35 Ark.

Volume 35 — Arkansas Reports

96 opinions

35 Ark. 17Hershy v. Clark (1879)
APPEAL from Sebastian Circuit Court. Hon. Jambs Brizzolara, Special Judge.
35 Ark. 24Gilbert v. Neely (1879)
APPEAL from White Circuit Court in Chancery. 'Hon. J. N. Cypert, Circuit Judge.
35 Ark. 29Kinner v. Dodds (1879)
ERROR -to Jefferson Circuit Court. Hon. J. A. "Williams, Circuit Judge.
35 Ark. 31Bender v. Wooten (1879)
APPEAL from Phillips Circuit Court. Non. J. N. Cypert, Circuit Judge.
35 Ark. 35Youngblood v. State (1879)
1. ' Criminal Practice: Appeal: Suspending judgment. It is the duty of tbe circuit court, when asked, to suspend the execution of a judgment against a defendant in a criminal case, for a reasonable time, for him to apply to a judge of the supreme court for an appeal and supersedeas, as provided by law.' 2. Verdict : General, on several counts. When an indictment for murder contains several counts, alleging variously the means of death, the jury may render a general verdict. 3. Evidence : Statement of prisoner to officer. Voluntary statements of a prisoner, though made to an officer, and while he was in custody, are admissible in evidence against him. Appeal: infus?udg°iro u i t 2. Verdict: General, on several eount s, good. 3. E VIdence: Voluntary confessions of prisoner t r* officer admissible.
35 Ark. 49Sentell v. Armor (1879)
1. Homestead oe Tenant in Common: Mortgage on, under constitution of 1868. A tenant in common has such a right of homestead in the estate in common, that he might, after executing a mortgage on his interest in it while the constitution of 1868 was in force, have it partitioned, and By fixing his dwelling on the part allotted to him, have it exempted from the foreclosure of the mortgage, unless the mortgage was for some of the excepted debts specified in that constitution. i. home-STEAL OF Tenant in Exempt oution. Mortgage on, during thet constitution of 1868, void.
35 Ark. 52White v. Friedlander (1879)
APPEAL from Lee Circuit Court. Hon. J. N. Cypert, Circuit Judge.
35 Ark. 56Reynolds v. Holland (1879)
APPEAL from Chicot Circuit Court. Hon. T. F. Sorrells, Circuit Judge.
35 Ark. 62Martin v. O'Bannon (1879)
APPEAL from Arkansas Circuit Court in Chancery, lion. J. A. Williams, Circuit Judge.
35 Ark. 69Boyd v. Bryant (1879)
Statutes : Local option liquor law, constitutional. The act approved March 2, 1875, “to prevent the sale or giving away of vinous, spirituous, or intoxicating liquors, within three miles of any academy, college, or university, in this state,” is not unconstitutional. 2. Legislature : What power it may delegate. The legislature can not delegate the power to make laws, hut it can make a law to delegate the power to determine some facts or state of things upon which, the law makes or intends to make its own action depend. Statutes: tionTiquor law of 1875. Is constitutional. What gower legislature may-delegate.
35 Ark. 75Pugh v. City of Little Rock (1879)
1. Evidence: Parol inadmissible to prove matter of record. Parol evidence is not admissible to prove an ordinance or resolution of a city council. The ordinance or resolution itself, or a certified copy of it, must be produced. 2. Municipal Corporation : Issuing scrip at discount: Evidence. An ordinance of a city council providing for the issuance of certificates of indebtedness at a discount, and not dollar for dollar of indebtedness, is illegal and void, and not admissible as evidence against the city. 3. Payment: Acceptance of city scrip as. The acceptance of a city’s certificates of indebtedness as satisfaction in full of a claim against the city, is a payment and extinguishment of the debt. 1. Evidence: Parol inadmissible to prove ordinance or resoluti o n of a city council. 2. Municipal Corporation: Iss u i n g scrip at discount: Evidence. 8 Payment: Accept-n n ce oí c i ty :crip as.
35 Ark. 84Banks v. Green (1879)
1. Ohancbby Practice: Where necessary parties are not made, etc. Where necessary parties are not made in a suit in equity, the court, of its own motion, should refuse to proceed until they are brought in and proper allegations made to bind them. 2. Husband and Wire : His interest in wife’stand, held by title-bond, etc. Where a feme-sole marries while in possession of land under a bond for title, or has taken possession and done such acts'under an oral contract as would entitle her to specific performance from her vendor, she has an equitable title to and estate in the land to which the husband’s marital rights attach, but which she can alienate from herself and her heirs only by some statutory mode. It may also be divested by a decree of foreclosure. But her husband can acquire no adverse legal title to it by paying the unpaid purchase-money and taking the deed to himself. 3. Statute oe Limitations : Against wife’s heirs during curtesy. Where one having an estate by curtesy in the land of his wife, sells the land, the statute of limitations does not begin to run against the heirs of the wife until the termination of the curtesy. 1 Chancery Practice: Where necessary parties are not made, etc. 2. Husband and Wife: His interests wife’s land held by title bond. or^miT™ duringeurtesy.
35 Ark. 90Hare v. Sebastian County (1879)
Jailor: His compensation: Employment of guards. Provision is made for the jailor’s compensation for keeping prisoners, by fees; but there is no statute allowing him a salary upon the certificate of the sheriff, of his services. If the jail be unsafe the county court may authorize the sheriff to employ guards. 1. Jailor: His compensation. Employment 0 3 -guards.
