Arkansas true Democrat., 1859-07-13
Abstract of the decisions of the Supreme
 Court of the State of Arkansas.
 Prepared expressly for the True Democrat, Jv

Iheek. o'rc~" Court.
 On the 9th March, 1857, John w. Lumn- kin and George W. Cheek, entered into a sealed contract, to exchange certain real estate, and to make good titles therefor, to each other. George w. Cheek on his part. fulfilled hlS agreement and conveyed and made titles to said Lumpkin. Lumpkin failed to comply with the terms of agree ment, in making titles to the property which he conveyed to said Cheek. Lump kin aed and Bellows was appointed ad. ministrator of his estate Prior to the death of Lumpkin, and in February, 1858, demand was made upon Lumpkin to com ply with his contract, Lumpkin not com plying with the request, Cheek abandoned the contract, and after the death of Lump kin presented the account to the probate court, for the amount due him on the pro- perty made over to said Lumpkn. Said account was properly indorsed by Bellows as administrator. The court allowed the claim. A new hearing was ordered, on petition of James Wickersham, who had been appointed administrator by the county court of Shelby county, Tennessee, where Lumpkin resided before and at the time of his death. At the next term the parties appeared, and Wiclersham on behalf of Nthe estate, and in name of Bellows, as admin lstrator, filed a plea iii abatement. The plea was stricken out by the court. and Pellows excepted The claim was then submitted to the court and allowed, and Judgment rendered against Bellows as ad- mlnlstrator for $l2,000 Bellows appealed to the circuit court of Crittenden county, winch sustained the judgment of the pro- bate court, and Bellows appealed to this court.
 The Court he1d.
 lst It IS the duty of an administrator, under the statute, either to allow or reject demand when presented to him for allow ance. But if he chooses to nisregard his duty, the creditor cannot control his con- duet, all that he can do is to present his clam In proper form to the administrator and demand its allowance If he does not allow 1t, and so indorse 1t, the demand must be regarded as rejected, though he may not chose to indorse its approval or though he may refer the matter to the de- cision of the probate court. The purpose of the statute is accomplished in atfording him an opportunity of allowing or rejecting the claim
 2nd. The notice which the statute re- quires to be given to the administrator of Athe intended application to the probate 'court, for the allowance of claim answers the purpose of the writ in the ordinary actions. Its object Is to afford the admin istrator an opportunity of appearing before the court and contesting the demand; but where the party appears and defends upon the merits the object of the notice is accom- plished, or in other words notice is waived.
 Formal pleading is not required in the probate court; but if a party fa.ls to file written pleas he must conform to the rules of special pleading.
 3rd. Where the purchaser has paid any part of the purchase money, and the vendor does not complete his engagement, so that the contract is totally uneXecuted, he, the purchaser, may affirm the agreement, by bringing an action for the non-periormance of 1t, or he may elect to disalfirm the agree ment ob 5nitio, and may bring an action for money had and received.
 4th. Although the contract is under seal, and the purchaser might for breach of the contract maintain an action of covenant for the breach of the contract, yet he may also, if he have a right to rescind the con tract, bring an action for money had and re- ceived, to recover back his purchase money. The seller holds the money against con science, and therefore might be compelled to refund 1t by an action for money had and received.
 9th. If the circumstances be such that by resembling the contract, the rights of neither party are injured, in that case, if one contracting party will not fulfill his part of the agreement, the other may re- scind the contract and maintain his action for money had and received to recover back what he may have paid upon the faith of it.
 9th. In order to sustain an action in this form 1t Is necessary that the parties should by the plaintiff recovering verdict be placed Tn the same situation in which they origi- nally were before the contract was entered into
 1th. A contract cannot be reScinded with Outmutual consent when circumstances have been so altered by part execution that the partleS cannot be put m StdtH quo, for Ii 1t be rescinded at all 1t must be rescinded in tot0.
 Sth. Where one party is desirious of re- scinding contract by reason of the others default he must do so in toto, and cannot hold on to part he must put the other in stat1 quo by an entire surrender of every- thing he has obtained under the contract, or he cannot recover the consideration in an action for money had and received.
 The judgment of the circuit court revers- ed, and the case remanded with instruc- tons to the circuit court to reverse the judgment of the probate court, and grant to the appellant hearing de moro, and to dispose of the cause in accordance with law and not inconsistant with this opinion.