Volume 36 — Arkansas Reports

CROSS-APPEALS from White Circuit Courtin Chancery. Hon. J. N. Cypert, Circuit Judge. Rents are paid for possession, and are due to the person from whom the land passed. 3 Kent’s Com., p. 463. Mandate of this court made it obligatory on court below to enter a specific decree. 13 Ark., 103; 29 Ark., 185. Hence, the supplemental bill improper. See, also, 5 Ark., 202; 29 ib., 97-8; 13 Ark, 654; St. Eq. PI, secs. 333, 336, 338; 2 Madd., 53; Hof.

Hon. J. H. Ro&ers, Circuit Judge. To prohibit the sale of liquor “'for any purpose whatever” is an infringement of natural right. In this-ease it was sold strictly as a medicine, on a physician’s prescription. Laws prohibiting the sale are sustained only as police laws. Cooley’s Const. Law, p. 727; 27 Vt., 328; 13 N. 11., 536; 7 Vroom, 72; 33 Vt., 656; 5 Iloioard, 504; 4 Greene, 172; 25 Con., 290; 3 Mich., 330; 14 III., 196; 13 Gray, 26; Whittington, Ex Parte, 84 Ark., 894• .

<p>APPEAL from Mississippi Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge. '</p> <p>Proof did not sustain the verdict, or show the crime as defined by statute. 16 Ark., 566 ; 32 Ark., 191.</p>

Hon. J. W. Martin, Circuit Judge. Plaintiff should have used ordinary care. Shearman 8p Red. on Negligence, secs. 29, 30, 32, 33; 72 Penn. St., 169; 24 Ohio St., 670; 49 Ind., 104. It is per se negligence to leave a child unprotected in danger from the railroad. 4 Allen, 283; 57 Penn. St., 172; 21 Wend., 615. • Doctrine of contributory negligence does not depend on comparison. 21 Iowa, 15; 32 ib., 467; 23 Conn., 437; 33 JV. J. Laxo, 434; 49 Penn.

<p>1. Obscenity: Indictment: Misjoinder of counts.</p> <p>Uttering vulgar or profane language at the domicile of another, and' making violent threats against him there, with intent to insult or terrify him, are distinct offenses, and can not- be joined in the same indictment; and on demurrer for misjoinder, the state may be compelled to elect between the counts.</p> <p>2. Same : Same: Misjoinder of defendants.</p> <p>Two defendants can not be jointly indicted in the same count, for uttering vulgar or profane language, or making violent threats against another, at his residence.</p> <p>ITT:Inaiot. j“fnderM'of</p> <p>derM$°d”Z fen(lant3-</p>

<p>APPEAL from White Circuit Court.</p> <p>lion. J. M. Smith, Circuit Judge — on exchange of circuits.</p>

<p>Indictment : Mother concealing death of her child.</p> <p>An indictment against a mother for concealing the death of her child, must allege that the child was a bastard.</p>

<p>Statute Construed : Gaming at dram-shops.</p> <p>The statute (see. 1594 Gantt’s Digest) does not prohibit the playing of games for amusement or recreation at taverns or dram-shops.</p>

Hon. J. N. Cypert, Circuit Judge. Court erred in . overruling the demurrer as to Oliphint. Adams et al. v. Stilwell, 29 Ark. The discharge of Oliphint in bankruptcy, discharged the debt, and it would not revive as a lien upon after-acquired property. Bailey v. Moore, 21 III., 165 ; Peck v. Jennings, 7 Howard, 613. The deed no estoppel, as the mortgagee knew of the true state of the title. 3 Wash, on R. Prop., pp. 72, 76.

Hon. W. D. Jacoway, Circuit Judge. Evidence shows appellant to have been guilty of rape. He could not be convicted of seduction. 22 Wis., 444. If there had been intention of marriage, the statute does not apply.

<p>Cost in Circuit Court : On appeals from justices of the peace.</p> <p>If in an appeal to the circuit court, the appellee recover less than he recovered in the justice’s court, he must pay the cost in the circuit court.</p>

<p>APPEAL from Mississippi, Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p> <p>relied on Sullivan v. The State, 82 - Ark., 191.</p>

Hon. J. N. Cypert, Circuit Judge. Contended that the verdict of a jury should be here weighed on the evidence, in all cases where the testimony was altogether documentary and by depositions. There is, in such case, no reason for giving the verdict the benefit of any presumptions in its favor, or for. making it conclusive where supported by any evidence. The company only liable for want of reasonable care and negligence when doing a lawful act.

Hon. J. N. Cypert, Circuit Judge. Sec. 1089 of Gantt’s Digest not repealed by Art. XVI, Const, of 1874. Repeals by implication not favored. The State v. Watts, 23 Ark., 309; Sedgwick on State and, Const. Law, 121,126 An allowance by the county court is a judgment, and by general law bears interest. Rule not different against municipal corporations. Langdon v. Castleton, 30 Vt., 285; Robbins v. Co. Ct., 3 Mo., 57. Coupons of bonds bear interest after maturity.

Hon. J. N. Cypert, Circuit Judge. Right to take the property sold is a personal privilege of the vendor and does not pass to assignee. Acts of 1877, p. 48. Mayfield had no day. Cited act of 1877 (supra), and argued that the benefit passed to the assignee. The action and bond is like that in attachment (Gantt’s Digest, 416) authorizing judgment against the surety.

Hon. J. A. Williams, Circuit Judge. Argued upon the facts that the decree should have been against Meyer on the account, Argued on the facts per contra.

Hon. IT. B. Stuart, Circuit Judge. Corpus delicti. Proof must not only show death, but that it was criminally produced. 1Wharton on Homicide, 641. And without this proof, a confession will not sustain a conviction. Ib.; 43 Miss., 472; Wharton Hill’s note to pp. 1115, 1119, 1121; Gantt’s Digest, 1933; 26 Miss., 157; 32 ib., 433. Failure of state to show contents of stomach by expert evidence, a culpable omission, lb., 1128.

Circuit Court. Hon. N. J. Pindall, Circuit Judge. The panel should have been quashed, when it was-found that one of the jurors was disqualified. Defendant-could not know the jurors from the list furnished him, 66 Mo., 684; 54 ib., 153. The record at the time of the trial showed that two of the jurors on the regular panel had been excused, and the record was not corrected to show the contrary until after' conviction. This was error. 16 Ark., 611.