35 Ark. 93Vance v. Beattie (1879)
APPEAL from Crittenden Circuit Court. Hon. L. L. Mack, Circuit Judge,
35 Ark. 95St. L., I. M. & S. Railway Co. v. Barnes (1879)
1. Practice: Appearance: What sufficient. An appearance of a defendant by an attorney and consenting to a continuance of the cause, is a substantial act, and dispenses with the service of process. *.2. Justices oe the'Peace: Presumptions as to their judgments. It is the duty of a justice of the peace to haye an account sued on, proved before rendering judgment on it, and in the absence of aiv affirmation showing to the contrary, it will be presumed that he did so. 3. Same: Their judgment without evidence not void. A judgment rendered by a justice of the peace without evidence, is not void or so irregular as to be .quashable'upon certiorari. The error should be corrected by appeal. ■ 4. Certiorari : Practice on. The statute (Gantts Dig., sec. 1196,} does not enlarge the writ of certiorari into an appeal or writ of error for the correction of 'mere errors in judicial proceedings. The practice is still to affirm or quash the judgment on the trial of the certiorari. 1PltACTI0E. ane^f'v/¿at 20-lfJus£ then- fuds°- |:¿e¡r. d: “)®nttsewjtf void?’ not <t. certio- Practice
35 Ark. 100Stroud v. Pace (1879)
1. Bora Pide Purchaser: Notice: Pleading. An allegation in a vendor’s bill to enforce his lien for the purchase-money against the assignee of his purchaser, that the assignee had notice of the non-payment of the purchase-money at the time of his purchase, must be proved if denied. But it is otherwise where the defense of innocent purchaser is set up affirmatively by plea or answer. 2.. Same: Notice: Recitals in deeds. The purchaser of real estate is bound to take notice of all recitals contained in the chain of title through which he derives title, and to fully investigate and explore everything to which his attention is thereby directed; and if any of such conveyances contain notice that the land has-been sold on a credit, he is bound to inform himself as to whether the purchase-money has been paid. 3. Yendor’s Lien: When waived Toy taking security for the purchase-money. The acceptance of a note with a security on. it for the purchase-money, is not a waiver of the lien unless so intended by the vendor. 1. Bona Fide Purchaser: Notice: Pleading. 2. ---: Notice: Recitals in deeds. Lre™D0R S waived^by eurity for money1 unless so intended.
35 Ark. 104Lawrence v. Meyer (1879)
1. Pleading and Practice : Plea of nit debet a nullity: Judgment on. An answer which is merely a formal plea of nil debet, or nothing more than that the defendant does not owe the debt, 43 but a conclusion of law. It must deny or state facts, and where it does neither, it is a nullity, and judgment will be by default. 2. Appeals from Justices of the Peace: On judgment by default for insufficient answer. Before an appeal can be taken from a default judgment of a justice of the peace on an answer which is a nullity, a motion to set aside the j udgment must be made and overruled in the justice’s court. ipleadins: cfetoVnuimen'tJon!s”
35 Ark. 107Carnall v. Looper (1879)
APPEAL from Scott Circuit Court in Chancery. Hon. Thomas II. Barnes, Special .Judge.
35 Ark. 109Fain v. Goodwin (1879)
APPEAL from Lincoln Circuit Court. Hon. J. A. Williams, Circuit Judge.
35 Ark. 113Bryan v. Morgan (1879)
APPEAL from Sebastian Circuit Court. Hon. James Brizzclari, Special Judge.
35 Ark. 118Binns v. State (1879)
APPEAL from Bradley Circuit Court. Hon. T. E. Sorrells, Circuit Judge.
35 Ark. 123Leigh v. Armor (1879)
APPEAL from Lafayette Circuit Court, in Chancery. Pión. J. K. Young, Circuit Judge. ”
35 Ark. 127Seesel v. Ewan (1879)
Trustee’s Sale: Sis purchase at, for the beneficiaries. The beneficiaries in a trust can not make the trustee their agent to purchase the trust property for them at the best advantage, but they may send him their bid, and request him to sell them the lands at the sale if no one will bid more; and he may do so without any breach of trust. . Trustee ' s Sale: chase Pat, forthebenefioi&ries.
35 Ark. 137Martin v. Campbell (1879)
1. Administration: Settlements in equity: Statute of limitation. In suits in equity against administrators for an account and settlement, when the relief sought is purely equitable and not cognizable at law, courts of equity may and should refuse to entertain stale and antiquated demands, though not barred by any statute of limitations. 2. Administrator: Allowance to in equity for support of infant heirs. An administrator, stricti juris, has no right to make expenditures out of the assets of the estate for the education and support of children of the intestate ; but in a suit in equity by the heirs against him for an account, after a great lapse of time, the Chancellor may exercise a discretion in allowing them, upon a view of all the equities of the case, if they were reasonable, made in good faith and suitable to the condition and circumstances of the children. i. ¿ramsTRATION’ n.m ua®||1®^aensds' 2. Administrator: Allowance to in equity of1's'infant heirs.
35 Ark. 144Garnett v. Richardson (1879)
APPEAL from Garland Circuit Court. Hon. J. M. Smith, Circuit. Judge.
35 Ark. 146Overton v. Matthews (1879)
1. Alteration : Promissory note avoided by. A material alteration of a note in its date or other parts by the payee or holder, without consent of the maker, avoids it as against the maker even in the hands of a bona fide holder without notice of such alteration. 2. Same : Inserting wrong date in note: Bona fide holder. If the date of a note be left blank, any holder may insert the true date; but if he insert an improper date, it will avoid the note as between him and the makers, but not as between the makers and a purchaser for value before maturity without notice of the improper dating. 3. Same : Pleading. A plea that the blank date of a promissory note was fraudulently filled by the payee with an improper date, is good against the payee, but not against his assignee for value before maturity, without averment of notice, etc. 4. Instructions: To find for plaintiff or defendant. An instruction that upon the evidence in tjie case the jury should find for the plaintiff or defendant, should not be given except in cases where there is no evidence to sustain the cause of action or defense, and the court can so say as matter of law. 5. Alteration: Whether material, is for court. "Whether a change made in a note is a material alteration, is a question of law for the court to determine, and not of fact for the jury. 1. Altera- 'Promissory not© avoidedby. 2. — Inserting holder. 3.---Noticed.ine' 4> instruo- §efendfnt^ 5.. Altera- whether material is for court.
35 Ark. 156Haney v. Caldwell (1879)
APPEAL from Pulaski .Circuit Court. Hon. J'. W. Martin, Circuit Judge.
