Volume 37 — Arkansas Reports

Hon. J. N. Cypert, Circuit Judge. The property was the wife’s ; never reduced into possession by the husband. 14 Ark., 604 ; 16 lb., 154. The wife, after the Act of 1875, and before appellee’sjudgment, scheduled the property which had been purchased by the husband with her means. 33 Ark., 611; 23 Texas,. 180; 2 Bishop on Married Women, see. 101. The laws of another State are presumed to be the same-with our own. 14 Ark., 603.

T. E. Sorrells, Circuit Judge. STATEMENT, On the twenty-second of May, 1877, Sappington and Frasier filed in the Circuit Court of Chicot county their complaint at law, alleging, in substance, that they were the owners of certain lands in said county described in the complaint ; that about the year 1870 the Little Rock, Pine Bluff' and New Orleans Railway Company, organized under the general incorporation act of Arkansas, received from the State $480,000 in levee bonds, under…

Hon. J. W. Martin, Circuit Judge. STATEMENT. Petition for habeas corpus filed by Verser against Ford’ and his wife, to obtain -from them the custody of his infant: child. The opinion sufficiently states the case.' In support of the father’s right to the custody of the-' child, cited Reeves’ Domestic Relations, p. 290 et seq; 2; Kent’s Oom., p. 193 (Mar.) ; 5 Bacon’s Abridgement, Infancy and Age, “M,” p. 169 Gantt’s Digest, sec. 3035 ; Wright v. Johnson, 5 Ark., 687.

T. E. Sorrells, Circuit Judge. In support of the complaint cited Ball et ais, v. Fulton Co., 31 Ark., 380; Ohitty on FI, 2d vol., 859 ; 7 1.7,, 478; 31 Ark., 301, Demurrer not proper mode of objection, if the complaint is uncertain and indefinite. McFlroy v. Adams, p. 315 ; 26 Barbour, {N. T.) 9; C. P. Oh., 8 sec.,p. 155. If either count be good, demurrer should be overruled. Turner v. Tapscott, 29 Ark., 312; Bruce v. Benedict, 31 lb., 301.

Hon. 0. B. Moore, Special Judge. Mortgagee not entitled to back rents or profits on foreclosure. Jones, on Mort., sees. 670, 671 ; 3 Ind., eh. 186 ; 91, U. 8. (1 Otto.) 603; 5 Bish., 237.

Hon. T. F. Sorrells, Circuit Judge. ' STATEMENT. On the eleventh of June, 1879, W. B. Street filed in the Circuit Court of Chicot county his complaint in equity against Reuben M. Fry, John M. Woodward and wife, Mary, and Cyrus W. Edmonds, assignee, alleging, in substance, that about the tenth day of May, 1873, he sold to « the defendant, John M. Woodward, certain lots in Lake Village, describing them, and executed to him a deed for them, reserving a lien for the deferred…

Hon. X. J. Pinball, Circuit Judge. STATEMENT. On the fourteenth of November, 1878, Meyer, as trustee for the creditors of Tomlinson, brought replevin against Bloom for four bales of cotton, before a Justice of the Peace of Jefferson county. Finding and judgment for Bloom, and appeal by Meyer to the Circuit Court.

<p>APPEAL frorp Pulaski Chancery Court.</p> <p>Hon. John R. Eakin, Chancellor.</p> <p>The decree in the former suit (to which Smith was a party) settled the matter as between the parties and their privies. Freeman on Judgments, secs. 248 — 49 and 330.</p> <p>The Chancellor improperly assumed that Fagan might be presumed, from his agency, to have the power to release the lien of the Hannibal Company.</p> <p>Eagan had no power to act as‘agent for both companies, where their interests are not identical, or might be in conflict. Story on Agency, sec. 210; 17 Barb., 132;-14 N. Y., 85.</p> <p>The burden of proof to prove the agents’ power to do the act was on the party claiming under it. 17 ArJc., 173 : 23 Id., 413 ; Id., 32 ; 5 Trenton, 337 ; 29 Ark., 543 ; 24 Ohio St., 67. Admissions of an agent to bind a principal are only admissible after an agency has been' proved aliunde. 29 Ark:, 512 ; 2 Wharton's Ev., sec. 1183.</p> <p>The novation of the debt was not made, unless the Arkansas Insurance Company had assented to bind itself to the Hannibal Company. 2 Ohitty on Oont., 1380 JST. 9.</p> <p>Complainant claiming under the Arkansas Insurance Company has no equity, without showing that said company, or himself, has paid the debt assumed (if that be so). 23 ArJc., 704 ; 2 Wheat, 336 ; 6 Peters, 402 ; 17 Howard, 343 ; 7 Wall., 416 ; 13 Ark., 632 ; 32 lb., 533 ; 18 lb., 369.</p> <p>One who has assumed payment of a mortgage cannot contest its validity. 1 Jones on Mart., sec. 744; 44 111, 501; 15 Iowa, 407 ; 11 Howard, 521.</p> <p>Complainant cannot succeed without showing or proving •a written release as alleged; nor unless he has shown that he is in possession of the lands, or that the same are unoccupied.</p> <p>The mortgage given was a fraud upon Edward Fulton, -and therefore should not be sustained.</p> <p>It fully appears that there had been a compromise of all the matters involved in this case, including the settlement •of this $1500 note and mortgage.</p> <p>On question of dismissal of former bill see Story’s JEq. JPl., sec. 793; 7 Johnson’s Chancery Reports, p. 1, and •cases cited.</p> <p>A power of attorney, for sale only, does not authorize a mortgage. 4 Kansas, 42 ; 3 Hill, 361; 1 Hammond ( Ohio') 232; 5 Vesey, Jr., 211; 1 Kansas, 281; 4 Kent’s Com., pp. 331, 160. Generally as to agents’ powers, see Story on Agency, secs. 59, 62, 66, 67, 69, 72, 76, 81, 83, 101, etc.; 8 Ark., 227.</p> <p>One dealing with an agent is chargeable with notice of his powers. 3 Hill, 262, 279.</p>

Hon. W. D. Jacoway, Circuit Judge. It was not necessary for the State to prove that the yearling was under twelve months old, or that it was marked or branded. That, under Sec. 1382 of Gantt’s Digest, was matter to be shown in defense. The proof sustains the verdict.

