Maulding et al. vs. Scott et al. [ JANUARY body," are used by the testator to denote the second devisee, or one who is to take after the life estate is determined, and there are no other words in connexion with them tending to show that they are used as words of purchase, they will always be taken as words of limitation, and when personal property is devised, will vest in the first devisee the absolute estate. It is not necessary, however, that this qualifying language should stand in immediate connexion with the word "heirs," or "heirs of the body,” if found any where in the instrument used as a conveyance, and in connexion with these words, clearly and plainly denotes an intention to restrict the limitation over to the death of the first devisee. The technical sense in which these words would otherwise be taken, should not prevail, but should yield to such intention thus clearly ascertained, In the case of Moody v. Walker, 3 Ark. Rep. 147, several of the questions now under consideration were discussed, and the English and American decisions reviewed. The examination which we have made of these and several more recent decisions, adds to our conviction that the law was correctly expounded in that case. One or two of the numerous cases cited, may serve to show the extent to which several of the courts of the United States have gone. In Horne v. Lythe, 4 Har. & John. 431, a searching review is taken, by Chief Justice DORSEY, of Shelly's case, and most of the English decisions. In the case of Horne v. Lythe, the devise was to the daughter during her life, and after her decease, I give the same to the heirs of my said daughter Catharine." It was held that the daughter took a fee simple, not a life estate in the property. In Dott v. Cunnington, 13 Bay Rep. 453, a deed was made to Sarah Dott for a slave, to be held during her life and at her death to the heirs of her body. It was held that the words, "at her death, to the heirs of her body," were words of limitation, not of purchase. The court say, "What then is the plain and obvious construction of the law upon the words of this deed? The answer is plain. That the estate being given to Mrs. Dott for life, with re TERM, 1852.] Maulding et al. vs. Scott et al. mainder over to the heirs of her body, make it an estate tail executed, which being of a chattel interest is too remote. The whole estate vested in Mrs. Dott, the first taker; consequently being her property, the second husband acquired a right to it by marriage. In Floyd v. Thompson, 4 Dev. & Butt. 438, it was held that a bequest "for the use and benefit of a daughter during her natural life, and then to descend to the heirs of her body, if any, if none, then to her lawful heirs," gave the daughter an absolute estate in the slaves. In Watt v. Clardy, 2 Flor. Rep. 368, the language was "loan the negroes during her natural life, and at her death to the heirs of her body, which shall survive her, to be equally divided amongst them." The supreme court of Florida held that the daughter took an absolute estate in the slaves. These are stronger cases than the one under consideration, and indeed stronger than several cases where the language has been held sufficiently strong to vest a life-estate in the first devisee, with a limitation over to the heir. Such would seem to be the construction given by the court of Appeals of Kentucky. Prescott v. Prescott's heirs, 10 B. Mon. 56. At first view, these appear to be strong cases, in which an obvious intention of the testator might be deduced from the language used. It must be remembered, however, that the will of the testator and the policy of the law, often conflict. The testator, in his anxiety to perpetuate his property in a line of succession, invades that policy of the law which discountenances perpetuities. Before the statute de donis, the courts, seeing the evils which attended entailments, had done much to lessen it by rigid construction. After that statute, fine and recovery were resorted to, to avoid the effect of entailments; and as the statute did not extend to executory devises, they could not be barred by fine and common recovery; and hence a date of limitation arose both in regard to devises of real estate and chattels. It is in the protection of this policy, that the apparent hardships arise. A series of adjudications have established a definite meaning to these Maulding et al. vs. Scott et al. [JANUARY words until they have become a rule of property, which we should be careful not to invade. There is nothing in this devise to limit or qualify the words "lawful heirs." It follows, therefore, from the premises assumed, that Susan Mills acquired under the will of her father, Thomas Humphreys, not a life estate as contended for by complainants, but an absolute property in the slave Cynthia, which property passed at once to and vested in her husband, Ambrose Mills, and at his death became the property of his devisees, if he made a will, or in the absence of a will, to his widow and children under the statute of descents. The counsel for the complainants have anticipated the decision of the court on this point, and contend that, although they may not be entitled to the slaves as devisees of Thomas Humphreys, yet if it be found that Susan Mills took the absolute estate in the slaves, they