35 Ark. 169Person v. Wright (1879)
1. Judicial Notice: Of seasons and growth of crops. Courts take judicial notice of the seasons and the course of nature, which includes the growth of the staple crops of the country. 2. Keplevin : Designation of specific property. A mortgage for a certain number of bales out of a crop of cotton is uncertain in description, and until separation or designation of the specific property, no action of replevin can be maintained for it. 3. Same: Demand. Where the original taking of property is not tortious, hut only the unlawful detainer is complained of, a demand of the property before action is essential, unless the defendant is claiming or using it as his own. 4. Same : Parties in, for mortgaged property. It is not necessary for a mortgagor to be made a defendant in a suit by the mortgagees against his vendees for the mortgaged property. 5. Pleading : Answer when sufficient. A demurrer to an answer which contains a defense to the whole or any part of an action should be overruled. 6. Same: In replevin, plaintiff need not allege his source of title. It is not necessary for a mortgagee, in an action of replevin for the mortgaged property, to show in his complaint the source of his title. It is sufficient to allege his ownership, general or special; and if he alleges the mortgage, he need not allege the non-payment of the debt for which it was given. 7. Replevin : Can not be maintained against co-tenant. Replevin can not be maintained against a defendant for a bale of cotton of which he is part owner. 8. Lien: Contracts for, etc., not good against subsequent mortgage. A contract between a landlord and tenant that the tenant should transfer the crop to the landlord to secure supplies furnished by him, and the subsequent delivery of the crop in performance of the contract, will not hold in law against a mortgage made and recorded between the contract and delivery. Judicial Notice: Of seasons and growth of crops. 2Replevis: tionSofipti erty. prop" 'Demand, 4. -: Mortgagor not necessary party. 5PLEADING: Answer: When sufficient. In replevin plaintiff need not state his source o f tit.e. 7. Replevin: Can notbe maintai n - ed against a co-tenant 8. Lien: Contracts for, etc., not good again s t subsequent mortgage.
35 Ark. 176Vance v. State ex rel. Crittenden County (1879)
1. State Scrip : Receivable for court-house tax. State scrip issued before the passage of the act of March 28, 1871, authorizing the county board of supervisors to issue bonds for the building of court-houses, was receivable for the taxes levied to pay said bonds; and the board of supervisors could sell or exchange the scrip at its real value, for such bonds; and the county treasurer making such exchange by its direction, should be credited in his settlement with the scrip exchanged. 2. County Treasurer: Settlements with: Exhibiting county funds. It is only at a settlement that the treasurer may be required to produce the money which is found should be in his hands, for counting. 3. Sam® : Can pay over only to successor. A county treasurer, or his administrator, can pay over the county funds in his hands, only to his successor in office. 4. Administrator : Ifo personal judgment against. In a suit against an administrator and others, it is error to render a personal judgment against him. i. &¡mhs issued before March 2M8ru re?¿rtkous® 2. cookty Producing funds for counting, 3.--: Can pay only to successor. 4. Administrator: No perso nal j u d gment against.
35 Ark. 180Burke v. Coolidge (1879)
1. Administrators, etc.: Illegal expenditure disallowed, though authorized by probate court. If an executor claim credit in his settlement with the prohate court for an illegal expenditure, the court should reject it, although it may have previously approved the expenditure and authorized the executor to take credit for it. 2. Certiorari : Improvidently issued. A certiorari improvidently issued should be quashed. 1. Adminis- disallowed^ thomedaby probate court. 2.. Certiorari: Improvi de n 11y issued , auashed.
35 Ark. 184Stillwell v. Oliver (1879)
Injunction : None against execution sale of chattels. A bill in equity will not lie to restrain the sale of chattels under execution, unless it shows that some damage will result to the plaintiff not fully remediable at law. injunction agajn^t °xFaFetl0of
35 Ark. 190King & Clopton v. Jarman (1879)
1. Sale or Chattels: Statute of frauds: Delivery. With regard to bulky articles, or those not immediately accessible, symbolical delivery, by something which may be proved in pais of a satisfactory nature, satisfies the reason and policy of the statute of frauds. 2. Same : When title passes. Where the minds of the parties have assented to the present purchase and sale of a specific chattel, which may be clearly identified and separated from other property, and the sale be dependent on no conditions or contingencies, and such possession be given as the nature of the subject and the situation of the parties with regard thereto will permit of, and the vendor has done all that is required of him with respect to the property, the title will pass, notwithstanding something may still be necessary on the part of the vendee to ascertain the exact price. chat™ls°p f^uds.*6 of ^ . Symbolical ¡shed by %. chattel when title passes m*
35 Ark. 198Weaver v. Carnall (1879)
•1. Pleading : Non est factum: Affidavit. "When a defendant, in his answer, directly denies the execution of the instrument sued on, and verifies the answer by his affidavit, there is no necessity for him to file an additional affidavit, denying its execution, as prescribed by seo. 2495 Gantt's Digest, in order to require the plaintiff to prove its execution. 2. Agent : What he may delegate to another. An agent can not delegate any portion of his power requiring the exercise ..of judgment or discretion; otherwise, however, as to' powers or duties merely mechanical in their nature. And so, where A authorizes B to borrow money of 0 and sign his name to a note for it, and B borrows, the money, and, at his request, and in his presence, D signs A’s name to the note, thus, “A by D,” this is the act of the agent, and in legal effect the act of the principal, and not of D, who does the mere mechanical act of signing the name. ipleadino: S:esííffil davit‘ 2. .agent: mándeleGther*.0an~
35 Ark. 205Carter v. Engles (1879)
1. Claims Agatnst Estates: Erroneously allowed, no bar to sale of property for payment. The allowance and classification of a claim in the probate court has the force and effect of a judgment, and though erroneous, is conclusive as to all persons until reversed by a higher tribunal, or set aside in a direct proceeding for that purpose. Error in the allowance is no defense to an application for the sale of land for payment of the claim. 2. Same: Allowance procured by fraud. If the allowance of a claim be procured by fraud between the creditor and administrator, there may be a remedy in equity for persons interested in . the estate.
35 Ark. 212Guy, McClellan & Co. v. Walker & Johnson (1879)
Appeal from Justicb of the Peace : Justice compelled to perfect record. If a justice of tlie peace omits to sign his name .to the jurat to an affidavit for an appeal to the circuit court, he maybe compelled to sign it by rule of court. Appeal fromJ P.: Justice compelí e d to perfect record.
35 Ark. 214Ullery v. Town of Fort Smith (1879)
1. Circuit Courts : Jurisdiction in appeals from corporation courts. Circuit courts have jurisdiction in appeals from, corporation courts in botli civil and criminal cases. 2. Criminal Pleading: Summons against sureties in appeal cases. The statute {sec. 1743 Gantt’s Digest) requiring a summons to issue against the surety of an appellant in a criminal case, does not contemplate a proceeding by scire facias, but intends that the record and proceedings in the case ag inst the principal shall be considered as the complaint or statement of facts constituting the cause of action. Courts?dit jurisdiction in apooarpor™ tion courts 2 Criminal Pleading: Summons sureties in
35 Ark. 217Marks v. McGehee (1879)
1. Replevin : Jtidgment in for mortgaged property. The circuit court should not order a sale of the mortgaged property recovered by a mortgagee in an action of replevin. 2. Usury: Mortgage or note containing, void in toto. Not cured by crediting the usury. A mortgage or note in part usurious is void in toto; but a valid debt included in the note stands upon its original merits. A mortgage given to, secure a usurious note can not be validated by crediting the note with the amount of the usury. IReplevin: Judgment in for mortgaged property. 2. ‘Usury: Mortgage or note containing. Void ire toto. Not cared by erediti n g the usury.
