Volume 34 — Arkansas Reports

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

<p>1. Divorce: Not granted on pleadings, etc.</p> <p>A divorce will not be granted on a demurrer to a bill, or upon a failure to answer, or upon admissions in an answer, or alone upon declarations or admissions of the defendant, proven by depositions or otherwise.</p> <p>2. Same: Non-cohabitation sufficient for.</p> <p>Actual abandonment of matrimonial cohabitation, without reasonable cause, for the period of one year, intentional on the part of the wife, is cause for divorce, notwithstanding she make occasional visits to the house of her husband to look after her children, and while there engag e in domestic duties.</p> <p>3. Same: Not granted on evidence of parties. Conflict between.</p> <p>The uncorroborated evidence of the parties, though admissible for what it is worth, is not sufficient to authorize a divorce, notwithstanding they agree in their statements. Where there is a conflict in their testimony that of the defendant is deemed of greater weight.</p> <p>4. Same : Pleading. Allegations must be specific.</p> <p>Where the causes alleged for divorce are not sufficiently specific, the court should, on motion of the defendant, compel the plaintiff to make them so.</p>

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

<p>1. Homestead : When assarted to avoid a mortgage, must be proved.</p> <p>The allegations in the answer in a suit to foreclose a mortgage, of facts showing that the mortgaged premises were the homestead of the mortgagor at the lime the mortgage was executed, are affirmative, and the onus probandi is upon the mortgagor.</p> <p>2. Decree: Mortgagee not bound by, if not party to.</p> <p>A divorce decree in a suit between the mortgagor and his wife, subsequent to the execution of the mortgage, assigning the mortgaged premises to the wife as alimony, does not affect the rights, or remove the lien, of the mortgagee, who was not a party to the suit.</p> <p>3. Mortgage : Execution of by wife must be acknowledged, etc.</p> <p>If the wife of the mortgagor has such interest in the premises as makes it necessary for her to join him in the execution of the mortgage, her execution must be acknowledged by her, and the acknowledgment authenticated, as prescribed by the statute.</p> <p>4. Acknowledgment : Who may not take in another state.</p> <p>A justice of the peace, or chairman of a county court of another state, can' not take acknowledgments of mortgages of lands in Arkansas.</p> <p>5. Same : How authenticated.</p> <p>Such acknowledgments before a county court of another state, must be authenticated by the seal of the court.</p> <p>•6. Practice : Selling land for cash, error. Plaintiff must not sell.</p> <p>. It is error in foreclosure suits, to direct land to he sold for cash; and bad practice to appoint the plaintiff commissioner to sell.</p>

<p>1. Practice in Supreme Court : When no appeal against a party. Where no appeal is taken from a decree in favor of one of several parties the case made against him is not before the court.</p> <p>2. Administration oe Estates : Jurisdiction of courts in.</p> <p>The probate court has exclusive original jurisdiction in matters of estates of deceased persons, and chancery can not take cognizance of such, except upon some one or more of the ordinary grounds of equity jurisdiction.</p> <p>3. Same : Settlements in probate courts are judgments. How avoided.</p> <p>A settlemont of an administrator in the probate court has the force and effect of a judgment, and can be set aside only by a court of chancery for fraud.</p> <p>4. Fraud : What it is, and how alleged.</p> <p>Fraud is a term the law applies to certain facts as a conclusion from them, and is not itself a fact, and can not be charged in general terms. The facts and circumstances constituting it must be stated.</p> <p>5. "Widow-administratrix: Takes rents as widow until dower assigned.</p> <p>A widow-administratrix is under no obligation to account for rents and profits of her intestate’s plantation, until the assignment of her dower. They belong to her as widow, and not as administratrix. If creditors want them they should have her dower assigned to 'her.</p> <p>6. AdministratIon : Illegal allowances not fraudulently obtained, not impeachable in equity.</p> <p>Mere illegal allowances to an administrator, not obtained by misrepresentation or deception upon the court, are no grounds for impeaching or setting aside a settlement, in- equity. The proper remedy is by appeal to the circuit court.</p> <p>7. Administrator: Purchase by, a fraud.</p> <p>It is a fraud for an administtator to be interested in a purchase at his own sale, and equity will set aside the sale.</p>

<p>1. Sureties: Exoneration and contribution between parties.</p> <p>Rogers sued Glasscock before a justice of the peace, and attached his property. Chrisman and "others became sureties for Glasscock on a bond to release the property. Rogers recovered judgment in the suit, and Glasscock appealed to the circuit court, giving an appeal bond with the appellees as his sureties. Judgment was finally rendered against him in the circuit court, and his sureties in the appeal bond, for the debt, damages and cost. Without issuing execution on the judgment, Rogers then sued Chrisman on the release bond, and recovered judgment against him in the circuit court. He appealed to the supreme court, and the judgment was affirmed, with damages and cost. He paid this judgment, and then filed his bill against the appellees for contribution, not alleging insolvency of the principal, Glasscock. Held: 1, That Rogers had the right to sue the sureties on the release bond without issuing executi n on the judgment against Glasscock and his sureties on the appeal bond.</p> <p>2. The attachment release bond was for the benefit o the sureties (if any) on the original debt as well as for the creditor, and if such sureties had been compelled to pay the debt, the sureties on the release bond would be compelled in equity to exonerate them; and likewise the sureties in the appeal bond, as between them and appellant, were primarily liable; and he was entitled to complete exoneration from them, and to contribution from his co-sureties in the release bond, to the extent of the judgment rendered in the circuit court, in the suit originally begun by attachment.</p> <p>Where successive securities for a debt have been given injudicial proceedings, at the request of the debtor alone, to enable him to prolong the litigation, whilst all will be liable to the creditor, they will, as between themselves, be liable to exoneration in the inverse order of their undertakings. Those who contract last become sureties not only for the benefit of the creditor, but in exoneration of those who precede, and all will be liable to exonerate the original sureties for the debt, if there be any.</p> <p>3. It was not necessary, as against the sureties in the appeal bond, to make Glasscock a party or to allege his insolvency. But as against the co-securities in the release bond he was a necessary party.</p> <p>2. Parties, want op : Demurrer.</p> <p>A general demurrer does not reach the defect of want of proper parties.</p>