vested absolutely in her husband, and that on his death they acquired title to the slaves as his heirs at law. This may, in the absence of a will and other children by some other marriage, be all true. But the question is, have they presented such a state of facts in their bill as will entitle them to a decree in this particular case? Are these facts put in issue by the bill and answer? We think not. In the first place they claim exclusively under the will of their grand-father, and state that they are the heirs of Susan Mills; but this is merely to identify themselves as the devisees. They profess to have derived title directly from Thomas Humphreys, under his will. How then can they prove that they are the heirs of Ambrose Mills? That fact was not put in issue, and nothing is evidence but what tends to prove some material fact in issue. Not only this, but they expressly state that Susan Mills had only a life estate, and that she and her husband never claimed any other estate, which estate they charge terminated at the death of their mother. It is manifestly clear that this allegation cannot be contradicted by them. Gresley on Equity Evidence, page 165, says, "For parties to disprove facts which they have themselves admitted, would be a mere mockery; the plaintiff would be repudiating the statements which he had laid down TERM, 1852.] Maulding et al. vs. Scott et al. as the basis for his demand for justice:" and at page 159, he says, "The main object of allowing pleadings at all is, that the disputed points may be brought to issue clearly and definitely, and this object would be entirely frustrated if, after the pleadings were closed, the questions were permitted to be repeatedly altered." In the case of Piatt v. Vattiers et al., 9 Peters Rep. 405, in which the statute of limitations was relied on, and it became important for the complainants to establish the non-residence of the party, and proofs were taken to that point; HELD, by STORY, Judge, that the court could take no notice of the proofs, for the proofs, to be admissible, must be founded upon some allegation in the bill and answer, and the bill was dismissed. The grounds of equity should be stated with clearness and precision; for the complainant can only recover on the validity of his title stated in the bill. Tingman v. Henderson, 1 Bland R. 249. He must stand or fall upon the case made by his bill. Thomas v. Warner, 1 Slade's Verm. R. 110. Wright v. Dane, 22 Pick. 55. Gibson v. Mc Cormack, 10 Gill & John. 65. Lucas v. McBlair, 12 Gill & John. 1. A fact not alleged, through proven, cannot be the basis of a decree. Morrison v. Hart, 2 Bibb 4. These authorities abundantly show that no decree can be rendered for the complainants, admitting it to be in proof that they are the sole heirs of Ambrose Mills, and that he died intestate, for there is not a material fact put in issue by the pleadings to which the evidence could apply, or on which a decree could be based. If the complainants have equitable rights, as heirs of Ambrose Mills, they must assert them in another suit. This is not a suit where a title is defectively stated; but where the grounds upon which rests the claim to equitable relief, had been entirely misapprehended. Let the decree of the court below be reversed and set aside, and the bill dismissed, without prejudice to the rights of complainants. Brown vs. The State. [JANUARY BROWN VS. THE STATE. An irregularity in the summoning or empanneling the grand jury, can be taken advantage of only by plea in abatement. The conclusion of an indictment, contra formam statuti, is mere matter of form, and the statute (Dig. p. 402, sec. 98,) declaring that the want of such conclusion shall not be ground to quash the indictment, arrest or reverse the judgment, is not in conflict with the clause in the Bill of Rights securing to the accused a trial on indictment, &c. It is no ground of reversal, that the order for a change of venue in a criminal case, does not pursue the statute: if there be ground of objection to such order, it is waived if the party does not take advantage of it in the court below. Where the record is silent upon the subject, this court will presume that the court below, in passing sentence upon a person convicted of crime, complied with the provisions of sec. 2, p. 378, Digest: but if the court in fact omitted to do so, such omission would be no cause for reversal of the judgment-but a compliance with the statute might be directed. Writ of Error to Madison Circuit Court. ARCHIBALD BROWN was indicted in the Carroll Circuit Court, at September term, 1849, for stealing a mare, alleged to be the property of William W. Chaney. The caption, after stating the time and place of holding the court, &c., proceeds thus: "And now on this day the sheriff returned into court the following list of Grand Jurors, by him summoned, in obedience to a writ of venire, to him directed, to wit:" J. F. &c., &c., and the caption proceeds to show that they were sworn, charged &c., in the usual form. The body of the indictment is in the usual form for larceny, and it concludes: "against the peace and dignity of the State of Arkansas," but not contra formam statuti. The defendant pleaded not guilty, and then filed a petition for change of venue, on the grounds "that the inhabitants of this |