Volume 8 — Arkansas Reports

This was an action of assumpsit on a promissory mote for $432 50, alleged in the declaration to have been executed by Capers, the defendant, on the 3d day of January, 1845, payable to John McLemore, or order, on the 1st January, 1846, and endorsed by McLemore to Smith, the plaintiff, on the 13th August, 1845.

Writ of Error to Pulaski Circuit Court. This was an action of assumpsit, brought by Ignatius Wila-mouicz against Samuel Adams, in Pulaski Circuit Court, founded on Adams’ acceptances of the following instruments: $375. Little Roce, Feb. 12, 1849.

This was an action of assumpsit by Edwards, survivor of My-gate & Edwards, against Sculi & Bro., on a note made by defendants, payable to their own order, and endorsed by them to Mygate & Edwards. The defendants craved oyer of the “ writing sued on,” and the record states that it was granted, but does not state how, nor does the instrument appear of record until copied in a bill of exceptions taken at the trial.

On the 10th May, 1847, George W. Davis sued Aaron Allen, before a Justice of the Peace of Independence county, on an account for “350 bushels of corn, $100 00.” Allen filed an ofF-set against Davis as follows! “ 1846 — For one horse sold you, $50 00 Taking care of corn crop after you left, and gathering 'the same, $50 00 — ■—$100 00.” Judgment before the Justice for Davis, and Allen appealed to the Circuit Court, where the case was tried by a jury, and verdict in favor of…

Writ of Error to Ashley Circuit Court. This was an action of debt, brought by Buford & Pugh, against Kirkpatrick, on a judgment recovered by the plaintiffs against the defendant, in the “ Inferior Court for the county of Stewart, in the State of Georgia,” at February Term, 1849. There was a second count in the declaration, upon an account stated. The defendant pleaded nil debit to both counts, and nul tiel record to the count on the judgment.

Writ of Error to Jackson Circuit Court. On the 14th of March, 1839, the Bank of the State commenced an action of debt, in the Jackson circuit court, against William Steen, John H. T. Webb, and Jeremiah Webb, on a note executed to the Bank by them for $888, due 1st July, 1844. The defendant, Jeremiah Webb, filed two pleas: 1st, the statute of limitation of three years; and 2d, nil debet, sworn to. Defendant, John H. T. Webb, pleaded nil debet, limitation, and payment.

<p>Appeal from, Pulaski Circuit Court.</p>

The facts are stated in the opinion of the court. The instrument set out in the pleas of justification, is a covenant. Dillard v. Evans, 4 Ark. 175. Sims v. Whitlock, 5 ib. 103. Fortenbury v. Tunstall, ib. 263. Gregory v. Bewley, ib. 320. Campbell v. Weisterr, 1 Litt. 30. Chambers v. George, 5 Litt. 335. And as the amount claimed in the suit before the justice exceeded the sum of one hundred dollars, {Amend.

On the 27th February, 1849, John Hopper filed with Justice Neighbors, for. suit, the following instrument: “On or before the 25th day of December next, we, or either of us, promise to pay John Harper, or bearer, sixty-five dollars, for value received of him, as witness our hands and seals: this 23d 'August, 1848. JAHU JESTER, JAMES SUMPTER.” A summons was issued against defendants, returnable on the 10th March, 1849.

Writ of Error to Pulaski Circuit Court. On the 3d day of October, 1849, the Bank of the State commenced an action of debt, in Pulaski Circuit Court, against William Conway B., George Conway, Robert H. Conway, and Benjamin P. Jett, on a promissory note, executed by the defendants, to the bank for $600, payable 1st March, 1844. The declaration is in the usual form, without averment as to the residence of defendants.

A decree was rendered in the Circuit Court of Hempstead county, sitting in Chancery, against Julia Davis, from which she appealed to the Supreme Court. The appellant did not enter into recognizance in the court below; but, upon the cause coming into this court, she filed her motion for a stay of proceedings under the decree, upon entering into recognizance before this court.

The appeal in this case, was granted by the Circuit Court in Chancery; and the appellant failing to enter into recognizance to stay proceedings on the decree, applied to the Chief Justice, in vacation, who made an order that a writ of supersedeas be issued by the Clerk of the Supreme Court, upon the appellant’s entering into recognizance. The appellee moved the court to quash the recognizance and recall the supersedeas.

John Horton was indicted in the Prairie Circuit Court, for betting a large sum of money, to wit: one dollar, on^ a game of cards commonly called seven-up. Defendant pleaded not guilty, and the case was submitted to a jury. The evidence was, that the defendant bet a saddle on the game, against a pistol and a dollar put up, by one George A. Eagle, who was indicted-with him.