35 Ark. 220Johnson v. Terry (1879)
Practice nr Supreme Court : Instructions must be in bill of exceptions. Instructions not brought into the record by the bill of exceptions will not be noticed in this court. Practice in Supreme court: tions^must exceptions,
35 Ark. 225Lemay v. Johnson (1879)
1. Chancery Practice: Motion for new trial: Bill of exceptions. In equity cases all papers properly filed in the cause becoirfe, on appeal, parts of the record to be included in the transcript. No motion for a new trial is necessary; nor is a bill of exceptions, except where oral testimony has been used and not taken down and filed as depositions, or interlocutory transactions have occurred which would otherwise be excluded from the record. 2. Same : Landlord may enforce lien on proceeds of crop in court. Where the proceeds of a tenant’s crop are in the hands of a receiver appointed by the court in a suit by a mortgagee to foreclose his mortgage on it, the landlord of the tenant may interplead and enforce his lien for rent upon the proceeds, whether the rent was to be paid in money or a portion of the crop, or other property, or services. 3. Landlord’s Lien: Not prejudiced on balance by releasing part of crop. A landlord’s lien covers the whole and every part of the tenant’s crop; and his release of a part of it will not subordinate his lien on the balance to the lien of a mortgagee upon the crop. 4. Alteration : Unauthorized insertion of date in contract. The unauthorized insertion of a date, or any other matter, in a blank, prejudicial at law to the maker of a contract, avoids it both in law and in equity, although the date, in equity, may be a matter of indifference. But where a mortgage on a crop to secure supplies was executed with a blank date before the crop was planted, and with an agreement to date and acknowledge it after the crop should be planted, and the supplies were furnished by the mortgagee, the insertion of the subsequent date by the mortgagee was not unauthorized, and the mortgage was valid in equity as of its actual date, notwithstanding the subsequent refusal of •■the mortgagor to date and' acknowledge it as agreed.' i. Chancetice: ' nowlc>tr¡ai: ceptions. land- wll0le erop- °fp/r°°peefp -: Releasine part of crop. « i. Alteration: Unauthorized inser? tion of date in contract
35 Ark. 237State v. Crawford (1879)
1; Special Statute: Act for benefit of Johnson and Reynolds constitutional. The act of the legislature of the fifteenth of March, 1879,.to settle the debt of Reynolds and Johnson to the state of Arkansas, and her debt to them, is not in violation of any provision of the constitution, [See opinion for the act and the objections to it. — Rep,] 2. Statutes : Passage of bills. A bill was regularly passed by the house of representatives and transmitted to the senate. It was there read twice and referred to a committee. During its pendency in the senate, a motion was made in the house to reconsider it; and it was recalled from the senate, and then the motion to reconsider was adopted. It was then again passed in the house and transmitted to the senate, and there read again — the third time— and passed. Held, that the bill was constitutionally passed.
35 Ark. 247Wassell v. Armstrong (1880)
APPEAL from Pulaski Chancery Court. lion. David W. Carroll, Chancellor.
35 Ark. 276Miller v. State (1880)
APPEAL from Scott Circuit Court. Hon. J. H, Rogers, Circuit Judge.
35 Ark. 278Freeman v. Mears (1880)
Practice : Entering judgment nunc pro tunc against sureties in an appeal bond without notice. If on appeal from a justice of the peace judgment be recovered against the appellant and his sureties in the appeal bond, and the clerk omit to include the sureties in the entry of the judgment, a nunc pro tunc judgment may be entered against them at a subsequent term without notice to them.
35 Ark. 279Martin v. Tucker (1880)
1, Promissory Note : Consideration for, how assailed in justice’s court ? Burden of proof. In a suit on a promissory note, instituted before a justice of the peace, no affidavit is necessary for the defendant to avail himself of the defense of “no consideration or illegal consideration” for the note, either in the justice’s court or in the circuit court, on appeal. The burden of proving such defenses is upon the defendant. 2. Evidence: Statement of defendant: Res gestee. The statements of a defendant to the plaintiff’s attorney, of his reasons for executing a note, made at the time of executing it, are admissible as parts of the res gestee. But his statements of them, at a subsequent time, in the absence of the plaintiff, are not admissible for him. 3. Illegal Consideration : Contract avoided by. One may take a nóte from another for what he owes him, though for money embezzled; but if he procure the note to be executed upon an agreement not to prosecute him for the embezzlement, the contract will be illegal and void. 1 p sobyNo™: J-:E>- oourt‘ Burden of ciefendant! statement ant:defe5¡d» OonsÍdbbÍ t t avoided by
35 Ark. 287Mannington v. Young (1880)
1. Jurisdictiox oí Circuit Court: Joining sundry small claims. "Where no one of several debts sued on exceeds the sum of one hundred dollars, the plaintiff can not combine them so as to give the circuit-court jurisdiction.
35 Ark. 289Tate v. Tate (1880)
1. “Chapter's op the DigestChapter 1 not legally enacted. Chapter 1 of the “ Chapters op the Digest” was never legally enacted; and probate courts acquired no jurisdiction under it of the administration of partnership effects; and a bond given by a surviving partner as administrator of the partnership effects, was without consideration, in violation of his rights as surviving partner and owner of the property, and void. 2. Parties : In actions for interest of a deceased partner, in partnership effects. In an action against the surviving partner for the interest of a deceased partner in the partnership property, after settlement of the partnership business, the personal representative, and not the heir or widow of the deceased partner, is the proper plaintiff. 1. “Chapters of THE Digest.” Chapter 1 not legally enacted. 2. Pabtibs: est°ofnt!eI ceased partner in partnereffeot8
35 Ark. 293Moore v. Robinson (1880)
Husband and "W ife : Husband may assign decree in favor of himself and wife: Equitable assignment: Estoppel. A husband has the right to assign a money decree rendered in favor of himself and wife; and an order from him, alone, for part’ of the fund, is an equitable assignment of it jpro tanto. It is not necessary that the order be accepted by the party having the fund, in possession. And a subsequent assignment of the decree by the husband and wife will entitle the assignee only to the remainder, after satisfying the first ■order. Moreover, if the last assignee have, at the time of his assignment, notice of the husband's order, and knowingly permit payments to be made on it without objection, this is an admission of the husband’s authority to make the order; and after the payment of the balance ■called for by the order, estops him from questioning its validity by a ■suit against the payee. 2. Husband and wot: jo?nts °del cree' Estoppel Equitable mint.e n "
35 Ark. 298McCreary v. Rogers (1880)
Writ of Mandamus.