Hon. John Fletcher, Special Judge. The defendant was convicted in the Conway Circuit Court ■of malicious mischief in killing a mule. Motions for new trial, and in arrest of judgment, were overruled, and he appealed to this Court. The opinion states the case. It was matter of defense, if the fence was not live feet high. It is not necessary to allege that it was.

EEEOE to Desha Circuit-Court. Hon. J. M. Pinnell, Special Judge. Objected that he was indicted by the initial “F.” Barbour alone, his name of Flournoy Barbour being well known. Also, that the Court below permitted the State to prove that defendant had left the. State. Also, to admission of proof of his confessions, in that they were drawn from him by direct questions, while under arrest, without due warning that it would be used against him.

Hon. X. J. Pindall, Circuit Judge. The filing of the bond required of the assignee by Sec. ■385 of Gantt’s Digest, is a condition precedent to the operation of the assignment; and without which it was a nulity. 3 McLean, 177 ; 30 Kansas, 47 ; 39 N. Y., 369 ; 3 Hum. (AT. Y.) 594. The act did not violate any provisions of the Constitution •of 1874.

Hon. W D. Jacoway, Circuit Judge. STATEMENT. On the seventeenth day of February, 1880, James P. Holland and 'William Casey were indicted in the Circuit Court of the Dardanelle District, in Yell county, as accessories to Charles G. Helphrey, in the murder of Burgess-James.

Hon. J. N. Cypert, Circuit Judge. STATEMENT. Ill October, 1879, T. C. Mervin, as deputy collector, and in behalf of the sureties of Furbush, Collector of Revenue of Lee county, filed a petition in the County Court of that county, praying the court to give Furbush credit for the sum of six hundred and seventy-five dollars in his account for county revenue collected, upon the ground that that sum had been paid over by him to the County Treasurer on said account, and the…

1. Acknowledgment of Deeds : The word “purposes necessary in. APPEAL from Drew Circuit Court in Chancery. Hon. T. F. Sorrells, Circuit Judge. STATEMENT, In February, 1878, Ford filed in the Circuit Court of Drew county, his complaint in equity against Henry C. .Burks, showing that in March, 1873, Burks executed to him a mortgage upon sundry tracts of land in Drew county (describing them) to secure the payment of a note executed to him for $740, due March first, 1874.

<p>3. Liquor: Selling without license.</p> <p>A licensed dealer may sell his own or any other’s liquor without offense j and if the owner has license, his agent may sell; but-if neither tie-seller, owr.er or person interested in the sale has license, all may be guilty.</p>

Hon. W. D. Jacoway, Circuit Judge. The offense was a misdemeanor within the jurisdiction of the justice. Gantt’s Big. Sec. 1298 ; State v. Bevers, 34 Ark., 188. The statutes make no provision for defending-as paupers, and expressly requires, in all criminal appeals, to the Circuit Court, a bond for costs. Sec. 2104 of' Gantt’s Big. ; also Sec. 2105 requires the certificate of appeal to be served on the justice. For want of these the appeal was properly dismissed.

.Hon. W. D. Jacoway, Circuit Judge. Indictment was under sec. 5 of Act of March 8, 1879. In support of the judgment the State relied on the principles of Foster v. State, (Miss.) as applied to the ■evidence. . f

Hon. T. E. Sorrells, Circuit Judge. Relied upon the fact, that the complaint does not state, nor the evidence prove any- informality on the part of the Sheriff to invalidate the sale, but that the plaintiff lost the land by failing to pay the whole of his bid, including the ■surplus. The suit was founded on section 178, of Eev. Acts of 1871, (see pamph.

Hon. W- D. Jacoway, Circuit Judge. STATEMENT. J. D. Crampton was indicted, tried, convicted and fined fifty dollars in the Johnson Circuit Court for selling liquor to a minor without the written consent of his father or guardian.

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. In March, 1879, Howell filed in the Pope Circuit Court his petition against Hogins, the collector of revenue df the ■county, alleging that he, the petitioner, was indebted to the ■county in the sum of fifteen dollars and five cents for taxes levied upon his property to pay the county indebtedness ■existing at the time of the adoption of the constitution of 1874, as appeared upon the tax books, which were in the hands of the…

Hon. J. N. Cypert, Circuit Judge. STATEMENT. This was an action at law by Blount against King & Clop-ton, to recover the proceeds of three bales of cotton, which the complainant alleged they had received from one Mackey, his tenant, in December, 1877, and sold and appropriated to Mackey’s indebtedness to them, with knowledge of his landlord’s lien upon it for rent for that year.

<p>APPEAL from Franklin Circuit Court.</p> <p>Hon. W, D. Jacoway, Circuit Judge.</p> <p>Cited: Johnson v. State, 36 Ark. 242 ; Keith v. State, <mte 96.</p>

T. F. Sorrells, Circuit Judge. On principle it is plain that the county should re-imburse appellant the reasonable charges of defending the mandamus suit. A fortiori, when the collector has filed a good bond, andi the objections made to it, if successful, -would delay the-collection of taxes. Even if the objections are sustained,, the county pays the attorney’s, fees of the objector — and not the collector. (Acts of 1874 — 5, p. 193, sec. 4).

Hon. W. D. Jacoway, Circuit Judge. The title was not involved, only the fact of tenancy. When the title is brought into question by answer, á suit should not be dismissed without inquiry as to whether it is properly and bona fide so controverted.

Hon. J. W. Martin, Circuit Judge. STATEMENT. Drees was convicted and fined ten dollars in a Justice’s Court, in Little Rock, for malicious mischief in breaking an enclosure, and appealed to the Circuit Court, where, by consent, the cause was submitted to 'the court sitting as a jury, and he was again found guilty and his punishment fixed at a fine of twenty dollars and imprisonment in the county jail for twenty days, if the fine and cost were not immediately paid.

Hon. T. F. Sorrells, Circuit Judge. STATEMENT. On the twenty-fifth of February, 1875, Jackman executed; to Beck his note for the sum of $3500, payable the first day of October following; and to secure its payment, executed to him, on the same day, a mortgage upon his undivided half interest in a number of tracts of land in Chicot county, which belonged to him, and one Charles Caiietou,. as tenants in common.

