issued and circulated as money, were a good consideration for a contract,</p> <p>3. Executions : Equitable title subject to.</p> <p>The vendee of real estate holding a bond for title, has an equitable interest which is subject to executions.</p>

<p>Lien, of attorney for his fees and cost:</p> <p>An attorney has a lien upon the securities in his hands for his fees and costs, as well as upon a judgment recovered upon them. Section 3622, Gantt’s Digest, so far as it extends, is but a declaration of the law as it was before. Where an attorney has attached property for the collection of a debt, the lien of the attachment enures to the benefit of t'.e attorney Lr his fees and cost advanced in the action, and cannot be defeated by any settlement made by his client and the debtor, without his consent.</p>

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

<p>1. Vendor's Lien. Taking security presumptive waiver of.</p> <p>The acceptance of other security raises a presumption that the vendor intended to waiver his equitable lien on the land for the purchase money, but it is a matter of intention, subject to proof.</p> <p>2.-: The Remedy.</p> <p>It is not necessary to the enforcement ef a vendor’s lien in equity, that he should first exhaust his remedy at law. Upon a valid agreement for the sale of land, the vendor until conveyance, holds the legal title in trust for the vendee, and after conveyance, the vendee holds it charged with a trust for the purchase money.</p> <p>3. Practice. Time of answering.</p> <p>It is within the discretion of a chancellor to permit an answer to be filed after the time allowed for filing it, which will not be interfered with by the Supreme Court, except in cases of plain abuse or manifest mistake. It is not enough that a defendant has a meritorious detense. It must be used in a fit time.</p> <p>4.-: Necessary parties must he in court'.</p> <p>Although want of necessary parties must be taken advantage of by answer or demurrer, yet if from the nature of the ease, a complete and final settlement of the rights ef the parties before the court, cannot be had amongst themselves, the chancellor should, of his own motion, order other necessary parties to be brought in.</p>

<p>ERROR to White Circuit Court.</p> <p>Hon. J. J. ClendeNIN, Circuit Judge.</p>

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

<p>Married "Women. Contracts of.</p> <p>The contract of a married woman, unless for the benefit of herself or her separate estate, cannot be enforced against her estate.</p>

<p>Tax Sale : Purchase by one receiving rents.</p> <p>A purchase of lands at tax sale by one who is receiving the rents and profits, and ought to keep down the taxes, can never strengthen his title.</p>

<p>APPEAL from PulasM Circuit Court.</p> <p>Hou. J. W. MautiN, Circuit Judge.</p>

<p>APPEAL from Fulton Circuit Court.</p> <p>Hon. Wm. Byees, Circuit Judge.</p>

<p>1. Evidence : Must be confined to the pleadings.</p> <p>Where there is no plea of payment, proof of it is not admissable.</p> <p>■2. Save: Not admissable against admission of pleading.</p> <p>If a defendant would introduce proof contrary to the admissions of his answer, he must first apply for leave to amend it, and accompany the application with his affidavit that the admission was made by mistake or inadvertance.</p> <p>5. Vexdok’s Lien : When waived.</p> <p>A vendor executed a deed, expressly reserving a lien on the land for the purchase money, and afterwaris executed a second deed to the same vendee, acknowledging payment of the purchase price, when, in fact, it was not paid. Held, that the lien in the first deed was a contract lien like a mortgage, which was in effect convej-ed to the vendee by execution of the second deed, and under the second the vendor had the same equitable lien as if the first had never been made.</p>

<p>APPEAL from Little River Circuit Court.</p> <p>Hon. L. J. JoyNer, Circuit Judge.</p>