<p>Statute: Approval of official bonds.</p> <p>The act of March 1, 1875,tproviding for the approval of official bonds of county and township officers is constitutional; and the circuit court has jurisdiction to determine the sufficiency of the sureties in a collector’s bond upon the filing by a citizen of the county an affidavit of their insufficiency as provided by the act. [For construction of the act see opinion, p. 142.]</p> <p>l Statutes ofAoffic°ers'</p> <p>LegislarorquTre sureties to erty^tíe county, etc.</p> <p>Oonstrucaot-</p>

Hon. James X. Young, Circuit Judge. Hawkins as surety was released by consent of Mims to Lovett’s release from custody. 1 Eng., 317; 13 J. R., 174; 1 Eng., 123; 2 Vesey, Jr., 542; 4 ib., 824, 833. As in case & creditor takes out execution against principal and waives it. 2 SwansL, 185; 1 Wils. G. G., 418; 3 Esp., 47; 1 Sim. S., 581; 34 Texas, 189. See also Vose v. Florida R. R. Go., 50 N. T., 369. The creditor not bound to prosecute his claim against the principal. 2 Am.

<p>ERROR to Pope Circuit Court.</p> <p>Pión. W. D. Jacoway, Circuit Judge.</p> <p>Argued that the verdict and judgment were sustained by the facts, under act of March 8, 1879.</p>

Hon. W. D. Jacoway, Circuit Judge. The defendant, by the verdict, was allowed the benefit of the doubt, as to the time the liquor was sold, and can not complain.

Hon. J. H. Berry, Circuit Judge. State not bound by general words in a statute. 32 Ark., 51; 14 Peters, 315; 8 Bush, 225; 4 Com., 143; 41 N. PL., 238; 54 Ga., 36; 28 Miss., 753; 8 Phil. (Pa.), 366. Error to render judgment against the state for costs. 7 Predell, 50. State v. Kinne, 41 N. PL., 238, discusses and settles this question ; 5 How., 29 ; 2 Wheat, 395 ; 3 Grouch, 73 ; 12 Wheat, 546. State, in many cases, bound by general statutes. 1 Black.

. The receipt for purchase money, being without mistake or surprise, is conclusive of its recitals. 9 Conn., 401, and cases cites. Unless the receipt is purely such, and not contracted. 33 Iowa, 28; 27 Penn. St., 151.

<p>1. Municipal Corporations : Jurisdiction to ascertain boundaries of</p> <p>Whether a municipal corporation has definite boundaries, and what they are, is for the courts, and not the legislature, to determine.</p> <p>2. City op Little Rock: ' DuVal's addition a part of.</p> <p>On the passage of the act of April 20, 1873, for the addition of territory to municipal corporations, “DuVal's addition” to the city of Little Rock became and continued a part of the city, and was not cut off, as was attempted, by the act of March 9, 1877, “to define the boundary of the city,” the act being unconstitutional.</p> <p>1. CorporPower to determine their boundanés.</p>

Hon. W. D. Jacoayay, Circuit Judge. An act giving authority to a majority of the adult citizens of the toAvnship to enact a law, is unconstitutional. Const, of 1874, Art. Ill, sec. 1, Art. Ill, sec. 28; Cooley on Const, him., pp. 117 to 122, and 138, 210, 212. There was no proof of a valid change in the name of the “ Dardanelle Eemale Institute ” to the “ Dardanelle Institute/’ The attempted change was not in accordance with law. Gantt’s Digest, secs. 3405, 3406.

<p>1. Pleading and Practice: Misjoinder of defendants: Sow corrected.</p> <p>Misjoinder of defendants is no ground for demurrer. It can be corrected only by motion to strike out tbe names of those improperly joined.</p> <p>2. Same : Parties : Joinder of defendants in injunction suits.</p> <p>Several separate execution creditors may be joined as defendants in a bill to enjoin the sale of the property levied on by them.</p> <p>3. Injunctions : Damages: Counsel fees.</p> <p>Upon the dissolution of an injunction, the defendant’s counsel fees are not allowed as part of his damages.</p> <p>i. Misjoinfondantsi reoted.</p> <p>3. InjtocDamages —C o umsel fees.</p>

Hon. J. W. Martin, Circuit J udge. Cited Acts of 1879, p. 103, sec. 33. Former petition bad, as made more than ten years after the appropriation. Const., Art. V, sec. 29, and because it did not show that there was money in the state treasury properly appropriated. Former decision not on the merits and no bar. 25 Cal., 272; 20 N.H., 260; 19 ib., 211; 15 Iowa, 32; 20 Texas, 612. Besides the new appropriation raised the right. Submitted the points to the court without contest.

Hon. J. M. Smith, Circuit Judge. Decree not final, and not subject to appeal, and does not come within sec. 1055 Gantt’s Digest. The merits were not determined. Without consent, or stipulation against it, the mortgage itself gave legal title and right of posession. 1 Hilliard on Mort., ¶. 168, sec. 18. Decree right upon the merits.

H. B. Tyler could not vest in another any interest in the land, it being a recent homestead entry. Rev. Stat. U. S., see. 2290. Appellee not entitled to value of machinery. Shearman ¿f Red. on Neg., see. 598; Field on Dam., see. 126, et seq. Damages excessive on the evidence.

<p>APPEAL from Crawford Circuit Court.</p> <p>Hon. J. H. Rogers, Circuit Judge.</p> <p>Demurrer improperly sustained. Gantt’s Digest, sections 1544, 4565.</p>

<p>APPEAL from Drew Circuit Court.</p> <p>Hon T. E. Sorrells, Circuit Judge.</p> <p>No lis pendens without process. Gantt’s Digest, sec. 4503 ; 5th Fng., •, 13 Ark., 36.</p> <p>Cited and relied on 29 Ark., 357; Story’s Fq. PL, sec. 35, a.</p>

Hon. J. W. Martin, Circuit Judge. There-was no written affidavit, and no crime charged with sufficient certainty. Argued upon the transcript and evidence.

Hon. J. A. Williams, Circuit Judge. Total failure of title good defense. 30 Ark., 536; 12 Ark., 709. Hnconditional offer to return equal to rescisión. Statute does not run against Shannon.* 1 Otto, 119. Court erred in sustaining demurrer to second paragraph of amended answer. 2 Danl. Gh.Pr., £ed., p. 1571; Gantt’s Digest, see. 4481; also in sustaining demurrer to the petition and bill of interpleader.