<p>1. Surety: Discharged by creditor’s willful loss of collaterals.</p> <p>Lavender, as administrator, let to Pace a farm for 1870, and took his note for the rent, with Taylor as surety, stipulating in the note that he would “retain a lien upon the crop for the payment of the rent.” He and Pace were then, and many years afterward, partners in a mercant le firm, and they received of the crop more than sufficient to pay the note, and sold it on the firm account. At the date of the note, Taylor was indebted to Pace in a large amount, which, several years afterward, he paid, without notice that the rent note was unpaid. In August, 1875, Lavender sued Taylor on the note. Taylor pleaded the foregoing facts as an equitable discharge, and the cause was transferred to the equity-docket : Held:</p> <p>1. That the retention of the lien in the note was not additional to the statutory landlord’s lien, but a mere assurance to Taylor that the legal lien should he enforced for his protection, or at least was not waived, nor would he abandoned.</p> <p>2. The mere passive conduct of Lavender, in allowing the cotton to be shipped, when by ordinary diligence he could have prevented it, was, in the face of the written obligation, rlto retain a lien on the crop for the rent,” a fraud upon the surety.</p> <p>Ordinarily, a creditor’s mere neglect or forbearance to sue, or his failure to enforce collaterals, will not discharge the surety; but he must not release them, or do any act by which the surety’s right of subrogation, upon payment of the debt, may be fruitless to him.</p> <p>3. The shipment and sale of the cotton by the firm was Lavender’s act and more than passive acquiescence or neglect.</p> <p>4. That Lavender’s acting as administrator did not affect the equities of his surety. .</p>

<p>1. Deed: Mistake in, how corrected. Intervening purchaser.</p> <p>A mistake in a deed in the description of land may be corrected and the title perfected by a subsequent deed; and a purchaser of the land at a sale made after the last deed, under an execution against the grantor levied on it between the deeds, gets no title if he have notice at the time, of the mistake and correction.</p> <p>2. iEsrocEHT Purchaser : One under his own execution is not.</p> <p>A purchaser under his own execution is not an innocent purchaser for value, without notice.</p>

<p>1. Replevin. Mortgage : For part of undivided crop.</p> <p>Washington rented land from Jones, agreeing to give one-fourth of the cotton produced on it, for rent. He afterward mortgaged to Love three bales of the cotton to be produced on the farm, to secure a debt payable the first of November following, with power to take possession and sell, upen default of payment. After this mortgage was executed and recorded, he made another mortgage, to Deutseh, upon the whole crop, to secure indebtedness to him; and Jones, being indebted to Deutseh, gave him power of attroney to collect the rent, and apply it to his indebtedness. Washington raised and gathered eleven bales. Deutseh got about eight bales, leaving in a pen on the premises about three bales. Love demanded this under his mortgage. Soon afterward Deutseh, with Washington’s assent, moved this cotton to a gin to be ginned. Love then brought replevin against Washington for “three bales of cotton, valued at $90,” and the officer seized it at the gin. Deutseh interpleaded for the cotton, alleging that “he was the owner, and entitled to the immediate possession;” and was also, on his motion, made defendant. Washington made no defense Held:</p> <p>1. The contest for the cotton was between Love and Deutseh, and Love . was entitled to the verdict on the interplea.</p> <p>2. The eight bales, being more than sufficient- to pay the rent, which was the first lien, Deutseh had no right of possession against Love, his mortgage being subsequent to Love’s.</p> <p>3. While the cotton was undivided on the premises, and the three liens upon it, Love could not maintain replevin for three bales, or as much as would make three bales, for he had no title to any particular part of the undivided crop. He should have sued in equity, making the three others parties. But after all but three bales had been taken away, he could, under the circumstances, maintain replevin for the remainder.</p> <p>2. Replevin : Not avoided by transfer of possession.</p> <p>A party in possession of goods can not avoid replevin by wrongfully transferring the possession to another.</p> <p>3. Practice in Supreme Court : No reversal where justice is done.</p> <p>Where substantial justice has been done in the circuit court, the supreme court will not reverse for matters of form.</p>

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

<p>1. Exemption: Only residents entitled to. How pleaded.</p> <p>The right of exemption of pi-operty from sale under execution appertains only to residents of the State. The pleading asserting it must show such facts as bring the pleader within the expressions of the exemption law. It is not sufficient to allege that the goods are exempt.</p> <p>2. Replevin : Affidavit for, no part of complaint.</p> <p>The affidavit for replevin in the circuit court, is not a part of the complaint which the defendant is hound to answer.</p>

<p>L Vendor by Title Bond: Rights of assignee of purchase notes. Duty to surety on.</p> <p>A vendor of land by title bond stands in tbe position of a mortgagee for tbe purchase money, and his rights pass to the assignee of the purchase notes, -who may proceed against the purchaser to foreclose the lien, or against him and his sureties on the note personally, or any of them separately, or may prosecute all these remedies at once, pari passu, until satisfaction. But he must take care that the lien is not lost to the surety by his act or negligence; but to stay the enforcement of the lien is no defense to an action against the surety.</p> <p>2. Surety : When subrogated to liens.</p> <p>A surety can not have subrogation to liens until he pays the entire debt.</p>

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

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

<p>1. Larceny : Indictment, description of property in.</p> <p>“Twenty-five cords of wood” sufficiently indicate, personal property, and is a sufficient description of the subject of larceny. The common and ordinary acceptation of property is to govern in description ; the certainty must be to a common intent, which is, such as will enable the jury to say whether the chattel proven to be stolen is the same as that specified in the indictment, and will judicially show to the court that it could have been the subject-matter of the offense charged.</p> <p>2. Same: Trees severed from soil, subject of.</p> <p>Trees previously severed from the soil are personal property and the subject of larceny, and when furtively taken from the land or possession, actual or constructive, of another, it is larceny.</p>

<p>APPEAL from Yell Circuit Court — Danville District.</p> <p>I-Ion. W. D. Jacoway, Judge.</p>

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

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

<p>1. Consideration : Pleading. a</p> <p>A plea alleging that the note sued on was given without consideration, is good.</p> <p>2. Fraud : Pleading.</p> <p>A plea that the note sued on was obtained by false representations, without stating what the representations were, is bad.</p>