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

<p>1. Parties : Practice in equity.</p> <p>Where the court can make a final decree between the parties before it, leaving the rights of others unaffected, it may be done; but where there are outstanding equities in oth rs the future assertion of which -ai ¡an the parties, litigant would cause new equities or revive old ones, a3 between the parties litigating, this will never be done.</p> <p>2. Judgment Lien.</p> <p>The lien of a judgment is subject to all valid liens on the land at the time it is rendered, whether recorded or not.</p> <p>3. Liens: Notice of.</p> <p>Notice of all liens and alienations attaching before‘judgment may be.given at any time before sale of land under execution, and will bind the purchaser.</p> <p>4. Fraudulent Conveyance : Possession by vendor.</p> <p>Whilst possession of real property retained by the vendor will not, as of personalty, raise a prima facie presumption of fraud, it may be a fact tending with others to show a secret trust.</p> <p>5. Same : Execution at law.</p> <p>The practice of selling under execution at law lands fraudulently conveyed is not to be encouraged</p> <p>6. Practice in Equity: Vacating fraudulent conveyances.</p> <p>In an equitable proceeding to vacate a fraudulent conveyance of land upon which an execution has been levied, it is not necessary to remit the party to his execution; the court may order a sale for its satisfaction, under its own, directions.</p>

<p>1. Mortgage : Lien of, discharged by payment or tender at the law day. Payment or tender of payment at the time mentioned in the condition of the •mortgage, or payment before then, saves the breach of the condition, and discharges the lien and revests the legal estate in the mortgagor.' In cases of tender, the debt still subsists as a personal liability against the mortgagor. But in the case of a sale by title bond, neither tender nor payment of the purchase-money divests the legal title of the vendor, nor does tender extinguish his lien on the land.</p> <p>2. Termer: In bill for title, tender must be kept good.</p> <p>A v. ndee under a title bond asking a decree for title, must tender and bring the unpaid purchase-money into court before he can obtain a decree for title.</p>

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

<p>1. PRACTICE IN Equity : Parties, when new should be made.</p> <p>Whenever it is discovered in the progress of a cause that the rights of the parties already before the court cannot be finally determined without other parties, they must be brought in.</p> <p>2. Realty : Souse of one on land of another, is not.</p> <p>A house erected by one on land of another, with his consent, may be considered as personal property, distinct from the land. In such ease the value of each maybe referred to a master, and on the coming in of his report, if the parties will not agree for a purchase by one from the other, the court should order a sale of lot and house together, and divide the proceeds in proportion to their respective values found by the master.</p>

<p>1. Lease: When a Mortgage.</p> <p>A lease executed by lessor and lessee reserving a lien to the lessor on the crop produced on the land, is a chattel mortgage; and a written agreement, properly executed, stipulating that the amount due for rent of land should he paid before the removal of the crop, is a mortgage of the crop.</p> <p>2. Mortgages : Priority of Record.</p> <p>Between conflicting mortgages, the one first filed for record will have priority</p>

<p>PETITION' for Oertiorciri.</p>

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

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

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. J. F. Sorrells, Circuit Judge.</p>

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

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

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

<p>Married Womast: Ser deed void.</p> <p>The deed of a married woman not acknowledged according to the statute is. absolutely void and a nullity, and incapable of confirmation. (The deed in-2 this case was executed before the adoption of the Constitution of 1874.. —Rep.)</p>

<p>APPEAL from Pulaslei Chancery Court.</p> <p>Hon. J. R. EakiN, Chancellor.</p>

<p>of. APPEAL from Chicot Circuit</p> <p>Hon T. F. Sorrells, Circuit Judge.</p>

<p>APPEAL from White Circuit Court in Chancery..</p> <p>Hon. J. N. Cyi’ert, Circuit Judge.</p>