Hon. X. J. Pindall, Circuit Judge. Plea before change of venue not essential. Harman v. The State, 11 Ind., 312. ITe submitted to the court, whether the want of the seal of the clerk of Desha to the transcript, vitiated the proceedings, or whether it could be, and was, properly supplied afterwards.

Hon. W. D. Jacoway, Circuit Judge. The indictment failed in certainty in setting out the false pretenses. Gantt’s Digest, sees. 1780, 1837; 1. Ghitty Grim. Law, 140; Arch. Crim. Law, 289; 13 Wend., 322; Burrow v. The State, 12 Ark., 65. Compare the indictment with that in People v. Johnson, 12 John. (N.. Y.) Bepts., p. 292 ; see, also, People v. Williams, 4 Hill (H. Y.), 9; People v. Babcock, 7 John. {N. Y.), 201; McKenzie v. The State, 11 Ark., 594.

Hon. T. F. Sorrells, Circuit Judge. The contract being void for usury no title passes to the property sold. 15 Mass., 359 ; 66 N. C., 47; 8 Foster (N. IT.), 101. • .Usury not a crime, and the doctrine of pari delicto has no application. Tyler on Usury, 431; 5 Denio (N. T.), 236. Held not to apply to contract made on Sunday, 10 Ala., 566 ; 12 Mich., 378. Demand unnecessary where defendant was claiming and using the property as his own. 17 Ark., 172 ; 24 ib ; 264.

Hon. T. W. Pound, Circuit Judge. Plea to the jurisdiction too late. Should have been made, if at all, to original action. Probate court may issue writ of sci. fa. Gantt’s Digest, sec. 1156. It is a continuance of the original suit, and statute of limitations no defense. 23 Ark., 173. Demurrer properly interposed. 5 Ark., 265; 27 ib., 70. Judgment barred. 23 Ark., 169 ; 28 ib., 27.

Hon. J. N. Cypert, Circuit Judge. The proof shows that the article sold comes within the spirit and meaning of the act of March 8, 1879, secs. 1 and 5. See Paraph. Acts, pp. 33, 34, 35.

Hon. M. L. Rice, Special Judge. No estoppel on the evidence. Damages excessive. It ■ should have been value of wagon, with interest. 14 Ark., 505 ; 26 Wis., 115; 21 N. J. Law, 165 ; Gantt’s Digest, see. ■ 4718; 31 Art, 286. Argued that the estoppel was well proven by the evi- - dence. Damages not excessive. Gantt’s Digest, sec. 4718; 25 Ark., 387, 388. On estoppel cited Bigelow, p. 473,475; 6 Vesey, 174,182; 7 Granch, 366; 7 Cowen, 148.

Hon. J. W, Martin, Circuit Judge. Motion to set aside entry of satisfaction of the judgment, proper practice. Gdntt’s Digest, sec. 3634; 2 Na,sh PI. and Pr., Ill; Herm. on Ex., 466, sec. 284; 14 Ohio St., 464; 8 Mo.,-370. Attorney has no power to compromise a judgment. 12 Ark., 555-7 ; Freem. on Judg., sec. 463, and eases cited. Authority must be shown. Ib., 463; 27 Texas, 574; 2 How. Pr., 244.

Hon. J. H. Rogers, Circuit Judge. Regular process protects ministerial officers. 5 Wend., 240; 2 Johns. Ca., 49; 7 Cowen, 249. Unless it appears void on its face. 6 Wend., 170; 17 John., 146; 14 ib., 246; 19 ib., 37. Mortgagee has right of action for the property-after default. 18 Ark., 166. Where one of defendants alone acts maliciously, others can not be punished by smart money. Sedgw. on M. of Dam.; 1 JSxeh. Sep., 131.

<p>Lee County: Its liability to the counties from which formed.</p> <p>The statute creating Lee county imposed upon it, as a condition of its existence, a debt to each of the counties contributing territory to it, for a fair proportion of the existing debt of each, to be ascertained and fixed in the manner prescribed, and to become definite when so ascertained, and then to take effect by relation to the passage of the act; and if the ' county court should refuse to act and provide, within a reasonable time afterward, some reasonable mode for the discharge of the obligations in a reasonable time, it may be compelled, by mandamus, to do so. But demand for action, and refusal, must be shown in the petition, and the petition must be in behalf of all the counties interested, or must show that separate action may be had without prejudice to the others.</p> <p>Lee County: Its liability to parent counties.</p> <p>Demand essential,</p> <p>tion should ail the old counties, or> otc'</p>

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. T. F. Sorrells, Circuit Judge.</p> <p>Argued upon the transcript and evidence, citing 5 Sergt. Bawle, 463 ; 32 Ark., 310; 12 ib., 783 ; 29 Ark., 248.</p>

Hon. S. H. Carter, Special Judge. None of the objections offered to the view of the-grounds, have any substantial basis — citing sees. 1927 and 1928 Gantts Digest, and the case of Benton v. The State, 30 Ark., 328. The instructions asked and given on the part of the state were proper. Those refused on the part of defendant, argued on general principles in support of the court.

<p>APPEAL from Benton Circuit Court.</p> <p>Hon. J. H. Be$ry, Circuit Judge.</p> <p>No service shown by record. Galpin v. Page, 18 Wall.; 7 Ark., 445; Henderson v. Breeding; Settlevier v. Sullivan, U. S. Sup. Gt., October term, 1878. The summons in this case not legal. 3 Ark., 558; 3 Estes, p. 487; 1 Ark., 376. Variance. 6 Ark., 531. Separate judgment without showing dismissal as to the other party sued, error.</p> <p>Other irregularities argued, without authorities cited.</p> <p>As to what is a promissory note. Danl. on Neg. lnst.,pp. 32, 33. No personal obligation on note signed as trustee or committee. Gillett v. ' N., M. Sav. B. P; Ghic. Legal News, Dec. 25, 1880.</p> <p>The writ sufficient. 12 Ala., 444; 23 ib., 684; 5 111., (4 Scam.), 333; 41 Mich., 722.</p>

<p>1. Exemption: None against judgment in replevin.</p> <p>A defendant can not schedule his personal property against an execution on a judgment for the value of property and damages for its detention, recovered in replevin.</p> <p>2. Same: Supersedeas: No appeal from refusal of justice of the peace to issue: Mandamus.</p> <p>There is no appeal from the refusal of a justice of the peace to issue a supersedeas, upon filing .a schedule of exempted property; and a judgment on such appeal in the circuit court is corefyn non judice, and void. The remedy is by mandamus.</p>

Hon. J. H. Rogers, Circuit Judge. Argued that the exceptions to the Master’s report should, on the evidence, have been sustained. Upon the proof.