<p>1. Commission job oe United States Circuit Court: Van not fine. False imprisonment.</p> <p>A commissioner of the circuit court of the United States has no. power to fine a party as upon final trial, and if he does so and imprisons him until the fine be paid, he is guilty of false imprisonment.</p>

<p>APPEAL from Izard Circuit Court.</p> <p>Hon. S. Peete, Special Judge.</p>

<p>,1. Landlord and Tenant: Laborer not a tenant. Sub-laborer: Lien on crop.</p> <p>One who raises a crop upon land of another under a contract to raise the crop for a particular part of it, is a mere cropper, and not a tenant; and has a lien upon the crop for whatever is due him: And, as against him, a laborer under him has a lien upon the crop only to the extent of the cropper’s claim against the land owner, and may enforce it against the land owner who gets the crop.</p>

<p>1. í'ekbymah' : Ferriage.</p> <p>A ferryman can not charge, as a common carrier, for the contents of a wagon separately from the wagon itself. The fixing of the rates of ferriage by the county court is for the protection of the public against, an abuse of the franchise.</p> <p>2. Replevin : Measure of damages in.</p> <p>The ordinary measure of damages for the plaintiff in replevin, as to. property which has no usable value except for consumption, in the absence of proof of special damage, is legal interest on the value of the-property, in addition to the property itself or its value. But as to property having a usable value by waj>- of bailment for hire, like horses or tools, the measure is the value of the use during the detention.</p> <p>The loss of a job by the taking and detention of one’s tools is too remote as an element of damages.</p>

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

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

<p>1. Sheriff’s Bone: Names of sureties in.</p> <p>It is not necessary that the names of the sureties appear in the body of a sheriff’s bond. It is sufficient in any contract, if the intent of the party to be bound clearly appears.</p>

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

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

<p>Petition for Mandamus.</p>

<p>1. Criminal Law: Practice in supreme court, punishment reduced.</p> <p>Whore, in a prosecution for manslaughter, the court instructs the jury that if they find that the defendant killed the deceased, as charged in the indictment, they will fix his punishment at imprisonment in the-penitentiary for a term^not less than two, nor more than seven, years; and the jury return a verdict for manslaughter, without saying whether voluntary or involuntary, and fix the punishment at two years’ imprisonment ; and it does not appear from the bill of exceptions that the jury were informed what punishment the statute prescribes for ¿«voluntary manslaughter, and there is a doubt whether the jury were informed or knew that they might find the defendant guilty of manslaughter and fix his imprisonment at one year or less; and it also appears that the evidence would warrant a verdict for ¿«voluntary manslaughter, the supreme court will not reverse the judgment where there was no objection to the instruction, nor motion for a new trial on account of it, but will give the defendant the benefit of the doubt, and reduce his imprisonment to one year.</p> <p>[[Image here]]</p>

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

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

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

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

<p>APPEAL from Clark Circuit Court.</p> <p>Hon. H. B. Stuart, Circuit Judge.</p>

<p>1. Lands or the State : Coupons not receivable for.</p> <p>Neither the “act to provide for the funding of the public debt of the slate,” passed April 6, 1869, nor the act of the fifth of March, 1875, fixing the price of state lands, etc., by any of their provisions, authorizes the commissioner of state lands to receive coupons of the funded bonds of the state in payment of lands sold by him.</p>

<p>APPEAL from Conway Circuit Court,</p> <p>lion. W. L. Jacoway, Circuit Judge.</p>

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

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

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

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

<p>APPEAL from Jefferson County.</p> <p>Hon. X. J. Pindall, Judge.</p>

<p>1. Vendob and YEHDEEj Mutuality of contract; want of, when no defense. One who receives property from a married woman, under a contract of</p> <p>purchase, whether valid or invalid, and enters upon it and enjoys it for years, will not be heard in a court of equity to plead that the contract is not binding upon her, or to refuse payment upon tender of a sufficient deed. The defense of want of mutuality has no place, except where the defendant has never received the benefit of the contract on his part, and never had the right to enforce it.</p> <p>2. Same : Enforcing lien of married woman’s title bond. Parties. Pleading. Where husband and wife have executed bond for title to the pnrchaser of</p> <p>the wife’s land, and transferred the purchase note, the assignee of the note should, in a suit instituted in 1872, to enforce the lien upon the land for the purchase money, have made the husband and wife parties, so that their legal title might be divested, and vested in the purchaser; or should have tendered a sufficient deed, executed by the husband and wife, or by her alone if the husband had died.</p> <p>3. Statute of Limitations : Lien of mortgagee or vendor, when barred. The bar of a debt due to a ihortgagee, or to a vendor of land by title</p> <p>bond, does not necessarily preclude a proceeding in rem in a court of equity, to enforce the specific lien upon the land itself. Only adverse possession for the statutory period necessary to bar ejectment, can bar such a proceeding.</p> <p>4. Advbbse Possession : As against mortgagee, or owner by title bond. The possession of a mortgagor, or Vendee by title bond, is not adverse,</p> <p>and the statute will not commence running to protect him, until there is an open and notorious denial on his part, of the mortgagee’s or vandor’s title. ■■</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. X. J. Pindall; Judge.</p>

<p>1. Stockholders in Corporation : Their liability at common law.</p> <p>By the common law, stockholders of a corporation are not personally liable for its debts. They are liable to an action at law by the corporation for unpaid stock, but a creditor of the corporation can not, by the common law, sue them in a court of law for unpaid stock. His remedy is in chancery.</p> <p>2. Same : Liability under constitution of 1868.</p> <p>The clause of sec. 48, Art. Y, of the constitution of 1868, which provides that “in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum at least equal in amount to such stock,” entered into and formed a part of-the act of April 12, 1869 (Secs. 3333-3334, Gantts Dig.), for the organization of private corporations, and parties becoming stockholders in a corporation under that act, during the operation of that constitution, assumed the liability imposed by the foregoing provision of it, and in the absence of any statutory remedy at law, the corporation creditor may enforce such liability in equity.</p>

