APPEALS FROM JUSTICES-CONTINUED.
2. An appeal will not lie from an order of a justice of the peace, under sec. 26,
chap. 66, Gould's Dig., in reference to estrays. Langley vs. Barkman, 293.
1. The appraisement act of 1840, (Acts 1840, page 58,) applied as well to executions
against steamboats, as where other property was seized; and the defendant's
right to have the boat appraised, etc., did not depend upon his giving bond for
the delivery of the boat on the expiration of the stay. Crow et al. vs. State use,
&c., 684.
2. The defendants having claimed the benefit of the appraisement act, and the pro-
perty failing to bring two-thirds of its value, the law made it the duty of the
sheriff to reserve the property from sale, without any request of the defendant;
and if such request be alleged in the declaration, in an action on the official bond
of the sheriff for proceeding to sell, such allegation is mere surplusage. Ib.
See Chancery, 5, 6,7; Taxes and Tax-titles, 1, 2.
1. The assignment of a judgment or decree does not vest in the assignee the legal
title; but the assignee does acquire the equitable title, with the right to control
its collection, and there is no substantial reason why it may not be allowed as a
claim in favor of the assignee, against the estate of a deceased judgment debtor,
if not barred at the time of his death. Brearly vs. Norris, 169
2. A plea to a scire facias to revive a judgment, that it has been assigned to a
third person, is bad on demurrer; because the assignment vests only the eqita-
ble title in the assignee, with the right to control the collection and use the name
of the plaintiff. Brearly vs. Peay, 172.
1. After the bond prescribed by the attachment law is given, there is no levy to
be quashed. Morrison vs. Alphin, 136.
2. When the clerk takes the bond to release property attached, the presumption
is that the writ was returned. Ib.
1. An attorney has a lien upon the funds of his client in his hands, for labor and
money expended about the business of that fund, but not for any services or
costs about other business of his client. Waters vs. Grace & Murray, 118.
AUTHENTICATION OF CLAIMS.
1. Where a bill in equity setting up a claim against the estate of a deceased person,
is sworn to by the next friend of one of the complainants, who is a minor, it is
a sufficient authentication. Reed vs. Ryburn, 47.
1. The liability of a mandatory, or bailee without reward, for the loss of the goods
entrusted to him, depends on whether he was guilty of gross negligence. Gul-
ledge vs. Howard, 61.
2. A stake-holder of money bet upon a race, may recover it by action against a
person with whom he has deposited it, though the wager may be illegal and
void as between the parties betting. Perkins vs. Clemm, 221.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
The fact that the drawee has no funds of the drawer in his hands, is prima facie an
excuse for not giving the drawer notice of the protest of a bill of exchange for
non-payment: and if there be any special circumstances entitling him to notice,
the onus is upon him to prove them. Sullivan ad. vs. Deadman, 14.
2. A note which has not been delivered, and which is in the hands of the maker,
cannot be presumed to represent an existing debt. Jones vs. Jones, 212.
3. Before a bill of exchange payable one day after sight, can be legally protested
for non-payment, it must be presented for acceptance, then one day allowed for
the bill to mature, after it was shown to the drawee, and three days of grace.
Craiy vs. Price, 633.
4. The holder of a bill, purporting on its face to be for value received, and paya-
ble out of the State, and legally protested for non-payment, is entitled, under
secs. 8, 9, 10, of ch. 25 Dig., to interest at the rate of 10 per cent., on the amount
specified in the bill, but not to ten per cent, interest on the damages given by
the act. Ib.
5. A bill of exchange is payable at the place of residence of the drawee, unless
some other place of payment be stated. Ib.
See Venue, 1, 2; Contracts, 19, 20.
1. On certiorari to remove a judgment of a justice of the peace into the Circuit
Court for review, the case is not properly before the court for final adjudication
until, in obedience to the writ, the justice returns an authenticated transcript of
the proceedings and judgment sought to be reviewed. Dicus vs. Bright, 107.
