those dealing with him must look to his authority, or abide the consequences.
1. The failure of the obligee in a bond to probate the claim against the estate of the deceased obligor, whereby the claim is barred by the statute of non-claim, does not discharge the sureties in the bond. Ashby vs. Johnston, 163.
2. The obligation of principals to reimburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which the parties make, or upon the implied promises raised by the law upon the payment of money for another at his re- quest Wright vs. Williams, 530.
1. The 19th section, chapter 154, Gould's Digest, Acts of 1854, page 109, Acts of 1852, page 42, are public acts in their character and subject matter, though local in their application, and the courts are bound to take judicial notice of them, Bevens vs. Baxter, 387.
1. The court conclude, with much hesitation that, notwithstanding the execution of a special administration bond in each estate taken by the public administrator, the "sheriff and his securities shall be responsible on his official bond, for mis- conduct in discharging his duties as public administrator." State use, etc. vs Watts, 304.
2. The office of public administrator continues with the person to whom it was com- mitted, unless a regular administrator be appointed, and the responsibility of the securities in the bond existing when the possession of the estate was taken, continues until the public administrator shall be discharged, whether he be re- elected and give a new bond, or another person be elected sheriff. Ib.
3. The authority of the Probate Court to make an order requiring the sheriff to take charge of the estate of a deceased person, is not to be questioned: nor need such order state the reason that moved the court to make it. Ib. 4. If the breach in a declaration upon the official bond of the sheriff, as public administrator, charge that he did not deliver bonds, choses in action and assets, belonging to the estate, and in his hand, to his successor, it is suffi- cient such successor is not an administrator de bonis non. 1b.
1. Where a person enters the lands of the United States, he becomes the owner of everything then attached to the freehold—such as growing crops and fences. Graham vs. Rourk, 19.
1. Where parties voluntarily enter into a recognizance before a person acting as a justice of the peace, they will not be permitted, on a scire facias on the recog nizance, to deny, by plea, his right to execute the office of justice of the peace. Pack vs. State, 235.
2. To a scire facias on a recognizance to appear at the next term of the Circu Court to answer to the state upon an indictment for an assault and battery, etc., and not depart from the court without leave thereof, a plea denying the exist ence of any indictment for assault and battery, either when the recognizance was made or when the plea was filed, is no defence-unless the principal appeared when called, his recognizance was forfeited. 1b.
3. Instead of being a defence to a scire facias on a forfeited recognizance, the fact that the principal, instead of being indicted for an assault and battery, for which offence he was recognized to appear, was indicted for murder, it is a stronger reason why his securities should have him before the court until dis- charged by the direct order of court.
4. A recognizance or bail bond taken without authority, is void. Cooper vs. State, 278.
5. A scire facias upon a forfeited recognizance must show that the recognizance was entered into before a court or officer authorized to take it. (Darby et al. vs. State, 21 Ark.) State vs. Sartain, 541. Hogan et al vs. State, 636.
1. A bill of sale of negroes containing a warranty of soundness, and providing a particular mode of compensation in case of unsoundness-as that the unsound negroes shall be returned and others substituted-the purchaser cannot, in a suit for the purchase money, recoup the damages suffered on account of the unsound- ness of any of the negroes, without showing a return of, or offer to return the unsound negroes-the mode of compensation under such a contract being exclu- sively and mutually binding upon the parties: nor is the non-residence of the vendor a sufficient excuse for not returning or offering to return the unsoand ne- groes-the vendee having the means of knowing where to return them. sions vs. Hartsook, 519.
2. Waiving the question, whether, in a suit upon a note given for the purchase money of negroes, the defendant could recoup the damages sustained by such negroes communicating disease to his other negroes, the facts must be shown by
uncontradicted and legal evidence to entitle him to the defence here, after an ad- verse finding by the jury. Ib.
1. No demand is necessary before the commencement of a suit in Replevin, where the defendant has treated the property as his own and exercised acts of owner- ship over it. (17 Ark., 172-4.) Henry vs. Fine, 417.
1. On the trial of an indictment against an overseer of a road, for neglect of duty, if the State fails to prove that the road is a public road, as defined by the statute, the jury must acquit. State vs. Moore, 550.