<p>1. Criminal Pleading: Indictment for Selling Liquor. Alcohol is not liquor.</p> <p>An indictment for selling liquor without paying the special tax prescribed by secs. 5052 or 5054, Gantts Digest, must charge that the defendant was ¡i liquor dealer, and must state the particular tax, whether state or county, that had not been paid.</p> <p>2. Alcohol is neither ardent or vinous spirits, or liquor of any kind; and its sale is not in any manner restricted or attempted to be regulated.</p>

<p>1. Larceny : Drunkenness, when a defense.</p> <p>If one, at the time of taking property, is so under the influence of intoxicating liquor that a felonious intent can not be formed in his mind, he is not guilty of larceny.</p> <p>2. Criminal Practice: New trial for improper conduct of jury.</p> <p>When evidence is adduced, and shows that a juiy, in a criminal case, exposed to improper influences, were not in any way influenced, biased or prejudiced by the exposure, the verdict will not be disturbed; but unless it is proven that it failed of an effect, the verdict will be set aside.</p>

<p>1. Sale by Court; When complete.</p> <p>Until confirmed by the court, a sale made under its decree is not completed ; and a deed from the commissioner to the purchaser confers upon him no right to the property, and may be availed in a collateral proceeding.</p> <p>2. Mortgagor and Mortgagee ; Ejectment.</p> <p>Upon failure to pay the mortgage debt at the time stipulated in the mortgage, the estate of the mortgagor becomes forfeited, and ejectment can not be maintained against the mortgagee in possession, or those holding under him, until payment of the debt. But payment satisfies an unexecuted decree of foreclosure, and revest.- the estate in the mortgagor, his heirs or assigns, and may be given in evidence to support the action.</p>

<p>1. Justice oe the Peace: Their power over their process. Equity can not enjoin.</p> <p>A justice of the peace has control of an improper or improvident execution issued by him, and may recall and quash it. Or the circuit court may bring up the proceedings by certiorari, and grant relief. But equity can not enjoin it. It has no power to correct even the grossest errors of inferior courts.</p>

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. D. W. Carroll, Chancellor.</p>

<p>1. Gaming Table: Cities can not license.</p> <p>A city ordinance licensing tlie exhibiting of a gaming tabic or gambling device, within the limits of the city, and a license granted under it, are null and void, and afford no protection against an indictment for the offense.</p>

<p>1. Injunction : Aone against criminal proceedings.</p> <p>A court of equity will not exercise jurisdiction by way of injunction to stay proceedings in any criminal matters, or in any case not strictly of a civil nature.</p>

<p>ERROR to Bilee Circuit Court.</p> <p>ITon. A. B. Williams, Special Judge.</p>

<p>APPEAL from Independence Circuit Court in Chancery.</p> <p>Hon'. 'William Byers, Circuit Judge.</p>

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

<p>APPEAL from Sebastian Circuit Court.</p> <p>lion. James Brizzolari, Special Judge.</p>

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

<p>1. Statutes ; Permissive words in, when imperative.</p> <p>Permissive words in statutes, in many cases, impose a duty on tribunals, which will be enforced by mandamus. But it is always in cases where the public interest, or vested private rights, are to be thereby protected or enforced. The power to give the citizen full, adequate and complete relief, or the power to promote the public interest in some prescribed mode, implies the dutj- to exercise it when the occasion arises. In all other cases, the words may, or it shall he lawful, imply discretion, and are used in contradistinction, to must or shall.</p> <p>2. Liquor License: Discretion of county court in granting.</p> <p>Under the act of May 30, 18T4, regulating the licensing of dram-shops, the county court had the discretion to grant or refuse the license petitioned for, and its action was final.</p> <p>3. Mandamus ; Discretion not controlled by.</p> <p>Where a court has discretion, it can not be controlled by mandamus.</p>

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

<p>I. Jurisdiction: When acquired, continúan, etc.</p> <p>When a court once rightfully acquires jurisdiction of a cause, it has the right to retain and dec de it.</p> <p>Jurisdiction of the court depends upon the state of things at the time of the action brought; and, after vesting, it cannot be ousted by subsequent events.</p>

<p>APPEAL from Garland Circuit Court.</p> <p>I-Ion. J. M. Smith, Circuit Judge.</p>

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

<p>APPEAL from Scott Circuit Court.</p> <p>Hon. Thomas H. Barnes, Special Judge.</p>

<p>1. Criminal Law: Indictment: Good and bad counts: Verdict.</p> <p>Where there are several counts in an indictment for the same offense, some good and some had, and there is a verdict of guilty on the indictment, it will he referred to the good counts, and the had will ho no ground for arresting the judgment.</p> <p>2. Criminal Pleading : Indictment; varying counts.</p> <p>It is no objection to an indictment that the different modes in, and means by which an offense is alleged to have been committed, are stated in several and distinct counts.</p> <p>3. Evidence : Direct and circumstantial, distinguished.</p> <p>When the existence of any fact is attested by witnesses, as having come under the cognizance of their own senses, the evidence of the fact is said to be direct or positive; but when the existence of the principal fact is only inferred from one or more circumstances which have been established directly, the evidence is said to be circumstantial.</p> <p>4. Criminal Law : Intent, when implied.</p> <p>Every one is presumed to intend the natural consequences of his act; and though a specific intent may not exist in the mind, the law will imply an intent to produce the effect, when it is the natural and probable consequence oí the act.</p> <p>5. Admissions: Jury not bound to believe all a party said.</p> <p>The jury are not bound to give equal weight to all the statements of a defendant admitted in evidence.</p>

<p>APPEAL from Garland Circuit Court.</p> <p>Hon. J. M. Smith, Circuit Judge.</p>

<p>APPEAL from Lincoln Circuit Court.</p> <p>Hon. S. J. Pindall, Circuit Judge.</p>

<p>1. Sabbath-Breaking : Keeping open saloon on Sunday.</p> <p>Appellant was a nominal partner in a saloon, and he and another bar-tender attended by turns on Sundays to furnish liquor to customers entering at the back door; the front door being kept closed. Held guilty of the offense of Sabbath-breaking by keeping open a dram-shop on Sunday.</p>