2. When the transcript is returned, the court must quash or affirm upon inspec-
tion of it, and cannot consider matters dehors the transcript, alleged in, or ex-
hibited with, the petition for certiorari, in passing upon the validity of the judg
ment of the justice. Ib.
3. To submit a cause, by consent, upon the transcript of the record presented with a
petition for a certiorari, instead of causing the writ to be issued and a transcript
of the record to be returned therewith, is an irregular practice, but perhaps, the
writ having been ordered and the issuance and return waived by the parties, the
court acquired jurisdiction of the subject matter. Rightor vs. Gray, 228.
1. The rule that requires a defendant to make his defence at law, by the presen-
tation of every fact of defence existing at the time of the trial, has no applica
tion to a case where the defendant was not privy to the fact, and could not
have supposed it to exist. Reid vs. Harvey, 44.
2. The Probate Court has the exclusive right to grant letters of administration on
estates of deceased persons, etc., and make settlements with administrators,
which shall be final, unless upon a charge of fraud, made in chancery, and sup-
ported by affidavit; and a Court of Equity has no power to withdraw from the
Probate Court the administration of the assets of an estate, and assume the set-
tlement thereof. Moren vs. McCown 93.
3. But the Court of Chancery having assumed jurisdiction of an administration,
and, under its authority, the administrator having paid debts and made sale and
distribution of the property, these acts are confirmed as done by consent; and
the amount due by the administrator having been ascertained by decree of the
court below, this court, in reversing such decree for want of jurisdiction, and
ordering the administration to be remitted to the Probate Court, will direct the
administrator to be charged with such amount and be allowed credit for such
sums as he may be entitled to. Ib.
4. This court, adhering to the decision in the case of Clark vs. Shelton, 14 Ark.
480, that a bill in chancery may be maintained against the principal and his
securities in an administration bond, and a decree rendered against them for the
amount found due upon final settlement, in a case where a court of equity has
jurisdiction over the principal, are not inclined to extend the principle to a case
in which the administrator nor his representative is made a party. Ib.
5. The authority of a court of equity cannot be exerted to restrain, by injunction,
the collection of the taxes assessed upon land as subject to overflow, under the
act of 16th February, 1859, on the allegation that the land was erroneously as-
sessed, because it is not such as would be benefited by the levee work provided
for by the act. Clayton vs. Lafargue 137.
6. Whether the land, upon which a levee tax may be assessed, would be benefit-
ted by the levee is a matter of fact to be determined by the county court, whose
decision is declared to be final; and if it err in judgment, the remedy of the
owner, if he has any, is strictly at law by certiorari, and not in equity. Ib.
7. General allegations in a bill to enjoin the sale of land for levee taxes, putting in
issue the correctness of the judgment of the inspector, and disputing the truth of
his return, without stating a single fact to impeach the soundness of his judg.
ment, or the integrity of his assessment, are not sufficient to entitle the com-
plainant to the interference of a court of chancery by injunction. 15.
[I would not sanction an interpretation of the levee act that would make the judg-
ment and return of the inspector final and conclusive in all cases; but reserve
for future cases, the expression of my views upon the question of the jurisdic-
tion of chancery to enjoin the sale of lands upon illegal assessments. Per Eng-
lish, C. J.] Ib.
8. In the absence of mistake, fraud or want of capacity, satisfactorily made out,
a court of chancery cannot relieve a person from the consequences of an impro-
vident sale of his land. Thompson vs. Gossilt 175.
9. The complainant being entitled to a pre-emption from having an improvement
upon a quarter section of swamp land, filed his bill to set aside the legal title of
a purchaser at public sale, but failed to show by other than weak and suspicious
evidence, that the proof of his pre-emption right and the application to enter
swamp land-the written proof and application not being produced-were for
the land in controversy, whilst there was strong counteracting evidence to the
contrary Decree that his bill be dismissed. Woodruff vs. Core 341.