2. An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road. Ib.
3. Although, if a private person cut a ditch across a public road and bridge it, he may be liable for not keeping it in repair, that would not excuse an overseer for allowing a dangerous bridge over the ditch to remain in the road. 13. 4. On an indictment against an overseer, although the State may prove that he was appointed overseer, she must also prove that he received notice of his ap- pointment: and if he worked on the road, it is a circumstance from which it may be inferred that he had notice. Ib.
5. An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road. State vs. Hagood, 553.
6. On the trial of an indictment against an overseer of a public road, the State having shown, by record evidence, that a particular road, by a name other than that given to the one in the indictment, was duly established by order of the county court, may show by parol evidence the identity of the two roads. 16
See Chancery, 1, 8; Contracts, 6.
1. In a suit against the executor of his deceased partner, he may set off a debt due from the plaintiff to the partnership under the principle decided in Leach vs. Lambeth, (14 Ark., 668.) Burke vs. Stillwell, 294.
See, also, Partnership, 5.
SHERIFFS, ACTIONS AGAINST.
1. The declaration in a suit upon a sheriff's bond for a tresspass committed in selling the plaintiff's property, under an execution issued by the clerk of the Circuit Court upon a judgment of a justice of the peace, having alleged in the breach that the plaintiff in the execution did not cause a transcript of the judgment and proceedings of the justice to be filed in the clerk's office, such allegation be- comes material and traversable. Crow et al. vs. State use, 684.
2. In an action against a sheriff, on his official bond, for abusing the process of exe- cution whereby the defendant in the execution has suffered injury, it is within the province of the jury to allow interest on the value of the property injured by way of increasing the damages: but it is error in the court to instruct them to allow interest. Ib.
3. For the tortious sale of a steamboat by a sheriff, under execution, the owner is entitled to recover the actual value of the boat as property, though she may have been unriver worthy at the time of the sale. Ib.
See, also, Public Administrator.
See Chancery, 11; Contracts, 17, 18.
STATUTES, CONSTRUCTION OF.
1. It is a rule, in the construction of statutes, that an existing statute shall not be repealed by a subsequent enactment, unless the repeal be expressed in words of revocation, or unless there is such a manifest repugnance between the statutes that both cannot be in force: and also, that all statutes upon the same subject matter
STATUTES, CONSTRUCTION OF-CONTINUED.
shall be so construed that all shall continue in force, if that construction is pos- sible. State use, &c., vs. Watts, 304.
2. There is no such repugnance between the 7th sectim, of chapter 120, Rev. Stat., [sec. 8, ch. 6, Gould's Dig.] and the act of 18th December, 1840, subsequently passed, as to require the court to hold, under the principles governing the con- struction of statutes, that the former was repealed by the latter. Ib.
See New Trials, 1; Practice in Circuit Court, 18.
1. The endorsement made by a land agent upon the plats of lands furnished him by the auditor, of the the time at which he received them, is not to be treated as a solemn record that cannot be disputed or disproven, but it may be proven that he received them at a time different from that endorsed by him. vs. Phillips, 80.
2. The swamp land commissioners could not delegate the power vested in them by the statutes to sell lands, and a sale by a sub-commissioner appointed by them, while they had power to sell, and ratified by them after their power to sell ceased, and the power vested in the land agent, was invalid. lb. 3. The purchaser did not perfect his title under the act of 20th January, 1855, by snr- rendering the certificate issued to him by the commissioners, to the land agent and taking out a new certificate of purchase, the land agent having in the meantime sold the land to another person. (Deloach vs. Brownfield et al., ante.)
4. On the 4th of June, 1851, the defendant obtained a levee contract in part upon his own land, with the intention of securing a preferred right, under the 4th section of the act of 11th of January, 1851, to purchase the lands in the rear-made application for the purchase in payment of his levee work in 1852, obtained the acceptance of his work after the act of 12th January, 1853, and was paid in levee scrip, with which he made application to enter the lands, which was refused because they were not then confirmed-in May, 1856, after the confirmation, he entered the land, without its having been offered for sale, with his levee scrip, and upon a patent being issued to the state, obtained the deed of the governor. On the 9th of August, 1855, immediately after the lands, embraced in the same confirmation as those in controversy, were advertised and offered for sale-though the land agent did not offer these lands, having previously permitted their entry by the defendant-the com- plainant made application to enter the lands at private sale, which being refused, he filed his bill to divest the defendant of the legal title, and vest it in himself: Held, that the entry of the lands by the defendant was within
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