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

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

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

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

<p>1. Practice in Chancery : Parties, defect of, not raised by general demurrer.</p> <p>A general demurrer to a complaint does not raise the question of defect of parties. Nevertheless when a determination of the controversy between the parties before the court, can not be had without the presence of other parties, the court must order them to be brought in.</p> <p>If a bill has equities, it should not be dismissed for -defect of parties, until refusal of the plaintiff to bring them in upon a proper order of the court to that end j and such order should be made by the court of its own motion, ifthe bill present equitable grounds of relief against all the defendants when brought in. The proper practice in such cases when defect of parties is developed by the bill, and a special demurrer is interposed on that ground, is to sustain the demurrer and dismiss the bill, unless the plaintiff asks leave to amend by bringing in the other' parties. But when the demurrer is general the court should look alone to the equities of the bill, and if the bill should stand with proper parties, it should overrule the demurrer, and order such parties to be brought in as are necessary to a full settlement of the matters in contest between the parties already before the court.</p> <p>2. Counties : What they are.</p> <p>Counties are not in any respect business corporations for private purposes, nor are they organized exclusively for the common benefit of the citizens and property holders within their limits. They are of a purely political character, constituting the machinery and essential agencies by which the free governments derived from, and modeled upon the representative and popular features of the English Constitution are upheld, and through which, for the-most part, their powers are exercised.</p> <p>3. Same : Their rights and liabilities when divided.</p> <p>When a county is divided the old county will, without statutory provision retain, the property and remain liable forthe debts of the county and the severed part or new county will be released. But it is competent for the Legislature to apportion the property and the burden between the old and the new counties as. it may deem proper, and compel taxation for the purpose.</p> <p>4. Same : Sow created — Legislative power over.</p> <p>Counties, cities, and towns, are municipal corporations created by the Legislature, and derive all their powers from it, unless otherwise provided by the-State Constitution.</p> <p>The Legislature has the authority to amend the charter of sai i corporation enlarge or diminish its powers; extend or limit its boundaries: divide the same-into two or more; consolidate two or more into one; and even abolish it altogether at its own will and discretion and according to its own views of public-convenience, and without the consent of those comprising the body politic.</p>

<p>I. County Courts : Successors to Board of Supervisors.</p> <p>By the Constitution of 1874 County Courts were made successors and mere continuations of the former Boards of Supervisors of the counties.</p> <p>•2. Same : Appeals from to Circuit Courts.</p> <p>An appeal lies to the Circuit Court from the judgment of the County Court granting or refusing an application to annex territory to a municipal corporation, and the Circuit Court should, on such appeal, retain jurisdiction of the subject matter for final judgment, and try the case de novo; but where the County Court has fairly understood the law, considered the facts and exercised its discretion upon a view of the fitness and propriety of the proposed matter as affecting the interest and convenience of the public, its action then should have not the technical, but much of the persuasive force of a political question finally determined.</p> <p>:3. Municipal Corporations: Annexation of Territory to. Construction of Statute.</p> <p>By force of the Statute of 1875, the annexation of contiguous territory to a town, follows the vote of the town and the proper formal stepB to be taken in the Oou lty Court, unless there be a remonstrance filed against it and sustained.</p> <p>The vote of the town makes a prima fade case for annexation; the onus for showing sufficient cause against it is upon the remonstrants.</p>

<p>1. CRIMINAL Law : Indictment: Burglary and Larveny may be joined in same.</p> <p>If one feloniously enter a house in the night time with intent to steal, he is guilty of burglary though he does not accomplish the theft. If he completes the theft he is guilty of a further offense, and may, by statute, he indicted and punished for both burglary and larceny; and he may be charged with 'the two offenses separately, or jointly in different counts in the same indictment.</p>

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

<p>I/ANDLORD AND TENANT :</p> <p>A tenant cannot dispute his landlord’3 title.</p> <p>Sxst Springs — Jurisdiction of State Courts.</p> <p>The jurisdiction of ihe State Circuit Court to try and determine the right of possession to lands or lots within the Hot Springs reservation, is not taken away by the Act of Congress of March 3, 1877, providing for determining the rights of occupants to purchase the parcels or lots they have made improv-rnonts on.</p>

<p>APPEAL from Lee Circuit Court.</p> <p>Hon. John M. Hewett, Special Judge.</p>

<p>Pleading : Exhibits, when part of complaint.</p> <p>In an action by a mortgagee for the recovery of personal property, claiming to be the owner by virtue of the mortgage, the mortgage is not the foundation of the action, and though filed with the complaint, is no part of it but is simply evidence for the plaintiff to be used at the trial.</p>

<p>On motion to settle amount of Attorneys' fees,</p>

<p>APPEAL from Si. Francia Circuit Court, in Equity.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