<p>1. Wearing Concealed Weapons: “ Upon a journey.” Temporarily stopping.</p> <p>Whether a traveler was “ upon a journey” in the spirit of the law against wearing concealed weapons, while stopping at a town on his way, is a question for the jury, upon all the circumstances before them. His intent governs, and the question of fact is, was he really prosecuting his journey, only stopping for a temporary purpose; or had he stopped to stay awhile, mingling generally with the citizens, either for business or pleasure.</p> <p>2. Same : What necessary to constitute the offense.</p> <p>To constitute the offense of wearing concealed weapons, under see. 1517^ Gantt:s Dig., the implement must be carried about the person, to be always accessible for use in fight, and so hidden from general view as to put others off their guard. If a pistol, not loaded, or unfit for use, this rebuts the presumption that it was carried as a weapon.</p> <p>If a pistol be worn concealed, the jury may presume that it was loaded and worn as a weapon. But this is a presumption of fact, and not of law, and may be rebutted by proof.</p>

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

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

<p>1. Indictment : For “ Felony."</p> <p>To accuse one of the crime of felony is a bad Code beginning to an indictment. Felony is the name of no particular crime, but designates a class of crimes.</p> <p>The words “no considerable provocation appearing,” are proper in an indictment for an aggravated assault, but are unnecessary and inappropriate in an indictment for an assault with intent to kill, and may be treated as surplussage.</p> <p>2. "Witness: Sis prejudice may be shown, but not the reasons for it.</p> <p>A witness for the state may be shown to be prejudiced, or to have ill-feeling against the accused, but the facts and circumstances causing such prejudice or ill-feeling, can not be stated in detail by the witness.</p> <p>3. Same : Contradiction of. Collateral matter. Test of.</p> <p>"When a witness is cross-examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question.</p> <p>The test of whether a fact inquired of in cross-examination is collateral, is this: "Would the cross-examiner be entitled to prove it as part of his case, tending to establish his plea. This limitation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief.</p> <p>4. Admissions : State may prove, but not, defendant.</p> <p>T) e state may prove any voluntary admissions made by the defendant, but the defendant has no right to prove admissions made by himself to another person at a different time.</p>

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

<p>1. Statutes: Mandatory and directory distinguished.</p> <p>Those directions in a statute which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act be performed, but not at the time, or in the precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purposes of the statute; unless negative words are employed in the statute which expressly, or by necessary implication, forbid the doing of the act at any other time, or in any other manner, than as directed.</p> <p>Sec. 42 of the act entitled, 11 An act to maintain a system of free common schools in the state of Arkansas,” approved December 7, 1875, is as to the time designated for the appointment of a county examiner, directory, and not mandatory.</p>

<p>1. Suji.mosts: Judgment by default, on good service and bad return of.</p> <p>Where a summons has been, in fact, duly served, the defendant must take notice of it, unless all defense be waived. He can not shelter himself under a defective return, from the consequences of his default, if the true facts be at any time brought properly upon the record; which may be done by amendment, even after an appeal.</p> <p>2. Paupers: Suits by, without attorney’s certificate of cause of action.</p> <p>It is too late, after judgment, to object that a complaint informa pawperis was not accompanied with the certificate of an attorney, that, in his opinion, the plaintiff had cause of action. It affects the cost alone; not the merits of the action, nor jurisdiction of the court.</p> <p>3. Bailroads : Negligence causing death of child. Who may sue for.</p> <p>Por damages for the death of a minor, killed by the running of a railroad train, the father, if living, must sue. If the mother sues she must show affirmatively and positively that the father is dead. The allegation that she is a widow, is not sufficient.</p>

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

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

<p>APPEAL from Conway Circuit Court.</p> <p>Hon. W. D. Jacoway, Circuit Judge.</p>

<p>1. Evidence : Medical expert, opinion, etc.</p> <p>A medical witness, after examination of a wound upon the head, inflicted by a blow with a club, may testify his opinion that the blow produced the death of the party by concussion of the brain, without opening the skull and examining the brain.</p>

<p>1. Practice at Law : Findings of court, when reduced to writing. The findings of the court may be reduced to writing after judgment.</p> <p>2. Same : When findings not special.</p> <p>The conclusion of facts found, are in the nature of a special verdict; and, when the finding of facts is not special, or such as the law requires, the party desiring it, may have them made so, by motion in the circuit court; and if he fails to make such motion, this court will not reverse.</p> <p>3. Promissory Notes: Indorsers, when joint makers.</p> <p>Parties who indorse their names in blank upon an obligation to another, at the time it is executed by the maker, and for the same consideration, are joint makers with him, and not guarantors.</p>

<p>1. UffiPLEVix : For bales of cotton, seed cotton not to be talcen.</p> <p>An order of delivery directing the officer to replevy bales of cotton, gives him no authority to seize seed cotton.</p> <p>2. Same : Interpleader. Judgment against.</p> <p>On the trial of an interplea in an action of réplovin, no verdict or judg-. ment for either property or money (except for cost) can be rendered against the interpleader, where the property has never been delivered tp him.</p>

<p>1. Attachment: Release bond, where there is no attachment, void.</p> <p>In a suit in which no affidavit or bond for attachment was filed, nor order for attachment issued, the defendant filed the bond of a surety to perform such judgment as should be rendered in the case. Afterwards, judgment was rendered against both defendant and the surety, without notice to him, for the plaintiff’s demand ; and execution was issued, and the surety gave a stay bond; and afterwards appealed to the supreme court. Held, That the bond of the surety was unauthorized by law, and answered no purpose in the suit; that it gave the circuit court no jurisdiction as to him, and the judgment against him was coram non judice, and void ; and.that, there being no judgment against him, the execution and stay bond were also void.</p>

<p>1. Justice ov the Peace: Practice before. Filing account, etc.</p> <p>I'n ordinary actions before justices of the peace, the plaintiff must indicate in the paper filed as his cause of action, the matter upon which liis claim is founded; but he is not held to exhibit in any paper or written statement (unless he chooses to proceed by regular pleading), a complete cause of action, unaided by proof aliunde.</p> <p>The instruments filed are not pleadings. If a proper paper or statement be not filed, the suit may be dismissed on motion. If the paper filed is sufficient to indicate a cause of action, the plaintiff may supply full proof aliunde.</p> <p>2. Negotiable Instruments : Certificate of deposit.</p> <p>A certificate of deposit is prima facie evidence of a chose in action, which is assignable by statute, and givéfe a right of action to the assignee. It, itself, implies a contract to pay the amount deposited.</p>