Hon. C. B. Newman, Special Judge. Cited act ofJanuary 23, 1875, providing for general elections. Secs. 67-68, et seq. This case' governed by the same rule as to change of venue, as common law cases. Discretion of judge in matters of continuance not controlled, unless abused. 8 Ark., 119. Case not triable by a jury and no change of venue proper. Act of January 23, 1875, p. 114 of Pamph., sec. 68; Gantt’s Digest, 4692; 32 Ark., 553.

Hon. H. B. Stuart, Circuit Judge. Error to enter the opinion of the former judge as the judgment of the court, whilst another judge was presiding. 4 Green {Iowa). This court, without declaration of law being made below, may look into the bill of exceptions to see if the evidence sustains the judgment. 33 Ark., 651. Administrators liable only for ordinary care. The exceptions to the settlement were erroneously sustained.

<p>1. Practice in Cirotjtt Court: Discretion of judge in conducting trial.</p> <p>The discretion of the circuit judge in conducting a trial will not be controlled by this court when no substantial right has been invaded and no abuse is manifest.</p> <p>2. Same: Exceptions: Noting upon the record.</p> <p>A defendant does not waive his exceptions to the ruling of the circuit court sustaining a demurrer to part of his defenses, by going to trial on others held good, nor by failing to note the exceptions upon the record.</p> <p>3. Damages: To lessee from, lessor’s neglect to repair: Injury to health.</p> <p>Damages sustained by a lessee in the death of a member of his family from the lessor’s neglect to -repair and improve the premises as contracted in the lease, are too remote, and not pleadable in recoupment against the demand for rent.</p> <p>4. Pleading.</p> <p>To an action of unlawful detainer, a plea - that since the commencement of the suit the defendant and the plaintiff had submitted the matters in controversy to arbitration, upon agreement that the plaintiff should take the defendant’s furniture on the premises, in payment of the rent, at such price as the arbitrators should assess, and should pay to the defendant the excess of its value, if any, above the amount found due for rents, and that the defendant should deliver possession of the premises and furniture to the plaintiff upon payment of such excess; and that the arbitrators had duly acted, and assessed the rents, and value of the furniture, the latter exceeding the rents, and that the defendant had offered to perform the award and the plaintiff had refused; and asking for specific performance and transfer of the cause to the equity docket, is not good as a counter-claim, nor as a bill for specific performance.</p> <p>5. Specific Performance: Contracts for personalty.</p> <p>Equity will not decree specific performance of a contract in regard to-personal property when there are no allegations in the bill, of insolvency of the defendant, or of any peculiar value of the property.</p> <p>6. Arbitration : Award, when enforced.</p> <p>An award will not be good as a statutory award, unless the proceedings of the arbitrators as to the oath taken by them, and other duties, have been substantially, if not strictly, in pursuance of the statute. But an arbitration and award as at common law are still good and enforceable notwithstanding the statute.</p> <p>7. Landlord and Tenant: Eviction of tenant: Effect on rent.</p> <p>The eviction of a tenant by a landlord, of a material part of the demised - premises, suspends the rent during the eviction, for the whole; but eviction by a stranger apportions the rent.</p> <p>Codrt: o?jud|e in trial,</p> <p>2. -; tions: Notns upon</p> <p>3. dam-injury to health from tespair*0 re"</p> <p>5. Specific Perf o r mance: Contracts concerning pers o n al property.</p> <p>P j, fading: Defense: Arbitration and award, and pe r f o r mance by defendant.</p> <p>Arbitration as at common law, good, d o t w i thstanding ' the statute.</p> <p>I-u lNLdÍ TAI™ef6nse ter-ciaim age is notl</p> <p>8. Landlord and Tenant: Eviction of tenant: Effect of on rent.</p> <p>Eviction* What tfisVqSesjury. damages: can Sy for and cost,</p> <p>Para-Pleading.6'</p> <p>plea Puis CoaJtisu£ ance: Effect of.</p> <p>Not •changed by -Code.</p> <p>Eviction •depends on amount of tion.</p> <p>shouidbe left to jury.</p>

Hon. S. M. Barnes, Special Judge. Appellee’s certificates of entry, of twenty-eighth, of January, 1853, gave no title. They made simply an application to purchase (23 Ark., 653, 720, 712), which must give place to a subsequent pre-emption. 15 Peters, 407. They were merely in pursuance of office regulations. As evidences of sales they are void under statute of frauds. Gould’s Digest, p. 547, sec. 1; Brown of St. of Frauds, secs. 371, 376, 380 and 387. Title was in the state.

Hon. J. N. Cypert, Circuit Judge. Contract, waiver of statutory lien. 25 Am. Repts., 289. Mechanic’s lien did not extend to lot No. 32, for want of proof of ownership. Decree vague as to boundaries. The two causes of action might be joined. If not, the error not properly met by demurrer. Gantt’s Digest, secs. 4550, 4552, 4553. Trust deed no waiver, but cumulative security. Stilhoell v. Bertrand, 22 Ark., 379. It is matter of intention. 82 III., 26.