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

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

<p>1. Criminal Law : Robbery — Value immaterial.</p> <p>To constitute robbery the taking must be either directly from the person rjr-in the presence of the party robbed, and must be by force, or a previous putting in fear. It is the previous violence or intimidation that distinguishes rob--bery from larceny. It is immaterial of what value the thing taken is,</p> <p>2¡ Indictment for Robbery.</p> <p>In an indictment for robbery it is sufficient to allege that the taking was done-by violence, without alleging intimidation.</p> <p>3.-</p> <p>A Code indictment is the substance of the common law indictment, and must be direct and certain as regards the party charged, the offense, the county, and particular circumstances of the offense charged, where they are necessary to constitute a complete offense.</p> <p>4. Indictment : Robbery — Larceny.</p> <p>There can be no conviction for larceny under a bad indictment for robbery.</p>

<p>Larceny : Value must te proved.</p> <p>Without proof of value of stolen property, there can be no conviction for larceny.</p>

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

<p>-PAYMENT : Of part, when will discharge the whole.</p> <p>In eases of contract far the payment of a liquidated sum of money,- the payment of a less sum will not be a good satisfaction unless it was paid and accepted before the time when it was to have been paid, or at a different place from "•that appointed for the payment.</p>

<p>1. Probate Courts : Jurisdiction, Judgment of, Conclusive.</p> <p>The jurisdiction of the Prohate Courts since the adoption of the Constitution of 1874, is precisely what it was before the transfer of probate jurisdiction to the Circuit Courts by act of 1873 ; and their judgments are conclusive until corrected by appeal or other proper proceeding of a supervising court.</p> <p>2. Same : Chancery jurisdiction over judgments of.</p> <p>There is an inherent power in equity to set aside the orders and judgments of Probate Courts, as of all other courts, for fraud; or, if such a state of facts and circumstances is presented as shows an irreparaole injury impending, against which a Probate Court can grant no relief, courts of equity may interpose,, but not for mere errors however gross.</p> <p>3. Administrator : Discharge of, by Probate Courts.</p> <p>The discharge of an administrator by the Probate Court, is on'y for so much of the funds belonging to the es'ate as is found by his settlement to be in his hands. He will still be liable for funds received and not accounted for by him.</p> <p>4. Samii : What not fraudulent purchase by.</p> <p>An administrator is not precluded from dealing with the purchaser of property purchased at his sale, where there is no understanding express or implied at. the time of the sale that, he shall share in the purchase.</p> <p>6. Same: Attorney of, not allowed to buy at his sale.</p> <p>An attorney of an administrator who prepares and files the petition and obtains-an order for sale of property of the deceased, is not allowed to purchase at the sale.</p> <p>6. Fraudulent Purchaser : Rejits and profits, repairs, etc., where no actual; fraud.</p> <p>Where a purchase of land is set aside as fraudulent for being against public-policy, but in which the purchaser has been guilty of no actual or intentional fraud, he should be charged with only such rents and profits as he has re-, ceived, or should by' prudent management, have received; and should be credited with the purchase money paid by him, and taxes and all other reasonable expenditures, including improvements : and if these exceed the rents 8nd profits, he will be entitled to the excess with a lien upon the property for-its payment.</p>

<p>Pleading : Exhibits — Effect of</p> <p>The Civil Code [sec. 4599, Qannt’s Dig.~\ requires a pleader to malee a bond, bill, note, or other writing which is evidence of indebtedness and the foundation of the action, “a part of the complaint,” by filing it; and on demurrer it may be considered as part of tbe record. When the action is not founded upon, the instrument as evidence of indebtedness, but the instrument is merely-relied upon, it must still be filed [sec. 4,600] but the plaintiff has no right by reference, to make it part of the pleading, and it cannot be noticed on demurrer further than to explain allegations — not to supply or contradict them.</p> <p>Same : Reply.</p> <p>A reply filed when none is authorized by the code should be stricken from the files.</p> <p>Bankruptcy : Damages for breach of covenant, provable in</p> <p>Damages for breach of covenants are provable against the estate of a bankrupt.</p> <p>Vendor and Vendee: Covenant of warranty, etc., when broken.</p> <p>Where a grantor conveys by deed with covenant of seizin, land which belongs to the government or to a stranger in possession, the covenant is broken as soon as made,, and the grantee may sue at once for damages for the breach. But upon a covenant of warranty, where any thing passes to the vendee, no-action can arise until eviction or its equivalent.</p> <p>As to a vendee’s rights under a covenant of warranty where no title passes, nor possession taken of land held adversely, quere.</p>