35 Ark. 304Little Rock & Fort Smith Railway Co. v. Page (1880)
APPEAL from Pulaski Circuit Court. Lion. J. W. Martin, Circuit Judge.
35 Ark. 324State v. Emerick (1880)
Cbiminal Pleading : Indictment for selling liquor to minors. An. indictment charging the selling of intoxicating spirits to a minor, without his parents' consent, in writing, and not negativing the consent of his guardian, is bad, on demurrer.
35 Ark. 327Thomm v. State (1880)
1. Criminal Proceedings : On forfeited bail-bond. In proceedings against bail in criminal cases, on forfeited bail-bonds, no pleadings are required from the state, but it is the duty of the clerk to issue a summons requiring the bail to appear, etc. 2. Misdemeanors: Justices of the peace must try. A justice of the peace has no authority to decline to try a misdemeanor, and bind the accused over to the circuit court for trial; an'd a bail-bond taken by him in such case is void. a1Noplead_ Jntsastey ohn balfbonds! 2. Misde-MBANORS: j.p.must baiuonci°rcuit court.
35 Ark. 331Peel v. January (1880)
APPEAL from Washington Circuit Court. Hon. R. W. Ellis, Special Judge of the Circuit Court.
35 Ark. 345Chappell v. State (1880)
APPEAL from Phillips Circuit Court. Hon. J. N. Cypert, Circuit Judge.
35 Ark. 348Crowell v. Packard (1880)
1. Ymboe ill Vendk: Avoiding payment of purchase-money. A vendee who takes a deed for land without covenants of warranty, can not avoid the payment of the purchase-money, unless fraud has been practiced upon him. 2. Same : Covenants against incumbrances cover taxes. Taxes on land, due at the time of the sale, are a lien upon it, and covered by the vendor’s covenant against incumbrances suffered by him. x, vendee: SJoney aso 2--: Covenants against incumbrance cover taxes
35 Ark. 352McKibbin v. Fort Smith (1880)
1. Town Council: May abate nuisance without judicial proceedings. By sec. 13 of the act of March 9, 18*75, for the incorporation and government of municipal corporations, a town council has power to prohibit the. erection of wooden buildings in certain districts of the town as a precaution against fire; and if such building be erected in violation of an ordinance inhibiting it, the council may promptly remove it, without any prosecution or judicial proceedings of any kind against the owner of the building. 2. Injunction. Damages: Against city for wrongful removal of building. "Where a building has been removed, or is about to be removed, by a police officer under an order of the town council, when, in fact, the owner has not, in its erection, violated any ordinance of the town inhibiting it, he may recover damages against the town for the removal, or have an injunction against the threatened removal, as the case may be. 1. Town Council: Mny abate nui «anee witboutjudicial proceedings. InjbnoAGES: city for wrongful of
35 Ark. 360Little Rock & Fort Smith Railroad v. Dyer (1880)
APPEAL from Crawford Circuit Court. Hon. Thomas Martin, Special Judge.
35 Ark. 365Conner v. Abbott (1880)
1. Mortgage: Acknowledgment: The word “consideration!'essential. If the acknowledgment of the execution of a mortgage fails to state that the mortgage was executed for the “consideration” therein expressed, it is insufficient, and the mortgage, though recorded, is void against subsequent purchasers, even with noticebut is good between the parties to it. 2. Married 'Women : Note and mortgage of r, void, unless, etc.: Protected in chancery without defense. A promissory note of a married woman not given for her personal benefit or that of her separate property, is void. And so is her mortgage in which her husband has not joined, and which has been acknowledged by her as a femme sole, and not as a married woman. And in a suit to foreclose such mortgage, a court of equity will protect her, though she make no defense against it. .In such cases, it is the duty of the Chancellor to examine her in open court, in regard to her wishes, and to see that her assent is intelligently and freely given, before making any decree other than would be made against her in invitum. And wherever, upon appeal, this practice appears to have been omitted by the Chancellor, and she has not disposed of her rights by the statutory method, this-court should, of its own motion, extend the protection which the law intends to afford. But such decree against her is not void, but good until reversed. [The mortgage in this case was executed before the adoption of the constitution of 1874. Bep.] 3. Stockholders: When partners. When parties become stockholders in a company for the purpose of organizing a corporation under the laws of the state, and engage in' the business for which the company was formed, but fail to complete the incorporation of the company by filing the articles of incorporation in the office of the secretary of state, they become partners with interests proportionate to their shares, and can take property, in equity, for partnership purposes. l Aoknowledqment: ationS”dessentiaim. 2. Married ^rÍshín teote'a Prin withoutde-
35 Ark. 381Gordon v. Howell (1880)
Administration : Venue in sale of deceased's lands. J urisdiction for the sale of a deceased’s lands is only in the probate court of the county in which the personal representative was qualified — not in another county in which the land may be situated.
35 Ark. 384Phillips v. State (1880)
APPEAL from Phillips Circuit Court. Hon. J. N. Cypert, Circuit Judge.
35 Ark. 386Walker v. State (1880)
1. Carrying Weapons : Indictment for. An indictment, under the act of 1875, for unlawfully carrying a pistol as a weapon, need not negative the exceptions contained in the proviso of the . act. 2.' Same : Jurisdiction. Carrying a pistol as a weapon is a misdemeanor of which justices of the peace and circuit courts have concurrent jurisdiction under the constitution. 3. Bilí. OE Exceptions: Must be filed and made part of the record. If the bill of exceptions copied in the transcript is-not indorsed “ filed ” by the clerk, and there is in the transcript no record entry showing that it was filed and made part of the record, the question whether the evidence warranted the verdict is not legally before this court. • 4. Venue: Failure to prove, no cause for arrest of judgment. That an alleged offense was not committed in the county, is not properly matter in arrest of judgment, but cause for new trial. 5. Circuit Courts : The act establishing a court at Dardanelle constitutional. The act of 1875, creating the Dardanelle district in Tell county, and requiring the circuit court of that district to be held at Dardanelle, is constitutional; and the provision limiting the selection of the grand and petit juries of that district to the territory comprised within the district . is not in conflict with the tenth section of the Declaration of Eights. weapons:0 indiefcmerit for. 2-: Jurisdiction. • 3. Bill of Exceptions: Must be filed and made pare of the record. 4- Venúe: Prove“ren° cause for ?n:est °f ñ ClROU1T ÍtWDaida? stitutionañ
35 Ark. 395Toliver v. State (1880)
1. Criminal Pleading : Burglary and Larceny: Indictment: Cumulative punishment. Burglary and grand larceny, where the one is connected with the other, may be joined in one indictment; and, upon conviction for both, cumulative punishments may be assessed — the second commencing at the termination of the first. 2. Bill oe Exceptions: Must he made part of record. Unless a bill .of exceptions appears to have been filed and made part of the record, it can not be noticed.