<p>T. Landlord and Tenant: Re-letting to tenant after judgment in unlawful detainer satisfies the judgment.</p> <p>A re-letting of the premises to a tenant after recovering a judgment for possession against him, is a satisfaction of. the judgment, and an execution on the judgment after the new lease will be enjoined.</p>

J.W. Martin, Circuit Judge. The opinion states the case. The theory of Robinson’s title is, that the land was forfeited to the State, because of Simpson’s failure to pay for the alleged improvement; Litchfield v. Steel, 21 Ark., 437, But the title acquired by a second donee is orAy prima facie ■evidence, and may be impeached for error or fraud. Surginer v. Paddock, 31 Ark., 528.

D. W. Carroll, Chancellor. I. The deed was obtained by fraud and undue influence of the husband of appellant and, void. 10 Minn., 427,448 ; 2 Wal., 524 ; 5 111., 521; 6 Minn., 25 ; 24 Iowa, 509 ; 18 Md., 305 ; 1 Smith (Penn.), 309 ; Bish. on Married Women, 2 vol., sec. 419, et seq. The price paid was inadequate, and shows fraud or unfair dealing. Story’s Rq., vol. 1, secs. 244-250.

Hon. J. W. Martin, Circuit Judge. The only material point in this case is as to the validity and effect of ch. 10, Gantt’s Digest. I. The act imposes duties on the County Court that it. cannot perform under the Constitution. Art. 7, Sec. 28y Oon. of Arle. The act is indivisible, and being void in part, is void in toto. Bittle v. Stuart, 34 Arle. II. The provision requiring sales to be public is merely directory.

■ Hon. J. N. Ctpert, Circuit Judge. STATEMENT, On the sixteenth of January, 1879, T. J. Rogers, as administrator, d. b. «., of the estate of Thomas Gr. Mays, deceased, filed in the Probate Court of White county his petition, alleging that the personal assets of the estate were entirely exhausted, leaving the following debts unpaid,. to-wit: Account of T. J. Rogers...................... $ 60 45- Interest at 6 per cent., from April 80, 1860.....

Hon. A. B. Williams, Special Judge. The opinion states the case. I. The Act of 1875, adjourned session, requires the “court or jury to assess the damages sustained,” etc. This language embraces damages of every kind, and appellee exhausted his remedy by his first judgment. II. The law requires malice, and the evidence shows that appellant was moved by stern necessity, and did not attach until every other avenue of justice was closed against him.

Hon. R. C. Bullock, Special Judge. STATEMENT. This suit was commenced in the Pope Circuit Court, by-Perry, against the Little Rock and Fort Smith Railway Company, in May, 1877.

C. B. Moore, Special Judge. Mrs. Simmons was not an innocent purchaser for value. Bird died in possession, and his family, since his death,, continued in possession of the land. The purchaser of land in possession of a third party, takós it subject to all the-equities between the vendor and the party in possession. 31 Ark., 85 ; 30 Ark., 417 ; 29 Ark., 563. Jones’ testimony as to transactions and conversations-with Nathan Bird, was clearly inadmissible.

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. J. W. Martin, Circuit Judge.</p> <p>I. The signature of appellants to the cross-bond, after it had been accepted, and the property restored “was unwarranted by law, and should not have been allowed. Delivery was as essential as signing, and when they signed the bond, it had already been delivered, and there was, in fact, no delivery by them.” Hynes v. Dickinson, 32 Ark., 777 ; ■see also, Dudley v. Goodrich, 16 How. Prac., 189 ; Hartford Q. Go. v. Pendleton, 4 Abb. Prac., 40.</p> <p>II. The value stated in the bond was conclusive on the ■court. Drake on Attachment, 5 Hd., sec. 342.</p> <p>III. Probst & Hilb were principal defendants, and should have been proceeded against first. Page v. Long, 4 B. Mon., 121; Goodman v. Allen, 6 La. Ann., 371.</p> <p>The Act of November 10, 1875, expressly directs that execution shall be issued against the main defendant before it can be issued against the sureties. The act certainly contemplates that the remedy shall be exhausted against all the ■defendants before proceeding against the sureties.</p> <p>Probst & Hilb’s rights were superior to appellants’. Brandt, on Guar, and Suretyship, sec. 406.</p> <p>The appraisement was had for the purpose of fixing the amount of the bond, and was not conclusive evidence of value. Acts, adjourned sess. 1875, p. 7, 8,</p> <p>Appellants cannot object, in this court, for the first time, to the form of the affidavit, or that the record does not show that a bond was given before the writ of attachment issued.</p>

<p>1. Criminal Law : Cohabiting as husband and wife, what is.</p> <p>To constitute the offense of cohabiting as husband and wife, the parties must live together, in the same house, as husband and wife, without being married; and whether they so live must be determined by the jury, from the testimony in the case, as to their bed and board, and the intercourse and apparent relationship in which they live and bear themselves toward each other.</p>

L. L. Mack, Circuit Judge. STATEMENT. James T. Edgar was indicted and tried in the Craighead ’Circuit Couftat the March term, 1881, for selling liquor to a minor without the written consent of his parents or guar■dian. J. T. Reynolds, the minor, testified upon the trial that Edgar sold him a half pint of whisky on the thirteenth day -of August, 1880, at his saloon in Craighead County. Witness was not 21 years- of age until the twenty-sixth day of August, 1880.

Hon. W. D. Jacoway, Circuit Judge. . STATEMENT. At the November term, 1880, of the Circuit Court of Franklin county.

Hon. T. F. Sorrells, Circuit Judge. submits that counties are not liable for fees in cases of misdemeanor. Fee Bill, sec. 5, p. 169, Acts, 1875. The county is liable. Sec. 5, p. 169, Act 1874-5 ; approved Feb. 25, 1875.

Hon. James A. Yantes, Special Judge. The sale was a fraud, and the decree should so have declared. The whole proceedings by which the Court required the receiver to pass his accounts after they had been fully adjusted, was coram nonjudice. The testimony wholly fails to support either the master’s report or the decree. The theory upon which plaintiff filed her bill was correct.

