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INDEX.

ABATEMENT.

1. An irregularity in the summoning or empanneling the grand jury, can be taken

advantage of only by plea in abatement. State vs. Brown, 96.
2. When, to a petition to foreclose a mortgage upon land under the statute, de-

fendant pleads that a person not sued is an occupant of the land, he waives the
right to plead in abatement of the writ, the former plea being subsequent in the

order of pleading to the latter. Taylor et al. vs. Kelly, 101.
3. Where a plea in abatement is filed after demurrer to the declaration overruled,

and hence out of time, the objection should be taken by motion to reject or strike
out the plea, and not by demurrer, which goes alone to the legal sufficiency of

the plea. Knott et al. vs. Clements, ad., 335.
4. Demurrer to plea in abatement, does not reach back to the declaration. Įb.

ACTION.

1. Upon the death of the testator or intestate, if any injury is afterwards done to

his goods and chattels, the executor or administrator may bring an action for the
tort, either in his representative or individual character, at his option, he haying
a special property in the goods. Anderson et al. os. Wilson, 409.

ADMINISTRATORS.

See ADMINISTRATION.

ADMINISTRATION.

1. The 93d section of chapter 4, Digest, requiring the plaintiff in an action against

an executor or administrator to produce an affidavit authenticating the claim
sued on, made before suit brought, &c., does not apply to actions pending and

ADMINISTRATION-CONTINUED.

undetermined at the time of the death of a party. Pope's Ezr, ds. Ashley's Ex.,

262.
2. It is not indispensable to the maintenance of a suit against an administrator,

that an affidavit of the justness and non-payment of the claim sued for, should
have been exhibited to the administrator before suit brought; nor is the plaintiff
liable for costs for failing to exhibit such affidavit before suit, where the defend-
ant controverts the suit. Digest, ch. 4, sec. 93-4. Maddin ad: vs. The State Bank,

276.
3. Upon the death of the testator or intestate, if any injury is afterwards done to

bis goods and chattels, the executor or administrator may bring an action for
the tort, either in his representative or individual character, at his option, he

baving a special property in the goods. Anderson et al. vs. Wilson, 409.
4. Where the cause of action accrues to the executor or administrator, after the

death of the testator or intestate-as the wrongful detention of a slave hired out
by him-profert of his letters testamentary, or of administration, is not neces-
sary; and, if made, it will be treated as surplusage, and the plaintiff is not bound
to produce them on prayer of oyer - and this, though he sue in his representa-
tive character for the wrong, it appearing, upon the face of the declaration, that

the injury complained of happened after the death of the testator or intestate. Ib.
5. It is erroneous for the probate court to make an order for the sale of land, to

pay debts, on the application of an adninistrator, without the notice required
by the statute, but such order is not void for want of such notice, the proceeding
being in rem, and the probate court having jurisdiction of the subject matter,

Rogers et al. vs. Wilson et al., 507.
6. There are cases where the chancellor will injoin an administrator from selling

land under such order of the probate court, and examples are stated, and among
them is the case where the judgment, or allowance, the payment of which is to
be made out of the proceeds of the sale of the land, was obtained against the

administrator by fraud. Ib.
7, In this case, Rogers was sued as administrator before he was appointed such,

and after his appointment entered his appearance to the action, waiving this
defence; the declaration was demurrable, but he failed to demur; no affidavit
that the claim was just was filed, and he required none; the claim was barred by
limitation, and no plea interposed; the contract of long standing, and yet no in-
quiry is made of the heirs in regard to it; and after permitting judgment to go
against him as administrator, under these circumstances, Rogers applied to the
probate court for an order to sell land of his intestate to pay the judgment, with-
out notice to the heirs; Held, That these facts considered, as well as the whole
course of conduct of the administrator in regard to the claim, the judgment and
proceedings were a fraud upon the rights of the heirs, and that the chancellor

properly injoined the sale of the land under the order of the probate court. Ib.
8. It is clearly the duty of an administrator to plead the statute of limitation,

where the claim is barred before the death of the intestate, or is so stale as

ADMINISTRATION-CONTINUED.

to raise a presumption of payment from lapse of time; or where the statu-
tory pre-requisites to its presentation or allowance have not been complied with.

Ib.
9. Wilson obtained an allowance of a demand against the estate of Harris, in

Arkansas Probate Court; afterwards Desha county was established out of the
territory of Arkansas, embracing the estate of Harris, and the residence of his
administrator, vidow, and heirs. The administrator removed the administra-
tion to Desha county, made a final settlement, turned over the residue of estate
to the widow and heirs of Harris, taking no notice of the demand of Wilson,
and was discharged : HELD, That the allowance in favor of Wilson against Har-
ris' estate, was in the nature of a judgment, of which the administrator was
bound to take notice, and that it was his duty in removing the administration
to Desha court, to have obtained a transcript of this, as well as other alloy.
ances, that the estate might be properly settled; and, having failed to do so,
Wilson bad the right to file a bill against the widow and heirs of Harris, who
had received his estate, for contribution and payment of his demand. Wilson

vs. Harris et al., 559.
AFFIDAVIT.

1. Where pleadings are required to be verified by affidavit, (as a declaration in for-
cible entry and detainer,) any material amendment of them must also be so veri-
fied, unless permitted to be filed without objection McGuire os. Cook, 448.
See also ADMINISTRATION.

AGENCY.