10. The rule in Conway vs. State Bank, held not to restrain this court from review-
ing the decree of a court of chancery, brought here by appeal, which opens the
whole case, as if it had never been tried, as to all the points made in the court
below. Ib.
11. On a bill for the specific performance of a contract, the contract must be
clearly and unequivocally established before a court of equity will decree its
specific performance. In this case, the testimony leaving it in doubt what the
interest of the complainant was to be in the lands in reference to which the con-
tract is alleged that interest being uncertain, indefinable, unascertainable—the
bill is dismissed. Whatley vs. Strong 421.
12. The denial in the answer of facts alleged in the bill, which are not within the per-
sonal knowledge of the defendant, must be treated as a matter of pleading, put-
ting in issue, merely the allegations, which may be proved by one witness. Fair-
hurst vs. Lewis 435.
13. The final settlement of an administrator, when approved and confirmed by the
Probate Court, is binding and conclusive upon the distributees until successfully
impeached by bill in chancery, for fraud in the settlement: and if the distribu-
tees file such bill, it must charge the fraud and state the facts constituting the
fraud; and the burthen of proving it as alleged, is upon the complainants
when denied by answer. Stone vs. Stillwell 444.
14. But the fraud charged, being the failing to account for money and property
recovered by a decree, which the administrator, in his answer, alleges that he
had purchased of the intestate in his lifetime, upon proof by the complainants
that the suit was brought by the intestate in his lifetime, alleging title in him-
self, that the decree was obtained before his death, in his favor, and that the
defendant became his administrator, made himself a party to the decree as such,
and as such, recovered the fruits of the decrce in favor of his intestate-in such
case, the onus probandi is shifted, and it is incumbent on the defendant to prove
the purchase as alleged in his answer.
15. Where depositions are taken upon interrogatories, under an order of court, it
is sufficient, if, after stating the names of the parties and the court in which the
suit is pending, in the caption, that the commission direct the evidence to be
taken in the "above mentioned suit;" so, if a copy of the interrogatories accom-
pany the commission and the originals remain on file; so, also, if, from the cer-
tificate of the officer before whom the depositions were taken, it appears that he
meant to certify that the depositions were reduced to writing in his presence,
though there be a clerical mistake in the certificate. Ib.
16. To allow a new case to be made by an amended bill-setting up a new and
distinct title from that alleged and relied on in the original bill-after the par-
ties had been litigating for more than eight years upon a title, and after the
cause was at issue and set for hearing, would be extending the privilege of
amendments beyond what is warranted by the established rules of pleading and
practice, and setting a precedent that might result in much mischief. Patter
son vs. Fowler's ex. 459.
17. Where upon a sale of real estate the purchaser gives a note for the
purchase money, and the vendor executes a covenant to convey the legal title
on payment thereof, and afterwards assigns the note, he is a necessary party to
a bill by the assignee to enforce the vendor's lien. Aiken vs. Gill, 477.
18. Equity will sustain a gift of property by the husband to the wife, though no
trustee has been interposed to hold it for her use. Eddins vs. Buck, 507.
19. Where a suit is brought by the wife for her separate property, the husband
should be made a party defendant. (21 Ark. 268.) Ib.
20. Where there are merits in a bill, it should not be dismissed absolutely for want
of proper parties. Ib.
21. Whatever may be the statements in the bill, the affidavit prescribed by the
statute to procure an order of publication, is necessary to the prosecution of a
suit against unknown heirs. Gray vs. Trapnall, 510.
22. The depositions falling far short of sustaining the allegations of the bill against
the sworn denial of the answer, the bill is dismissed for want of equity. Smith
vs. Carrigan, 555.
23. A plea of the statute of non-claim, filed by an administrator in a chancery case
where there are several defendants, may be allowed at the time of argument, or
may stand over until the final hearing of the cause. But if the court sustain
the plea at the argument, and render a final decree dismissing the defendant,
after the lapse of the term the decree passes beyond the control of the chancellor.
State vs. Shall 601.
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