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 fa-
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, 325.
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 vs.
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.
11. 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 a
general rule run in favor of a direct trustee; (19 Ark. 665 18 Ib. 498; 22 Ib. 9;)
but where the trustee sells, or otherwise disposes of the trust property to ano-
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., Ib.
12. Where a 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,
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. Crow
et al. vs. State use, &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.
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 &
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, (Gould's 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. (Dun-
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
a 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 vs.
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
plaintiffs belonged to the white or negro race, and they were introduced for the
inspection of the jury, it was not improper for the court to permit them to pull
off their shoes and stockings and exhibit their bare feet to the jury, in order that
they might observe their formation, it being proven by competent witnesses, and
attested by experience, that the formation of the negro foot is peculiar, etc.
Daniel vs. Guy et al., 50.
1. The suppression of a portion of a deposition before the parties go into trial,
or the issues are made up, is not cause for a new trial on the ground of surprise.
Hirsch vs. Patterson, 112.
2. Where the portion of a deposition suppressed could have been of no benefit
to the party offering to read it, if it had been admitted, its suppression is no
cause for granting a new trial. Ib.
1. The statute of non-claim is a bar to the claims of the State, if not exhibited
within the time prescribed by the statute, as in the case of private individuals.
Hill vs. State, 604.
1. In a proceeding to settle a partnership concern, it is not proper to take into
consideration an account between the parties for clearing and building upon their
joint lands, and rents received therefor-the account in such case should be set-
tled in a proceeding for partition. Jones vs. Tones, 212.
2. The settlement of an unliquidated partnership transaction should not involve
with it mere personal demands: but if, on ascertaining a balance, it appears that
the other party had an existing demand for moneys paid, to an equal or greater
amount, it is not equitable to render a decree for such balance. Ib.
3. After the dissolution of a partnership, the maker of a note, upon which the
firm name was endorsed, paid to one of the late partners the amount of the
note, for which he executed an instrument in writing, in the firm name, ac-
knowledging the receipt of the money, and promising to apply it to the pay-
ment of the note; he did not so apply it, but applied it to the payment of other
debts of the firm: Held, that the other partner was not liable for the money so
received and misapplied-was totally unaffected by the instrument so executed.
Sanders vs. Ward, 235.
4. An action will not lie upon an instrument of writing acknowledging the receipt
of money by the defendant of the plaintiff, specifying its payment on account
of a partnership concern, unless the plaintiff prove that there was not an exist
ing or unsettled partnership. Houston vs. Brown,, 333.
5. The court having affirmed a partnership, by which the plaintiff's action was
defeated as to the receipts, erred in permitting a partnership indebtedness to be
set-off against an individual debt due to the plaintiff by the defendant. Ib.
6. Where articles of co-partnership provide that one partner shall exclusively
manage the affairs of the concern, and the other partner violates such provision
by intermeddling with them, and losses are thereby sustained, they are to be
borne exclusively by the intermeddling party; but upon its being shown that
such acts were expressly assented to, the articles of partnership will, in a court
of chancery, be considered as waived. Haller vs. Willamowicz, 566.
7. Where one partner commits an injury to the individual property of the other,
used in the partnership business, the damage cannot be brought into the partner-
ship account-the remedy is by action at law. Ib.
8. Partners are not entitled to charge for their services in the business, unless
there is a special agreement to that effect, or one can be implied from the course
of business. Ib.
9. The entries made in the partnership books are evidence for and against each
partner, unless one has been denied access to them; and especially are they evi-
dence when supported by the sworn answer of a partner from whom discovery
is sought. Ib.
1. In an action upon a penal bond, if the breach shows a good cause of action, defec-
tively stated in form, but not deficient in substance, it is sufficient, upon plea, on
error. Taylor vs. State use, 225.
2. In actions upon penal bonds, the judgment should be for the penalty of the bond,
with a further judgment that the plaintiff have execution for the damages as-
sessed. Ib.
1. Suit by petition and summons on an obligation for a specified sum of money,
with interest at ten per cent., from a day anterior to its date: Held, that the
breach in the petition, being in the words of the statute, is sufficient—that the
court know of no reason why the bond will not sustain the action-do not see
how the bond is usurious; and if so, that objection is not presented by the de-
murrer, and could not be. Langridge vs. Cobb's Ex., 549.
1. If all the parties interested as plaintiffs do not join in the action, it is ground
for non-suit upon the trial. Duval vs. Mayson, 30.
2. A plea, to an action by an administrator, setting up facts showing that letters
of administration ought not to have been granted, but not denying the issuance
of letters to the plaintiff, held bad on demurrer. Rogers vs. Duval, 77.
3. If either of several replications be a good answer to a plea, it is sufficient on
demurrer. Hays vs. Roberts, 193.
4. Although the record does not state that the party rested upon his demurrer
being overruled, the court will so infer where he does not take issue to the plead-
ing demurred to, but goes to trial on another issue. Ib.
5. Where a plea sets up a contract for the sale of land without averring that it
was in parol, the presumption is that it was in writing. McDermott vs. Cable,
6. A plea of failure of consideration, setting up that the consideration of the note
sued on, was a contract for the sale of land, and that the vendors were unable
to make title to the land, is defective unless it make profert of the contract;
and allege whether a deed for the lands was executed by the vendors. Ib.
7. A plea that the bond sued on was given for the last payment of a tract of land,
and that the plaintiff had not made or tendered a deed, according to his bond
for title, is not a good defence, if it fails to show that the bond, which was not
made a part of the record, contained mutual and dependent covenants. Farish
vs. Jones, 323.
8. Where the surety in a bond for the payment of money, receives the amount of
the principal under an agreement to pay it over to the payees, this is a new un-
dertaking, which he is bound to perform and an action will lie at the suit of the
payees for the money received; and if he pay one of them his half of the
money, the other may treat their interest as severed and sue in his own name
for his portion. Barker vs, Parker, 390.
9. It is more usual in such cases for the party entitled to the money, to recover
upon the count for money had and received, but he may declare specially, set-
ting out the facts. Ib.
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