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

<p>APPEAL from Yell Circuit Court.</p> <p>Hou. Thos. W. Pound, Special Circuit Judge.</p>

<p>1. Statute Limitations: Ttle by possession.</p> <p>A"*void patent may be used to give color of title and fix the limits of possession, and a continuous adverse ■ possession under it, or without any color at all, when the limits of possession may be shown, for a period of over seven years, as against parties whose rights are not saved, will create a title which may be used to maintain ejectment.</p>

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

<p>1. Municipal Corporations : Power to punish drumming.</p> <p>A corporation may make it a penal offense for any person to drum customers to gaming nouses and strumpet houses, and such other immoral and pernicious occupations, as it has power under its charter to suppress. But it has no power to make it a crime to solicit custom for hotels, competent practitioners of medicine, or other ordinary lawful and useful occupations.</p>

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

<p>1. Appeals to Supreme Court : In misdemeanors, how obtained.</p> <p>It is in civil suits only, including suits at law, in chancery, and penal actions, that the clerk of the supreme court is authorized by the Civil Code of Practice to grant appeals.</p> <p>2. Appeals from judgments of the circuit court for offenses less than felony, must be prayed and granted in the circuit court, and the transcript filed in the supreme court within the time prescribed by law.</p>

<p>APPEAL from Saline Circuit Court.</p> <p>Hon. J. M. Smith, Circuit Judge.</p>

<p>1. Administration: Distribution of property: Jurisdiction.</p> <p>Claims fpr the distribution of personal property of an estate in administration must be made to the probate court; and when not needed for payment of debts, claims for the real property may be asserted by action at law. Equity ordinarily has no jurisdiction.</p> <p>2. Descents and Distribution : Rules in Kelley's case.</p> <p>The rules of descent educed from the statute and then formulated, in the-case of Kelley’s Heirs v. Mc&uire et al., 15 Ark., 555, have become rules of property, to be disturbed only by the legislature.</p> <p>By the first section of the statute, the personal property of which an intestate dying without wife, children or father, was possessed, or in which he had a vested interest in remainder after the death of another, goes, after payment of debts, to his mother as his sole distributee.</p> <p>Beal property given by a paternal uncle is ancestral, as if it came from the father; and upon the death of the donee, intestate, it will descend to his nearest relations who are of the blood of the donor, to the exclusion of those who are not of his blood. The donee, or person last entitled to possession, and not the donor, remains the proposittcs, whose nearest, relations of the donor’s blood must be traced for heirs.</p>

<p>APPEAL from Sebastian Circuit Court in Chancery.</p> <p>Hon. James Brizzolara, Special Judge.</p>

<p>1. Tax Sales : Purchase at, by county clevis,, illegal. Owner, how far relieved in chancery.</p> <p>The county clerk being required by law to advertise delinquent lands for sale, to attend and make a record of the sales, and to issue certificates of purchase to the purchaser, and certificates of redemption to the owner when he redeems, and finally a deed to the purchaser' if it is not redeemed, is forbidden by public policy from purchasing at such sales. But the owner seeking relief in chancery will be required to refund to him the legal taxes, penalty and costs charged against the land, and interest from the date of sale; and also all subsequent taxes paid by him, and interest thereon from the dates of payment. The purchaser will also be entitled to receive from the officer having the custody of it, any excess above the taxes, etc., which lie may have paid for the land.</p> <p>2. Tender: When it stops interest.</p> <p>An unconditional tender, which is kept good, stops interest from the date of the tender.</p>

<p>1. Infant : When he may disaffirm deed.</p> <p>An infant lias seven years of the period of limitations, in which, upon coming of age, to disaffirm his conveyance executed in infancy.</p> <p>2. Descents : Dying intestate without issue.</p> <p>J and W, brothers, were joint owners, by purchase, of land. J died, leaving surviving him his father and mother and brothers and sisters. Afterwards, W died, leaving a child, and soon afterwards the child died, without issue, leaving its grandfather and grandmother and uncles and aunts on its father’s side. Held, That upon the death of J, his interest in the land ascended to his father for life, remainder in fee to his brothers and sisters; and upon the death of the child, its interest in the land ascended to its grandfather and grandmother and uncles and aunts on the father’s side in equal parts.</p> <p>Ü. Quit-Claim Deed : What it conveys.</p> <p>A quit-claim deed conveys only such interest as the grantor then has.</p> <p>4. Guardians Ad Litem: None for unknown infant heirs.</p> <p>"Where the number and names of infant heirs are unknown, it is not practicable to appoint guardians ad litem for them.</p>

<p>1. Amendments: To answer must be pertinent to defense.</p> <p>L. and others sued T. in chancery for specific^performance of a contract to convey the southeast and southwest quarters of a section of land, making C„ who was claiming the southeast quarter under color of title, a defendant; and praying to quiet their title to the southeast quarter as against him, and also for specific performance against T. C. answered as to the southeast quarter, and afterwards asked and was refused permission to file an amendment alleging his acquisition of title pendente lite to the southwest quarter.</p> <p>Held, That the acquisition of title to the southwest quarter was no defense to the charges as to the southeast quarter, and the amendment was foreign to his defense, and was rightly refused.</p> <p>2. Chancery Pleading: Multifariousness, how corrected.</p> <p>Multifariousness is not ground for demurrer under the Code practice. It may ho corrected by motion to strike out, or to make the hill more specific, or a court of chancery may compel the plaintiff to elect, on which ground he will prosecute the suit.</p> <p>3. Chancery Practice : Pleading a decree. Bill of exceptions.</p> <p>A decree relied on and referred to in pleading should be brought upon the record literally. It is loose practice to give the purport of it in a bill of exceptions.</p> <p>4. Adverse Possession : Continuance of, presumed until, etc.</p> <p>Possession once established by material acts of visible, notorious ownership, must be presumed to continue until open, notorious and adverse possession be proven to be taken by another.</p>

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

<p>1. Sureties on Bail Bond : Bad indictment against principal, no defense. The sureties on a bail bond, can not show, in answer to a sci.fa. on forfeiture, that the indictment against the principal was bad.</p>

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

<p>1. Bin oe Exceptions: Must be signed by judge.</p> <p>A bill of exceptions not signed by the judge, and apparently otherwise incomplete, can not be considered as part of the, record, in this court.</p>