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. M. L. Rice, Special Judge.</p> <p>Appellant only bound, under the circumstances in evidence, to avoid malicious or reckless injury. Johnson v. Boston $ Maine B. B. Co., 125 Mass., 75; Morrissey v. Pastern B. B. Co., 126 Mass., 8 Cent. Law Journal, 385; Mulhernv. B. B. Co., 81 Penn. St., 366; Wharton on Negligence, sec. 388, a; Shearman $ Bedjielcl on Neg., secs. 10, 11. Failure to have light in front, no negligence, unless the accident were the natural and probable result of the omission. Sh. Bed. on Neg., secs. 6, 8 and 10; Belfontaine B. B. Co. v. Sneider, 18 Ohio St, 399; Greenland v. Chaplin, 5 Pxch., 243; McGreio v. Stone, 53 Penn. St., 436; Wharton on Neg., see. 97; McGee v. Cairo, 9 Cent. Law J., —.</p> <p>The facts being undisputed, question of negligence was one of law, and court’ should have directed a verdict for defendant. Morgan v. Duffie, 9 Cent. Law J., 12; ib., 102; Proffatt on Jury Trials, secs. 851, 352, 354; 64 Mo., 267; ib., 484; Shear. Bed. on Neg., sec. 11; 42 Mo., 193; 27 Barb., 221; 11 Ired. (N. C.) Law, 16 ; ib., 247; ib., 640; Ired. Law, 402; 1 Bosw., 357; 52 Penn. St., 282. Omission to do an act not positively enjoined, not subject of a suit. Whart. on Neg., secs. 82, 888, a; 125 Mass., 75. Even if law had required the head-light, omission not actionable unless it caused the injury. Wharton, 384, and cases cited; 40 N. T., 9; Shear. Bed. on Neg., 8,13, a.</p> <p>Not necessary to 'show contributory negligence, until positive negligence first made out against defendant. Failing that, defendant entitled to Verdict. Shear. £ Bed. on Neg., sec. 11, and cases cited; Morgan v. Duffie, 9 Cent. Law J., —; O’Donnell v. M. T. B. B. Go., 8 ib., 414; 9 ib., 102; 9 Mo., 113; 4 Otto., 278, 284; 21 Wall., 448; 22 ib., 121; 11 Howard, 373; 10 Wall., 637; 5 Otto., 697; 9 ib., 201; 11 Mo., 114; 26 ib., 202; 40 ib., 131; 36 ib., 484; 64 Mo., 267; 58 Maine, 389 ; 9.Otto., 272; 18 N. Y., 425 ; 24 ib., 433; 25 Mich., 274; 53 Penn. St., 436; ,7 Otto., 319.</p> <p>On general question of negligence: Shear. 6; Bed. on Neg., sees. 25, 26, 482, 493; 26 Ark., 3, 6; 10 Mer. Well., 546; 4 Jncl. (95) App.; 1 Abb. N. Y. (Brooks v. Buf. Sg Niagara Falls B. B.); 9 Ind., 397; 3 Ohio St., 172; 47 III, 408; 2 Du Val, 114; 43 Mo., 380; 43 N. Y, 75; 4 ib., 349; 47 Penn. St., 300; 2 Neb., 319; 81 Penn. St., 366; 13 III, 585; 46 ib., 74; 45 Iowa, 29; Wharton on Neg., sec. 388, a; 125 Mass., 75; Morrissey v. Eastern B. B. Go., 126 Mass., —; 64 Mo., 267; 47 III, 408; ib., 414; 96 Mass., 429; 3 Thompson, etc. (N. Y.), 513; 1 Hun., 417.</p> <p>Jury should have found specially upon interrogatories propounded by defendant (Gantt’s Digest, sec. 4679), and special verdict controls; 33 Mich., 251; 43 Ind., 553; 20 Kan, 14; 18 ib., 195; 53 Ind., 176; 54 ¿6., 487; 12 Gt. of Claims (N. S.), 565; 76 N. G., 10; 5^ Ind., 505 ; 45 ib., 67; 47 ib., 461. '</p> <p>Negligence, a question for the jury. Miss. Gent. B. B. Co. v. Mason, 51 Miss., 234; End. v. St. Paul, 22 Minn., 443; 56 Ga., 457; 34 ib., 330; 83 III, 415.</p> <p>This court will not reverse on weight of evidence, even in favor of preponderance. Ark. Bepts (passim).</p> <p>First and second instructions given, based on Barker Wife ado. L. B. Ft. S. B. B. Go., 33 Ark., 350. Third, ot similar import.</p> <p>Gross negligence not in question. Road bound to use ordinary care. 33 Ark., 350; 50 Mo., 465; 60 ib., 477; 5 Mo. App., 435. To keep proper watch, such as prudence would dictate: Cases supra, and 13 Bush., 122.</p> <p>Further, as to negligence being matter of fact: 17 Wallace, 660; 60 Ga., 441; 22 Minn., 443; 36 Ga., 437; 34 ib., 330; 31 Miss., 234; 83 III., 205.</p> <p>Sec. 4679 of Gantt’s Digest discretionary with the judge.</p>

Hon. J. N. Cypert, Circuit Judge. Argued upon act creating Lee county, April 17, 1873. Writ of mandamus only issues when there is no other adequate remedy; never, to correct an erroneous decision where error or appeal lies. Hutt, ex parte, 14 Ark, 368; Cheatham, ex parte, 6 Ark., 437. A suit the proper remedy, in the county court, to have the claim audited.

Francis Circuit Court in Chancery. Hon. J. N. Cypert, Circuit Judge. Administrator not entitled to interest on Ms own claim against an estate in his hands. Seldon v. Preston, 11 Bush., 191; Bigler v. Walker, Chase’s Dec., 316; Hall v. Denckla, 28 Ark., 506, 511. Failure to sue Dobson released the estate of the surety. Chambers’ Appeal, 11 Pa. St., 436; Tuggle v. Gilbert, 1 Duval, 340. Probate court could not confirm purchase by an administrator.

Hon. N. J. Pindall, Circuit Judge. The assignment does not comply with the statute. Gantt’s Digest, chap. X. The execution was.a prior lien when it reached the officer’s hands.

Hou. T. E. Sorrells, Circuit Judge. Objection to notice not valid. Acts oj 1875, p. 77, sec. 69; Hodgkin v. Fry, 38 Ark., 716. Want of proclamation did not vitiate. Hodgkin v. Fry, supra; The State v. Jones, 19 Tad., 356; People v. Cowles, 13 N. Y., 351. Nor closing of polls, without proof that some one was prevented thereby from voting. People v. Cook, 3 N. Y.; 4 Seld., 92. Failure to hold election at any other voting place, not ground of objection.