Writ of Error to Marion Circuit Court. Tins was a suit brought by Lane against Farmer, upon the following bond, before a Justice of the Peace: “Twelve months after date, we or either of us promise to pay Josiah Lane, administrator of Baker Tyler, deceased the sum of sixteen dollars and 43|- cents, without discount or defalcation, for value received of him; as witness our hands and seals, this July 18th day, 1844.

Peter E. Houston was indicted in the Sevier Circuit Court, for horse stealing. There were two counts in the indictment; the first charged that the said Peter, on the 21st June, 1851, one bay horse, of the value of $75, the property of Benjamin Ii. Layne, did steal, take and ride away. The second count charged that the animal stolen was a gelding. He was tried on the plea of not guilty, found guilty, and his punishment fixed at five years in the penitentiary.

Francis Circuit Court. This was action of covenant brought by Jones, administrator of Crumbaugh, against Patterson, in the St. Francis circuit court..

On the 26th September, 1850, William S. Swigart, assignee of Reuben W. Brown, sued Edward Robinson, before a justice of the peace of Johnson county,-on a-writing obligatory, executed by Robinson to Brown, on the 6th day of December, 1849, for $35, payable first of April, 1850, and assigned by Brown to Swi-gart on the 9th August, 1850. The defendant filed an off-set as follows: “1850.

This was a bill to foreclose a mortgage filed by Biscoe and others, Trustees of the Real Estate Bank, against Watson and Hubbard, in the Hempstead cucuit court. The material facts are, that on the 25th day of January, 1837, Henry Cheatham conveyed certain lands to his father for the joint uses of his father and mother during their lives, and with reversion to himself. The father died in April, 1840, the mother in September 28th, 1845.

Scott and others brought their bill, as heirs of Susan Mills, in the Chicot Circuit Court, against Maulding and others, as heirs of John W. Maulding.

Writ of Error to Madison Circuit Court. ARchibald Brown was indicted in the Carroll' Circuit Court, at September term, 1849, for stealing a mare, alleged to be the property of William W. Chaney.

This ivas a petition to foreclose a mortgage upon land, filed under the statute, by Taylor & Paulding against Hardy Kelly, in the Carroll circuit court.

The bill prayed a rescisión of the contract of purchase, and that Lincoln produce and bring into court a county warrant for $400, which had been issued to him for the land, to be canceled, die. The court dismissed the bill for want of equity, the county appealed, and this court reversed the decision, and remanded the case with instructions to the court below to render a decree for the complainant in accordance with the prayer of the bill.

Writ of Error ta While Circuit Court. Nathaniel Holeman and his wife, Polly, were indicted) at the October term, 1848, of the White circuit court, for stealing three pieces of calico and seventeen hanks of spun, cotton, the property of Marion Carmack. The larceny was alleged to have been committed on the 27th of March, 1848, in White county. The defendants pleaded not guilty, severed, and Polly Hole-man, the wife, was put on her trial first.

This was a bill by Henry & Cunningham, assignees of Thomas Wilson, against Scott, White and Pennywit, partners under the name of Scott, White & Co.; Wilson and wife, McLean, Turner and Paschal. The object of the bill was to redeem two slaves, alleged to have been mortgaged to Scott, White & Co., in which Wilson, the assignor of complainants, held the right of redemption. The material facts of the case are stated in the opinion of this court.

Bill for injunction, filed by Paup and others against the State.

Bill filed in Lafayette circuit court, by the heirs of Fanny Lig-gin, against Whitfield, to recover slaves and their hire. The material facts of the case as they appear of record, are as follows: John Stovall lived in Granville county, North Carolina, near the Virginia line.

The facts of this case are substantially as follows : On the 12th April, 1844, co-partnership articles were entered into at New Orleans, in Louisiana, by notarial act,between Jacob Barkman, of Arkansas, and John G. Pratt and Seth E. Belknap, of New Orleans, by which the parties associated themselves as Cotton and Commission Merchants, to carry on business in New Orleans.

The proof was that the owner loaned the horse to the prisoner to ride-to a neighbor’s house. The prisoner went to the neighbor’s, and on the next day came to Little Rock, and' sold the horse at public auction. Verdict of guilty and judgment. The defendant appealed.

contended that, as Tupper and Smith were partners in the practice of the law, they were both bound to perform the services for which the note sued on at law was given, (Ch. on Con. 249, 250, 727. Story on Part. 158. Rob. La'. Rep. 59,) and that upon the death of Tupper, Smith was bound to settle up the partnership concerns, and discharge the partnership contracts, (Story on Part. 516. Story on Prom.

Borden v. State, use Robinson? 6 JEng. 519. Erwin v. Lowery, 7 Howard (U.S.) 181. The executors acting under the order of the Probate Court, did not warrant the title, and Owens purchased only such title as they could give: he executed his note for the purchase money, and took possession of the property from which he has never been evicted.

