State, use, etc., v. Watson. in a bank for safe keeping, if there had been one in Jackson county or an adjoining county. Gantt's Dig., 4818. Had such order been made, and, had the clerk, instead of obeying it, put the money in his pocket, and converted it to his own use, no doubt he and his sureties would have been liable on his bond for it. So if he had put the money in bank, and the court had ordered him to check for it, and pay it over to the guardian of the minors, and he had drawn it, and then instead of paying it over as directed, converted it to his own use, he and his sureties would have been liable on his bond for it. The court of chancery has power to appoint a receiver, and require him to take an oath, and give a bond, in the cases specified in the statute. Gantt's Dig., 4809-13. But this case was not within the letter of the statute. No doubt the court, in the exercise of its general chancery powers, might have appointed a receiver, and required him to take an oath, and give a bond, and ordered the money into his custody, until the guardian should be appointed. But the court deemed it proper to order the money into the custody of its own sworn and bonded clerk, and if the order was not literally within the provisions of section 4814, Gantt's Dig., it was within the general powers of the court. In some of its features, but not in all of them, this case is like that of Hardin's exrs. v. Carrico, 3 Metcalf, (Ky.) 261. In that case the condition of the bond of the clerk was, that he would "well, truly and faithfully discharge the duties of clerk &c., and pay over and account for all taxes, fines and other public moneys which might come into his hands as clerk." In a suit pending in court, an order was made reciting that one of the parties to the suit deposited money in court, which was to be held subject to the future order of the court. Afterwards a receiver was ap State, use, etc., v. Watson. pointed in the suit, and he was directed to collect the money which had been deposited in the hands of the clerk, who, in the meantime, had died. The court held that a surety of the clerk was not liable for the money; that it was not "public moneys," and hence not within the condition of the bond. The court also held that there was no statute authorizing the clerk to be made the custodian of the money paid into the court by a party to a suit, and that it should have been placed in the hands of a receiver. In this case the condition of the bond was to "pay over to the proper officers or persons all moneys that may come into his hands by virtue of his office," &c. Here the money was not paid into court by a party to a suit, but the court ordered the commissioner to pay it into court, and placed it in the official custody of the clerk, to be safely kept, and paid out as ordered by the court. The case of Waters v. Carroll, Governor, 9 Yerger, 102, favors the decision of the court below, but in the later case of Craig, et al., v. The Governor, 3 Caldwell, 244, it is shown that money may be placed by order of court in custody of the clerk and master, which he cannot pay out without an order of court, and for which he and his sureties are responsible on his bond. It often happens in the progress of suits that money is brought into court, and placed in the custody of the clerk until disposed of by order of the court, and it would be unsafe to hold that the clerk and sureties are not responsible on his official bond for such moneys. Under the English chancery system, until the passage of the act of 12 George I, providing for an Accountant General, the master had custody of money &c., paid into court, and delivered the money, &c., into bank, and drew it out, &c., under orders of court. 2 Daniel, Ch. Pl. & Prac., p. 1,771. Hibbard v. Kirby. McCanany was both clerk and master. The court below erred in sustaining the demurrer to the complaint. Reversed, and remanded for further proceedings. HIBBARD V. KIRBY. 1. JUSTICES OF THE PEACE: Jurisdiction; Amount. An action upon an account for less than three hundred dollars is within the jusrisdiction of a justice of the peace. 2. PRACTICE: Defects in service or summons waived by answer. Any defect in the summons or service is waived by filing an answer to the merits. 3. CONTINUANCE: Absent witness; Practice. A motion for continuance for the absence of a witness should be overruled, if the adverse party will admit that the witness, if present, would testify as stated in the motion. 4. BILL OF EXCEPTIONS: The evidence. A bill of exceptions should state expressly that it contains all the service, but will be sufficient if it shows with reasonable certainty by its expressions that no other evidence was introduced than that set out in it. 5. CONTRACTS FOR SERVICE: Entire; Action on. When a contract for service is for a particular time, and payment is to be made either expressly or by implication of law, at the end of the period, and the servant leaves the service of his master improperly. without a sufficient cause, and without his consent, before the expiration of that time, he can recover no compensation for his services, either on the contract or on a quantum meruit. 6. JUSTICE OF THE PEACE: Practice; Variance. In an action before a justice of the peace on an open account for wages, (no formal complaint being filed) the plaintiff may prove a verbal contract for stipulated wages if any was made, or if not, the value of the services rendered. APPEAL from Montgomery Circuit Court. HON. A. B. STUART, Circuit Judge. Hibbard v. Kirby. R. G. Davies for appellant: 1 The verdict was contrary to the evidence and the first instruction, and was such as to shock the sense of justice. 1 Parsons Cont., 520, et seq., notes (j) (1) and (n), p. 524, (o), 522 (1); Temple v. McLachlan, 2 Bos. & Pul., N. R., 136; Farnsworth v. Garrard, 1 Campbell, 38; Withers v. Green, 9 How, 227-8; 11 How, 475; 6 N. H., 481; Thas v. Williams, 1 Ad. and El., 28; E. C. L., 258 ; Bac. Ab., master and servant (N.); Chitty Cont., 577, n. (1); Ib., 579, n. (1). 2. There was no final judgment before the justice. 3. The summons improperly served. Gantt's Dig., secs. 3735, 4082, 5648. 4. The second instruction for appellant should have been given. 27 Ark., 564; 31 Ark., 486. Also the 5th, 24th Wend., 63; 45 N. Y., 165; 2 Pick, 274. Also the 7th, 13th John., (N. Y.) 94; 9 N. Y., 96; 18 Wend., 187; 17 N. Y., 185; 20 N. Y., 429,487. 165; 10 Zb., 203; 8 Cow., 63; 4 197. W. F. Hill for appellee. See also, 12 Johnson, Denio, 121; 20 N. Y., 1. This court will not disturb a verdict on a mere conflict of evidence. 2. The bill of exceptions does not purport to contain all the evidence, and this court will presume that there was evidence to support the verdict. Moss v. State, 17 Ark., 331. 3. The court properly instructed the jury, and did not err in refusing the instructions asked. U. M. Rose also for appellee. 1. Nothing in bill of exceptions to show it contained all Hibbard v. Kirby. the evidence, and this court will presume there was evidence to support verdict and justify instructions. Moss v. State, sup.; Taylor v. Spears, 3 Eng., 430, 2. The instructions are correct. 3. The continuance properly refused. sec. 4631. Gantt's Dig., ENGLISH, C. J. On the eleventh day November, 1879, Wellington Kirby sued Richmond Hibbard on an open account before a justice of the peace of Silver City, Montgomery county. The claim was for services rendered, and labor performed by plaintiff, for and in the employment of defendant from June 25th, until the eighth day of October, 1879, sixteen weeks at six days to the week, ninety-six days, at $5 per day,... Credits, by cash at various times, paid in Chicago... By cash at various times..... Balance claimed..... $480.00 Upon a summons issued by the justice, the constable returned service upon the defendant, and that he had seized into his custody, as property on which plaintiff claimed a lien for his labor, an engine and boiler, a rotary pump and belting, a furnace and piping, a building, rotary fan and belting, an iron tank, and a smelting furnace and imple ments. On the return day, the defendant filed a motion to dismiss the cause for want of jurisdiction, which the justice overruled. Defendant then filed an answer, in which he denied that |