<p>1. Usury: How to avoid, in equity.</p> <p>He who comes into a court of equity for relief against a judgment, conveyance, or other security, upon the ground of usury, must have paid or offered to pay what is really and bona, fide due from him, in accordance with the maxim that he who seeks equity must do equity.</p>

<p>1. New Trial : When circuit court should grant.</p> <p>The circuit judge has the discretion to grant new trials in all cases, whore ho is satisfied that the ends of justice will be best subserved thereby; and should not hesitate to exercise it where he is dissatisfied with a verdict, as being the result of. excitement, passion or prejudice, or any other influence save a calm consideration of the facts in evidence.</p> <p>2. Same : For want of evidence to support verdict.</p> <p>The following rules seem to result from all the previous decisions of this court in relation to setting aside verdicts for insufficiency of evidence:</p> <p>1. Where there has been a conflict of evidence, a now trial will not be granted by the supreme court, merely because the preponderance of evidence in the mind of the court, may seem to be against the verdict.</p> <p>2. But in all cases, oven in those of conflict, the supreme court will direct a new trial, when, upon inspection of the evidence, the verdict is so clearly and palpably against the weight of it as to shock a sense of justice.</p> <p>3. A new trial will be granted where there is no evidence at all to support the verdict, or whore it fails in some material link. The jury -will not be allowed to supply the missing link by inferences and presumptions from other facts, unless they be legitimate and fair presumptions, such as naturally follow.</p>

<p>1. Evidence : Decree.</p> <p>The certified copy of a decree alone, is sufiicicnt evidence that such a decree has been made.</p> <p>2. Decree : By consent of unauthorized attorney, not void.</p> <p>Though an attorney appears for a party to a suit without his authority, and consents to a decree, it is only voidable for fraud, and can not be collaterally attacked.</p>

<p>1. Transcript in Criminal Case: Must show impanneling of grand:jury, etc.</p> <p>The entries showing the impanneling of the grand jury and their return of the indictment into court, are parts of the record in every criminal case brought to this court; and the omission of the circuit clerics to include them in the transcripts after the publication of this opinion, will be treated as contempt.</p> <p>2. Criminal Practice : Insufficient verdict.</p> <p>Upon the return into court of a verdict of “ guilty as charged in the indictment,” which charges murder in the first degree, the court should order the jury to retire and return a verdict in proper form; but if instead, anew trial is granted, such verdict is no bar to a trial and conviction of the defendant for murder in the first degree.</p> <p>3. Instructions:</p> <p>There is no error in refusing an instruction which is sufficiently embraced in other instructions given by the court.</p> <p>4. Criminal Evidence : Confessions.</p> <p>The confessions of a defendant should be cautiously received, but when deliberately and voluntarily made, they are among the most effectual proofs in the law.</p> <p>5. Same: Testimony of other crimes than the one alleged.</p> <p>When a man is charged with one crime it is not competent to prove that ho has committed others; but a witness of a conspiracy may state the whole plan or purpose of the conspirators to rob several parties, though it does not appear that they executed their plan excepl as to the one for the murder of whom the defendant is indicted.</p> <p>6. Argument ov Counsel : When subject to review in supreme court.</p> <p>The subjects and range, as well as the length, of the arguments of counsel, must necessarily be left to the sound discretion of the presiding judge; and, unless grossly abused to the prejudice of a party, it is not the subject of review in the supreme court.</p> <p>1. Witness : Defendant in criminal ease, incompetent.</p> <p>A defendant in a criminal case can not testify or make a statement to the ■jury contradictory of the evidence.</p>

<p>1. New Trial: Surprise. Discretion of court.</p> <p>A motion for new trial on the ground of surprise is addressed to the sound discretion of the circuit court, whose judgment upon it will not he overruled by this court unless clearly wrong.</p>

<p>1. Witnesses: Husband and wife. Magnessv. Walker, 26 Ark., overruled.</p> <p>Husband and wife can not testify for' or against each other in civil cases. And the incidental benefit which the husband, though a formal party, may derive from the wife’s success in a suit for property, can not be noticed as a legal or equitable interest to authorize his admission as a witness.</p> <p>The decision in Magness v. Walker, 26 Ark., 470, that a husband or wife acting as agent for the other, may' testify as to the matters of the agency, ovei'ruled.</p> <p>2. Specific Performance : Discretion of chancellor.</p> <p>Courts of equity have always reserved the right of exercising a sound discretion in suits for specific performance, and generally refuse relief where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities. In such cases equity refuses to interfere, and leaves the parties to their rights and remedies at law.</p> <p>3. Contract : Consideration.</p> <p>If the purchaser of land at execution sale agree with the owner, to convoy the land to his wife and children, upon certain conditions to be performed by the wife, and he thereupon refrain from redeeming the land from the execution sale, this is sufficient consideration to support the , contract.</p> <p>4. Parties : Trustees. Povjers, ete.</p> <p>A contract to convey land to a wife and such of her and her husband’s children as she and he shall designate, constitutes them trustees of a power to designate the children to receive, with the wife, the conveyance; and a suit for the conveyance can not be maintained until the designation is made. If either parent die before it is made, all the children will take equally with the mother. Chancery will exercise the power on the principle of equality.</p>

<p>1. "Writs: Irregular, amendable.</p> <p>A summons against several partners in the partnership name may be amended by the proper insertion of the names of the individual partners.</p> <p>2. Same: Defective return of service, when waived.</p> <p>A defendant can not avail himself, in the supreme court, of a defective return of service of a summons against him, when he has appeared in the circuit court and made no objection to the return there.</p>

<p>ERROR to Union Circuit Court.</p> <p>Hou. J. K. Young, Circuit Judge.</p>

<p>1. Landlord and Qropeer : Title to crop.</p> <p>A. contracted to raise a crop on B.’s land, in consideration that B. would furnish tools, team and feed for the team, and give him one-half the crop raised; and out of A.’s half B. was to retain sufficient to pay what A. should owe him for supplies. The contract was never filed in the recorder’s office. Afterwards A. mortgaged the growing crop to 0. to secure a debt he owed him. A. raisedfive bales of cotton. B. sold three of them, and 0., with A.’s consent, took the remaining two bales under his mortgage. A.’s indebtedness to B. for supplies, exceeded the value of his half of the cotton. In replevin by B. against 0. for the two bales, held:</p> <p>1. That the crop was B.’s, and A. had no interest in it to mortgage.</p> <p>2. It is only when the laborer is tenant in common with his employer in the crop raised, that the employer is required by the statute to file a copy of the contract in the recorder’s office to secure his lien for advances and supplies.</p>