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

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

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

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

<p>1. Tenants at Will: Possession and power of to lease, etc.</p> <p>When a person in pessession of land permits his daughter and her husband to use aud improve the land, they become at most mere tenants at will; their possession would not l’ipen into a title without some act or declaration indicating an intention to hold adversely; nor would it empower them to grant leases to strangers with any more permanent rights than they enjoyed.</p> <p>2. Injunction : To restrain trespasses upon land.</p> <p>Wheie repeated and continuing injuries to the freehold are of a nature to constitute a nuisance equity has jurisdiction to enjoin them; but injuries to chattel interests in lands, or mere acts of aggression and injury not rendering the freehold less fitting for enjoyment and amounting to mere trespasses, however often repeated, afford no grounds for an injunction, unless in case of insolvency or some other peculiar equity; and it is in all cases essential that plaintiff should show a clear right to the possession.</p> <p>3. Same : To prevent multiplicity of suits.</p> <p>To warrant an injunction on the ground alone of preventing a multiplicity of suits, the same rights should be claimed by .different persons against one or by one against many. It is not authorized to prevent the necessity of suing •one person for a succession of wrongful acts.</p>

<p>APPEAL from Benton Circuit Court.</p> <p>W. J. Howard, Special Judge.</p>

<p>1. CONTRACTS: Lex Loci — Usury.</p> <p>The validity of a note as to usury, must be determined by the usury statutes of the State where it was made, unless it designates another place for payment.</p> <p>2. Laws ov oi her States : Proof of.</p> <p>Certified extracts by a notary public, of the laws of other States, are not evi-ievidence of them: They should be proved as indicated in McNeill v. Arnold et al., 17 Ark., 154.</p>

<p>Practice in Supreme Court, where no declarations of law Toy Circuit Court.</p> <p>Where there is a motion for new trial in the Circuit Court, though the Court make no declarations of law, the Supreme Court will look into the bill of exceptions to see if there is any evidence to sustain the findings of the Court, silting as a jury, and whether as matter of law, a party is entitled to judgment upon the facts found.</p> <p>Limitations :</p> <p>The statute of limitations did not begin to run against a note executed during-the war until the proclamation of peace, 2d April, 1866.</p> <p>Same : Non-claim.</p> <p>Where the bar of the statute does not attach in the life of a party, the general statute of limitations ceases and the statute of non-claim is applied.</p> <p>Same : New promise.</p> <p>A verbal promise to pay a barred debt does not revive it, and a promise in writing does not revive the old debt, but gives a new cause of action co-extensive with the promise.</p> <p>Bankruptcy : New promise.</p> <p>A verbal promise to pay a debt discharged in bankruptcy revives the debt.</p>

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

<p>-Coubt Common Pleas : Appeal from.</p> <p>There is hut one way of taking an appeal from the Court of Common Pleas to the Circuit Court, an j it must be moved for and taken at the term at which the ju gmentis rendered.</p>

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

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. J. M. Bradley, Special Judge.</p>

<p>Unlawful Detainer : Action of — Mortgagee can not maintain.</p> <p>The action of unlawful detainer can not be maintained on the mere right of’ possession, but the relation of landlord and tenant must exist between the-plaintiff and def-ndant. A mortgagee, or purchaser under the mortgage, having only a right of possession, can not maintain the action. -</p> <p>Same : Amendment of action.</p> <p>An action of unlawfu. detainer can not he changed by amendment to ejectment,, where the defendant has been dispossessed under the writ.</p>