Hon. J. M. Smith, Circuit Judge. Court should have instructed the jury to find for the defendant, on the proof of due care; and the unavoidable nature of the accident was clear and uncontradicted. Vol. 5 Reporter, p. 636; 1 Red. L. of Railways, p. 477; Sher. Sp Red. on Neg.,p. 13; 1 Wall., 369; 11 How., 372; 19 ib., 269; 22 Wall., 253; 31 Miss., 176; 21 Barb., 489; 27 Vt., 643; 57 Penn., 172; 56 Ind., 294; 56 Ga., 73; 75 III, 577.

Hon. J. W. Martin, Circuit Judge. The case was, really, heard and determined as if upon demurrer. There was a demurrer to the answer, otherwise disposed of. The case turned on the same question of law, made by demurrer. There was no disputed question of fact, and no motion for .a new trial was necessary. See Bank v'. Conway, 13 Ark., 344; Jordan v. Poster, 11 Ark., 139 ;-Duggins v. Watson, 15 Ark., 118; also 21 Ark., 57; 16 ib., 309; 18 Ark., 384.

Hon. W. D. .Jacoway, Circuit Judge. Banks of streams can not be taken for ferries, without compensation to owner. 3 Kent’s Com. (Mar.), J¡39, et seq.; Bowman v. Brumley, 2 McLean, 376, and especially p. 385 ; Jacksonville v. S. and C. Ferry Co., 27 Ind., 100; Pipkins v. Wynn, 2 Dev. (IV. C.) L., 402; Gantt’s Digest, sec. 2904. County had no authority to establish a free ferry without an act enabling it to do so. Compensation must be made for property taken.

<p>Ejectment : Homestead entry sufficient for.</p> <p>Ejectment may be maintained under our statute, upon a certificate of a homestead entry. If the entry was illegally obtained, it may be vacated by the United States, but can'not be questioned by a defendant in possession without right.</p>

Hon. R. C. Young, Circuit Judge. Hamilton & Co. proper parties. Gantt’s Digest, sees. 4476, 4482. Appeal should not have been dismissed, lb. 3823, 3824, 3837 ; 26 Ark., 315 ; 30 ib., 560. Their answer raised issue of ownership. Gantt’s Digest, sec. 379; 30 Ark., 560. Plaintiff must recover'on his own title. 22 Ark., 396; 25 ib., 11; 29 ib., 270. Objections to pleadings taken too late in circuit court. 30 Ark., 560.

<p>APPEAL from Bradley Circuit Court.</p> <p>Hon. T. E. Sorrells, Circuit Judge.</p>

Hon. J. N. Cypert, Circuit Judge. Cited manuscript opinion as to novation of Little Rock city bonds. The delivery bond, a new and independent contract, governed by the law in force when made. 96 U. S., 601; 31 Ark., 294. Sheriff’s return conclusive evidence of breach, which can not be collaterally impeached. 11 Ark., 573; 14 ib., 569; 19 ib., 297; 20 Ark., 93. Improper execution no defense. 2 Ark., 93. Here the levy was lawful on which bond was given.

Hon. H. B. Stuart, Circuit Judge. The affidavit could not he filed after the complaint. Court erred in striking out answer. Relied on Gantt’s Digest, sec. 4610. Answer not before the court, there being no bill of exceptions. 4 Ark., 450; ib., 454; 6 Ark., 535; 5 Ark., 166; ib., 179; ib., 223.

Hon. J. K. Young, Circuit Judge. The warrants are equivalent to promissory notes, payable on demand. 15 N. Y., 337; 23 ib., 570, and statute of limitation runs from date. Byles on Bills (Sharsioood ed.), 342; 13 Pick., 418; 13 Wend., 267; 1 Mo., 662; 12 N. J. Law (7 Halst.), 247; 50 Barb., 334. No exception in favor of a public corporation. 33 Iowa, 151; 4 Texas, 470; 20 Wall, 583. Holder could recover only their value in confederate money when issued. 8 Wall, 1; 1 Otto, 3.

Hon. V. D. Jacoway, Circuit Judge. Statute runs from day of last payment. 19 Ark., 692; 9 Ark, 459 ; Gantt’s Digest, sec. 5648. Does not include the day. Danis. PI. ft Pr., p. 358; Birnie v. Main, 32 Ark, —; 7 Allen, 487; 2 Par. on Con., p. 504, note a; 662, 664, and notes; 10 Ark, 497; 9 Am. Bepts., 70; 13 ib., 731; 21 ib., 637. Circuit court had no jurisdiction. Art. VII, see. 40, ' Const. And this court acquires none on appeal.

Hon. James K. Young,. Circuit Judge. Appointment of trustee by parol sufficient. Foster v. Gorce, 4 Ala. (2V. JS.) As to nature of property, see 27 Ark., 5’54. Bill of exceptions does not show that it contains all the evidence.. 25 Ark., 384; 17 ib., 327. Complaint did not show that the occasion had arisen for the appointment of a new trustee, and no amendment was asked. Pomeroy, secs. 548, 550. Not waived by failing to demur, as there was no cause of action shown.

Hon. R. H. Powell, Circuit Judge. Execution of note to company admitted its existence as a corporation. 12 Ark., 769. Appellant was assignee and true party in interest. Any mark intended for maker’s name binds him. Daniel on Neg. Inst., vol. 1, top p. 546; A McLean, 173. Negotiability not destroyed by waiver of objection. Daniel, etc., top pp. 52, 54, vol. 1; 67 Penn. St. Demurrer proper. Gantt’s Digest, sec. 4564.

Hon. J. H. Berry, Circuit Judge. Evidence showed that E. W. Gee claimed the note, for which the one suod on was given, and w.as competent and should not have been excluded. 1 Green on Do., sees. 108, 309; Potts v. Dverhash, 26 Penn. St., 493; Yarborough v. Arnold et al., 20 Ark., 597 ; Phipps v. Martin, 33 Ark., 207.

<p>1. Tax Sale: Taxes paid at wrong time.</p> <p>The payment of taxes at a time when the collector is not authorized to receive them, will not avoid the subsequent sale of the land for the same taxes.</p> <p>2. Same: Auditor's deed: Evidence.</p> <p>An huditor’s donation deed, in - the usual form, is prima facie evidence of the regularity of the forfeiture of the land.</p>

Hon. X. J. Pindall, Circuit Judge. Argued upon the facts and instructions, claiming that upon the whole record the judgment was correct and should be affirmed. Jones v. State, 29 Ark., 180; 6 Howard, U. S., 292.