Appeals from Pulaski Circuit Court in Chancery. The circuit court having decreed against the complainant upon his prayer for specific performance of the contract, and in his favor for his professional services in the recovery of the slaves, both parties appealed to this court. argued this cause upon the question of champerty and maintenance, and then contended that, if the contract should be declared void, Cook is entitled to just compensation for his professional services,…

contended that the fact of conveyance by Johnston and Moore to Cal-loway was sufficiently proven; that the deed of conveyance was valid and conveyed the legal title without being recorded — -the validity of the deed not depending upon its being recorded {Dig. ch. 37) — and is conclusive against the claims of subsequent purchasers. Clarke v. White, 12 Pet. 118. 9 Cow. 120. 15 Wend. 545. 2 J. J. Marsh. 429.

The ap pellee filed his bill in chancery against the appellants as assignees of a judgment recovered by Briggs, Lacoste & Co. against Watson, for the legal fees due him as attorney in the recovery of such judgment.

On the 9th December, 1852, John Martin and Hugh Martin presented a bill for injunction, to the Hon. Charles W. Adams, Judge of the Phillips Circuit Court, in vacation, against the Swamp Land Commissioners and others, the substance of which bill is stated in the opinion of this Court.

Writ of Error to Independence Circuit Court. The facts appear in the opinion of the Court. The plea is bad in substance: the judgment set out in the plea, is not between the same parties that are sued in this action; and no one can be bound by, or receive any prejudice or derive any benefit from a verdict or judgment to which he was not a party. A judgment can operate as an estoppel, only where the parties and the cause of action are the same in both proceedings. 1 Stark.

The facts appear in the opinion of the Gourt. The law seems to be settled that, in actions of this nature, a plaintiff may enter anolle prosequi as to one or-more defendants, even after plea, without discontinuing his case as to the others: but that if the final judgment fails to dispose of the whole case, leaving it still pending against a part of the defendants, the judgment will be held erroneous. See 2 Yerg. Rep. 94, Davis et al. vs. Chance. % 4 Lilt.

'Writ of Error to Chicot Circuit Court. Ringo & Trapnall, partners in the practice of the law, brought an action of covenant against James B. Miles, on the following instrument: Columbia, Oct. 15, 1846.

In the month of February, 1850, Charles T. Thompson, and his wife, Ann E. Thompson, formerly Ann E. Mulhollan, filed a petition in the Probate Court of Union county, stating that the said Ann E. was entitled to one-half of about $1,400, as dower in the estate of Thomas J. Mulhollan, deceased, her former husband, in addition to the amount of dower previously assigned to her out of said estate.

The facts are stated by the Court, The declarations and acts of the other persons indicted, were inadmissible in evidence, unless a conspiracy had been proven. And so of the declarations of the deceased, unless they were dying declarations, 1 Stark. Ev.58-9. 2 ib. 33. And of the attack upon Adair, as it did not tend to prove the issue, (1 Stark, Ev, 430,) and was calculated to prejudice the jury against the prisoner.

This was .an action of ejectment, brought by Jesse Brashears, against Orrin D. Hogins, for the south-half of the north-east quarter of section number one, in township number eight, north of range number twenty-five west, situate in Johnson county. The case was submitted to the court, sitting as a jury, on issue to the plea of not guilty.

Writ of Error to Hempstead Circuit Court. The facts appear in the opinion of the Court. When the original judgment was reversed, (3 Eng. 477,) and the cause was remanded, it then stood as at the return term. The entire judgment of the Circuit Court was set aside, as well that by default, as upon the assessment of damages; and the defendant had the same right to plead as if the suit had been brought to that term.

Writ of Error to Chicot Circuit Court. On the 15th July, 1850, Absalom Fowler sued out of the Chi-cot Circuit Court a writ of scire facias, directed to the sheriff of Ashley county, for the purpose of reviving a judgment recovered, by him, in said court, against Thomas S. Thurmond, on the 22d Nov., 1839.

Writ of Error to Pulaski Circuit Court. On tRe 7th December, 1844, Chester Ashley commenced an action of assumpsit against John Pope, upon an instrument executed, by Pope, to one Collins, in these words: “Borrowed to-day, May 20th, 1834, of Lt. Collins, one hundred and fifty dollars and forty cents,” which was assigned by Collins to Ashley. At the return term, (May, 1845,) defendant Pope filed the plea •of non-assumpsit, and the case was continued.

This case has been in this court before. See King- ¿y Houston v. Bank of the State, 4 Eng. Rep. 185. When the case was remanded, King & Houston were-granted leave to plead the statute of limitation, to which issue was taken, and submitted to the court sitting as a jury.