35 Ark. 396State v. Vandimark (1880)
1. False Pretense: What it is. A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it to be false, as is adapted to induce the person to whom it is made, to part with something of value. 2. Same : Indictment where several pretenses. If there be several false pretenses, only one of them need be set out in the indictment; or, if several be set out, and one be proven, the indictment is sustained. 1. False Pretense: What it is. eSierepre tenses'.
35 Ark. 402Packard v. Taylor, Cleveland & Co. (1880)
APPEAL from Jefferson Circuit Court. Hon. J. A, Williams, Circuit Judge.
35 Ark. 412Seifrath v. State (1880)
ERROR to Franklin Circuit Court. Hon. W. E. Jacoway, Circuit Judge.
35 Ark. 414Wilson v. State (1880)
1. Indictment : For selling liquor near an academy, college, etc. An indictment for selling liquor within three miles of an academy, in violation of the act of March 2, 1875, is not defective for failing to allege that the academy is in the county in which the indictment was found, if it avers that the order of the county court prohibiting the sale within three miles of the designated academy, was made in compliance with the act. Nor need it allege that the order of the county court was made upon the petition of a majority of the adult residents of the township, if' it allege that the order was made in compliance with the statute. 2. Same : Exceptions in statute. When an exception is not in the enacting clause of a statute, it need not. be negatived in the indictment: it is matter of defense. 3. Liquok: Order of county court prohibiting sale of irrevocable : Subsequent license void. When the order is made, the power vested in the county court by the act. is exhausted, and it has no power to revoke the order upon a subsequent petition; and a subsequent license to sell liquor is no protection against, a prosecution for selling within the prohibited limits. ment™01' Uor sell-mg liquor emy etcad" 2.---: Excep*it°“stl;tien negTtivedf 3 L B. Order of county g°.uurl,Pr°academy! vocable!16"
35 Ark. 430Williams v. State (1880)
1. Criminal Evidence : Variance: Whisky: Bitters. Upon a charge of selling whisky without license, proof of the sale of Home Bitters is irrelevant, unless it is proven to be made of whisky. 2. Same : Selling whisky without license : Proof as to license. Upon the trial of one for selling liquor without license, the state is not required to prove that he had no license. If the defendant has license he can show it. EEN0E EvI' ^Variance: Bitters, 2. -: Selims whisky without license: Proof as to liceo se.
35 Ark. 434Williams v. Pindall (1880)
APPEAL from Desha Circuit Court. Hon. C. G. Newman, Special Judge.
35 Ark. 438Town of Fort Smith v. Gantis (1880)
Practice in Supreme Court : Where no motion for new trial., Where there is no motion for new trial, nor bill of exceptions, the record presents nothing for the determination of this court.
35 Ark. 438Leeman v. State (1880)
APPEAL from Lincoln Circuit Court. Hon. J. H. Rogers, Circuit Judge.
35 Ark. 445Hall v. Doyle (1880)
APPEAL from Sebastian.Circuit Court. Hon. J. H. Rogers, Circuit Judge.
35 Ark. 450Thomas v. Hinkle (1880)
1. Bill of Exceptions : When sufficient. When a bill of exceptions does not show on its face that it contains all the evidence, but contains expressions from which it may be inferred that it was intended to do so, this is sufficient where no objection to it on that account is made in the supreme court. 2. Damages : Good faith of defendant no defense against actual. Eor the purpose of actual and not vindictive damage, the good faith and honest intentions of a county clerk in sending a false abstract of the votes of an election to the secretary of state, is no protection to him or the sureties on his official bond for such breach of his official duty. 3. Evidence: Judgment. A judgment is evidence of nothing, in a subsequent action between different parties, except that it had been rendered. 4. Election Returns : Abstracting to secretary of state. Where only part of the returns of an election sent to the county clerk from the different precincts are certified by the judges of election, the omission of the uncertified returns in the clerk’s abstract of the vote of the county, to the secretary of state, does not make him guilty of sending a false abstract. 3. Bill 03? ÍXOÍP-TIONS: When sufficient. 2Damages: faith 0?de-defence tuai, 2.Evidence ■f'1'1®01611*-
35 Ark. 458Harrison v. State (1880)
WRIT OE CERTIORARI to Yell Circuit Court. Hon. W. D. Jacoway, Circuit Judge.
35 Ark. 463King v. Haynes (1880)
1. Surety: -Discharge of: Extension of time to principal. In order that an agreement between a creditor and principal debtor extending the time of payment, shall have the effect of discharging the surety, the extension must be for a definite period. It makes no difference how short the time, it must be fixed. 2. Same : Notice to creditor to sue. Where a surety claims a discharge from a failure of the creditor to sue the principal debtor after notice to him to sue, and the subsequent insolvency of the debtor, the surety must show clearly the nature and terms of the notice. sUKett: to°nprin“i! 2.--= “®ditor t0
35 Ark. 470Howell v. Rye (1880)
APPEAL from Pope Circuit Court. Hon. Thomas W. Pound, Circuit Judge.
35 Ark. 480Scott v. Ward (1880)
Married WOman : Her power to convey or mortgage her realty. The statute does not limit a married woman’s power to convey her real estate, to any particular purpose or consideration. She need not acknowledge a consideration. She may mortgage it for her husband’s debts, or sell it and pay his debts with the proceeds, or set him up in business. 1. Married Woman: Her power to convey or mortgage her realty.