Hon. L. L. Mack, Circuit Judge. Proof shows the purchase-money was not paid as recited, and the burden was on defendant to show payment afterwards. Joyner was in possession claiming a lien for purchase-money. This was adverse, and defendant was not entitled to partition. Claimed upon the record, that the decree dismissing Joyner’s bill, be affirmed, and the decree reversed for relief on the cross-bill, settlement with receiver, etc.

Hon. X. J. Pindall, Circuit Judge. reporter’s statement. This was an action of unlawful detainer instituted in November, 1875, in the circuit cqurt of Jefferson county, by Brockway against Thomas for possession of an improved lot in Pine Bluff. A writ was issued, and executed by putting Brockway in possession.

Hou. W. D\ Jacoway, Circuit Judge. reporter’s statement. On the sixth day of February, 1879, the appellant brought replevin before a justice of the peace in Pope county, against T. J. Lee and W. B Young and John E. Haile and J. E. Trentham, for two bales of cotton, alleged to be in their possession. He claimed them by virtue of a mortgage executed to him by Lee on the twelfth of March, 1878, on his crop to be raised that year.

lion. H. B. Stuart, .Circuit Judge. reporter’s statement. The plaintiffs filed in the Clark circuit court their complaint against the defendant, alleging that Frank B. Gresham had recently died in that county indebted to them in the |um of one hundred and thirty-two dollars, and leaving an estate consisting of a stock of drugs of the value of $1,100.

Hon. J. N. Cypert, Circuit Judge. reporter’s statement. After the decision of this court in the case of Jacks et al. v. Adair et al., reported in 88 Ark., 16, and the issuance of execution as therein directed, the defendants- in that suit, Eli T. Diamond and Thomas M. Jacks, presented to the ■ Hon. J. N. Cypert, judge of the circuit court of Lee county, at chambers in vacation, their complaint in equity against Ellen Adair, James Adair, and Iral A. Webster as administrator…

Hon. X. J. PindaMi, Circuit Judge. reporter’s statement. On the thirtieth day of November, 1866, W. R. Robinson recovered, in Jefferson circuit court, judgment against John S. Tucker for $2,014, on which execution was issued on the seventh of April, 1869, and levied on certain lands of Tucker, and they were sold by the sheriff for $900, and were redeemed by Tucker on the ninth of May, 1870.

Hon. T. E. Sorrells, Circuit Judge. The interest excessive. Not cured by remittitur. Error in two judgments in same case. The first'judgment was meant tobe expunged and set aside. ■ This was omitted by the clerk. Remittitur on margin of the record sufficient.

ITon. J. M. Young, Circuit Judge. Rights of appellant as principal, same as if tbe contract had been made with him directly. Ford v. Williams, 21 Sow. (27. S.), 287; N. J. Steam Navigation Go. v. Merchants’ Bank, 6 ib., 344, 381; 1 Parsons on Contracts (5th ed.), 62; Bishop on ■ Contracts, sec. 360; Story on Agency, sec. 420, 421; 1 Chitty on Pleadings, 8. Title to land not involved. Jakeway v. Barrett, 38 Yt., 316; Matthews v. Morris, 31 Ark., 222.

Hon. X. J. Pindall, Circuit Judge. reporter’s statement. The appellees sued the appellants at the spring term, 1877, of the circuit court of Jefferson county, on two promissory notes executed by them at Pine Bluff on the first, day of September, 1876, each for the sum of $316, payable respectively,-the first day of January and February, 1877, and bearing interest, at-eight per cent, per annum from date.

<p>Ueplbvin : Landlord’s lien will not support.</p> <p>Neither a landlord’s lien for rent, nor an attachment for it, on the crop, gives him a right to the possession of'the crop.</p>

Hon. J. K. Young, Circuit Judge. reporter’s statement. Reavis rented land to Kirby for the year 1877, for the sum of $68, on which Kirby made a crop and in the fall, gathered the cotton and sold and delivered it to Barnes in part satisfaction of a mortgage he had given him upon it. Barnes shipped and sold the cotton for more than $68, and applied the proceeds to the mortgage, which they were insufficient to pay.

Hon. J. N. Cypert, Circuit Judge. reporter’s statement. Held: used and enjoyed by said city or her assigns, solely and exclusively for the use and benefit of the public as a public square, or wharf;” and he offered to read the lease of the same date as the bond, leasing the property to the defendants for the sum of $1,300, to be paid in United States currency, for the exclusive privilege of a…

Hon. J. N. Cypert, Circuit Judge. reporter’s statement. Suit by the appellant against the appellee, in the Phillips circuit court, upon the following bond: “We, P. F. Anderson, as principal, and L. A. Fitzpatrick, as surety, acknowledge ourselves to be owing and indebted to the city of Helena in the sum of seventy dollars and eighty-three cents (monthly rent), in United States currency; but, upon this express and well-understood condition : that, whereas, P. F, Anderson has…

Hon. J. N. Cypert, Circuit Judge. reporter’s STATEMENT. Ward purchased a town lot in Beebe, in White county, and had it conveyed to his wife; and afterwards made improvements on it at his own expense. After her death he made out his account for the.cost of the lot and improvements, and presented it to the. probate court for- allowance against her estate.

Hon. J. A. Williams, Circuit Judge. County court had no control of its orders or judgments after the term. 2 Ark., 66; 1 Eng., 92; 5 Ark., 23; 10 ib., 241; 32 ib., 677. Consent can not confer jurisdiction. Court erred in declaring .the law. The appellant was entitled to compensation if his services were necessary to paupers, so declared. Brem. v. Ark. Co. Court, 9 Ark., 244; Lee Co. et al. v. Luckie, 30 Ark., 766. Action of court complained of was on appellant’s own motion.

Francis Circuit Court in Chancery. Hon. J. N. Cypert, Circuit Judge. • reporter’s statement. In August, 1877, Hanson, Weatherford & Estes, a law firm, filed in the circuit court in St. Francis county, their complaint in equity against the heirs of J. M. Farrow, and D. T. Porter, W. F. Taylor, and G-.

Hou. J. M. Smith, Circuit Judge. reporter’s statement. On the eighth day of April, 1878, Newman recovered judgment against the appellant, before a justice of the peace of Hot Spring county, for damages for crippling a cow by negligence in running its train; from which the appellant appealed to the circuit court.

