Article v, of amendments to the Constitution of the United States, which
provides that private property shall not be taken for public use without
just compensation, only applies to the exercise of the right of eminent
domain by the United States. C. & F. R. R. Co. v. Turner
2. Right of entry, compensation, etc.
Railroads are public improvements, for the construction of which private
property may be taken, under the authority of the Legislature; and, in
the absence of a distinct provision of the Constitution requiring pay-
ment to precede the appropriation, a railroad company may enter upon
land required for a right of way, before the assessment and payment of
compensation, if there is an adequate remedy for the land owner in ex-
is ence at the time of the entry.
See DOWER, S. MORTGAGE, 6, 7.
See JUDICIAL SALE, 7. LANDLORD AND TENANT, 2.
1. To deny that property is subject to sale under execution.
Where a defendant in execution assented to the sale, and endorsed on the
writ a waiv rof advertisement, and subsequently to the sale recognized by
various acts the title of the purchaser, he will be estopped from denying
the validity of the sale, or that he owned such an interest in the land sold
as was subject to seizure and sale under execution. Turner v. Watkins
et al.
There can arise no estoppel to deny the existence of a law. State of Arkan-
sas v. L. R., M. R. & T. R'y Co.
See BILL OF EXCEPTIONS, 1. DEPOSITION. DEVISAVIT VEL NON, 2, 3. EJECT-
MENT, 3. PATENT. PLEADING, 3. TAXATION, 4. VENDOR AND VENDEE, 8.
WILL, 5, 6.
1. Witness, competency, etc.
The rule which excludes the husband or wife as witnesses, does not extend
to persons who cohabit together as husband and wife without lawful
marriage. Rickerstricker v. The State.
An admission by a grantor, of a mistake in the deed, is competent evidence
against a subsequent purchaser, under an execution against him. Allen
v. McGaughey et al.
3. TROVER: Burden of, proof in.
Where scrip was deposited with a bailee, for safe keeping, proof of the bail-
ment, in an action of trover for its conversion, does not cast on the bailee
the burden of showing a re-delivery to the bailor; the plaintiff must prove
the conversion as well as the bailment. Jefferson v. Hale, adm'r. 286
4. SECONDARY: Production of instrument, when dispensed with.
The execution of a bond for title, relied on by one of the parties to a suit,
may be proved without producing it, where the evidence shows that the
party relying on it is not entitled to possession of it, and that it is not
within the jurisdiction of the court. Bozeman et al. v. Browning et al.
5. Of transactions with party, since deceased.
In a contest for title between the devisees of a party deceased, and others
claiming the land under a title bon executed by the testator, which is
begun after the administration is closed, any of the parties to the suit are
competent to prove such transactions with, or statements, by the deceased,
as are relevant to the issues.
Id.
6. Admission of incompetent evidence.
This court will not reverse a cause for the admission of incompetent evi-
dence, where its admission does not prejudice the opposite party.
The rule which excludes parol evidence for the purpose of varying a writ-
ten contract, is confined to the parties to the contract, and does not pre-
clude strangers to it from introducing such evidence. Talbot et al. v.
Wilkins et al.
The testimony of a witness upon an examination in bankruptcy, which is
taken before a United States Commissioner and reduced to writing, can-
not be proved by parol evidence. The deposition, or a certified copy un-
der the seal of the court, must be produced.
Id.
In an action by a corporation, on a bond, it was alleged in the complaint
that the name of the corporation had been changed since the execution of
the instrument: Held, that under the allegations the bond was admissi-
ble in evidence. West et al. v. Carolina Life Insurance Co.,
10. Finding of the court not disturbed on weight of evidence.
The finding of a court sitting as a jury will not, where there is a mere con-
flict of evidence, be disturbed any more than the verdict of a jury would
be under similar circumstances.
11. PAROL: Statute of frauds, etc.
The defendant, for the purpose of defeating an action for rent, attempted to
introduce evidence of a parol contract to purchase an interest in the land
rented, and an entry thereunder; Held, that the evidence was properly
excluded, the contract was within the statute of frauds, and the fact that
possession was taken under it did not alter the case; such part perform-
ance can only be shown as a license for the entry, and where no title is
attempted to be set up. Anthony v. Hunt.