On the 23d April, 18-50, the B.ank of the State br.opght debt against Thomas Maddin, administrator of James Maddin, decear sed, upon a note executed to the Bank by James Maddin, in his lifetime, and Jeremiah Moreland and William W. E. Moreland, not sued, due 28th day of August, 1844.

Writ of Error to Pulaski Circuit Court. Action of debt by Sumner against Sanger, on a money bond.

<p>Where the statements of witnesses .are contradictory, it is tlje province of tjie jnryto determine which of them is entitled to credit, and to find accordingly; and this court will not review the evidence for the purpose of passing upon the correctness of their conclusion as to the weigt of .evidence. It is sufficient that there is not a total want of evidence to support the verdipt.</p>

<p>Application for Supersedeas.</p>

Writ of Terror to ■Fulton Circuit Court. Writ of Error to Fulton Circuit Court, to bring up libe récord and proceedings, &c., “in a suit, &c., between the State of Arkansas, plaintiff, and Hiram Long, defendant, of a plea of in-dictmenti” No return is endorsed upon the writ, but a certified transcript is attached to it.

<p>Venue’ changed, from Jackson to Lawrence Circuit Court — the latter court proceeded to judgment upon a transcript so defective as not to confer jurisdiction. This court reversed the judgment, and ordered the case dismissed. The court below accordingly dismissed tile cause : Held, That the party who obtained the change of venue, had a right, after dismissal, to bring a perfect transcript into the Lawrence Circuit Court,, by mandamus to the clerk of Jackson, and proceed With his cause.</p>

<p>By secs. 1 and 2, ch. 127, Dig., the limitation to writs of error is three years, with a saying in fayor of minors, married women, persons of unsound mind, imprisoned or absent from the United States; and there is no other exception in that statute.</p> <p>The statute which creates the limitation, must also create the exception.</p> <p>The exception contained in the 24ift section of the general statute of limitations, (Digest, ch. 99,) cannot he made to apply to writs of error, because the provisions of that statute are excluded (by section 31) from any application to actions limited by other statutes.</p>

Henry H. Davis filed, for allowance and classification, in .the Probate Court .of Clark county, a claim against Ross, Duncan and Flanagin, as executors of Wiley Newburry, deceased. The executors contested the claim; a trial was had before the Probate Judge, the claim allowed- and classed, exceptions taken by the executors, and an appeal prayed to the Circuit Court. The following affidavit, for appeal, was filed: “Henry H. Davis, vs. Thomas A. Ross, Benjamin 8.

The- court erred in refusing to permit the jurors to answer the question, where they had formed ©r expressed an opinion concerning the matter in controversy, (Rev. Stat.,p. 633, sec. 100,) and in admitting as evidence, the declarations of the husband and wife. Phill. on Ev., 76-, 77, 81.

Writ of Error to Independence Circuit Court. The right to quash an execution, is expressly given by statute, {Digest 509,) and is a power necessarily and incidentally belonging to every court of record, resulting from the power to control its own officers. That an execution may be quashed, or a sale set aside on motion and notice to the party interested. Adamson vs. Cummins, 5 Eng. 544. Bentley vs. Cummins, 3 Eng. 490. State Bank vs. Marsh, 2 Eng. 390. 1 Dana 410. 3 Dana 232.

<p>Writ of Error to Pulaski Circuit Court.</p>

The constitutional provision, and the common law rule, that a man shall not be compelled to give evidence against himself, are not applicable in this case, because the witness was not indicted as a co-defendant, and he is protected by the statute. Sec. 72, ch. 52, Dig.

<p>Appeal from, Pulaski Circuit Court.</p>

urged that, in all capital cases, the jury should be kept together, and if they separate, the verdict should be set aside. Com. v. McCall,! Va. Cas. 271. Overbee v. Com., 1 Robinson 756. Whart. Cr. Law 644 et seq. That the instructions asked were law, as is shown by every definition of manslaughter, exclusable homicide and chance medley. 1 Post. Rep. 276. Whart. Cr.

Assumpsit by Marshall & James against Hawkins. Declaration — “John R. Marshall and Andrew B. James, partners, &c., complain of Richard C. Hawkins, of a plea of trespass on the case on premises. For that, whereas, &c., on the 12th day of August, 1850, at, &c., the said defendant made his certain bill of exchange of that date, and now here to the court shown, and [then and there directed the same, &c., to Messrs.

<p>Appeal from Pulaski Circuit Court,</p>

This was an action of debt by Clements, as administrator of Clements, against Knott & Ringo, on a money bond for $650, dated 1st January, 1850, due at nine months, bearing interest at six per cent, from date, and payable- to Clements, as such administrator.