Hon. X. J. Pindall, Circuit Judge. reporter’s statement. On the- seventeenth day of March, 1875, C. A. Nichol and Israel Stewart made the following contract: “ Memoranda of agreement entered into between 0.

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. X. J. Pindall, Circuit Judge.</p> <p>Relied upon Gantts Digest, secs. Í5S4,1557,1560,1594, in support of the instructions and verdict.</p>

Hon. J. W. Martin, Circuit Judge. Cited, act of July 22,1868, {Pamph. Acts, p. 154) ; sec. 2,. Acts of 1869, p. 136. Act must be liberally construed. 2 Story Eq. Ju., secs. 1139, 1161, b, et seq., 1192. Statute of limitation does not run against a charitable-trust. 2 ib., 1192, a. There was money in the treasury properly appropriated, for this claim. App. act of 1879, p. 103 of Pamph. Acts. State might dispose of the property in its discretion.

Hon. R. H. Powerr, Circuit Judge. County court, under constitution, has exclusive jurisdiction of all matters concerning paupers, etc. See, on same point, Act 1875, see. 78; pp. of Pamph. Acts, 144-5; 80 Ark, 764. Section 672 of Cantt’s Digest not repealed. Jurisdiction will not be controlled. 10 Ark., 428; Knight v. Sharpe, 24 Ark, 602. No evidence that the contract was in excess of appropriations. .County court had full power to make the contract.

<p>APPEAL from Conway Circuit Court.</p> <p>Hon. W. D. Jaco way, Circuit Judge.</p> <p>reporter’s STATEMENT.</p> <p>Kurtz filed before a justice of the peace in Conway county, his affidavit in the usual form, for an attachment against the crop of Dunn, his tenant, to enfoi’ce his lien upon it for $200 for rent of the land on which it was raised, asserting his debt and lien, and as cause for attachment, the removal of part of the crop from the premises by Dunn, without his consent and without paying the rent; and then adding in it a claim for twenty dollars for supplies furnished Dunn to make the crop; making in all the sum of $220, for which he prayed an attachment against the crop. The order of attachment was issued by the justice, and was returned by the constable thathe'had “executed it by taking into possession the property ordered to be attached.’’</p> <p>Upon application of Dunn the cause was transferred to the court of common pleas of that county, and there, he filed his motion to quash the attachment; first, because no complaint was filed at the commencement of the action ; second, because the affidavit sets up an account in addition to the claim and lien as landlord; and third, because the action of the officer does not show a levy of the writ in the manner prescribed by law.</p> <p>The court sustained the motion and quashed the attachment; and upon the avidence adduced assessed the defendant’s damages, by reason of the wrongtul issuing of the writ of attachment, at the sum of $101; for which, and the cost of the suit, it rendered judgment against the plaintiff, and he appealed to the circuit court; and there, upon motion of the defendant, the judgment of the court of common pleas was affirmed and judgment was rendered against the plaintiff and his sureties in the appeal bond, for the sum of $101 damages, and cost, and he appealed to this court.</p> <p>No complaint necessary. Tignor v. Bradley, 32 Ark., 781. Nor additional pleadings in court of common pleas. See. 22, act Dec. 14,1875.</p> <p>The affidavit sufficient if it shows a right.</p> <p>In appeals from common pleas no time is fixed for filing-the transcript.</p> <p>No bill oT exceptions. It was in the power of the circuit court to affirm, and presumption is in favor of its ruling. 31 Ark., 268 ; ib., 550; 32 ib., 292.</p> <p>Writ could only be served by a constable or some one deputed by the justice. Gantt’s Digest, sec. 3721.</p>

<p>APPEAL from Prairie Circuit Court.</p> <p>Hon. J. N. Cypert, Special Judge.</p> <p>Act giving double damages unconstitutional. Art. II, secs. 3, 21. It takes property of one and gives it to another without due process of law. 2 Yerg., 554; 6 Neb., 37; 21 Mich., 410; 3 Greenlf, 326; 11 Mass., 396; Cooley’s Const. Aim., 489.</p> <p>Statutes imposing double or treble damages are common, and sustained by the courts. Gantt’s Digest, secs. 5742, 5743; Woods and Mayne on Darn., sec. 781; Brown v. Swinford, vol. 7, Central Law Journal, p. 271, No. 11, Sup. Ct. of Wisconsin; ib., vol. 4, No. 12 ; 9 Am. M’y Reports; 16 Iowa, p. 6.</p>

Hon. J. H. Rogers, Circuit Judge. Evidence tending to show motive or purpose of prisoner admissible. Trigden v. The State, 31 Texas, 420 ; Monroe v. The State, 5 Ga., 85. Defendant should have been allowed to show that he had made application to an officer for a peace warrant against prisoner. 'Wharton on Grim. Law, vol. 2, sec. 1027.

<p>1. Little Book and Natoleon Eailroad Company: Act creating, a ■ public act: Not abolished by constitution of 1874.</p> <p>The act of twelfth of January, 1853, creating the Little Eock and Napoleon Eailroad company, is a public act, of which the courts will take judicial notice; and by it the company was immediately created a corporation; and having, in good faith, commenced the construction of its road before the adoption of the constitution of 1874, its charter was not revoked by section 1, Article XII, of that constitution.</p> <p>2. Estoppel: Railroad companies subject to.</p> <p>[The principal question decided in this case is, that railroad companies are subject to the same rules of estoppel as individuals. TJpon the facts the appellant is held to be estopped to oppose the appellee’s constructing its road upon the line of the appellant. The facts constituting the estoppel, are too numerous to be included in a syllabus, and the reader is referred, for them, to the case. — Beporter.]</p>

<p>Promissory Note: Maker’s equities against assignee.</p> <p>Doby, in settlement of a debt to Miller, executed to him or bearer a promissory note payable one clay after date, with the understanding .that the note was to be settled in a subsequent settlement to be had between them of Doby’s legacy in an estate then in Miller’s hands as executor and largely in excess of the note. Before the settlement Miller became insolvent and transferred the note to Williamson. Meld: That the transfer was a fraud upon the part of Miller; and being after the maturity of the note, Williamson had no greater rights than Miller, and his suit should he abated or dismissed without prejudice to the bringing of another suit, if upon settlement between Miller and Doby’s representative, anything should be found due to Miller.</p>