Hon. J. N. Cypert, Circuit Judge. It is an elementary principle that where fresh provocation intervenes, the act will be imputed to that, rather than to previous malice, unless conclusively proven that the killing was upon antecedent malice. The special instructions given for the State were nearly all predicated upon preconceived malice, and misled the jury. Murder and the distinction between murder and manslaughter are the same, under our Statute, as at common law.

Hon. X. J. Pindall, Circuit Judge. Insists that the court erred in giving to the jury Sec. 135& Gantt’s Digest. The punishment for larceny of the animals named therein is not fixed by that section, but by the Act of 22nd March, 1881. See Acts 1881, pp. 144, 145. The admission. of the evidence that appellant stole the-bridle is too slight an error to reverse the judgment. There is no other error, unless, possibly, on the ground of surprise in the evidence of the father.

Hon. J. H. Berry, Circuit Judge. -Appellant was entitled to a copy of the indictment before plea. Sec. 10, Bill of Rights; Qons. Arle., sec. 1826,. Gantt’s Big.; Ruts. v. State, 8 Ohio {State), 102 ; Smith-. v. State, 8 Ohio, 294. The clause in section 10, Bill of Rights, Cons., 1874, is-the same, almost verbatim, as in section 11, Bill of Rights,. Const., 1836.

Hon. W. D. Jaco way, Circuit Judge. STATEMENT. J. A. Lane was indicted in the Franklin Circuit Court for being “unlawfully interested in the sale, to one R. A. Eichenberger, of one pint of whisky, the same being, in quantity, less than one quart of whisky, when the owner thereof had not previously thereto procured a license from the County Court of saidEranklin county authorizing the same, against the peace,” etc. He demurred to the indictment; the demurrer- was overruled,…

Hon. J. N. Cypert, Circuit Judge. statement. At the March term, 1881, of the Circuit Court, of Faulkner county, Boze Smith was indicted for larceny of a bale of cotton. Upon the trial, the evidence showed that the cotton was stolen by other parties — that Smith was not present, but that he advised and encouraged them to ste’al it.

Hon. J. H. Rogers, Judge. STATEMENT. In. November, 1878, Handlin sued Minehart before.a Justice of the Peace in Sebastian county, upon an account for $298.25. Minehart pleaded in defense that on the twentieth day of Juty, 1876, he gave to Handlin an order on J. N. Sarber for the full amount of the debt in satisfaction of it, and that Sarber was indebted to him at the time in a greater sum than the order.

<p>1. Homestead: Temporary removal from, no abandonment.</p> <p>Continuous ac'ual occupation is not neces-ary to pre-erve lh-i homeUf ad.. A removal from it for a temporary purpose, or with the intention of' re-occupying it, is not such an abanrionmm l as will- forfeit the homestead right</p> <p>2. Samm : Scheduling.</p> <p>When a schedule of the homestead has bf en filed against an execution, ife. is not nece.-'Siry to file ano’her against an alias execution on the same-judgment, where there has b- en no change of circumstances.</p>

Hon. T. W. Pound, Chancellor. STATEMENT. On tbe twenty-sixth of March, 1875, W. E. Cotton filed in tbe Yell Circuit Court his complaint in equity against the appellant, Thomas C. Conger, alleging, in substance, that on the eighth of January, 1872, the plaintiff and defendant, and Jacob Conger and Claiborne Cotton, were equal partners in a steam mill in Yell county, under the firm name of T. C. Conger & Co. That on that day plaintiff bought tbe interest of appellant in said…

Hou. James A. Yantis, Special Judge. STATEMENT. In February, 1874, Klenk filed, iu the Circuit Court at-Fort Smith, his complaint in equity against Joseph Knoble and his wife, to foreclose a mortgage executed to. him by Knoble, with relinquishment of dower by his wife, on the twenty-sixth day of September, 1871, on lot No. 6, and the' north-east half of lot No. 5, in block E, in Fort Smith, to-secure the payment of a note of the same date, for $650,, for borrowed money,…

. Hon. James A. Yantis, Special Judge.. STATEMENT. This suit, brought in the Circuit Court at Fort Smith, by the appellees, against the appellant, was founded upon the following instrument: “Memoranda of agreement made and entered into this •day, by and between H. A. Pierce & Co., of the first part, and the parties whose names are hereto signed, of the. second part, witnesseth: Whereas, the said H. A. Pierce & Co. propose starting a newspaper at the city of Fort Smith,…

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. X. J. Pindall, Judge.</p> <p>There was no occupation by appellee, and no selection of sa homestead, and no one was bound, until such selection was made. Norris v. Kidd, 28 Arle. ' No rent should have «been estimated, prior to the bringing of the suit.</p> <p>Johnston v. Turner, 29 Arle., 280, and Booth v. Goodwin, 29 Arle, 635, are conclusive of this case.</p>

<p>1. Certiorari: None, where appeal may be prosecuted.</p> <p>The writ of certiorari should not be issued in any case where there is or has been a right of appeal; unless the opportunity for appealing has been lost without fault of the petitioner.</p> <p>"2. IirjtlircTlOir: Dissolved, not revived by an appeal.</p> <p>An appeal to the Supreme Court frim an order of a Chancerv Court, dissolving an injunction, does not revive the injunction during the pendency of the appeal.</p>

. Hon. H. B. Stuart, Circuit Judge. The testimony of Lee was of no very material weight or effect, and, if the whole of it had been stricken out, there was sufficient evidence to sustain the verdict. The Court properly refused to allow the committing magistrate to amend the minutes of his examination.

Hon. H. B. Stuart, Circuit Judge. STATEMENT. At the January term of the Circuit Court of dark county,.. Eli Newton was indicted for larceny of two steers, the property of Lewis Speaks; one a red and white spotted steer, two and a half years old, marked with a hole in each ear and split in the right ear; the other, a dun steer, two years, old, with smooth crop in the right ear and over half crop in.the left ear. .