35 Ark. 483Merritt v. Robinson (1880)
1. Bescission oe Coktkact: For fraud of vendor. "When a vendor is guilty of fraudulent misrepresentation or concealment as to the essential inducement to. a contract, the vendee may, on discovery of the fraud, rescind the contract. Fraud in all cases gives the defrauded party the right utterly to reject the contract; but the vendee must offer to rescind in a reasonable time after discovering the fraud. 2. Fkaud: Selling mortgaged, property. If a vendor sell goods which he knows, to he mortgaged, without giving information thereof to the purchaser, the sale would be fraudulent. The suppression of the truth is equivalent to a falsehood, when the vendor is under obligation to disclose the truth. 3. Same : Perfecting title by fraudulent vendor. Fraud avoids a contract ab initio, and the party committing it can take no advantage of it, nor acquire any rights or interest by means of it. If, therefore, the vendor of mortgaged goods, knowing of the mortgage, conceal it from the vendee, the vendee may, on discovering the fraud, treat the contract as void, and rescind it by returning or offering to return the property and demanding that given in exchange for it; and the vendor can not defeat his right to rescind by afterward procuring a release of the property from the mortgage. A. Stjyiiay Coktbact : Offer to rescind on Sunday, void. Ain offer to rescind a contract on Sunday is void. 1. Rescinding} Contract: Sor fraud of vendor. 2. Fraud: Selling mortgaged property. 3-__. ing'tfu?by vendor.
35 Ark. 492Barlow v. Lowder (1880)
1. Damages: Presumed from violation of right. Some damages are always presumed to follow from the violation of any right; and therefore the law will in such cases award nominal damages if none greater be proved. 2. Same : Exemplary. In all cases of malicious injuries and trespasses accompanied with personal insult, or oppressive and cruel conduct, juries are told to give what are called exemplary damages, although the personal injury, measured by a pecuniary standard, may be but small. 3. Same : Prospective. In all cases of serious personal injuries, the jury should take into consideration, in assessing the damages, the probable future injury that will result to the plaintiff from the act of violence perpetrated by the defendant, so as to embrace all the injurious consequences of the wrongful act, unknown as well as known, future as well as past. 4. Same : Proof of, to what confined. In the proof of damages both parties must be confined to the principal transactions complained of and the attendant circumstances and natural results. 5. Same : B.odily suffering, an element of. In trespass for personal injuries to the plaintiff, bodily suffering is an element of damages. fromXitright!s 0 2.--.-Exemplaw. 3.-: Prospective* 4. -: what confined. 5-_. suffering1.13"
35 Ark. 497Draper v. Mackey (1880)
1. Injunction:. Nuisance: Obstructing public road. The obstruction, of a public road leading to one’s ferry is a public nuisance, and an injury to him; and he has the right to an injunction against the continuance of the puisance, and to have it removed. 2. Public Boad : Right of land-owner to obstruct: Compensation. The owner of land through which a public road has been laid out, has no right to obstruct it, though no compensation has been made to him. He should have resisted the application for it in the county court, or resorted to proper means to have it vacated; and the facts that the land through which the road was made, including one of the ferry landings, belonged to him, that no compensation had been made to him, and that the owner of the ferry had afterwards changed the location of the ferry, and cut a road from it through the defendant’s land to the new public road,-did not constitute any defense or counter-claim to the suit for injunction to remove the obstruction.
35 Ark. 500Wycough v. Ford (1880)
Practice in Supreme Court : Bill of exceptions: Evidence on motion in circuit court. When the evidence adduced upon the hearing of a motion in the circuit court is not preserved by bill of exceptions, the ruling of the court will be sustained' if the facts stated in the motion will warrant it.
35 Ark. 501Barnett v. State (1880)
1. Summons: Service of. The return of service of a summons hy leaving a copy with the defendant’s wife, must show" that she was over fifteen years of age. 2. Marriage : Lawful age for. By statute a female may marry at fourteen years of age; but the marriage of a female at the age of twelve years, in a state where the common law rule prevails, would be recognized as valid here. 3. Appeal to Supreme Court: On judgment by default. A judgment by default in the circuit court, where there has been no valid service of summons upon the defendant, may be appealed to the supreme court, without any motion to correct it in the circuit court. 1. Summons: Service of. 2. Marriage: Lawful age for.* 3. Appeal to Supreme -Court: From judgment by default. Motion to correct in circuit court.
35 Ark. 505Hickman v. Kempner (1880)
1. Tax Deeds : Only prima facie evidence: Mistakes in, correctable. Recitals in a tax-deed are only prima facie evidence that all necessary steps were taken; and may be corrected in equity for fraud or mistake, or denied and shown to be false. 2. Same: Recital of time of receiving tax-books, how contradicted. The recital in a fax-deed, of the date of the collector’s receipt of the tax-hooks, may be contradicted by his receipt to the clerk for them, showing a different date. 3. Tax Sales : Premature filing of delinquent list avoids. The filing of the delinquent list in the county clerk's office before the'expiration of the time allowed for the payment bf taxes, is premature,and avoids the sale. 4. Same : Payment on one tract and receipt for another. Where the owner intends to pay the taxes on one tract, and so informs the collector, and pays him the proper amount, and the collector by mistake, gives a receipt for a different tract, and the one actually paid on is returned delinquent and sold for the taxes, the owner may show the actual payment against the purchaser at tax sale. 5. Same : Recital in deed, of wrong name of owner does not vitiate. The false recital in a tax-deed that the land was assessed in the name of an unknown owner does not vitiate the sale. 6. Same : Owner seeking to avoid in equity, must pay lawful taxes. Where an owner comes into equity to avoid an illegal sale of his land for taxes, he must tender the taxes actually due, and interest, but not the penalty and cost. Tax incorrect-able. 2.--: Recital of time of receiving tax: books, how contradicted. 3. Tax Sales: Premature filing of deli n q u e n t list avoids. L--r Payment on one tract and receipt ior another. in deedUof cíame0 not vitiate, 6' Owner avoid in iSwfui tax-
35 Ark. 511Whittaker v. Wright (1880)
1. Administrator: Power to sell notes due estate in settlement of debts. An executor or administrator has no power to sell, assign or dispose of, a note due the testator’s or intestate’s estate, in payment of one creditor, before it is ascertained upon settlement how much is due him, and in exclusion of others; and such sale and transfer vests no title in the transferee. 2. Same : Must pay taxes on property mortgaged to intestate: Ch'editoi's may pay. It is the duty of an executor or administrator to pay the taxes on property mortgaged to the estate, when the mortgagor neglects to pay them; and if he omits to do so, or there is no representative of the estate, a creditor of the estate may pay them, to protect his interest, and be reimbursed out of the proceeds of the sale upon foreclosure of the mortgage. 3. Executrix: Marriage or norwresidenae abates her suits. When an executrix marries or becomes non-resident her powers cease; and her suits can not be further prosecuted until an administrator with ' the will annexed is appointed. 4. Administrator: Power to sell notes of estate to settle debts Must pay taxes on pr o p e r t y mortgaged to estate, "When creditors may pay. 3. Amuras- Marriage or non-resibites11 he? smts.
