Agreement that A, in his own name, should locate a land warrant belonging to S., and convey to him one-half of the land; which was done; the land warrant being afterwards rejected, A entered the land with money, and applied to R, the executor of S, who had died, for one-half of the cost, which was paid. R then demanded a conveyance of one-half of the land to himself, which being refused, he sued A for the money: Held, that the one-half of the land so located and conveyed to S. belonged to his estate; that the payment by R was as the executor of S, to be settled in his administration, and that he could not recover back the money from A.

Appeal from Saline Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

HOLLOWELL, for the appellant.

Appellee was acting in a fiduciary capacity in paying half the estimated cost of re-entry, and even had appellant executed a deed to him, equity would have enforced the trust to the benefit of Sawyer's heirs. 3 Wen. 368; 5 J. C. R. 409; 3 Dana 265. On the subsequent purchase by Atchley, after the entry with the land warrant had been canceled, his deed to Sawyer in his life-time would have enured to the benefit of Sawyer's estate. 15 Ark. 73; 5 Ib. 693.

We maintain that the money was paid by Reeves in his fiduciary capacity; whether the money actually used was his individual or trust funds, it makes no difference whatever. 1 Mon. 251; 6 J. J. Marsh. 387; 5 Dana 464.

WILLIAMS & MARTIN, for the appellee.

Mr. Justice FAIRCHILD delivered the opinion of the Court. During the life of Sawyer, an agreement was made between him and Atchley, that the latter should take a land warrant belonging to Sawyer, pay him twenty dollars, locate the warrant on land in Atchley's name, and convey to Sawyer one-half thereof. Atchley performed the agreement on his part, by paying Sawyer the twenty dollars, locating the warrant, and making a deed to Sawyer of one-half the land located, and Sawyer died. The land warrant was rejected at the General Land office; Atchley returned it to Reeves, who had become the executor of Sawyer, and entered the land with his own money. He then called upon Reeves to pay him one-half of the entrance. money, and expenses incurred in entering the land, with which request Reeves complied by paying Atchley twenty-nine dollars and ten cents. Afterwards, Reeves demanded a deed to one-half of the land, to be made to himself, which Atchley refused, unless Reeves would procure the cancellation of the deed from Atchley to Sawyer, which was not done, and Reeves sued Atchley to recover back from him, the twenty-nine dollars and ten cents. He failed in his suit before the justice of the peace, but succeeded in the Circuit Court, to which he appealed; whereupon, Atchley moved for a new trial, and upon its being refused, appealed to this court.

Besides the foregoing statement, the bill of exceptions shows that Sawyer's estate was held liable for the twenty dollars which Atchley had paid on the returned land warrant, and that one witness testified, that Atchley, in reply to Reeves's demand for the money to be refunded, promised to pay it with interest.

This promise, if made, Atchley was not obliged to perform, for he had entered the whole tract of land of which he had conveyed half to Sawyer, and that deed operated to pass the interest that Atchley derived from his entry, and he was entitled to be paid out of Sawyer's estate one-half of what it cost him to enter the land, or to have his deed to Sawyer canceled. Reeves could not cancel the deed, and if Atchley had conveyed the land to Reeves, he would have been assisting to commit a

breach of trust against Sawyer's estate, for the land conveyed by Atchley belonged to the estate, and Reeves had no right on advancing the money to Atchley, to take the conveyance to himself.

Atchley received the money from Reeves on a sufficient, on a valuable and meritorious consideration; although Reeves paid him the money, without any expression that he did it as the executor of Sawyer, Atchley received it as coming to him in payment of land he conveyed to Sawyer, and Reeves and the heirs of Sawyer might well be expected to settle between them the equities concerning the money and the land, if it was Reeves' own money that was advanced to Atchley.

The right judgment was made in the justice's court. There was no evidence to sustain the finding of the Circuit Court, and for that reason, the motion for a new trial should have been granted -not having been done, the judgment of the Circuit Court is reversed, and a new trial must be awarded.

PACK VS. THE STATE.

Where parties voluntarily enter into a recognizance before a person acting as justice of the peace, they will not be permitted, on a scire facias on the recognizance, to deny, by plea, his right to execute the office of justice of the peace. To a scire facias on a recognizance to appear at the next term of the Circuit 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 existence 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.

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 discharged by the direct order of the court.

Appeal from Saline Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

WATKINS & GALLAGHER, for the appellant.

It may seem like trifling with the majesty of the law, for the state, charging an accused with the crime of murder, to seek to hold him amenable for an assault and battery involved in the commission of that crime. Nevertheless such a question is here presented. It is submitted that murder is a crime of such a grade that all lesser offences that may enter into its commission, are merged and lost in it. The cases decided by this court bearing upon the question are, McBride vs. The State, 2 Eng. 374; Cameron vs. The State, 13 Ark., 714; Strawn vs. The State, 14 Ark., 549; Childs vs. The State, 15 Ark. 204; Sweeden vs. The State, 19 Ark., 205; Guest vs. The State, ib. 406.

Mr. Justice FAIRCHILD delivered the opinion of the Court.

On the 16th of March, 1858, a scire facias issued from the office of the clerk of the Circuit Court of Saline county, reciting that Nathan S. Pack, as principal, and Josiah Brooks and Thomas Pack, as his securities, on the 29th of July, 1857, before John A. P. Bingham, a justice of the peace of the county of Saline, acknowledged themselves to be indebted to the State of Arkansas, in the sum of five hundred dollars, conditioned that Nathan S. Pack should appear before the Saline Circuit Court on the first day of its October term, 1857, to answer to the state upon an indictment for an assault and battery upon R. F. Cheeks, and not depart from the court without leave thereof.

That Nathan S. Pack failed to comply with the condition of the recognizance in not appearing to answer the charge, when he was called therefor, by the court, on the 21st day of October, 1857, during the October term of said Circuit Court for that year, for which his recognizance was forfeited. The scire facias also contained the usual clause of summons against the securities, to appear and show cause why final judgment should not be entered against them on the recognizance.

For defence, they pleaded that John A. P. Bingham was not a justice of the peace, acting and duly commissioned as alleged

in the writ.

The defendants had voluntarily appeared before Bingham, and entered into a recognizance, and had thereby acknowledged him to be a justice of the peace. This must be so considered, for the scire facias charges it, and the plea, in only denying that Bingham was a justice of the peace, admits that notwithstanding this, they entered into the recognizance before him as such justice of the peace, as the scire facias shows him to have been at this date. See Gildersleeve vs. The People, 10 Barb. 40; The People vs. Kane, 4 Denio, 545.

The right of Bingham to execute the office of a justice of the peace cannot be enquired into in the collateral way proposed by the plea, in a controversy between the state and the defendants to the scire facias. Wilcox vs. Smith, 5 Wend. 234; The People vs. Cook, 14 Barb. 288.

In making up the grand juries the town of Canaan was entitled to choose but six, but did choose a seventh grand juror, and by him the complaint was preferred, to answer which the recognizance in suit was given. For this, on trial, the recognizance was claimed to be void, but the Supreme Court held that the grand juror's right of office could not be tried in that proceeding. Douglass vs. Wickwere, 19 Conn. 489.

The demurrer to this plea was properly sustained.

The second plea of the defendants denied the existence of any indictment for assault and battery of R. F. Cheeks, either when the recognizance was made, or when the plea was filed.