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PARTNERSHIP-CONTINUED.

2. The settlement of an unliquidated partnership transaction should not involve
with it mere personal demands: but it, 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-
koowledging 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. Jouston 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. 10.
'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.

PENAL BONDS.

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.

PETITION FOR DISCOVERY.

See Evidence, 17, 18.

PETITION AND SUMMONS.

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, Cobl's Ex., 549.

PLEAS AND PLEADING.

1. If all the parties interested as plaintiffs do not join in the action, it is ground

for pon-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 ples, 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,
200.
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. Parish
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.

PLEAS AND PLEADING-CONTINUED.

10. In a suit upon a bond for the payment of money, a plea that it was given upon

an illegal consideration-the abduction of a person-would be a good bar to

the action. Ib.
11. A plea is bad as setting up a former discharge, when it alleges no final judg.

ment in the former suit. Ib.
12. Any question that could be raised upon the overruling of a demurrer to some

of the counts of a declaration, is waived by afterwards pleading to the whole

declaration. Hill vs. Wright, 530.
13. In case of misjoinder of counts, the entire declaration is bad, and it is error to

sustain a demurrer to some of the counts and overrule it as to others-in such
case the court should, in general, on motion, grant leave to amend by striking
out. Veatch vs. Greenwood, 637.

See, also, Penal Bonds, 1; Pub. Administrator, 4; Sheriff, 1; Damages, 2.

PRACTICE IN CIRCUIT COURT.

1. 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, Goulds
Dig.,) to permit a party to introduce other evidence than that contained in the
record of the case, as tried in the probate court. Sullivan ad. vs. Deadman, 14.
2. The cases of Reed et al. vs. State Bank, 5 Ark. 193—that it is error to render
judgment by default, while there is an issue undisposed of—and Martin et al. vs
S. Bank, 20 Ark. 336-that it is error to amend the record at a subsequent term

without notice to the party-adhered to. Alexander vs. Stewart, 18.
3. The plaintiff, in an action for money had and received, having introduced evidence

conducing to show the receipt of the money by the defendants, and his right to
it at the time of the receipt, the court erred in excluding it from the considera-
tion of the jury. Waters vs. Grace & Murray, 118.
4. An objection to the testimony of a witness after verdict, comes too late-it

should be made when the witness is called to the stand. Crump vs.Starke, 131.
5. The objection that the damages are excessive, will be considered as waived, if

not made one of the grounds of the motion for a new trial. Ib.
6. It appearing, during the progress of the trial, that the plaintiff, in whose name
the cause was progressing, as administratrix of her deceased husband, had married
it was the correct practice to discharge the jury and continue the cause, that an
administrator de bonis non should be appointed and substituted as plaintiff.
Moore vs. Estes, 152.
7. The substitution of an administrator as party to a suit, ought to be by order
of court, on production of his letters; but where the cause has progressed in
bis name as such to final judgment, without objection, the want of such formal
order is no ground of reversal. 16.
8. Although an account sued upon may be inartistically made out, it is sufficient

PRACTICE IN CIRCUIT COURT-CONTINUED.

if the defendant understand the nature of the demand, and is not misled in
preparing his defence. 16.
9. On the trial of a cause de novo in the circuit court, the parties may introduce
other evidence than that contained in the bill of exceptions. (Sulliran, ad. vs.

Deadman, ante.) Mayson vs. Edington, 268.
10. Where the mandate of this court is filed during the terın of the circuit court,

the cause ought to be continued; and it is error to take judgment by default

against the defendant at that term. Cornish vs. Sargent, 277.
11. The failure to file the mandate of this court in the circuit court, for any per-

iod of time after the case is remanded, is no cause of abatement. Ib.
12. The defendant demurred to one count of the declaration, which was bad, bot

the court overruled the demurrer, and the defendant filed several pleas, to one
of which the plaintiff demurred, and the court sustained the demurrer
though the plea was good; and on the trial of the other issues, the court ad.
mitted evidence that was applicable only to the plea thus demurred out: Held,
that the evidence was well received, the demurrer to the plea reaching back to

the bad count in the declaration. Burke vs. Stillwell, 294.
13. On appeal from the county court, the circuit court has no jurisdiction to try

the merits of the case anew, unless there be error found in the proceedings and
judgment of the county court. Kelly vs. Union county, 331.
14. Unless the bill of exceptions shows that a record, or paper was read or used

in evidence, such record or paper ought not to be copied in it; and for the omis-
sion to do so, in such case, a certiorari will not be ordered to perfect the re-

cord. 16.
15. In an action by the state for the use of the trustees of schools of township