<p>MotioN to vacate supersedeas.</p> <p>Davidson, for the motion.</p>

<p>1. Taxation by Towns and Counties : Limits of their power wader Constitution of 1874 Obligations of contract not impaired by.</p> <p>It is now well settled that where municipal or county bonds have been is ued under authority of law, and where, at the same time, the law has directed a tax to be levied for their protection, or where there is a eeneral law authorizing and directing a tax in all like cases applicable to such bonds, the law becomes a part of tne contract. The holder has a right to look to the taxing provision as a part of his security, and to demand at the proper time that it be exercised in his favor. The measure of that right is the Constitutional limit of the power which the Legislature could grant to the municipality when the contract was made. Such contracts are protected by the Constitution of the United States, and no subsequent act of a State Legislature or Constitutional Convention can impair them.</p> <p>■ 2. Taxation BY Counties and Towns : Sow far power of, limited by Constitution of 1S74-</p> <p>It was the intention of the Constitutional Convention of 1874, to cut off utterly all power in counties, cities and towns, to levy taxes beyond the limits assigned in Art. XI., Sec. 4, and Art. XVI., Sec. 3 of the Constitution. But where bonds had been lawfully issued by them under a law directing a levy of taxes to pav them, such bonds a-e protected by the Constitution of the United States; and the constitutional limit of five mills for old indebtedness existing at the ratification of the Constitution may be exceeded, if necessary, for the payment of such debts. But there is no power after having levied a tax for such protected debt, to levy besides, a tax of five mills for other indebtedness.</p>

<p>APPEAL from Jackson Circuit in.Chancery.</p> <p>Hon. William Byers, Circuit Judge.</p>

<p>Lien : Landlord’s superior to Mortgagee’s.</p> <p>The lien of a landlord for rent is superior to that of a mortgagee, upon the crop giown upon the rented premises.</p>

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

<p>Bail Bond :-</p> <p>It is no objection to the validity of a hail bond that there is no order on the record for the issuance of a bench warrant on which the party is arrested. Nor is a bail bond void because it is the joint bond of two or more defendants for the same sum that was required of each of them for hail, by the order of the judge endorsed upon the indictment.</p>

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

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

<p>1. Administration — Jurisdiction of Probate Courts:</p> <p>Art. VH, Sec, 34, Constitution of 1874, relegated to the Probate Courts their old jurisdiction in matters of administration, etc., which had been transferred to the Circuit Courts by Act of 16th April, 1873, without restriction or quali-ficat'on.</p> <p>2.-Jurisdiction of Chancery Courts:</p> <p>Courts of Chancery have no power to take administration eases out of the Probate Courts for the purpose of proceeding with the administration, but may correct any fraud in the settlements of administrators and executors. When that is done, if there be still a necessity for further proceedings in the administration, they should be had in the Probate Court. But if there be no such necessity — if the assets be all collected and the debts ascertained, and nothing remains but to fix the liabilities of administrators, ex^cut >rs and their sureties, and the rights of creditors, heirs, legatees and distributees, and make adjustment on equitable principles, all this can be better done in Chancery, and the cause should be retained there for completion.</p> <p>3.-Practice in Chancery:</p> <p>In referring administration settlements to a master for the correction of fraud, the Chan"ellor should find and designate the points in which the fraud consists, and confine the refer-nce to those points: and his finding of fraud should always be upon the allegations of the bill, specifically pointing it out, and not upon vague and general charges. Proof of the fraud devolves upon the party alleging it.</p> <p>4. Parties in Chancery:</p> <p>Sureties of an administrator are proper parlies to a bill to correct fraud in his account.</p>

<p>APPEAL from Ashley Circuit in Chancery.</p> <p>Hon.-- Circuit Judge.</p>

<p>County S crip : Right of County Court to cancel.</p> <p>The statute authorizing the County Courts to call in county wawants for cancellation and veissuance, is constitutional and the law of the contracts as to warrants issued after the passage of the act, and the holder takes them subject, to this power.</p> <p>Same : Notice of order insufficient; scrip not barred.</p> <p>When the notice of an order of the County Court calling in warrants for cancellation is published in only one newspaper, the scrip will not be barred by failure of the holder to present it within the time required by the order, though he have actual notice of it. The notice must be given as required by the statute: but presentation of the scrip is a waiver of the insufficiency of the motion.</p>