<p>Writ of Error to Crawford Circuit Court.</p>

<p>Under a general replication to a plea of limitation, the Bank of the State cannot avail herself of the provisions of the Liquidation Act of 31st January, 1843, making part payment of anote a renewal for twelve months in particular cases, but she must reply specially such facts as are necessary to bring the note sued on within the provisions of the act, as held in Woods vs. State Bank, 7 Eng. 693.</p> <p>Unless[a replication to a plea of limitation is designed merely to tenderán issue as to the bar set up in the plea, the court is inclined to hold it to be necessary for the plaintiff to reply specially any matter, upon which he relies to remove the statute bar, or bring himself within any of its exceptions — as a new promise, part payment, &e.</p> <p>After reviewing the previous decisions of this court on the subject, and discussing the province of the jury, or court sitting as a jury, to pass upon the facts, the law in reference to the granting of new trials, <fcc., the court decides that where a party merely excepts to the finding of the court, or jury, setting out the testimony, without any motion for new trial, and without any exception whereby he shall put his finger upon the alleged error of law as to any ruling or decision of the court below, there is no case presented for the consideration of this court, on error or appeal.</p>

<p>Appeal from Phillips Circuit Court.</p>

<p>Appeal from Arkansas Circuit Court.</p>

The substance of the indictment is stated in the opinion of this court.

The writ of ne exeat having been issued by the master in chancery, was void, and will not justify the acts of the party who caused it to be issued. [Kennedy Ex parte, 6 Eng. 598.) A ne exeat, as well as an injunction, is a writ issuing by order of the court of chancery. (2 Sto.

insisted that the court erred in refusing to give the instructions asked by Miller, and in giving some of those asked by Turney; because it is clear, from the evidence, that Turney had no title to the quarter-section of land claimed, but merely a possessory claim to such part of it as he had enclosed : and where a person shows title to a tract, and is in possession of a part of it, such part actual possession is a legal possession of the whole to the extent of his title; but…

Writ of Error to Independence Circuit Court. Executions issued on judgments may run to any county, {Dig. 495,) and in the commencement of a suit, separate writs may be issued to different counties against defendants residing therein. {Digest 796.) And convenience and sound policy demand that a writ to revive, or keep a judgment alive, should have as much scope as the judgment itself, or the execution issued on it. {Grimkle vs. Mayrant, 2 Brev. 202.) And such would seem to he…

<p>The English rule of practice requiring motion at side bar, or order of court, founded on affidavit, that a judgment remains unsatisfied, in order to obtain a scire fa-cias to revive it, after the lapse of certain time, does not exist in this State.</p> <p>Under our practice, the scire facias is in the nature of a wit of summons, which calls upon the defendant to show cause, &a., and need not command the sheriff that, “by honest and lawful men," he should “make known” to the defendant that he should appear, &e., according to the old form.</p>

Writ of Error lo Jefferson Circuit Court. cited Ruddell Sf McGuire vsi Walker, (2 Eng. 457,) sec. 9, ch. 15, Rev. Stat., to show that demand and notice are necessary to charge an endorser.

<p>The Legislature did not, by the use of the terms "obstruct or resist” the execution of process, in sec. 2, art. 4, part 7, ch. 51, Digest, intend to create two distinct and different offences, and hence an indictment charging that defendant did obstruct and resist the execution of process would not be double, and charging either obstruction or resistance would be good, the proof corresponding with the allegation.</p> <p>In such indictment, it is not necessary to set out the process so as tó show it to be valid, as on the trial, the State could not introduce invalid process as evidence, but it is sufficient to describe the process so as to identify it, and advise the defendant of what he is called upon to answer.</p>

Writ of Error to Pulaski Circuit C~urt~ Where a plaintiff undertakes to' set out a note specially in his declaration, and misdescribes it,as to allege that it was expressed far value received, and the instrument contains no such or different words, the variance is fatal. Chit. om Bills (9 Am. from S Lond. Ed.) 583.

<p>Appeal from Calhoun Circuit Court.</p>

To prove that a road is a public highway, general reputation is not only competent, but in many instances the best evidence of which it is susceptible. 1 Stark. Ev. 183. 2 Stark. Ev. 522-5 and notes. The best evidence to prove a road to be a “public road” under the statute upon which this indictment is founded, is the record of the county court.

contended that there was no necessity for profert of the letters of administration; nor was the defendant entitled to oyer of them; that an executor or administrator may sue for any injury to the personal estate of the deceased, in trespass or trover, where the injury occurs after the death, either in his representative or in his individual character. (1 Williams on Exs., 627-8-9. Hollis et al. exs. vs. Smith, 10 East 293. 3 Greenl. 254, 174. Manwell vs. Briggs, 17 Verm.