APPEAL ítoto^S aline Circuit Court. Hon.-J. M. Smith, Circuit Judge. STATEMENT. Held: that Saline •county was not indebted to Pulaski county in any sum, and dismissed the 'cause at the cost of Pulaski county, and refused to enter said transcript upon the records of the ‘County Court of his county.

Hon. T. F. Sorrells, Circuit Judge. The award of the arbitrators, ratified in writing, was an accord ofgthe original contract, and constituted a new contract, by which Hanie’s right to sue on the original, if not annulled, was suspended. 30 Vt., 424; 28 Oonn., 392 ; 4 Iowa, 219 ; — Barb., N. T., 485 ; Parsons on Oont., 2 vol., secs. 681 and 683.

Hon. J. W. Martin, Circuit Judge. If part of a statute is violative of, and other parts consistent with, the Constitution, the latter will be maintained, if they can be sepaiated from, and stand without, the former. The unconstitutional parts will be treated as if stricken out of the statute. 2 Peters, 526 ; 4 Blatchford, 263; 36 Oal.. 379 ; 33 Ills., 390; 11 Ind., 424; 2 Iowa, 165 ; 31 IlowfH.

<p>1. P-KDDMIKS : Act defining and imposing licerise on, unconstitutional.</p> <p>The Statute (Gantt’s Dig. Sec. 4376, et sequitur) defining peddlers and imposing license on them, discriminates in favor of the products and! manufactures ot this State, and against those ot other States, and is therefore unconstitutional and void.</p>

Hon. J. II. Rogers, Circuit Judge. STATEMENT. At the November term, 1879, of the Circuit Court at Fort Smith, James Brizzolari, John Kemp and Bynum Colbert were indicted for false imprisonment of Thomas Lacey.

Hon. J. A. Williams, Special Judge. statement. In May, 1881, Percy Watkins, Joseph Wesson, Thomas Ferguson and Charles Beasley were jointly indicted in the Circuit Court of Jefferson county, by two separate counts in the same indictment, for burglary and larceny — the first count charging them with burglary, and the second with grand larceny.

Hon. X. J. Pindall, Circuit Judge. STATEMENT. Indictment for selling whisky in less quantity than one quart, without license. The State proved the sale without license, within twelve months next before the finding of the indictment, but did not prove a sale on any particular day. The court instructed the jury that the State was not required to prove a sale on the particular day named in the indictment.

Hon. W, D. Jacoway, Circuit Judge. The Act of March 2nd, 1875, differs in several very important features from the Act of March 21st, 1881.

Hon. Gf. S. Cunningham, Special Judge. I. The proceedings in and about the appointment of ■appellant were in exact conformity to the Act of the Legislature. Acts 1874-5, p. 165. II. The Act is constitutional. The office of collector and the officer are to be distinguished. The office is now and always has been a legislative creation. In the Constitutions prior to 1874, the office and officer were without recognition -or mention.

<p>1. Practice in Circuit Court: Suspending trial for further evidence.</p> <p>The suspension of-a trial after it has commenced, to enable a party to get further testimony, is within the sound discretion ot the Circuit Court.</p> <p>2. Evidence : What sufficient proof of sale of liquor.</p> <p>If one goes into a dram shop and calls fora pint of whisky, and it is drawn and delivered to him.by thp keeper, this is evidence tending to prove a sale of the whisky, though it is proven, that no-money was paid, nor any directions given to the keeper to charge it,</p> <p>3. Liquor: Sale of to minors.</p> <p>The permission or order of .a parent or guardian of a minor to sell liquor to him must be in writing.</p>

Hon. X. J. Pindall, Circuit Judge. STATEMENT. James H. Pounders was indicted in August, 1881, in the Circuit Court of Lincoln county, for selling' whisky to a minor without the written consent of his parents or guardian, Upon the trial the State proved by Hardy Morgan, the minor, that the defendant sold whisky to him, as charged in the indictment; and, against the defendant’s objections, he was permitted to testify of his age, from the record of his birth in the family…

Hon. H. B. Stuart, Circuit Judge. The record of the divorce tended to show that the first wife was living, and the wife of the defendant up to June 30, 1880, and it should have been admitted. HoTbroole v. The State, 34 Arle., 519. A certified copy of a decree alone is sufficient evidence that such a decree has been made.

N. Cypert (on exchange), Circuit Judge. The prosecutor’s bond for costs is discretionary. If magistrate sees lit to try the cause without requiring it to be given, and accused does not object, he cannot raise the objection here. See. 1518, Gantt’s Digest, is plain and unambiguous. It was a misdemeanor, and Justices of the Peace have concurrent jurisdiction in all misdemeanors. There is no exception noted — no motion for a new trial— no bill of exceptions.

<p>APPEAL from Union Circuit Court.</p> <p>Hon. Jas. K. Young, Circuit Judge.</p> <p>The indictment was good under the Act of 1879, pp 22-23, and the evidence sufficient.</p>

Hon. R. A. Powell, Circuit Judge. It is a felony to dispose of mortgaged property when the-mortgage is properly recorded. Acts 1875, p. 129 ; but by the Acts 1877, p. 81, which provides for filing mortgages,, etc., no penalty is attached for disposing of the property so-mortgaged. No copy of the indictment was served upon appellant.. Const. Ark.,p. 4, sec. 10. The indictment is founded on the latter part of the section-of the Act of February 3, 1875. Acts 1874-5, p. 129-30..

Hon. R. H. Powell, Circuit Judge.. No offense to remove property mortgaged under Act 1877. See Acts 1877, p. 81. Court erred in excluding testimony of mother of defendant. An infant cannot be held guilty, criminally, for the-violation or breach of a civil contract.' 1 Story on Gont., Secs. 66 and 79, and notes on pp. 109-10 — 11. Parsons ont Gont., 268-269. (See preceding case.)

Hon. J. K. Young, Circuit Judge. STATEMENT. At the August term, 1881, of the Nevada Circuit Court,, W. R. McClure was indicted for non-feasance in office, as-follows: “The grand jurors of the State of Arkansas, duly selected,, empanneled, sworn and charged to inquire in and for the body of the county of Nevada, on their oath, present that one-W. R. McClure, late of said county, on the first day of' August, 1881, with force and arms, in the county aforesaid, then and there…

Hon. X. J. Pinjdall, Circuit Judge. Ai’gued upon the evidence and instructions. There was no legal eyidence to connect appellant with the murder, and the verdict was against the evidence, and contrary to the instructions of the court. The court erred in instructing- the jury on the lower grades of homicide, and the jury were thereby misled. There is but one punishment for murder by poison ; there can be no degrees.

