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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
Veatch vs. Greenwood, 637.

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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, Gould's
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.

4

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
his name as such to final judgment, without objection. the want of such formal
order is no ground of reversal. Ib.

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. Ib.

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. (Sullivan, ad. vs.
Deadman, ante.) Mayson vs. Edington, 208.

10. Where the mandate of this court is filed during the term 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, 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 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. on county, 31.

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. Ib.

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, 350.

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 having 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, 8; Pleas and Pleading, 13; Taxes, 5.

PRACTICE IN SUPREME COURT.

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 made
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. Ib.

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.

PRACTICE IN SUPREME COURT-CONTINUED.

7. This court will not enquire whether the Circuit Court rightly sustained a de-
murrer to a plea, where the defendant might have given, and did give in evi-
dence, under another plea, the same facts set up in the plea demurred to. Gut
ledge vs. Howard, 61.

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8. The finding of the court, sitting as a jury, will not be disturbed, unless there
was a total want of evidence to support it. Ib.

9. Where it was the appropriate province of a jury to determine a matter of fact
before them, and their conclusion is not without evidence to sustain it, this
court will not disturb their finding upon the matter, Hirsch vs. Patterson, 112.
10. Where judgment is for an excessive amount, it will be affirmed, under the
rule, on a remittur of the excess; otherwise it will be reversed. Ib.

11. Where no motion for a new trial was made in the court below, the propriety of
the verdict upon the admitted evidence, is not to be questioned in this court. But
when no question, tending to infringe upon the province of the jury, is involved,
when the case presents simply leading points upon the pleadings, and upon the
instructions and rulings of the court, it is the established practice of this court
to disregard a particular error, if the judgment upon the whole record is ac
cording to law; and so, notwithstanding conceded errors, the judgment will not
be reversed, if, upon consideration of the whole case, the party was not injured
by them. George ex. vs. Norris, 121.

12. In an action of trespass against the plaintiffs, their attorney and the sheriff,
for levying an execution upon, and selling the property of a third person, if
there be any evidence, though slight, against the attorney as a co-trespasser,
this court could not set aside the verdict against him for not being supported
by evidence. Crump vs. Starke, 131.

13. Where the record states that the suit against a defendant not served with pro-

cess, was discontinued, this court will hold such statement to be true, although

the bill of exceptions presents a different state of facts. Ib.

14. The appellant having been made a witness, and the jury, who heard his state-
ment, having rendered a verdict against him, and the presiding judge who had
an opportunity of observing his manner of testifying, having refused to set aside
the verdict, this court being unable to say that there was a total want of evi-
dence to sustain the verdict, affirms the judgment. Thompson vs. Patterson,

159.

15. The failure of the Circuit Court to dispose of a bad plea, is not sufficient cause
to reverse the judgment. Brearly vs. Peay, 172.

16. Where there is a conflict of testimony, the court will not disturb the verdict of
the jury, or the finding of the court below. Mayson vs. Edington, 208.

17. Where the question of damages is fairly left to the jury, this court will not set
aside the verdict for excessive damages, unless there be good ground shown.
McClintock vs. Lary, 215.

18. This court cannot presume, for the purpose of sustaining the judgment of the
Circuit Court, that a plea was stricken out for some good and sufficient cause,

PRACTICE IN SUPREME COURT-CONTINUED.

against the affirmative showing, made by the record, that the court erred. Far-
ish vs. Jones, 323.

19. A wrong instruction, which could not have injured the party against whom

the judgment was rendered is no cause for reversal. Sessions vs. Hartsook, 519.
20. Where a creditor sells the property of several tenants in common, as the pro-
perty of one, buys it all, and asserts on a trial, his right to the whole, the other
tenant in common, may recover his interest without proof of the sale or destruc-
tion of the property by the purchaser: But this court might infer that such
proof was made where such inference is not excluded by the bill of exceptions.
Peterson vs. Manley, 528.

21. And so where the correctness of the verdict depends upon the fact, whether
cotton, ginned by a third person, was still in possession of the ginner-he hav-
ing no lien upon it for ginning, if it was out of his possession-this court might
infer that the evidence sustained the verdict, unlesss the bill of exceptions ex-
cluded such inference. Ib.

PRINCIPAL AND AGENT.

22. On a motion for a new trial on the ground of newly discovered evidence, this
court will infer that proper diligence was not used, where the new witness was
one of the joint owners of the property in litigation. Ib.

See, also, Chancery, 10, 26; Recoupment, 2.

1. A principal is responsible for the acts of his agent within the scope of his au-
thority. Brooks vs. Perry, 32.

2. Where an agent, for the sale of property, is acting upon the line of business com-
mitted to him, his principal is chargeable with the false representations made
by him. Morton vs. Scull, 289.

3. While acting upon the matter of his agency a special agent binds his principal as
effectually as a general agent can do. Ib.

4. The principal is liable for the false representations of his agent in the sale of a
slave, where the purchaser buys upon the representations of the agent, without
any previous knowledge of the slave, and with no means of then testing the
correctness of the representations. Ib.

5. Although in an action for goods sold and delivered to a third person for the de-
fendant, the evidence may be taken as tending to establish an agency in the
third person to buy the goods for the defendant, so as properly to have submit-
ted the matter to the jury, an instruction which assumes, in the absence of all
proof of the fact, that there was evidence whence the jury might infer that the
agent could buy the goods on credit, is erroneous. Berry vs. Barnes, 411.
6. A mere agency to buy goods does not imply such an agency as authorizes a pur-
chase on credit; and where a special agent is employed in a single transaction,

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