, made the following points: 1st. That the declaration is bad in not averring a delivery of the note. 1 Humph. Prec. 554. 2 Chit. PI. Chitty on Bills 551. Chamberlain vs. Hopps, 8 Verm. 94. 2d. The writ is void, as it does not run in the name of the State. Const. Ark., art. 6, sec. 14. Gilbreath vs. Kuykendall, 1 Ark. 50. Reeder vs. Murray, 3 Ark. 450. Rhoe Ex parte, 5 Ark. R. 104.

The plea of no consideration being disregarded, there was no appearance by defendant, and the judgment was therefore by default, on a bad declaration, and a void writ. See authorities cited by me in Mitchell vs. Conley, ante.

Writ of Error to Hempstead Circuit Court. contended, that the delivery of the deed executed by Hill was a full compliance with the contract entered into between him and the Trustees, and a satisfaction and payment of the debt sued for in this case: that the deed is sufficient under the contract, as it contains an express covenant against all incumbrances except the mortgage to the State, and it is admitted on the record that the mortgage referred to was, at the time of the…

Writ of Error to Phillips Circuit Court. The legislature may authorize an assignee of a foreign judgment to sue in his own name, and assumpsit in such case would be the proper form of action. O’ Callahan v. M. Thormond, 3 Taunt 84. Vaughan v. Plunkett, cited therein. Story Conjl. of Laws 474, 5, 6, sec. 566 and notes. That the legislature can vest a legal title in an assignee of a chose in action is fully admitted in Taylor et al. v. The Auditor, 2 Ark.

The facts in this case are sufficiently stated in the opinion of this court, except the instructions given to the jury by the court below, against the objection of the defendant, which are as follows ■: “ To entitle the plaintiff to recover, it is necessary for him to prove : 1. That the cotton in question belonged to the plaintiff. 2. That the defendant had it in possession as a warehouseman. 3.

- argued this case upon the demurrer to the pleas. contended that the amended declaration is defective, in not showing that the plaintiff ever had. actual possession of the premises. (.Digest, 538. .Pogue vs. Me-' Kee, 3 A. K. Marsh 127. Siewart vs. Wilcox, 1 A. K. Marsh 255. Childress vs. McGee, 1 Minor 131,) that it was necessary to file an affidavit with the amended declaration. Big., 536.

The issue of nul tiel corporation should have been determined by the court; because it was a question of law, and not of fact — all corporations deriving their existence from positive law, must show a legal charter of incorporation. 1 Bl. Com. 473.

Writ of Error to Phillips Circuit Court. The will was proved by Stewart, one of the subscribing witnesses, to have been executed with all the formalities required by the 'statute. (Dig. 989.) And it is sufficient to produce one of the subscribing witnesses to a will, if he can prove its perfect execution. Jackson vs.-Vickory, 1 Wend. 412.

This was a bill for injunction, by John H. Strong, as administrator de bonis non, with the will annexed, of Lorenzo N. Clarke, deceased, against William G. Clarke, determined on the chancery side of the Johnson circuit court. The material facts are stated in the opinion of this court.

Where a party undertakes to establish the contents of a lost instrument, the proof must be clear and distinct as to the contents. Tayloe vs. Briggs, 1 Pet. 11. 599. N. S. vs. Brittain, 2 Mass. 468. Renner vs. Bk. of Columbia, 9 Wheat. 581. In the sale of personal property, there is an implied warranty of title, but not of the quality of the article sold. Long on Sales, 201, 6, 7, 8.

- Bill for injunction, filed-by James Yell-, Robert W. Johnson, Valentine Sevier, and William Pelham, against William Wright- and others, on the chancery side of Jefferson circuit court. Final decree for complainants, and appeal by Wright.

The breaches of the bond, upon which the judgment at law was obtained, being that Wilson never had any title, and that it never was nor could be in his power to obtain any, the condition of the bond was broken, if at all, as soon as made. Logan vs. Moulder, 1 Ark. R. 313. Tarwater vs. Davis, 2 Eng. Rep. 153. Bird vs. Smith, 3 id. 168. Bradshaw's Case, 9 Co. 60. Davis vs. Lyman,-Q Conn. 249. Me-party vs. Leggett, 3 Rill 134. Hamilton vs. Wilson, 4 J. R. 72.

The act allowing owners of slaves to emancipate them by last will and testament, or by deed, (Digest 476,) was impliedly repealed by the act of 20th January, 1843, relative to free negroes, which provides that no free negro, or mulatto, shall be permitted to emigrate to, or settle in this State, after the first day of March, 1843.

