Ark. Code Ann. § 1-2-119 (2026)

Case Notes

In General.

When Congress extended over the Indian Territory the common law as construed in this state, the act of Congress adopted the construction which the courts of this state placed upon the law. Snellen v. Kansas City S. Ry., 82 Ark. 334, 102 S.W. 193 (1907).

For discussion of history of this section, see Moore v. Sharpe, 91 Ark. 407, 121 S.W. 341 (1909).

Applicability.

This section applies to common law respecting monopolies and restraint of trade. Elizabeth Hosp. v. Richardson, 167 F. Supp. 155 (W.D. Ark. 1958), aff'd, 269 F.2d 167 (8th Cir.), cert. denied, 361 U.S. 884, 80 S. Ct. 155, 4 L. Ed. 2d 120 (1959).

Adoption of Statutes.

The statute of charitable uses was adopted by this section as part of the law of this state and thus became part of the common law inherited from the mother country. Biscoe v. Thweatt, 74 Ark. 545, 86 S.W. 432 (1905).

Remainderman is not entitled to have estate of life tenant forfeited on the ground that life tenant was committing waste, since Statute of Gloucester permitting such remedy was not made a part of the common law of Arkansas by adoption of this section. Smith v. Smith, 219 Ark. 304, 241 S.W.2d 113 (1951).

Common Law.

—In General.

It is a rule of construction that the common law in force at the time a statute is passed is to be taken into account in construing the statute. State v. Pierson, 44 Ark. 265 (1884).

There is no statute in this state fixing the measure of damages in an appeal involving a determination of the rule by which to measure damages against a bank for refusal to pay a merchant depositor's check, who has sufficient funds on deposit to pay it, so the common-law rule will control. McFall v. First Nat'l Bank, 138 Ark. 370, 211 S.W. 919 (1919).

Where the state made a deposit in a bank which became insolvent, the state was not entitled to preferential payment of its claim over other creditors, the common-law rule of preference of the sovereign over the subject not being applicable. Maryland Cas. Co. v. Rainwater, 173 Ark. 103, 291 S.W. 1003 (1927).

At the common law, the unities of time, title, interest, and possession had to be observed in creating an estate by the entireties; where no statutory enactment has changed the rule of the common law, it must control. Stewart v. Tucker, 208 Ark. 612, 188 S.W.2d 125 (1945).

There is no common-law authority in the state of Arkansas for the issuance of a search warrant for contraband. Grimmett v. State, 251 Ark. 270a, 476 S.W.2d 217 (1972).

—Civil Doctrines.

The common law necessaries doctrine is the law in Arkansas and will remain law so long as the doctrine is consistent with the U.S. Constitution and the laws of the United States or the Constitution and laws of this state and shall be the rule of decision in this state unless altered or repealed by the General Assembly. Davis v. Baxter County Regional Hosp., 313 Ark. 388, 855 S.W.2d 303 (1993).

—Conflict with Statutes.

Rule in Shelley's Case held to be in force in this state, except insofar as it has been repealed by the section abolishing fees tail. Horsley v. Hilburn, 44 Ark. 458 (1884); Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893); Ryan v. Ryan, 138 Ark. 362, 211 S.W. 183 (1919); First Nat'l Bank v. Graham, 195 Ark. 586, 113 S.W.2d 497 (1938).

Even if a present contract of marriage between a man and a woman, followed by cohabitation, is valid at common law, the common law in this respect has never obtained in this state, in view of the statute regulating the method of solemnizing marriages and designating who are authorized to solemnize them. Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911).

The adoption of the statute relating to conspiracies did not repeal the common law relating to conspiracies except as to the particulars named in the statute. Powell v. State, 133 Ark. 477, 203 S.W. 25 (1918).

The common-law rule with respect to sales of crops under execution is impliedly in conflict with statute which provides that leasehold estates shall not be subject to sale under execution issued by a justice of the peace. First Nat'l Bank v. Evans, 159 Ark. 182, 251 S.W. 712 (1923).

—Particular Offenses.

For discussion of gaming houses and poolrooms as common law nuisances, see Norton v. State, 15 Ark. 71 (1854); Thatcher v. State, 48 Ark. 60, 2 S.W. 343 (1886); State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906); Blumensteil v. State, 148 Ark. 421, 230 S.W. 262 (1921); Fox v. Harrison, 178 Ark. 1189, 13 S.W.2d 808 (1929).

Permitting a prisoner to escape through the negligence of the sheriff's custodian was a common law offense. Perrymore v. State, 189 Ark. 519, 73 S.W.2d 470 (1934).

At common law the Attorney General could institute equitable proceedings for the abatement of public nuisances which affected or endangered the public safety or convenience. State ex rel. Williams v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945).

Offense of treating a dead body indecently is an offense at common law. Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949).

The common-law prohibition against holding court or performing judicial acts on Sunday is still in force in Arkansas. Chester v. Ark. State Bd. of Chiropractic Exmrs., 245 Ark. 846, 435 S.W.2d 100 (1968).

Cited: Thorn v. Weatherly, 50 Ark. 237, 7 S.W. 33 (1888); Eureka Springs Ry. v. Timmons, 51 Ark. 459, 11 S.W. 690 (1889); Garner v. Wright, 52 Ark. 385, 12 S.W. 785 (1890); Ex parte Dame, 162 Ark. 382, 259 S.W. 754 (1923); Bennett v. Taylor, 185 Ark. 794, 49 S.W.2d 608 (1932); State v. Phillips Petroleum Co., 212 Ark. 530, 206 S.W.2d 771 (1947); Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970); Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); Smith v. Wright, 300 Ark. 416, 779 S.W.2d 177 (1989).