Hon. W. D. Jacoway, Circuit Judge. The indictment does not show by what authority Burns was in custody. 1 Bish. Gr. Pr., Sec. 593; Bassv. State, 29 Arle., 148 ; Martin v. State, 32 Ark., 124, and cases cited. 2 Bishop Gr. Pr., 943, note 1 ,p. 945. Nothing is tobe left to intendment or implication in an indictment. State v. Fldridge, 12 Ark., 610; State v. Hand, 6 Ark., 165.

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. The sufficiency of the indictment is the only question/ made in this case.

<p>1. ObtainisG Money under Fai.se Prkticnse : Proof if offense.</p> <p>Proof that the defendant, by false pretenses, obtained the satisfaction-of his debt to another, though sufficient to sustain an action by the defrauded party against him for money lent, is not sufficient to-sustain ail indictment for obtaining money under false pretenses. The money must have been actually, and not merely impliedly or-constructively obtained, and must have come into the defendant’s, possession.</p> <p>2. Samis: Indictment for ; description of money.</p> <p>An indictment for obtaining money under false pretenses must describe the money, with the same particularity and certainty as-an indictment for larceny.</p>

Hon. Gr. S. Cunningham, Special Judge. STATEMENT. In June, 1881, Dick Barnes was convicted, in the Franklin Circuit Court, of gaming, and fined ten dollars; for which, and the cost, judgment was rendered against him ;• and it was ordered by the Court that, in default of payment, the Sheriff hire him out at a sum not less than 'one dollar and fifty cents per day; and, in default of hiring, said fine and cost should be discharged by imprisonment for one day for each one dollar…

Hon. D. W. Carroll, Chancellor. The township constable, and not the coroner, was the proper officer to execute the summons, and the original judgment was void for want of legal notice. Appellant was precluded from perfecting his appeal by an accident, and Chancery has jurisdiction to grant relief. 7 Granch, 332; 2 J. J. Marshal, 513. The law only requires that reasonable degree of diligence that is ordinarily used by men in like circumstances.

<p>3. Indictment for Cruelty to Animals : Allegations of value or ownership.</p> <p>In an indictment under the Act of 1879, for needlessly’ killing or mutilating an animal, the value or ownership oí the animal need not be alleged.</p> <p>2. Sams: Burden of proof as to character of the act.</p> <p>in an indictment for “needlessly' killing an animal,” the State must prove not only the killing, but that it was done under such circumstances a°, unexplained, would authorize the jury ti believe that it was needless, in the senso of tho Statute.</p> <p>8. Statutes : Construction of Act to Prevent Cruelty to Animals.</p> <p>The term “needlessly,” in the Act of 1879, “Por the Prevention of Cruelty to Animals,” has no reference to the lawfulness or unlawfulness of the act of killing or mutilating, except as the Statute makes it unlawful as needless ; nor is it to be construed as characterizing an act which might, by care, have been avoided. It simp ;y means an act cone without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction.</p>

Hon. W. D. Jacoway, Circuit Judge. There is no assignment of the note, and no allegation or evidence of the appellee’s title. Alsteen v. Heartman, 2 Ala., 699 ; Moore v. Penn, 5 Ala., 135 ; Chaplin v. Canada, 8 Com.,- 286. Plaintiff must show by what right he claims in order to maintain his action. Montague v. Remeyer, 11 Iowa, 503. See also 9 Gray (Mass.) 331; Hempst, 48 ; 6 Blackf.

Hon. J. H. Rogers, Circuit Judge. Motion to dismiss should have been sustained. Gantt’s xDigest, 3760 : Nelson v. Hubbard, 13 Arle., 253. Garnishee gave no notice, as required by Seo. 3761 Gantt’s Digest. The ruling of the court sustaining the demurrer, and dismissing proceedings, was exceedingly technical, and cannot be sustained. Ourry v. Woodman, 53 Ala., 371.

Hon. J. N. Cypert Circuit Judge. STATEMENT. This suit was originally brought in the Probate Court of White County, in 1867, by Gans against Gist, as administrator of Thomas, on the following instrument: “ Stony Point, April 25, 1862. “Due Leon Gans, eight hundred and ninety-five and '25-100 dollars borrowed money and payment for a mule, for which I promise to deliver cotton at Des Arc, at eight ■cents per pound, when called on.

For the facts of this case, see the dissenting opinion of' Chief Justice English, page 500, where they are fully stated, and are, therefore, omitted here. Rep. Mandamus the proper remedy. 7 Peters, 634; Green’s. Plead, and Practice, 1178-1187; People v. Sup. Court,. 10 Wend., 285.

Hon. L. L. Mack, Circuit Judge. The trust deed was notice to the world, and was a lien from May 21, 1875. The deposit with the clerk is the-filing; the endorsement simply a memorandum of time of filing. Oats v. Walls, 28 Arle., 244; 2 Washburn Peat Property, top page 591. See also Gantt’s Digest, secs. 5024, 5025.

Hon. W. D. Johnson, Special Judge. STATEMENT. In November, 1874, Barnett filed in the Circuit Court- of Dorsey county, his complaint in equity against M. T. McGrehee, alleging in substance, that on the sixteenth day of December, 1871, he purchased from W. L. Pauley and his wife Susan, the following lands in that county, to-wit: the southeast of northeast quarter and northeast of southeast quarter, of section 34, and southwest of northwest quarter and northwest southwest…

Hon. L. L. Mack, Circuit Judge. STATEMENT. This was an action by the appellee against the appellant for damages for a personal injury sustained,- through the negligence and misconduct of the defendant’s train conductor, in causing him to alight from the train while it was in motion. The defendant denied the negligence, and averred that the injury resulted from the plaintiff ’s own negligence.