A purchaser of land buys at his peril, and must look to the title and competency of the vendor. Murray vs. Ballore, J. C. R. 566. A purchaser cannot rescind in part, (Gale vs. Nixon, 6 Cowen 446;) nor where the parties cannot be restored to their previous rights. Griffiths vs. Frederic Co. Bk., 6 Gill Sf John. 424. Conner vs. Henderson, 15 Mass. 319.

At the time of the execution of the deed by Cummings to the Trustees, he had no title to the lots, except as assignee of the commissioners’ bond for title: and the purchase money being then unpaid, and the condition of the contract broken, no title vested in the Trustees under the deed.

The only principle involved in this case, is whether a levy on land extinguishes the general lien of the judgment, and is a satisfaction to the extent, at least, of letting in and giving precedence to junior liens; In Anderson vs. Fowler, (3 Eng. 394,)‘ this principle is adjudged.

The law made it the duty of the public officers to make the change of the records: it was not the duty of the complainant to attend to it — having-had his claim probated and allowed, and filed among the records of the proper court, the law takes the claim in its custody, and nothing farther is required of the creditor, except to receipt for Ms money after it is made in a due course of administration.

contended that, under the 38th section of the charter, the complainant is entitled to damages on the amount of the bills of the Bank held by him, from the time of suspension, without demand; that a demand was unnecessary, as the Bank had adopted a resolution to suspend, and given to the world authenticated public notice of the fact, and the law never requires a party to do a vain or useless thing. Story's Prom. Notes 370.

contended that parol testimony is admissible to prove that a bond, although absolute on its face, was intended by the parties to answer only a specific limited purpose, and may in equity have its operation confined to that special purpose, if a fraudulent attempt be made to use it for a different purpose. (Hultz vs. Wright et al., 16 Seng. &. R. 345. Boyd vs. McLean & wife, 1 J. C. R. 582. Botsford v. Burr, 2 ib. 406. 4 J. C. R. 167. 2 Ves.

- Ignorance of facts, at the time of atrial at law, sufficient to defeat the plaintiff’s action, if pleaded, will not entitle a party to relief in equity, unless he shows that he could not have obtained a knowledge of those facts by the use of ordinary diligence. Miller vs. Gaskine, 1 Sm. ¿¡- Mar. Ch. R. 524. Leggett vs. Morris, 6 Sm. ¿y Mar. 723.

The appellee, being in possession of the partnership goods, moneys and effects, is bound to account for them; the burden of proof is on him; 'and he must show how he disposed of them, and produce vouchers. Richardson's ex. vs. Wyatt's ex.. 7 Des. R. 481. 4 Him. Munf. 368. Sticlge and loife vs. Reynolds, 10 Ohio 353.

<p>Appeal from Dallas Circuit Court in Chancery:</p>

A complainant cannot pass' over the specific prayer he has made in his bill, and take another decree ; (1 Daniel Ch. PI. 435, and notes and cases there cited. 1 Bibb 469. 5 Verger 420. 2 Paige 396;) and- as Bozeman-prayed for an injunction of one-half of the judgment, he cannot, under the general prayer, claim an injunction as t-o the whole.

<p>Beers placed in the hands of Wm. C. Scott, as an attorney, a debt on Brittin, for col- ' lection; Scott took of Brittin in payment of the debt, an assignment of part of a debt due by bond from Stewart to Brittin, and secured by mortgage; Scott afterwards transferred to Mason part of the mortgage debt, so assigned to Mm by Brittin. In the mean time, and before this transfer by Scott to Mason, Beers assigned to Walker the debt on Brittin, which he had placed in Scott’s hands for collection: Held, That Scott had no right, without special authority from his client, to receive from Brittin the assignment of the mortgage debt in payment of the debt which Brittin owed to Beers, and that Beers, or his assignee, Walker, might affirm or disaffirm the act.</p> <p>Held, further, that Walker, assignee of Beers, having elected to affirm the act of Scott in taking such assignment, he was entitled to the full benefit of the sum so assigned by Brittin to Scott in payment of the debt due from Brittin to Beers — that the mortgage debt assigned by Brittin to Scott, was not such negotiable paper as comes within the exception to the general rule, that the rightful owner may reclaim his property wherever he can find and identify it, and that Beers,-or his assignee, had a right to the sum so secured to be paid, even against Mason, an innocent purchaser for a valuable consideration — that Mason stood on the same general footing with all others, who buy property in the market, subject to the rights and claims of the true owner, and must, if he were imposed upon in regard to title, look to the vendor who imposed upon him.</p> <p>Held, however, that Mason was entitled to the benefit of his assignment to the amount of Scott’s fee as attorney, less a part of the debt on Brittin which Scott had failed to include in receiving the assignment from Brittin, and which should be deducted from his fee by reason of his negligence.</p> <p>.Complainant having charged Scott as acting as an attorney in the premises, he admitted, in his answer, that he had received the debt on Brittin from Beers for collection, as an attorney, and executed to him such receipt as is usual under an ordinary general retainer, but that there was a verbal agreement between him and Beers, that he was to have one-half of the debt if he succeeded in collecting it, Ac., Brittin’s solvency being doubtful: Held, That his answer was not evidence of such verbal agreement, but that this was matter in avoidance, and should have been proven aliunde.</p>