No. etc., on the bond of M., the common school commissioner, the declaration
alleged a liability on the bond of M., as common school commissioner, for his
acts as commissioner of the townships; the defendants made default, and on en-
quiry of damages, the plaintiff offered to prove that M. had collected money be-
longing to the specified township; Held, that the default of the defendants
admitted that the declaration contained a cause of action against them, and that

the evidence ought to have been admitted. State use etc., vs. May, 348.
16. On a reversal of a judgment of the county court on appeal to the circuit

court, that court ought to set the case down for trial upon its merits, not re-

mand it to the county court for trial. Union county vs. Kelly, 360.
17. To refuse an instruction asked for soon after the court had refused one deem-

ed deficient in form but containing the same legal principle, because tendered
after the time fixed by the court for the presentation of instructions, is not a
proper exercise of the discretion of the court, where the giving it could not in-
jure the opposite party, and refusing to give it was to deprive the party of the
application of a legal principle to which he was entitled by the facts of the

case. Hill, vs. Wright, Williams & Co., 530.
18. Where depositions have been suppressed on motion, because the evidence was

adjudged by the court inapplicable to the case, it is error to permit them to be

PRACTICE IN CIRCUIT COURT-CONTINUED.

read, or other like testimony given, on the trial, unless reasonable notice to the
party making the motion be given him, before the trial, that a different rule
would be adopted--the party being thereby taken by surprise. Steamboat Vio-

let vs. McKay, 543.
19. Where the court announces that, on the call of the docket, no case would be

tried, but all would be continued but such as were undefended, in which judg.
ments by default would be rendered, it is still a regular calling of the docket,
within the 53d section of ch, 126. Eng. Dig.-a defendant baving made no de.
fenee nor employed an attorney has no cause to complain of a judgment by de.
fault being taken against him-nor has he a right to an extension of time for
trial or for pleading, because of the continuance of causes standing before his

on the docket. Collins et al. vs. Gauche, 646.
20. Where incompetent evidence is not objected to either when offered, or by motion

to exclude it, but is presented for the first time as one of the causes on a motion
for new trial, the party merely appeals to the discretion of the court for a favor
to be extended to him, and its refusal is not an error of law. Cheatham vs.

Roberts, 651.
21. The death of one of several plaintiffs before verdict and judgment, is not

technically a matter in arrest; but if the court is satisfied of the death, during

the term, the judgment ought to be set aside, and a judgment rendered in favor
!' of the survivor. Crow et al. vs. State use &c., 684.

See, also, Execution, 3; Pleas and Pleading, 13; Taxes, 5.

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1. No question is presented to this court upon the adminission of evidence, where

a motion for a new trial is made, and the admission of such evidence is not mado
one of the grounds of the motion for a new trial. Graham vs. Rourk, 19.
2. The finding of the Circuit Court sitting as a jury will not be disturbed, where
it does not appear that it was against evidence nor , without any evidence on

which to rest. Jackson vs. Rutherford, 24.
3. Where the verdict of a jury is found upon conflicting evidence, this court will

not review it. Brooks vs. Perry, 32.
4. A party will not be heard to complain of instructions that are not prejudicial

to him. Ib.
5. The course and extent of the argument before the jury is within the discretion
of the Circuit Court, (20 Ark. 624,) and this court will not control it where it
does not appear that the interference of the court was prejudicial to the
party. 16.
6. Where a new trial has been refused by the Circuit Court, this court will
not reverse the judgment on the ground that the verdict is against the pre-
ponderance of the evidence, it being, as often held, the province of the jury
to pass upon the weight of the evidence. Daniel vs. Guy et al., 50.

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