Arkansas Reports; Cases Determined in the Supreme Court of Arkansas Volume 11 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1851 edition. Excerpt: ...that it was rendered by the circuit court. The court of appeals of Kentucky, in the case of Young vs. Downer, (5 I/itt. 9) said, "We couldnot sustain the decree of the court below, if the merits of the cause were in its favor. It directly sets aside the jugdment at law, and awardsa new trial, totidem vcrbis. We cannot concede to the chancellor the power of setting aside and altering the records of a court of law. If the powers of a chancellor were separated from the person of the judge of a court of law, which is done elsewhere and may be done here, we cannot tell how the chancellor would enforce such a decree---whether he would retry the cause himself or compel the court ofcommon law to do it. Hence this court has decided that the chancellor must in such case, 'act on the person only and not on the proceedings at common law; or, in other words, he ought to decree that unless the defendant in chancery consent in the common law court to a new trial in a reasonable time, his hand Shall be tied and be perpetually restrained from executing his judgment." Ve entertain no doubt but that this is the correct doctrine, and that although the case upon the merits is in favor of the complainants, yet inasmuch as the decree sets aside and vacates thejudgment at law, it is for that cause erroneous and consequently ought to be reversed. The decree of the circuit court of Marion county sitting in Laster et al. vs. Toliver dz wife. Jun chancery in this cause, is therefore reversed, annulled and set aside and the cause remanded to said circuit court to be proceeded in according to law and not inconsistent with this opinion; and it is further ordered that upon its return to said court both parties have leave to amend their pleadings if...