Waller v. State of Arkansas.

5. JUDI. CIAL NoTICE:

That la

whisky, wines, and beer were kept for sale there. Witness did not know whether it was defendant's saloon or not; it was called his saloon, and there was a sign out, “S. R. Waller's Saloon."

The State was permitted to read, from the county court record, against the objections of defendant, an order granting to S. R. Waller, a license to keep a dram shop, at Morrilton, in Conway county.

The order was competent, as tending to prove that defendant was the owner of the saloon at which witness, Wells, purchased the lager beer, and, therefore, interested in the sale.

V. The court charged the jury, in effect, that if they found, from the evidence, that defendant was interested in the sale of the lager beer to the minor, Wells, as owner, or part owner, thereof, etc., he was liable; and refused to charge them that it was unnecessary to prove that the sale was made by him, personally; or that he had knowledge, before the sale, that it was to be made; or consented to, or, in some manner, participated or took part in such sale.

It was sufficiently proved that the sale was made to the minor, at defendant's saloon, and in his dram-shop business; and that was sufficient to make him liable. Robinson et al. v. State, ante.

VI. It was not proved that the lager beer sold to the minor was malt and fermented liquor; but the court prop

ger beer is erly treated this as matter of common knowledge.

ferment'd.

Affirmed.

Edwards et al. v. Probst & Hilb.

EDWARDS ET AL. V. PROBST & HILB.

1. SUNDAY CONTRACT: Action maintained on original debt.

A promissory note executed on Sunday is void, and an action may be maintained on the debt for which it was given, disregarding the note.

APPEAL from Logan Circuit Court.

Hon. J. H. ROGERS, Circuit Judge.

STATEMENT.

Appellees sued the appellants on an itemized account for $165. Appellants pleaded that the account had been settled and fully paid by note. Appellees replied and proved that the note was executed on Sunday. Verdict and judgment for appellees, and appeal by appellants.

Dan B. Granger, for appellants.

1. A note given in satisfaction, is an extinguishment of the debt. 11 J. R., 518. It is a bar to an account, though the note is unpaid. 8 Ark., 213. The legal presumption is, that it was intended, and in fact was an extinguishment of the original demand. 5 Ark., 558.

2. The note valid on its face, bearing date of a week day. Appellees treated it as a valid satisfaction of their account, and ratified the Sunday transaction. They never offered to return the note, nor made demand for their receipt against the account. By their acts they ratified and gave validity to the note. Tucker v. West, 29 Ark., 404;

1 Dan. Neg. Inst., 69, last clause.

N. & J. Erb, for appellees.

"Though the note made and delivered on Sunday be void, the payee may recover upon the original consideration. "Daniel on Neg. Inst., par. 69; Finney v. Calendar, 8 Minn., 41.

HARRISON, J. The note having been executed on Sunday, was void, and no satisfaction of the account. The judgment is affirmed.

INDEX TO SYLLABUS.

ACKNOWLEDGMENT OF DEEDS.

See SALE 6.

1. Certificate of, When evidence.

An officer's certificate of the grantor's acknowledgment of the execu-
tion of a deed is not evidence of the execution, unless the deed and
certificate have been filed for record. Watson v. Billings.

2. False certificate of; Burden of proof.

278

The burden of proof that a certificate of acknowledgment of a deed
is false, and that no acknowledgment was, in fact, made, is upon the
party alleging it. Meyer v. Gassett.

3. Certificate of; When and of what evidence.

377

When there is no appearance before an officer to acknowledge the exe-
cution of a deed, and no acknowledgment of it, in fact, his false cer-
tificate of acknowledgment is void in toto; but where there is an
appearance and acknowledgment of it in some manner, then the
official certificate of the acknowledgment is conclusive of every fact
appearing on its face; and evidence of what passed at the time of
the acknowledgment is inadmissible to impeach the certificate, ex-
cept in case of fraud or imposition in obtaining the acknowledg-
ment, and where knowledge or notice of the fraud or imposition is
brought home to the grantee.
Ib.

ACTION.

See ADMINISTRATION, 9. CONTRACTS, 1.

FORCIBLE ENTRY AND
DETAINER, 1. REPLEVIN, 2.

1. Joinder of, on separate instruments.

Where one obligates himself in writing to perform certain acts, and
others in a separate instrument to the same obligee, guarantee the
performance of the acts by the first, the obligors in the two instru-

ments being different, an action will not lie on both instruments
jointly, even under the Code. But if in such joinder the princi-
pal be not served with summons, and the joinder be not objected
to by motion or otherwise, it will be waived, and cured by the dis-
missal of the action as to the principal not served. Hurburt et al.
v. W. & W. Manuf. Co

2. SUNDAY CONTRACT: Action maintained on original debt.

594

A promissory note executed on Sunday is void, and an action may be
maintained on the debt for which it was given, disregarding the
note. Edwards et al. v. Probst & Hill.

661

ADMINISTRATION.

1. Sale of land without apppraisement.

The failure of an administrator to have land appraised before selling
it under an order of the Probate Court, will not render the sale void,
if it be confirmed by the court. It can be set aside only by appeal
from the order of confirmation, or by direct proceedings for that
purpose. It cannot be impeached in a collateral proceeding.
et al. v. Green, Ad., et al.

Bell

78

2. ADMINISTRATORS: Employment of Attorneys; Construction of Statute.
Where one who is executrix and also sole legatee of an estate, employs
an attorney to prosecute a suit for land devised to him, which is
not needed for the payment of the testator's debts, upon a contin-
gent fee of part of the recovery, the contract will be considered as
that of the legatee, and not of the executrix; and will be binding, and
not avoidable by a succeeding administrator de bonis non with the
will annexed; and the attorney can set off his claims for services,
against the suit of the administrator against him for the fruits of the
recovery in his hands.

The scope and design of the Statute (Gantt's Dig., 195-197), is to
require the allowance of fees to representatives of estates out of sums
for which they may be chargeable, and has no application to a con-
tract made by the devisee and owner of the land, in good faith, with
the attorneys for its recovery. Bell & Carlton v. Welch, Ad. 139
3. WIDOW: Her allowance in deceased husband's estate; How estimated.
The value of both the real and personal property of an estate is to be
estimated in determining whether it may be vested in the widow
under sections 6 and 7 of Gantt's Digest; but if the remainder interest
in the homestead and the personal property, are, together, of less
value than $800 the widow may retain, absolutely, $300 of the prop-
erty, and continue her occupation of the homestead. Word, Ad. v.
West.
243