TERM, 1870.] Adams, Ex'r. o. Ward & Co. stay of further proceedings, and a perpetual supersedeas in the court below, we think, under the ruling in Jacoway v. Denton, the circuit court did not err in refusing to grant the prayer of the appellants' petition. The judgment and decree of the court below is, in all things, affirmed with costs. ADAMS, Ex'r., v. WARD & Co. PARTNERS-Survivors.—Surviving partners have the exclusive possession Appeal from Franklin Circuit Court. HON. THOMAS BOLES, Circuit Judge. Garland & Nash, for appellants. The receipts offered in evidence, should have been received as presumptive proof, at least, of payment, to be rebutted by W. & Co. 1 Greenl. Ev, 14, 28 and 45; Ib. 147, note. From the proof, every presumption must be indulged that the parties were satisfied that the note was settled. Greenleaf sup; 8 Ark., 213; 9 lb., 339; Smith (Tucker, 2, E. D.), (N. Y.) 193; Busbee v. Allen, 31 Vt., (2 Shaw) 631; 1 Wallace, (U. S.), 26 135 54 397 Adams, Ex'r. v. Ward & Co. [DECEMBER 627, et seq. The facts, taken together, show the verdict is entirely without evidence to support it, and all the court can do is to set it aside. 14 Ark., 202; Ark., 701; 20 lb., 444. The court erred in refusing to give the second instruction; it was in the very language of the law. Gould's Dig., p. 121, sec. 102, chap. 4; and the objection can be had at any time during the trial. 14 Ark., 237. The third instruction was, in substance, our statute of non-claim, Gould's Dig., sup., p. 120, sec. 99, and should have been given. All the courts guard and enforce this statute. 14 Ark., 246-7; 18 Ib., 334. Clark & Williams, for appellees. Did the court err in excluding the receipts, as evidence, from the jury? and, if so, is that error before this court for correction? See Stillwell v. Young, 17 Ark., 473; Camp v. Gullett, 7 Ark., 514; Carr v. Crain, ib., 241; Lafferty v. Day, ib., 264: Campbell v. Thurston, 6 Ark., 441. But the court did not err in excluding those receipts. The evidence of facts, as preliminary to the introduction of evidence, is passed upon by the court, and not the jury, and a new trial will not be granted, where there is a fair conflict of such preliminary evidence, although the court may find against such preponderance of evidence. Seymour v. Beach, 11 Cown, 275, 281; Me Munygel v. Ross, 20 Pick., 99, 103; (Donelson . Taylor, 8 Pick, 290; Coleman v. Woolcott, 4 Day 388, contra). See, also, Harris v. Wilson, 7 Wend., 57; Penful v. Carpenter, 13 Johns., 350. But, any The statute of non-claim is not available unless specially pleaded. State Bank v. Wallace, ad., 14 Ark., 236; Walker v. Byers, ib., 259; Biscoe, et al., v. Maden, 17 Ark., 533. how, the credence went to the jury, and there being no motion for a new trial, their finding is conclusive. State v. Jennings, 10 Ark., 429; State Bank v. Conway, 13 Ark., 344; Lefils v. Sugg, 15 Ark., 137. TERM, 1870.] HARRISON, J. Adams, Ex'r. v. Ward & Co. Augustus L. Ward and Leonard C. Southmayd, surviving partners of Wallace, of the firm of Wallace, Ward & Co., presented to the court of probate, of Franklin county, for allowance, a demand against the estate of Abner Adams, deceased, for $481 85, a balance due on the following promissory note, made by Berry & Adams, of which firm the said Abner Adams was a member. "$500. VAN BUREN, ARKANSAS, Six months after date we promise to pay to the order of Wallace, Ward & Co., five hundred dollars, with interest, at the rate of per cent. from date until paid. Value received. Witness my hand and seal. BERRY & ADAMS." The decision in the court of probate being against the validity of the demand, the claimants appealed to the circuit court. The circuit court reversed the judgment of the court of probate, and upon a trial de novo, the claimants recovered judgment for the amount of their claim. The executor, James H. Adams, appealed to this court. Upon the trial in the court of probate, after the claimants had read the note in evidence, the executor, having first proven it to be in the hand-writing of John Ingram, and that he was, at the date thereof, the agent of the plaintiffs, who composed the firm of Ward & Southmayd, and authorized to make collections for them, read in evidence to the jury the following receipt: "Received, Huntsville, Ark., July 13, 1859, of H. C. Berry, five hundred dollars, on note of Berry & Adams. WARD & SOUTHMAYD, per John Ingram." And in the circuit court, upon a like showing, he offered Adams, Ex'r. v. Ward & Co. [DECEMBER again to read the same, and also the following receipt to the jury: "Received, Huntsville, Ark., March 1st, 1860, of H. C. Berry, five hundred dollars, to be credited on note given by Berry & Adams. WARD & SOUTHMAYD, per Ingram." Although the firm of Ward & Southmayd was composed of the surviving members of the firm of Wallace, Ward & Co., there was no identity in respect to the property and business of the two firms. By the death of their partner, they became entitled to the exclusive possession of the property and management of the business of the firm of Wallace, Ward & Co., but only for the purpose of settling and closing the same, and were tenants in common with the representatives of their deceased partner. Par. on Part. 440. Without some evidence to connect the receipts with the note to Wallace, Ward & Co., and none is disclosed by the record, they were wholly irrelevant to the case; and as they were calculated to mislead the jury, the admission in the court of probate of the former, against the objections of the claimants, was an error, and for which we presume the circuit court reversed its judgment; and for the same reason the latter court did not err in excluding both from the jury. The record presenting no other question, the judgment of the court below is affirmed. CONSTITUTIONAL LAW-Statutory offices.-The office of assessor is a statutory office, and the Legislature has absolute control over all statutory offices and may abolish them at pleasure, and in doing so, no vested right is invaded. The act of July 23, 1868, providing for the appointment of the officers contemplated by section 2, of article 10, and the change thereby made, is not in conflict with that clause of the Constitution that declares that the "term of all officers, elected or appointed under the provisions of this Constitution, shall expire on the first day of January, 1873, unless herein otherwise provided." Appeal from Phillips Circuit Court. HON. JOHN E. BENNETT, Circuit Judge. Palmer & Sanders, for appellant. Garland & Nash, for appellee. MCCLURE, J. There is but one question presented by the record in this case, and that is: Who is the legal and lawful assessor of Phillips county? Under the provisions of an act, approved January 21, 1861, it is provided that an assessor shall be elected in Phillips county, at the general election, who shall hold his office for two years and until his successor is elected and qualified. Robinson, in his complaint at law, recites that on the 13th day of March, 1860, he was elected assessor of Phillips county, and commissioned as such by the Governor of Arkansas, and was duly qualified as such assessor, on the 23d of July, 1868. He further states that he made the assessment of Phillips county for the years 1868 9, and was proceeding to make the assessment for the year 1870, when James T. White, on or |