35 Ark. 517Adler v. State (1880)
1. Circuit Court: Power to issue writ of error coram nobis: Change of venue. A circuit court judge has power, after the expiration of a term, to issue the writ of error eoram nobis to reverse a judgment of conviction in a criminal case, where it appears that the defendant was insane at the time of the trial, and the fact was not made known at the trial; and upon the assignment of such error in fact, if disputed by the state, to cause a jury to he impaimelled in term to try such issue; and the venue for the trial of such issue may he changed to ajiother county, hut the change carries the whole case. 2. 'Bail: Principal confined for insanity in another state, no defense for. That the defendant, at the time he was required by the conditions of his bail-bond to appear to an indictment, was insane, and had been taken out of the state and confined in an insane asylum of another state, to be treated for his insanity, is no defense for his sureties, in a prosecution on the bond. 3. Bail-Bond : Approval by sheriff not essential. The indorsement upon a bail-bond, of the approval of the officer taking it, is not essential to its validity. i. Circuit Power to of erroiTooram nobis. change of yeune. change of venue. 2. Bail: confined for insanioverstate! 3. bail-not es®en-
35 Ark. 536Farquharson v. Johnson (1880)
APPEAL from- Garland Circuit court. Hon. J. M. Smith, Circuit Judge.
35 Ark. 538Valentine v. Hamlett (1880)
Landlord's Lien :' Limitation on. A landlord’s lien upon the tenant’s crop, for rent, expires at the expiration of six months from the time the rent is due.
35 Ark. 540Mantooth v. Burke (1880)
APPEAL from Franklin Circuit Court. Hon. W. L. Jacoway, Circuit Judge.
35 Ark. 548Ford v. Tallman (1880)
Execution : What equity not subject to. B and B agreed to purchase a tract of land which was to have been sold by an executor for one-half cash, the balance in twelve months; B to make the first payment and B the last, and the land to be then conveyed to B and B’s wife. B bid the land off, and, with B’s money, made the first payment, and took the certificate of purchase from the executor in his own name, reciting the payment and stipulating to make deed to him upon making the last payment. When it became due they were unable to pay, and agreed that F should make the payment and take the executor’s deed to himself as a security for repayment, and for improvements he might put upon the land; and B transferred to F the certificate of purchase, and he made the payment and obtained the executor’s deed conveying the land to himself absolutely. Afterward judgments were recovered against B, and the land was levied on and sold to satisfy them, subject to redemption, and T purchased it at the sale and received the sheriff's certificate of purchase. Afterward, B and B being unable to pay F, they quit-claimed to him, upon his paying to them what they had paid on the land. Upon bill filed by F to cancel T’s purchase and certificate and to quiet his own title to the land, held : That when B. took the certificate of purchase from the executor, he held the equitable title to the undivided half of the land for B, and to the other undivided half for himself, the legal title remaining in the executor, and passing, by his subsequent deed, to F; and that at the time of the recovery of the judgments, B had no interest in the land, legal or equitable, upon which a judgment lien could attach, or that was subject to sale under execution; and that F was entitled to the relief sought, whether he was in or out of possession of the land. ^0N®XEQU' what equity not subject to.
35 Ark. 555McIlroy v. Buckner (1880)
APPEAL from Washington Circuit Court. Hoñ. J. M. Pittman, Circuit Judge.
35 Ark. 565Crawford v. Carson (1880)
APPEAL from Jefferson Circuit Court. Hon. J. A. Williams, Circuit Judge.
35 Ark. 585Sweeney v. State (1880)
ERROR to Monroe Circuit Court. Hon. J. N. Cypert, Circuit Judge.
35 Ark. 602Little Rock & Fort Smith Railroad v. Duffey (1880)
APPEAL from Faulkner Circuit Court. Hon. J. W. Martin, Circuit Judge.
35 Ark. 617Mitchell v. Moore (1880)
APPEAL from Pulaski Circuit Court. Hon. J. W. Martin, Circuit Judge.
35 Ark. 622St. L., I. M. & S. Railway Co. v. Morris (1880)
APPEAL from Jackson Circuit Court. Hon. William Byers, Circuit Judge.
35 Ark. 629Euper v. State (1880)
APPEAL from Sebastian Circuit Court. Hon. John H. Rogers, Circuit Judge.
35 Ark. 631Erb v. State (1880)
ERROR to Pulaski Circuit Court. Hon. J. W. Martin, Circuit Judge.
35 Ark. 639Wright v. State (1880)
1. Jury: When error in overruling challenge cured. A prisoner can not complain of an error of the circuit court in deciding-incompetent jurors to be competent, and forcing him to a peremptory challenge of them, where the panel has been completed without his exhausting the peremptory challenges to which he was entitled. 2. New Trial : Rejecting competent juror no cause for. The erroneous rejection by the court, of a talesman, as a juror, is no ground for a new trial. 3. Same : Affidavits for must be in bill of exceptions. "Where affidavits are filed in support of a motion for new trial, they should be incorporated in the bill of exceptions, or referred to, identified, and made part of the record. 4. Same : Separation, of jurors. It is no abuse of the discretion of the circuit court to refuse a motion for new trial on the ground that the jury, before and after the final submission of the cause, were permitted to sleep at night in separate rooms unlocked and unguarded, and that one of them, a colored man, was permitted to take his meals with other colored men in a separate room from the other jurors, when it is shown that there was an open door between the two rooms and the colored juror was under the observation of the sheriff and was not approached or talked to on the subject of the trial. 5. Same: Furnishing prisoner with list of jurors. The Criminal Code makes no provision for furnishing a prisoner with a list of the jurors before the trial. <3. Evidence : Statements of defendant. The fact that a prisoner, in a conversation with a witness, said something which the witness can not remember, will not exclude his testimony of what he does remember. I. Indictment : Murder in first degree. If an indictment contain all the allegations and technical requisites in a common law indictment for murder, the defendant may be convicted of either grade of murder or of a lower grade of homicide. i. jUET. oveiuTini ^enTíred 2. New Trial: Rejecting competent juror, no ground for. 8.--: exceptions. • ' 2‘ üüraühl e? wit¿SHst of jurors, 6.Evidence Statement of^defend- 7. IudictMEN'r: ur er’ Sufficient allegations of, in first degree.