tion over upon an indefinite failure of issue within the meaning of the rule in Moody vs. Walker, supra, and is void.

The decree is reversed and the cause remanded, with instructions to the court below to decree to the plaintiffs, in right of Emily Sophronia Quarles, one half of the slaves and personal property bequeathed to John M. Walker, under the fourth and fifth items of the will of James Walker, together with the reasonable hire of the slaves from the date of Thomas Watkins' intermarriage with Mary Walker-the parties paying each one half the costs in this court and in the court below.

Mr. Justice FAIRCHILD did not sit in this case.

HAYS VS. ROBERTS.

If either of several replications be a good answer to a plea, it is sufficient on demurrer.

Although the record does not state that the party rested upon his demurrer being overruled, the court will so infer where he does not take issue to the pleading demurred to, but goes to trial on another issue.

Hays vs. Roberts.

[JANUARY

SMITH, for the appellee.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. Roberts brought trespass against Hays for entering his close, taking his goods, etc.

Hays pleaded not guilty, and a special plea of justification. Roberts took issue to the first plea, and filed four replications to the second. Hays demurred to the replications, the demurrer was overruled, and judgment against him for cost of the demurrer.

The parties then submitted the issue to the plea of not guilty to a jury, and the verdict and judgment were for plaintiff, and the defendant, without reserving any question upon the trial, brought error.

Three of the replications to the plea of justification traversed material allegations of the plea, concluding to the country, and the other replication alleged an abuse of the process under which Hays justified, and concluded with a verification.

It is conceded by the counsel for the plaintiff in error that two of the replications were good answers to the plea; and upon this concession the judgment upon the demurrer was properly rendered for the plaintiff below, even if the other two replications were bad, because the good replications were a bar to the defence set up by the plea. Cuyler vs. Trustees of Rochester, 12 Wend. 169; Harrison vs. McIntosh, 1 John. 384.

The record does not expressly state that the plaintiff in error rested upon his demurrer to the replications, but it is to be inferred from the record entries that he did. Upon the overruling of the demurrer he not only did not take issue to the replications, but, in the language of the record, "thereupon said cause came on to be heard upon the general issue of not guilty, and both parties announcing themselves ready for trial,” etc., etc.

The judgment must be affirmed.

It is within the power of the Probate Court, on the application of a surety in an administration bond, to require the administrator to give a new bond, when it is made to appear that the sureties in his bond are insufficient.

Appeal from Hempstead Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GALLAGHER, for the appellant.

HEMPSTEAD, for the appellee.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. Renfro was the administrator de bonis non of Bolen C. Phillips, deceased, under bond in the penal sum of $200,000.

White, one of his sureties, made application to the Probate Court of Hempstead county, from which his letters had issued, for an order requiring him to execute a new bond, upon the ground that his original bond had not been taken according to law, the sureties being insufficient.

Upon the notice and affidavit required by sec. 36, chap. 4, Gould's Dig., and upon proof that the aggregate value of the property of the sureties in the bond was not equal to the value of the personal estate of Phillips, in the hands of Renfro, the Probate Court ordered him to give a new bond. He appealed from the order to the Circuit Court, where, on inspection of the record, the judgment of the Probate Court was affirmed, and he appealed to this court.

Upon examination of the record, we find no satisfactory

showing that the Probate Court exercised unwarranted authority, or abused the sound legal discretion vested in it by law, in making the order complained of. See State, use, etc. vs. Stroop, ante.

The judgment of the Circuit Court must be affirmed.

PETTILLO, AD. vs. HOPSON.

On a plea of failure of consideration the defendant is, most assuredly, entitled to an abatement for only so much as the consideration had failed.

Appeal from Van Buren Circuit Court.

Hon. WILLIAM C. BEVENS, Circuit Judge.

BYERS & Cox, and STILLWELL & WOODRUFF, for appellant. If there was any failure of consideration, it was only partial: the pleas were not supported, and of course the verdict ought to have been for appellant. 6 Ark. 416; 17 lb. 10; 10 Ib. 273; 19 Ib. 666.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. Pettillo, as administrator of Hylton, sued Hopson on a note for $150, executed to his intestate.

Hopson interposed two special pleas, alleging, in substance,

that the note sued on was executed in consideration that Hylton would convey and deliver to him seven acres of land, which he had failed to do, whereby the consideration, upon which the note was given, had wholly failed, etc.

Upon the trial of issues to the pleas, the defendant introduced evidence conducing to prove that he purchased of Hylton the seven acres of land and the improvement referred to in the pleas, at $300, paid him part of the price in money and property, and gave him the note sued on for the remainder. That Hylton had agreed to make him a deed for the seven acres of land, and deliver him possession thereof, but failed to do either. That the land was not worth more than $50. That Hylton was also to deliver to him possession of the improvement on the public land; and it was proven that defendant did obtain possession of the improvement, and sold it for $500.

The plaintiff asked the court, sitting as a jury, to declare the law to be, in effect, that defendant was not entitled to an abatement of the note beyond the value of the seven acres of land, which Hylton had failed to convey to him. But the court refused so to declare the law to be, rendered judgment for the defendant, and refused the plaintiff a new trial.

Most assuredly the defendant had no right to keep back the full amount of the note, when there was but a partial failure of the consideration upon which it was executed. 1 St. & P. 226; Ib. 71.

The judgment must be reversed, and the cause remanded, with instructions to grant the appellant a new trial.