<p>1. Bill or Exceptions : Must be signed by judge.</p> <p>■A paper purporting to be a bill of exceptions, but not signed by the judge, is no bill of exceptions and'will not be noticed by the Supreme Court.</p> <p>2. Same : When none, judgment presumed right.</p> <p>In the absence of a bill of exceptions no error can be presumed of' the judgment.</p> <p>3. Attachment: Interpleader’s bond. Statutory judgment on.</p> <p>The appraisement of attached property, when claimed by a third person, as provided by the Statute (Gantt’s Digest, Section 1691, -3 the foundation to the statutory proceedings against the obligors on the interpleader’s b«nd: ancl if no such appraisement be made and shown by the officer’s return, the statutory judgment on the bond does not accrue. ISTor does io accrue then, until the officer shows by his return or the fieri facias issued against the 'defendant in the original action, the failure of the obligors to deliver the property accordingto the conditions of the bond.</p>

Hon. J. L. Abernethy, Special Judge. ‘ ‘ An action for moneys fraudulently obtained, although ■at different times, and by divers frauds, is held to embrace hut one cause of action.” Bliss on Code Pleading, Bee. 118. The County Court, when engaged in,passing upon claims presented before it, acts merely as the financial agent of the county, and, by such proceedings, it can create no estoppel.

Hon. L. L. Mack, Circuit Judge. STATEMENT. The appellant, Jane Gr. Richardson, sued the appellee in •ejectment, in the Circuit Court of Mississippi county, for Sec. 19, T. 16, N. R. 13 E; the S. fl. 1-2 Sec. 25 ; the N. W. 1-4 Sec. 24, and S. E. fl. 1-4 Sec. 25 in T. 16, N. R. 12 E., ■ alleging that she was the owner and entitled to immediate possession, and that the defendant was in possession without right.

Hon. X. J. Pinball, Circuit Judge. I. It was error to allow plaintiff to amend his affidavit so as to increase his claim for damages. It presented an issue entirely different from the one presented before the justice of the peace — in fact, one above the jurisdiction of a justice of the peace. The object of allowing an appeal is to bring before the Circuit Court the matter in controversy in the Justice of the Peace Court. Ball v. Kuykendall, 2 Ark., 195.

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. J. R. Eakin, Chancellor.</p> <p>I. The privilege of homestead may be waived. In re Cross, 2 Dillon, 320; Babcock v. Hoey, 11 Iowa, 375 ; Chamberlain v. Dyell, 3 Mich., 448 ; Sampson v. Williamson, 6 Tex., 115 ; Drake v. Root, 2 Col., 689 ; Simmons v. Anderson, 56 Georg., 53; Grout v. Sauter, 13 Bush, Ky.</p> <p>Husband and wife may alien homestead absolutely, under Con. 1868. Norris v. Kidd, 28 Ark. ; Jackson v. Allen, 30 Ark., 117 ; Chambers v. Sallie, 29 Ark., 407; and power to mortgage is generally co-extensive with power to sell. Thompson on Homestead, Sec. 456 and C. G.</p> <p>Children possess no estate during life of parents, and the homestead is wholly subject to parent’s control; and whatever concluded the latter, concluded the former. Thomp. on Home., Secs. 43 and 570 ; Brown v. Coon, 36 111., 244 ; Clupp v. Wise, 64 111., 160.</p> <p>Ownership and occupation do not alone establish the character of homestead; it is a question of intention and fact. Intention is an essential ingredient, and a waiver eliminates the element of intention, extinguishes it. This view is sustained by Norris v. Kidd, 28 Ark. See p. 491, as to the necessity of selection. No waiver could be more explicit and deliberate than that in' this mortgage. Does this mortgage antagonize public policy? Sec. 2, Art. 12, is to be strictly construed, and applied to cases only clearly within its terms. See Himmelmany. Schmidt, 23 Cal., 120. It is aimed at passive liens, or incumbrances ; the restriction not directly upon the acts of owner.</p> <p>“The law * * * neither in spirit nor letter confers power or opportunity for fraud.” Taliaferro v. Pry, 41 Ga., 622. Webb was certainly defrauded.</p> <p>II. Appellees estopped by recitals in the mortgage. Recitals in deeds forever estop parties thereto. Washburn on Real Property, Vol. 3,p. 106 ; Penn v. Brewer, N. P. J. S. ( Ooxe) p. 172; InskeepY. Shields, 4 Harr. Pel., 345 ; Redman v. Bellamy, 4 Cal, 247 ; LaJoye v. Primm, 3 Mo., 368. “ A party who has executed a deed is thereby estopped from denying, not only the deed itself, but every fact it recites and every covenant it contains.” Foss v. Stracher, 42 N. H., 40-46.</p> <p>Statutes creating homestead exemption do not restrain alienation unless so expressed. Thomp. on Homesteads, Stc. 452. A void conveyance may be validated, lb. Sec. 483 and C. C., and 484 — 5—6, 488. See.also Stewart v. Mackey, 16 Tex., 56.</p> <p>III. The constitutional inhibition was temporary; and the restriction afterwards withdrawn, the policy changed, and the mortgage validated, from the date of the overthrow -of the old policy. Jordan v. Goodman, 19 Tex., 273; Browns. Ooon, 36 111., 243 : McDonald v. Grandall, 43 111., 231; Hewitt v, Templeton, 48 lb., 367 ; Vasey v. Trustees, 59 lb., 188; Hall v. Fullerton, 69 lb., 448. Morris v. Kidd, Sup., is in harmony with these.</p>

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

Hon. W. D. Jaco way, Circuit Judge. Before a creditor can resort to attachment, it must appear that there was an intent to cheat, hinder, or delay the attaching creditor, or a general intent to defraud creditors indiscriminately. Thé intent to do so, or such conduct as will have the effect to cheat, etc., must exist. The property sold to Dennis was not subject to levy and sale for appellee’s debt, and the3r were in no wise prejudiced. Cites 31 Ark., 554.

Hon. R. C. Bullach, Special Judge. STATEMENT. Finley recovered judgment against tbe appellant, before .a Justice of the Peace of Faulkner county, for seventy dollars damages, for killing a mule by the negligent running of its train. The appellant appealed to the Circuit Court. Upon the trial there, the plaintiff testified that he lived •about fifty yards from the Cadron platform, which was on defendant’s road, and right opposite his house. He owned' a horse and mule.