<p>1. New Trial — Rule in Supreme Court when no motion for.</p> <p>"Where there is no motion for a new trial, the Supreme Court will not review a deeiúon of the Circuit Court admitting or rejecting evidence, or giving, or refusing instructions.</p> <p>2. Appeal prom Justice op the Peace -. — Affidavit for, amendable—</p> <p>An informal affidavit for appeal from a Justice of the Peace may be amended in the Circuit Court; and if not objected to there, it is not good practice to allow objections to it in the Supreme Court.</p>

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

<p>APPEAL from Ohicot Circuit Court.</p> <p>Hou. T. E. SORRELLS, Circuit Judge.</p>

<p>1. WILLS : Probate of not essential to their validity.</p> <p>A-will determines the rights of parties under it, proprio vigore, from the death of the testator. Its prohate is necessary to fix the right of the executor to execute it, to point out the person authorized to act, and as a basis and prerequisite to letters testamentary, hut is not essential to its validity. Rights under it are not lost by failure to probate; and to establish or protect them the validity of a will may be shown in ar,y court.</p> <p>2.-Lost — Statute limitations.</p> <p>The statute of limitation is not applicable to proceedings by a non compos to establish a will that has been fraudulently concealed.</p>

<p>APPEAL from Van Burén Circuit Court in Chancery.</p> <p>Hon. J. W. MARTIN, Circuit Judge. .</p>

<p>APPEAL from Hempstead Circuit Court.</p> <p>Hon. J. K. YoüNG, Circuit Judge.</p>

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

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

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

<p>Interpleader : Statute construed.</p> <p>Section 2671 Gantt's Digest, giving to the claimant of personal property which is levied on as the property of another, the right to give bond and suspend the sale, applies as well to property about to be sold under a special execution in attachment, as to that levied on under a general execution.</p> <p>Former Judgment: Pleading; evidence.</p> <p>Whore it is necessary to plead a former judgment in bar of an action, it can not be given in evidence, unless pleaded. And it can not be plealed when rendered after the commencement of the suit.</p> <p>Judgment: Evidence.</p> <p>A judgment condemning attached property to be sold, is pvima facie evidence in a suit between the plaintiff in attachment and an interpleader, that the title to the property isjin the defendant in the attachment, but is not conclusive.</p>

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. J. Brizzolari, Special Judge. .</p>

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

<p>"Witnesses : Susband and wife, incompetent.</p> <p>Husband and wife are not competent witnesses for or against each other.</p> <p>Evidence: Legislative power over.</p> <p>The Legislature has no power to divest rights hv prescribing to the courts, what shall he conclusive evidence.</p> <p>Railboads: Damages by; Statute construed.</p> <p>The true construction of the Act of February 3, 1875, for the recovery of dam-, ages for injuries by railroads, is, that the killing being shown or admitted, the presumption is that it was done by the train and resulted from want of due care ; but this presumption may be repelled by proof. And in ease the company may be liable at all, that liability is doubled by the failure to give notice of the injury required by the statute; but the failure to give notice-does not create a liability for an innocent act.</p>

<p>APPEAL from Madison Circuit Court.</p> <p>Hon. J. M. PittmaN, Judge.</p>

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. R. R. Rutherford, Special Judge.</p>

<p>1. Swamp Land Act : The swamp land act of September 28, 1860, made a grant in presentí of all lands coming within the description of the act. When they are properly designated and ascertained, the grant relates to the date of the act.</p> <p>2. Same : It made the Secretary of the Interior the judge of the lands coming within the meaning of the grant, and his decision, on this point, in the absence of fraud or imposition, is final.</p> <p>3. State’s Patent : Evidence; Recitals.</p> <p>The State’s patent for swamp lands may issue at any time after the selection is confirmed, and is evidence of title in the grantee, and prima facie evidence* of all facts recited in it, which are necessary to confer the power to issue it.</p> <p>4. Evidence : Official letters ; Exemplifications of record.</p> <p>A letter from the Commissioner of the General Land Office, stating what does- or does not appear on his records, is no.t evidence of the facts stated. Matters of record must be proved by exemplifications of the record. Negative-matter may be proved by the testimony of those familiar with the record and papers, but the testimony must be taken as of any other fact. Letters-will not do.</p>