By the Supreme Court of the United States. By the Supreme Court of Arkansas, the case being remanded. The case was argued in the Supreme Court of the United States, by Mr. Lawrence and Mr. Pike for the plaintiff in error, and by Mr. Bradley and Mr. Johnson for the defendants in error.

The depositions taken before the committing magistrates, were improperly admitted to be read in evidence; because there was no proof that they were made, sworn and subscribed, other than the certificate of the magistrate, which was not evidence, (2 Starkie 487, 488,) because the statements were not taken upon any trial or examination before the magistrates; but the defendant was not present; and because they did not charge him with the crime for which he was indicted.

It seems to us clear that under the 4i/i sec. of art. 3, title “Gaming,” in Revised Code, one cannot be indicted for permitting gaming in his house, unless such gaming come within the provision of the 4th section of that act — the punishment prescribed by both sections being the same — and that he could not be indicted under the 4th section for permitting the games prohibited by the 8th section.

The indictment charges a joint offence — a joint betting, and it could only be-sustained by proving a joint betting. Moffatt vs. State, 8 Eng. 171. Parrott vs. State, 5 Eng. 574. Com. vs. McChord et al., 2 Dana 243. The indictment does not charge the defendants with playing or betting together, but each with a distinct offence, {Parrott v. State and Moffatt v. State,) and one may ■be convicted, though there be no proof as to the others. Harney v. State, 4 Eng. 193.

The manner of disturbing- thte congregation, is a material averment in the indictment, and the proof should fully sustain it. The State vs. Menyard, 7 Eng. 156 and 169.

contended that the facts proven in the case are “actually insufficient to support the verdict and judgment,” which “must be taken to be without evidence in every essential ingredient of the finding;” that in criminal cases, the evi.dence of guilt should be conclusive. 1 Stark. Ev. 7 Am. Ed. 543, 545, 578, 588. Swiff’s Ev. 151. Com. vs. Welch, 2 Dana 330. U. S. vs. Brig Bui'deU, 9 Pet. 691. 1 Phil. 195, 197. Cowen Sf Hill’s Note, n. 371, y?. 483.

<p>Appeal from, the Circuit Court of Lawrence County.</p>

This cause was argued, at the July term, 1850, as to the sufficiency of the indictment, under the statute, art. 3, chap. 51, Digest, by

<p>The defendant was indicted for betting at a game of cards called pocre, and convicted on testimony that he did bet money at pocre, though the game on which he bet was called draw pocre, and differed in some respects from pocre. The court having refused a new trial, the evidence on this point is held sufficient to uphold the verdict.</p> <p>In an indictment for betting at pocre, or any of the small games embraced in the 8th section of the gaming act, it is necessary to state the names of the persons by whom the game was played, by way of identifying the offence.</p> <p>But where the indictment alleges that the names of the persons who played the game are unknown to the grand jurors, (which may be done where this is really the case, but not carelessly,) such allegation is a material one, is traversed by the plea of not guilty, and must be sustained by proof, as held in Cameron vs. The State, decided at the present term.</p>

<p>Appeal from Clark Circuit Court.</p>

<p>Appeal from the Circuit Court of Sebastian County.</p>

The verdict was illegal in finding the defendant not guilty as charged, &c., but guilty of a simple assault. 1 Ch. Or. Law 640. Strorfis vs. Barret, I Mason C. C. R. 153. A defendant cannot be found guilty of a misdemeanor on an indictment for a felony. (1 Ch. Gr.

1. The transcript does not show that the indictment, on which the appellant was tried and convicted, was found by a competent, or any grand jury. This is a fatal defect, and the- objection may be raised on error. I Gh. Cr. Law. 333. Woodsides vs. The State, 2 How. (Miss.) R. 655. Carpenter vs. State, 4 ib, 163. Thomas vs: State, 5 ib. 20. Tipton vs. State, Peck. (Tenn.) R. 165. 2.

1-. There is n'o offence charged in the indictment — -a tern-pin- alley is a species of property, and not a privilege:- and no greater tax can be levied for the setting up and keeping one, than on other property of equal' value: and as the legislature cannot do so directly, it cannot in-' directly, by making it a penal offence, so as to make it a source of annual revenue. Stevens 2.