1. Iostructions based upon evidence, which has been excluded by the court, are
out of place, and have nothing to rest on. Atkinson vs. Gatcher, 101.
2. The jury are the proper judges of the effect of testimony, and of the weight to be
given to it in sustaining any proposition; and an instruction which undertakes
to say what weight shall be given to evidence, is erroneous. Ingram vs. Mar-
shall, 115.
3. Although an instruction may be erroneous, yet if, upon the whole record, the
appellant was not injured by the ruling of the court, the judgment will not be
reversed. Ib.
4. Where several instructions are, in effect, the same, and the court has given
one, it is no error to refuse to give the others. Johnson vs. Brock, 282.
6. It is error to give instructions that are not applicable to the case, and which
may mislead and confuse the jury. Morton vs. Scull, 289.
6. It is not error to refuse an instruction where there is no testimony upon which to
found it; nor wbere it embraces several propositions, part legal and a part il-
legal-in such case the instruction as a whole should be refused. Thompson
v8. Bertrand, 731.
See, also, Principal and Agent, 6; Practice in Supreme Court, 19.
suit, a surety in the bond of the hirer, taken under section 8, ch. 75, Gould's Di.
gest, is not incompetent to serve as a juror on the trial. Daniel vs. Guy et
al., 50,
2. As a general rule, it is too late, after verdict, to except to the qualification of
a juror. Ib.
1. A justice of the peace has jurisdiction of an account for rent not exceeding one
hundred dollars. Dicus vs. Bright, 110.
2. If by any manner of proof, the plaintiff might bave shown, on the trial before
the justioe, that he was entitled to recover on the account, the judgment in his
favor should not be quashed on certiorari for want of jurisdiction. Ib.
See Executions 12, Practice in Supreme Court, 21.
1. Without attempting to deduce, from the authorities, any general and fixed rule,
to be applied in all cases, as to what delay of the execution creditor to sue out
process to enforce a levy upon land by a sale, will displace thelien, and let in inter-
ing incumbrances, it is sufficient to decide, upon the facts of this case-
-the judg ·
ment lien being lost by lapse of time-that, by a delay of nearly four years be-
tween the return of the execution, under which the lands were levied on, and
euing out the execution, under which the lands were sold, during all which time
no step was taken to enforce the levy, and no excuse given for the delay, the
lien of the levy is displaced, as against the intervening rights of a more diligent
creditor. Patterson vs. Fowler's Er., 459.
1. A count upon a written instrument-being a receipt for money to be paid over
for particular purposes--for the recovery of damages arising from a failure to
pay over the money, is subject to the limitation of five years, not three years.
Gulledge vs. Howard, 61.
2. Twenty-five years adverse possession of land, without any showing why the
statute of limitation does not run, is enough to infer a good title, though it rested
only on possession. Walker vs. Towns, 147.
3. The language of the statute (15th sec., ch. 106, Gould's Dig.) making ten years
the period of limitation on judgments and decrees, is comprehensive, and embraces
all judgments and decrees without discrimination or exception; and the statute
may be pleaded to a judgment or decree as well on a proceeding in the Probate
Court for allowance, as in ordinary suits at law. Brearly vs. Norris. 169.
4, To a scire facias issued in 1857, to revive a judgment rendered in 1846, and
which had been revived in 1852, the presumption of payment from lapse of time
does not apply. Brearly vs. Peay, 172.
5. Where notes are barred by the statute of limitations, the payment of money
as security for the debtor, cannot revive them. Jones vs. Jones, 212.
6. The plea of the statute of limitations is not appropriate to an action of scire fs-
cias to revive a judgment. Montgomery vs. Brittin, 322.
7. In an action of ejectment, a replication to the plea of limitation that several of
the plaintiffs were infants, is good on demurrer as to those within the saving
clause, and the heirs of a deceased infant plaintiff, but the saving as to the in-
fants did not remove the bar as to those of age and otherwise barred. Wilder
vs. Mayo, 328.
8. Where the adverse possession of land has been held for more than the period of
limitation, the fact that there has been a protracted litigation in respect to it,
the adverse party having the equitable title, and a third person the legal
title-does not remove the bar of the statute, or prevent the statute from
running until the legal is joined with the equitable title. Cunningham 8.
Brumback, 336.