<p>1. Landlord’s Lien : Not lost by sale of crop to purchaser with notice.</p> <p>A landlord’s lien on cotton for rent is not affected by the sale of the cotton by the tenant to a purchaser with notice, nor by his furnishing to the tenant bagging and ties for, and paying freight on it to market; nor is the lien waived by the landlord’s accepting, in part payment of the rent, part of the money paid by the purchaser for the cotton, although he knew, at the time of accepting it, that it was a part of that money; unless he was party to the transaction between the tenant and purchaser, or consented to the sale.</p>

<p>1. Larceny : Conversion Toy servant of master's goods.</p> <p>The servant has a mere custody of the master’s goods. His possession is that of the master. If he appropriates them to his own use, with intent to steal, it is larceny at common law. The trespass occurs when he changes his custody of his master’s goods into an adverse possession in himself with a felonious intent.</p>

<p>1. Practice in Supreme Court: Pleadings found in bill of exceptions not noticed.</p> <p>A copy, in a bill of exceptions, of a paper, said to be an answer in the case, is out of place there, and will not be noticed in the supreme court.</p> <p>2. Record Entries : Imperfect, when sufficient.</p> <p>When an imperfect entry upon the record plainly shows without doubt, what the court intended to do, the effect intended should be given to it.</p> <p>3. Instructions : Intimation of court’s opinion of the evidence, improper.</p> <p>An instruction should not be given that intimates to the jury the opinion of the court as to the weight of the evidonco.</p> <p>4. Landlord’s Attachment: What removal of crop sufficient for.</p> <p>The actual removal by the tenant of any part of the crop, even for honest purposes, without consent of the landlord, will justify the attaching of the crop, although enough remains upon the premises to satisfy the rent, and the tenant does not intend to remove the crop in bulk.</p> <p>5. Instructions: Attachment.</p> <p>An instruction which denounces the landlord’s attachment, a remedy given by the legislature, as harsh, should not be given.</p> <p>6. Witness : Party as, put under rule.</p> <p>A party who becomes a witness in a suit may bo put under rule, as other witnesses.</p>

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

<p>1. Grand Jury: List of, must be certified by jury commissioners.</p> <p>If the jui'y commissioners fail to certify the list of grand jurors and alternates selected by them, as the law requires, the circuit court may quash the list and require the sheriff to summon others.</p> <p>2. Indictment. Murder : Name of deceased and means of death unknown</p> <p>An indictment is not bad on demurrer, or in arrest of judgment, because it states that the surname of the party killed is to the grand jurors unknown. But such allegation is material, and must be proved by the state on the trial; and also that the grand jury made due inquiry to ascertain the name.</p> <p>And so the averment that the defendant committed the crime at a place specified, “ in some way and manner, and by some means, instruments, and weapons to the jurors unknown,” is sufficient, when the circumstances of the case will not admit of greater certainty in stating the means of death.</p> <p>3. Motion for Continuance : Absence of counsel.</p> <p>It is within the sound discretion of the presiding judge to grant or refuse a continuance on the ground of the unavoidable absence of the leading counsel in a cause, and unless it is made to appear that such discretion was abused to the prejudice of the party making the application, its refusal will not be ground for reversal in the supreme court.</p> <p>4. Evidence : Party contradicting his admissions in court.</p> <p>A defendant stated in his motion for continuance, that certain absent witnesses would testify, if present, to certain facts. The state, to avoid the continuance, admitted that the witnesses, if present, would testify as stated. Afterwards, the court, against the objections of the defendant, permitted the slate to introduce the witnesses, and prove by them the reverse of what it had admitted they would testify. Held, That there was no error in this.</p> <p>5. Evidence : Counis in an indictment, not.</p> <p>Counts in an indictment are mere pleadings, and can not be used as evidence on the trial.</p> <p>6. Same : Declaration of deceased: Res gestae.</p> <p>Where it was important to prove that the deceased had a peculiar tooth in the roof of her mouth, her declarations about it, when there could have been no lis mota, were admissible in evidence as res gestae.</p> <p>7. Practice in Circuit Court : Reading laio-hoolc to jury.</p> <p>The reading a law-book to the jury in a criminal case by the defendant’s counsel, is under the control and subject to the discretion of the circuit judge; and his refusal to allow it, will not be held error here, where there is nothing to show that the discretion was abused.</p> <p>8. Motion eor New Trial : General assignments of error.</p> <p>A general assignment in a motion for new trial, “that the court erred in admitting and excluding evidence,” points to nothing, and is too indefinite.</p> <p>9. Character oe Prisoner : Presumption from.</p> <p>If the jury find, from the evidence, that the prisoner is of good character, they may take that fact into consideration in determining his guilt or innocence; but if they believe, from the evidence, that he is guilty, they must so find, notwithstanding his good character.</p> <p>10. —Corpus delicti.</p> <p>For the rules of law as to proof of the corpus delicti, see opinion, page 743, et seq. (Beporter.)</p> <p>11. Evidence: Inconsistent statements of accused.</p> <p>False,'improbable, inconsistent, or contradictory statements of an accused in attempting to explain suspicious circumstances or appearances, are prejudicial to him.</p>

<p>1. Homestead Lands : Contracts for sale of, before completion of entry.</p> <p>An agreement by a homestead enteror under the homestead act of congress, of May 20, 1862, for the sale and conveyance of part of the land, made before completion of the entry, is in violation of the act, and against public policy, and void.</p> <p>2. Contracts Against Public Policy-: Relief m equity, when ¡¡ranted.</p> <p>Although, in general, courts of equity will not grant relief to persons</p> <p>who are parties to agreements or other transactions against public policy, there are cases where the public interest requires that they should, for the promotion of public policy, interpose; and in such cases the-relief is granted to the public through the party.</p>