An appeal will not lie from an order of a justice of the peace, under sec. 26, chap. 66, Gould's Dig., in reference to estrays.

Appeal from Clark Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GARLAND & RANDOLPH, for Langley.

FLANAGIN, Contra.

Mr. Justice FAIRCHILD delivered the opinion of the Court. Barkman took up a stray colt which Langley claimed, and he established his claim to the satisfaction of a justice of the peace, under section 25, chap. 66, Gould's Dig.; and the justice made the order provided for in the 26th section, requiring Barkman to give the colt up to Langley, upon his paying all legal costs, and "all further costs" Barkman was ordered to pay. Barkman appealed to the circuit court. That court refused to take jurisdiction of the ownership of the colt, but tried the other branch of the case, and adjudged Langley to pay four dollars and twenty cents to Barkman for keeping the colt. With this Langley was dissatisfied, and appealed to this court; while Barkman prosecutes his appeal because the circuit court would not try the right of the colt. Langley moved, in the circuit court, to dismiss the appeal because the court had no jurisdiction of the subject matter of the controversy, which the court overruled.

The court should have sustained the motion.

The proceed

Burke's ad. vs. Stillwell ex'r.

[JANUARY

ing before the Justice was not appealable. The only object of the statute is to enable the taker up of a stray animal to restore it to its owner, and obtain indemnity against the bond given to the county-the right of the animal is not determined; the taker up may refuse to obey the order of the justice, if he will, and expose himself to an action of detinue or trover, in which the right of property may be tried, (section 29 of Statute,) or to replevin. Davis vs. Culbert, 17 Ark. 85; Phelan vs. Bonham, 4 Eng. 389.

The circuit court had no jurisdiction of either branch of the case, and its judgment is reversed, with direction to dismiss the case, for want of jurisdiction.

BURKE'S AD. vs. STILLWELL EX'R.

The defendant demurred to one count of the declaration, which was bad, but 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 admitted 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.

In a suit against the executor of his deceased partner, he may set off a debt due from the plaintiff to the partnership, under the principle decided in Leach vs. Lambeth, (14 Ark. 668.)

An attorney giving a memorandum to his client of a judgment obtained for him, stating that it had been settled by drafts in his hands, to be accounted for

on settlement, will be presumed to have collected the money before suit brought, and will be liable to an action for money had and received.

In an action against an attorney, by his client, for money collected by him, the collection of which was evidenced by a memorandum in writing given by the attorney, acknowledging the collection and promising to account, he produced an instrument of writing, executed, by the client, several years before such memorandum was given, authorizing 8. to collect the debt and pay him one-half of the proceeds: it did not appear that S. accepted the instrument, or that he or the client acted under it; or that the attorney recognized the claim of S: Held, that it was not sufficient to overcome or resist the evidence of the plaintiff arising from the memorandum,

Error to Pulaski Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

GARLAND & RANDOLPH, for plaintiff.

The items of the set-off due to Fowler and Stillwell jointly, were not properly allowed as a set-off in this action, against the executor of Fowler. Bizzell vs. Stone, 7 Eng. 378; 2 Parsons on Con., 243, 244, and cases cited in notes. They are not due to Fowler's representative, but belong to the surviving partner, who alone can sue for them. Story on Part. sec. 346, and cases cited.

The instrument by which the defendant attempted to show that Smith had an interest in the money collected, was nothing more than a power of attorney. And the law is clear that it was revoked by the death of Burke and Smith, or either of them, Story on Agency, secs. 488, 490. For Smith's interest, if he had any, was merely an interest in that which was to be produced by the exercise of the power, and was not an interest in the subject on which the power was to be exercised. Hunt vs. Rousmanier, 8 Wheat. 174; 5 Cond 405.

STILLWELL & WOODRUFF, for appellee.

The demurrer to the 4th plea ought to have been overruled. It showed that Burke, at the time of the receipt of the drafts by Fowler, was indebted to him and his executor, and the law would apply the money coming into the possession of either to

the payment of that indebtedness. If the defendant has any legal or equitable lien on the money, or any right of cross action upon the same transactions, the plaintiff can only recover the balance, after deducting such claims. 2 Greenl. Ev., sec. 117; 1 Ch. Pl. 341.

The only evidence introduced by the plaintiff was the memorandum, and that fell far short of proving "money had and re-. ceived." Peay ad. vs. Ringo, 22 Ark. 68. In this action it must be proved that defendant received money or cash-the receipt of money's worth is not sufficient. 1 Bing. N. C. 198;. 5 Burr. 2, 589; 6 B. & C. 163. It was not proven that Fowler ever received a dollar in money or cash, that belonged to Burke; and the verdict for the defendant is right, regardless of the set-off.

But admitting that the plaintiff's evidence was sufficient, it was proven that Burke had assigned the proceeds of the judgment recovered by Fowler to Smith-that only one half the amount was due to Burke, and that was covered by the claim of the defendant against him.

Mr. Justice FAIRCHILD delivered the opinion of the Court.

The administratrix of Patrick G. Burke brought an action of assumpsit against Stillwell, the executor of Fowler, and the evidence in it for the plaintiff, was the following writing, executed by Fowler :

COLUMBIA, April 5th, 1857.

Memorandum for Patrick G. Burke, esq.

Patrick G. Burke, plaintiff,

versus

Judgment in Chicot Circuit Court, March

Lycurgus L. Johnson and Nathan Ross.) term, 1857.

For $1,019 19 cts. in damages, amount settled by drafts in my hands, to be accounted for, etc., on settlement. Defendants to pay costs for which execution has been ordered, is not paid, etc.

A. FOWLER.

With non-assumpsit and payment, Stillwell interposed two pleas of set-off, one of indebtedness of Burke to Fowler, and

one of indebtedness of Burke to Fowler and Stillwell, partners in the practice of law, which Stillwell, the surviving partner, executor of Fowler, and defendant, offered to set-off against the demand of Burke. Issues were made up on all of the pleas, but the last plea of set-off, to which a demurrer was filed and sustained.

An account was filed showing the particulars of the set-off, the charges being for legal services of Fowler as an attorney for Burke, to the amount of five hundred and twenty dollars. Against the allowance of this demand, it is urged, that all but the first item of one hundred dollars, was for services of Fowler & Stillwell, and that the residue belonging to Stillwell, the surviving partner, could not be set-off in this suit founded on a demand of Burke against Fowler. The evidence is as thus contended for by the plaintiff. But the Circuit Court must have thonght otherwise, else, having quashed the last plea of set-off, it would have disregarded the evidence as inapplicable to any pleading or issue in the case, on the plaintiff's motion to exclude it, or would have granted a new trial for its erroneous finding, if it had thought, when the motion for a new trial was made, that the evidence had been unwittingly received and considered. But the testimony is, that Fowler and Stillwell were in partnership in 1855, as the witness thought, and so continued until the death of Fowler, and that the services charged against Burke were rendered after 1855, saving that the suit for whose conduct the first item was charged, was begun in 1854. There was then no plea in the record under which this evidence could have been legally introduced, or been legally considered after the partnership of Fowler & Stillwell had been proved as we have stated. Yet the court, after sustaining a demurrer to the set-off, alleging Burke's indebtedness to Fowler & Stillwell, rested its finding for the defendant on evidence which sustained that plea, and did not have any other foundation. This must have been the ground of the motion for a new trial, so far as the finding was unsupported by the evidence concerning the set off. But we think this evidence was well received, for the