1. Where two are making a corn crop in partnership, one employs the other to

finish the crop, empowers him to sell his interest in it, pay himself out of the
proceeds for his labor in completing the crop, and also a debt due him from the
other, this is a power coupled with an interest, and cannot be revoked. Allen

vs. Davis, 28.
2. In such case, the party empowered to sell the corn, is the agent of the other,

and cannot be sued for the balance of proceeds of the corn until after demanded
and refusal to pay over. Ib.

AGREED CASE.

1. An agreed statement of facts, signed by the counsel of the parties, filed in the

cause, and the filing noted of record, does not thereby become part of the record,
not being made so by bill of exceptions or order of the court; and the court be-
low, sitting as a jury, having determined the case upon such agreed statement,
and it not having been made part of the record, this court will not look into it
for the purpose of reviewing the decision, but the presumption of law being in

AGREED CASES-CONTINUED.

favor of the correctness of the judgment of the court below, will affirm it. Law-
son vs. Hayden, 316.

APPEAL.

1. In a suit before a justice of the peace, where there is no valid summons or ser-

vice upon the defendant, if he appear on the return day, continue the case, di-
rect a jury to be brought by the trial day, and finally appeal from the judgment
of the justice, by such acts he becomes a party to the cause. Jester vs. Hop-

per, 43.
2. Where a party appealing from the judgment of a justice of the peace, enters

into a defective appeal recognizance, or the appeal recognizance is not sent up
to the circuit court, the appellant cannot take advantage of his own omissions to
dismiss the appeal—the appeal recognizance is given for the benefit of the ap.
pellee, and if he chose to waive objections to a defective one, or the want of one,
the appellant cannot complain. So much of Woolford f McKnight vs. Harring-
ton, (2 Ark. Rep. 85,) and Poindexter vs. Russell, (6 Eng. Rep. 664,) contra, over-
ruled. Ib.
3. Where a party appeals from the decree of a circuit court in chancery, but does

not enter into recognizance to stay execution, this court may, after it has acqui-
red jurisdiction of the cause, order a stay of execution, upon the appellant en-
tering into recognizance the power to make such order is inherent in the court

-the mode of staying the decree is regulated by statute. Davis v. Tarwater, 52.
4. So much of Bentley vs. Fowler & Blackburn, (3 Eng. 375,) as is in conflict here-

with, is overruled. Ib.
5. Where a party appeals from a decree of the circuit court in chancery, but does-

got enter into recognizance to stay execution, one of the judges of this court in
vacation, has no power to order a stay of execution upon the appellant entering
into recognizance, though the court may do it in term time after the cause is
docketed, as held in the case of Davis vs. Tarwater, ante. Taylor vs. Adams, ad.
61.
6. The construction to be given to sec. 225, et seq., ch. 52, Digest, regulating the ex-

ercise of appellate jurisdiction of this court, is that the appeal, if applied for
during the term, should be granted as a matter of right; and so is the writ of

error to be allowed by this court. Bixly Ex parte, 286.
7. That if the prisoner desires a stay of proceedings, pending the determination

of the cause in this court, he should pray an appeal in the circuit court, and for
an order directing that the appeal shall operate as a stay of proceedings on the

judgment. Ib.
8. The granting or refusing this order, is a matter of discretion in the court; but.

if refused, it is the imperative duty of the court below to order the execution of
the sentence to be suspended for a reasonably sufficient time to enable the priso.

APPEAL-CONTINUED.

ner to make application to this court, or one of the judges, for such order to stay

proceedings. Ib.
9. If, in the opinion of the supreme court, or judge to whom the record is presen-

ted, there is probable cause for the appeal, or writ of error, or so much doubt as
to render it expedient to take the judgment of the supreme court upon it, an or-
der is made that the appeal, granted in the court below, shall operate as a stay
of proceedings, or a writ of error will be allowed with like order for supersedeas.

Ib.
10. But unless the application be made to the circuit court for the order to stay

proceedings, the application to this court will not be entertained. Ib.
11. Where, on appeal from the probate to the circuit court, a motion is made by ap-

pellee to dismiss, for want of alleged compliance with pre-requisites to the gran-
ting of the appeal, and the motion is overruled, the grounds of the motion being
properly matter in abatement, a renewal of the motion, and especially at a sub-
sequent term, should not be allowed; and the court should not entertain the mo-
tion after passing upon the exceptions taken to the decision of the probate judge,

and setting the case for trial de novo. Ross et al., ezs. vs. Davis, 293.
12. On appeal from the probate to the circuit court, appellants are not required to

give bond for costs. Biscoe et al. vs. Maddin ad., 7 Eng. 765.
13. On appeal by several executors from the decision of the probate court allow-

ing a claim against the estate of their testator, one of them filed an affidavit,
stating that “affiant is aggrieved,” &c., instead of that "affiants are aggrieved,"
&c.: HELD, To be a clerical inisprision, and that the affidavit was substantially
good. Ib.

ARGUMENT.

1. The test, as to who should begin, or open and concluđe a cause, is to consider

which party, upon the state of the pleadings, would be entitled to the verdict in
the event of no evidence being given on either side. In such case, the party
against whom the judgment would be given, must take the affirmative, and is

entitled to begin. Rogers et al. vs. Diamond, 476.
2. On the trial of an issue upon a petition to the circuit court to reject a former and

establish a subsequent will, the petitioner has the right to open and conclude, as
against defendants attempting to maintain the validity of the first will. Ib.

ASSIGNMENT.

1. Under our statuto, a note assigned before due, is subject to the defence of pay.

ment, by the maker, to the payee before assignment-so also to the defence of

set-off. Smith vs. Capers, 9.
2. When one makes a promissory note, payable to his order, and then endorses and

delivers it to another, he has, in legal effect, but made an ordinary promissory

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