481
12. Competency of husband and wife.
The exclusion, at common law, of the husband and wife as witnesses, for or
against each other, was based on grounds of public policy, for the protec-
tion of the marital relation. Secs. 2480-1-2-3, etc., Gantt's Digest, exclud-
ing husband and wife from testifying for or against each other, is not in
conflict with the provisions of the Constitution of 1874, prohibiting any
exclusion on the ground of interest, etc.; and it was error to permit the
husband, in a suit by the wife for breach of a promise of marriage, to tes-
tify as to matters that occurred previous to the marriage. The case of
Magness v. Walker, 26 Ark., 470, reviewed and qualified. Collins v. Mack.
13. Competency of admissions to a physician.
The admissions of a patient to a physician, while the latter was in attend-
ance during her illness, and which were not necessary to enable him to
prescribe for her, or do any act as a surgeon, may be proven by the phy-
sician.
Id.
14. Admissions of a party, etc.
Where a party to a suit becomes a witness, it is not necessary to lay the
usual foundation for proving previous admissions, contradictory of the
party's testimony.
See ESTOPPEL, 1. JUDICIAL SALE, 2, 3, 4, 6, 7, 8. MORTGAGE, 6, 7.
LEVY, ETC.: Lien of, may be enforced after debtor's death.
An execution was issued and levied on land during the life of the debtor,
after his death the judgment was revived against the administrator, and a
writ of vend. ex. issued to sell the land levied on: Held, that by the levy
a specific lien was fixed on the land, which could be enforced by a sale
under the vend, er. Barber v. Peay, adm'r.
392
See ADMINISTRATOR, 6. PRINCIPAL AND SURETY, 2, 3. WILL, 5.
A married in 1870, his wife owed a debt which was contracted in 1866, upon
which judgment was recovered against both of them: Held, that as to
the husband the debt was contracted at the date of the marriage, and he
was entitled to the benefit of the exemption law then in force, while the
exemptions of the wife, as to her separate property, would be governed
by the law in force at the time she contracted the debt. Williams v.
Rivercomb et al.,
292
2. EXEMPTION OF CHOSE IN ACTION:
Under the provisions of the Constitution of 1868, choses in action may be
selected by the owner as exempt from a garnishment process. Probst &
Hilb v. Scott,
Payable in County Warrants.
Under the provision of the Act of December 14, 1875, requiring fines, pen-
alties, etc., to be paid into the County Treasury, such fines, penalties, and
forfeitures are to be treated as debts accruing to the county, and are pay-
able in county warrants. McKibben v. The State.
See VENDOR AND VENDEE, 3, 4.
See CORPORATION. TOLL BRIDGE,
See FRAUDULENT CONVEYANCE.
In order to establish fraud on the part of the purchaser, by reason of a
purchase at an inadequate price from an insolvent vendor, participation
on his part in the fraudulent design must be shown. Trieber v. An-
drews.
2. FRAUD, MISREPRESENTATION, ETC.
Fraud consists in the misrepresentation or concealment of material facts
forming an inducement to the making of the contract, and in regard to
which, from the relative position of the parties, their means of informa-
tion, etc., the opposite party must necessarily be presumed to have con-
tracted in reliance on the representations; for if the means of information
are alike accessible to both, they must be deemed to have relied on their
own knowledge. Righter et al. v. Roller et al.
170
An untrue representation, in order to be fraudulent, must have been known,
by the party making it, to be false.
Id.
1. Payment on contract within the statute, recovery of.
Where a party has paid money, or delivered property, on a parol contract for
the purchase of land, which is void by the statute of frauds, he cannot
maintain an action for the money or property so paid or delivered, so long
as the other party is able and willing to perform the contract. Venable
v. Brown.
Promise to pay the debt of auother,
A promise to pay the pre-existing debt of another, founded upon the orig-
inal liability, and without any new consideration to support it, is a col-
lateral undertaking, and within the statute of frauds. And the mere pos-
session by the promissor, of property of the debtor not deposited for the
purpose of paying the debt, will not withdraw it from the operation of the
statute. Hughes v. Lawson.
613
A county not subject to the process of garnishment. Boone County v.
As to what constitutes a session thereof; the effect of a recess, etc.
v. L. R., M. R. & T. R'y. Co.
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