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denying that there is a street or way to the extent of the land on those two sides. We consider this not merely to be a description, but an implied covenant that there are such streets. It probably entered much into the consideration of the purchase, that the lot fronted upon two ways, which would be always kept open, and, indeed, could never be shut without a right to damages in the grantee or his assigns." This case was cited with approbation in Emerson vs. Wiley, 10 Pick. 310, subsequently decided by the same court. So, in the matter of Lewis Street, 2 Wend. 472, it was held, that where a building lot was sold, bounded on a street, in the city of New York, designated as such on the city map, or on a map made by the owner of the lands, in reference to which sales were made, although the street remained, at the time, unopened under the authority of the corporation, a covenant might well be implied that the purchaser should have an easement or right of way in the street, to the full extent of its dimensions. The same principle has been frequently applied in cases touching the sale of chattels. Thus, where wool was sold in sacks, on which, and in the invoice, it was described as of a certain quality, the seller was held thereby to warrant that the wool was of that quality. Richmond Trading & Manuf. Co. vs. Farquar, 8 Black. 69. In Hastings vs. Lovering, 2 Pick. 214, the article sold was described in the sale note, and also in the bill of parcels as two thousand gallons prime quality winter oil. This was held to be a warranty that the oil was such as described. See, also, Henshaw vs. Robins, 9 Metc. 83; Osgood vs. Lewis, 2 Har. & Gill 495.
Let the judgment be reversed, and the cause be remanded for further proceedings.
Sullivan vs. Deadman.
SULLIVAN AD. VS. DEADMAN.
On the trial of a case de novo, in the circuit court, on appeal from the probate court, it is in accordance with the spirit of the statute (sec. 201, chap. 4, Gould's Dig.,) to permit a party to introduce other evidence than that contained in the record of the case, as tried in the probate court.
The fact that the drawee has no funds of the drawer in his hands, is prima facie an excuse for not giving the drawer notice of the protest of a bill of exchange for non-payment: and if there be any special circumstances entitling him to notice the onus is upon him to prove them.
Appeal from Arkansas Circuit Court.
Hon. JOHN C. MURRAY, Circuit Judge.
GARLAND & RANDOLPH, for the appellant.
It is a general principle that where an appellate jurisdiction only is exercised by one court of record over cases coming from another, such cases are to be taken as they were in the latter court, without addition or diminution, Marbury vs. Madison, 1 Cranch, 137; 4 Bouv. Inst. 70. Under the statute (secs. 200, 201, chap. 4, Gould's Dig.,) the Circuit Court, on appeal, is confined to the exceptions taken in the probate court, and required to give the same judgment that court ought to have given; and this statute cannot govern the practice on such appeals, if a new case is permitted to be made in the Circuit Court.
There was no notice to the appellant of the protest of the bill of exchange, (which objection this court has holden to be well taken, 19 Ark. 484,) and no sufficient excuse for want of notice.
To excuse a want of notice, it is necessary that the drawer
have no effects in the hands of the drawee, at any time during Byles on Bills of Exchange 231. excuse a want of notice, is upon Marsh. 152; 3 Bibb 261; 3 Conn.
Sullivan vs. Deadman.
the currency of the bill. The burthen of proof, to the appellee in this case. 2
WILLIAMS & MARTIN, for appellee.
Mr. Justice COMPTON delivered the opinion of the Court. This was a proceeding in the probate court, for allowance and classification of a claim against the estate of Milton Walker, deceased-being a bill of exchange drawn by Walker, and protested for non-payment. The claim was allowed, and on appeal to the circuit court, the judgment of the probate court was affirmed. An appeal was then prosecuted to this court, where the judgment was reversed, and the cause remanded to the circuit court, with instructions that it be there tried de novo. 19 Ark. 484. A trial was accordingly had, which resulted in a judgment for the claimant, and the administrator again appealed.
On the trial de novo in the circuit court, the claimant was permitted to introduce new proof, or, in other words, proof other than that contained in the record of the case tried in the probate court. This was in accordance with the manifest spirit of our statutory provision regulating the practice in such cases. Gould's Dig., chap. 4, sec. 201, p. 138. The first objection, relied on, is not, therefore, well taken. But it is insisted that the excuse for not giving Walker notice, that the bill had been protested for non-payment, was not sufficient. It was shown in evidence, that the drawee had no funds of the drawer in his hands. This was prima facie an excuse for want of notice; and if any special circumstances existed, which entitled the drawer to notice without funds, as that he had a right to draw in consequence of engagements between himself and the drawee, or, that on taking up the bill, he had a right to sue the acceptor or any other party, and the like, the onus was on
Gill et al. vs. Ward et al.
the defendant to show those circumstances and not having done so, the prima facie excuse made out is not rebutted, and must prevail. See Story on Bills, sec. 312, p. 389. Let the judgment be affirmed.
GILL ET AL. VS. WARD ET AL.
It is not necessary that the affidavit, prescribed by section 180, chap. 99, Gould's Dig., should be signed by the affiant-the omission to sign it not affecting its validity.
Appeal from Yell Circuit Court.
Hon. JOHN J. CLENDENIN, Circuit Judge.
HOLLOWELL, for the appellants.
JORDAN and WILLIAMS & MARTIN, for the appellees.
Mr. Justice COMPTON delivered the opinion of the Court. The circuit court dismissed the plaintiffs' appeal from the decision of the justice of the peace, in this case, upon the ground that the affidavit for the appeal, though duly certified by the justice before whom it was made, was not signed by the affiant.
The language of the statute is, that "the applicant, or some person for him, shall make and file with the justice, an affidavit
that the appeal is not taken for the purpose of delay," etc., Gould's Dig., ch. 99, sec. 180.
An affidavit, as defined by Blackstone, is "a voluntary oath before some judge or officer of the court, to evince the truth of certain facts." 3 Bl. Com. 304. In practice, it is said to be "an oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it." Bouv. L. Dic. 79, title, Affidavit. It is not necessary that the affiant should sign the affidavit. He must make it; that is, he must swear to the facts stated, and they must be in writing. It is then his affidavit-and as evidence that it was sworn to by the party, whose oath it purports to be, it must be certified by the officer before whom it was taken; which certificate is commonly called the jurat, and must be signed by such officer.
That the signature of the party who makes the affidavit, is not essential to its validity, where there is no statute or rule of court, which requires the affidavit to be signed, was held in Hitsman et al. vs. Garrard, 1 Har. 124; Redus vs. Wofford, 4 Sme. & Mar. 579; Shelton vs. Berry, 19 Texas 154; Millins vs. Shafer, 3 Denio 60; Jackson vs. Virgil, 3 John. 540, and Hoff vs. Spicer et al. 3 Cain 190. And we have not been able to find any adjudications where it was held otherwise. True, BACON defines an affidavit to be "an oath in writing, signed by the
rty deposing, sworn before and attested by him who hath authority to administer the same." 1 Ba. Abr., title, Affidavit. But this definition, as observed by WHEELER, J., in Crist vs. Parks, 19 Texas 235, is probably founded on the practice under rules of court in England. And although it is said—and we think correctly-in some of the cases above cited, to be the better practice, that every officer before whom an affidavit is made, should require the party sworn, to subscribe his name to the body of the affidavit, yet, in all those cases, it is distinctly held that the omission of the affiant's signature does not affect the validity of the affidavit.
It follows that the court erred in dismissing the plaintiffs'