his wife, when she had sent Phillis to their daughter, Mrs. Henry, as stated by Margaret Dickey, and the evidence of the two Wylies, taken in connection with the proof of the foregoing facts, do not affect the legal character of the continuous notorious acts of Henry's claim of the negro, and of John Harbison's concession to that claim.

A few authorities, additional to those referred to, containing the same principle, but specially applicable to the facts of this case, may be cited. The Supreme Court of North Carolina, in 1794, said: “When a man sends property with his daughter, upon her marriage, or to his son-in-law and daughter, any short time after their marriage, it is presumed, prima facie, that the property is given absolutely in advancement of his daughter; and when the property is permitted to remain in the possession of the son-in-law for a considerable length of time, as in this case, it will be necessary to prove, very clearly, that the property was only lent by the father, and that it was expressly and notoriously understood not to be a gift at the time. The peace of families, and the security of creditors are greatly concerned in the law being thus settled. * This pro

perty was given in the usual manner, that is, sent with them on their going to house-keeping, as it is called, or sent to them as soon as the parent could make the necessary arrangements in his farm, or family, for that purpose." Carter vs. Rutland, 1 Haywood 97.

The facts in a. South Carolina case are much like those disclosed in this case, although the negro was not sent by the father to the house of the son-in-law till a year after the marriage. The negro remained at the house of the son-in-law till the death of the wife and daughter, when the father claimed and got possession of the negro, for which the son-in-law brought an action of trover. On the trial, the judge charged the jury that the rule of law, that where a parent suffered property to go with a child, upon marriage, a gift was implied, did not apply because the negro was not sent to the son-in-law till a year after marriage. On complaint of this charge, the

court held as follows: "We are constrained to grant a new trial, for the position, as stated by the court, is not law, and it may have influenced the jury in making up their verdict. The long and well established doctrine is, that the presumption of a gift may arise from the circumstance of a parent sending a slave to a married child, aud suffering it to remain in the possession of such child, without any express stipulation on the subject, and that whether the property be sent immediately on the marriage or some time after. The time at which it was sent may strengthen or weaken the presumption. If sent home with the child immediately on the marriage, it is almost conclusive. If a long time after, still the presumption may arise, although it is not so conclusive. In the case of Hatton vs. Banks, the negroes were not sent when the young people first went home." McCluney vs. Lockhart, 4 McCord 251. The same doctrine is held in Alabama, in cases that also declare upon facts that show the intention of the father in parting with the possession of the negro. Olds vs. Powell, 7 Ala., N. S., 655; Williams vs. Maull, 20 Ala. 729.

*

*

It follows that the first, second and fifth instructions of the plaintiff, which embodied the principle maintained in this opinion, were legal and applicable, and were improperly refused by the circuit court.

At the instance of the defendant the circuit court instructed the jury, that if a father permitted a slave to work for a married daughter and her husband, and to remain at their house three or four years, that did not give the husband the right of property in the slave. This instruction was inapplicable to the facts of the case, and in itself calculated to mislead the jury, and taken in connection with the refusal of the court to give the first, second and fifth instructions asked by the plaintiff, was prejudicial to the plaintiff, and illegal. The first instruction of the defendant should not then have been given without such modifications as to make it consistent with the law as herein announced.

A record entry in the cause states that it was admitted by

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the defendant, that a demand was made of the negro in controversy, before the commencement of the suit, in due form. It was also proved by the sheriff's return, which was legal evidence, that the negro was taken out of the possession of the defendant.

There was then no foundation in the case for the fourth instruction of the defendant, that a demand was not sufficient without a refusal by the defendant to deliver possession, for the plaintiff to maintain his action. After the demand was made the negro would not have been found by the sheriff in the possession of the defendant unless he had refused to comply with the demand, and after the admission by the defendant of the demand, he ought not to have asked for his fourth instruction. In obtaining it, the defendant subjected his judgment to review for an erroneous ruling of the court.

The judgment of the circuit court is reversed, with instructions to grant a new trial upon its return to the circuit court of Pope county.

DUVAL VS. MAYSON.

If all the parties interested as plaintiff's do not join in the action, it is ground for non-suit upon the trial.

Appeal from Desha Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

Mr. Justice FAIRCHILD delivered the opinion of the court. In an action of assumpsit brought against Duval, Mayson, the plaintiff, described himself as doing business under the style of Mayson & Britt, and counted upon an indebtedness that so accrued to him. Upon a trial on the general issue, and after proof of the account sued upon by a witness who represented himself as the clerk of Mayson & Britt, when the goods charged in the account were bought by the defendant, the defendant offered to prove that the plaintiff was not, at that time, doing business under the style of Mayson & Britt, but that said firm was then composed of the plaintiff and Francis E. Britt. The court sustained the objection of the plaintiff to the introduction of this testimony, and the defendant excepted. The judgment is now sought to be reversed upon the exception taken to the ruling of the court, and the appellant must prevail.

If all the parties interested as plaintiffs do not join in the action, it is ground for non-suit upon the trial. The defendant is not obliged to plead the non-joinder in abatement. 1 Ch. Pl. 10, 12, 14, 487, (7 Am. Ed.): Hicks vs. Branton, 21 Ark.

189.

The defendant had the right to show that Britt was a partner of Mayson when the action accrued upon the account, and to have required both of the partners to be joined in bringing the suit; else, if the fact should be as the defendant wished to show, Britt would have the same right as the plaintiff, separately, to sue the defendant upon the account.

Judgment reversed.

Where the verdict of a jury is found upon conflicting evidence, this court will not review it.

A principal is responsible for the acts of his agent within the scope of his authority. A party will not be heard to complain of instructions that are not prejudicial to him.

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.

Appeal from Dallas Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

GALLAGHER, for appellant.

FLANAGIN, for appellee.

Mr. Justice FAIRCHILD delivered the opinion of the court. This suit was an effort to make Mrs. Perry liable for goods bought by Exum, as her agent.

Upon the fact of the agency, or rather upon the purchase of the goods being for Mrs. Perry, the evidence was conflicting, and upon that branch of the case, the verdict of the jury, not being subject to review, is conclusive against the recovery of appellant, the plaintiff below, of more than was awarded to him in the Circuit Court.

The court upon the motion of the plaintiff, instructed the jury, that if Exum was the agent of Mrs. Perry and acting within the scope of his agency exceeded or violated her instructions, she would still be liable for his acts, but with the modifi