9. Where some member of the same family has remained in possession of land,
claiming title, though others have left-as where the father having left, the
mother and son remain—the continuity of possession is not broken, so as to
stop the running of the statute of limitation, or form a new point for its
commencement. Ib.
10. Adverse possession of slaves, under a verbal gift void by statute, for the
period of limitation, confers title upon the possessor, and bars a recovery by an
adverse claimant. Spencer vs. McDonald, 22 Ark.) Curtis vs. Daniel, 362.
!1. The possession contemplated by the statute (Gould's Dig., p. 1026,) must be a
peaceable possession, adverse or hostile to the true owner; and does not as e
general rule run in favor of a direct trustee; (19 Ark. 666 18 Ib. 498; 22 Ib. 9;)
but where the trustee sells, or otherwise disposes of the trust property to ado-
ther person, who holds and uses the property as his own for the period of limi-
tation, his possession is adverse within the meaning of the statute, and he is en:
titled to its protection (Halliburton ad. vs. Fletcher et al., 22 Ark., 16.,
12. Where & suit for land was brought against the administrator of a deceased
claimant, within the period of limitation, and dismissed and a new suit brought
against the administrator and heir, within a year, but after the statute bar had
attached, the two suits cannot be so connected as to avoid the operation of the
statute-the heir not having been a party to the first suit. Gray vs. Trapnall,
510.
13. The granting of permission to file pleas out of time, is a matter within the sound
legal discretion of the court; and the conrt may well strike out the plea of limi-
tation where the defendant had neglected to plead for nearly five years. Crono
et al. vs. State usé, &c., 684.
14. Under the laws of this state, an action on an official bond in the name of the
State for the use of the party injured, is a private suit in all respects and to the
same effect as if the party were the nominal plaintiff. And so a replication to the
plea of limitation, in an action by The State use of Brown & Bean, alleging that
the State had instituted suit against the same defendants, on the same cause of
action, the judgment in which was arrested and the present suit brought within
a year, is insufficient. 16.
15. Where the action is misconceived-as where an action on the case ex delicto, in-
stead of an action of debt, was brought—it is within the mischief intended to
be remedied by sec. 27, ch. 106, Gould's Digest. Ib.
16. To the plea of limitations in an action brought by The State use of Brown ď:
Bean, after the period of limitations had elapsed, the plaintiff replied, setting
forth an action within the period of limitation, by The State use of Brown against
the same defendants, on the same cause of action, and arrest of judgment, and
the present suit within a year: Held, that the replication did not avoid the
plea; all the plaintiffs in the present suit not having joined in the first., Ib,
See, also, Contracts, 2; Ferries, 1,
1. A man who sells lumber for building a house is not entitled to the lien provided
for in the statute, (Goulds Dig., ch. 112, sec. 1,) though it is the privilege of
a mechanic or builder to include in his lien the price for materials furnished.
· Duncan vs. Bateman, 327.
2. The person, who furnishes the lumber for a building, not being the mechanic
or builder, is not entitled to a mechanic's lien for the price of the lumber. (Drin-
can vs. Bateman, ante.) Boutner vs. Kent, 389.
1. A mortgage, like any other deed, to be valid and operative, must not only be
signed and sealed, but it must be delivered by the maker, and accepted by the
mortgagee, or some one legally acting for him. Freeman vs. Peay, 439.
2. Where it is agreed between two parties that one should acquire, by means of
& purchase and sale of real estate, an unencumbered legal title, to be held as se-
curity for money advanced to the other, the transaction, though in form an ab.
solute sale of the property, is essentially a mortgage. And on a bill, to set
aside the legal title thus acquired, and have the transaction declared to be a
mortgage, the court will consider all the circumstances of the case to ascertain
the real intention of the parties at the time of the agreement. Anthony 28.
Anthony, 479.
3. If a mortgagor goes into equity to redeem, he will not be permitted to do so
but upon payment, not only of the mortgage debt, but of all other debts due
from him to the mortgagee; and so, where he seeks a recovery of rents and
. profits. But if the mortgagee seeks a foreclosure in chancery, the mortgagor is
permitted to redeem upon payment of the mortgage debt alone. Ib.
See, also, Conveyance, 2.
In a suit for freedom, where the leading matter in controversy was, whether the
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