Hon. Richard H. Powell, Circuit Judge. STATEMENT. Stephens filed his' complaint in equity in the Jackson 'Circuit Court, against the appellees, showing that Mitch•ell and Felix Crump, in 1875, sold to Samuel Anthony a two-^hird interest in a certain described tract of land in ■Jackson county, for four thousand dollars, for which he executed to them his notes payable at future dates, and they •executed to him a deed for the land, reciting that they sold and conveyed it “for…

Hon. T. F. Sorrells, Circuit Judge. The amended answer, stating a substantial ground of defense, is not demurrable. Plaintiff should have moved to make it more definite and certain. C. & F. R. R. v. FarJcs, 32’ Ark., 131; Ball v. Fulton Go., 31 lb., 379 ; Busby v. Reynolds, lb,, 662 ; Hoback v. Iloback, 33 lb., 405. - Appellants purchased the land under /Sections 3959 to 3961, Gantt’s Digest, amended by Acts of 1874-5, p. 219, and Acts of 1875, p. 179.

<p>1. Practice in Circuit Court : Verifying pleadings from Justice’s Oourt'.</p> <p>It is not necessary to verify pleadings in a Justice’s Oourt, either oral or written; nor, when amended, on appeal, in the Circuit Oourt.</p> <p>2. Evidence : Of payment by services, etc., uñthout plea of set-off.</p> <p>When the nature of the defense to an action on a note i=, that the defendant had rendered services for the plaintiff and given him orders for money, with a mutual view to a settlement of the notes, evidence of the services and orders is admissible, without pleading them as set-off.</p> <p>8. New Trial: Disqualification of juror concealed on voire dire; Affidavit.</p> <p>An affidavit of the plaintiff that he is informed since the trial, and believes,, that one oí the jurors was related to the defendant in the fourth degreej both by blood and affinity, and that ho did not disclose the fact on his-examination on the voire dire, without stating what the relationship was, and without proof of it, will not sustain a motion for new trial.</p> <p>4. Instructions : To find according to ‘‘weight’’ or ‘‘preponderance of testimony.</p> <p>Where there is a conflict of testimony upon a plea of payment, an instruction to the jury that the defendant is entitled to a verdict, if, upon the-whole tes imony in the cause, his plea appears to be sustained by the “weight” of evidence, should not be given. The word “weight” is not synonymous with “preponderance.”</p> <p>5. Practice : Verdict should be on preponderance of evidence.</p> <p>In a civil action it is the duty ef a jury to find a verdict in accordance with the preponderance of the testimony; but they need not be satisfied of its-truth, in the sense of resting upon it confidently. That principle belongs to criminal law.</p> <p>6. Instructions: Applicable only to the particular ease; Admissions</p> <p>Instructions are not intended to settle abstract principles of law. They are-given for the guidance of juries in the particular ease with reference to the testimony, and it is dangerous to rely upon them as abstract and immutable principles, applicable in all cases.</p> <p>(The instructions as to admissions in Frazier, Ad., v. Prater and wife, 11 Arle., 267, critie:sed).</p> <p>7. Same. As to Admissions: Strength or wealmess of evidence.</p> <p>Since the adoption of the Constitution of 1874 (Art. VIL, Sec. 23), it is the exclusive provin’e of the jury to judge of the strength or weakness of any facts to support an issue, and the court should not instruct them as to the force of evidence.</p> <p>8. Admissions: The fary, the ¡judge of their weight.</p> <p>Statements in the nature of, or tending to prove admissions, are always admissible, and should be considered and given such weight by the jury as they may think them entitled to, without any advice of the court as to their force.</p>

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. Trotter recovered judgment against the Little Rock and Fort Smith Railway Company before a Justice of the Peace, for an injury to his horse, and the Company appealed to the Circuit Court, where the case was tried de novo on the following evidence: The plaintiff and two other witnesses were present at the time of the injury, a short distance from the horse.

Hon. J. H. Berry, Circuit Judge. I. The State has a lien for fine and costs on property of defendant, from time of arrest. See. 2013 Ga,ntt’s Digest; Johnson v. Ashley, 5 ArTc., 168; Wells on Replevin, Sec. 123. II. No matter how informal the execution, if riot absolutely void, it cannot be questioned in a collateral proceeding. Nor can appellee recover possession until she releases the liens upon it. Wells on Replevin, Sec. 123. III.

Hon. Jambs H. Berry, Circuit Judge. The court erred in instructing the jury that only onefhird of the crop “ actually produced,” without regard to manner of cultivation, could be recovered.

Hon. Robert H. Crocket, Special Judge. 1. The onus was on appellee to show a “wrongful’’ suing out or obtainment of the attachment. The attachment was dissolved for informalities in the affidavit and proceedings before a justice, and the dissolution of an attachment for informalit}7 is not proof that it was wrongfully sued out. Sharp v. Hunter, 16 Ala., 765 ; Pettit v. Mercer, SB.

<p>APPEAL from Pope Circuit Court in Chancery.</p> <p>Pión. W.D, Jacoway, Circuit Judge.</p>

<p>APPEAL from PulasM Chancery Court.</p> <p>Hon. D. W. Carroll, Chancellor.</p>

Hon. J. M. Smith, Circuit Judge. I. The patent to Dupas Was void for uncertainty, there being no proof to identify the land. Nor was there any proof of Dupas’ death, and if dead, his widow could convey nothing but dower, and that only to the party holding the fee. 21 Ark., 347. The tax deeds were no part of the record. Acts, March 5, 1875 ; Acts 1874-5, p. 229. II.

Hon. W. D. Jaco way, Circuit Judge. 1. The County Court having levied a tax of five mills, could levy no further tax. Sec. 9, Art. XVI., Constitution,Qraham v. Parham, 32 Arle., 676. 2. The petitioner having been previously paid, procuring the issue of the warrant, was a fraud, and as a county cannot appeal from a judgment of its own County Court— ChicotCo.. v. Tilghman, 26 Arle.,M>l — it can defend against sucha judgment, on the ground of fraud.