Volume 38 — Arkansas Reports

Hon. J. R. Eakin, Chancellor. “While the law permits an insolvent debtor to make choice of the persons he will pay, it denies him the right in doing it to contrive that other creditors shall never be paid, or to use the debt of the preferred creditor as a colorable consideration to screen and protect his property from their claims, or to delay,. hinder and embarrass them in the enforcement of their demands.” Bump. Fraud.

Hon. John R. Eakin, Chancellor. STATEMENT. This was a bill by Partee and wife against Chrisman, for specific performance of a contract for the exchange of real property. Held: all would go fair and even, but for the fact that sections 12 and 24-would appear respectively on the left and right of section 13, and section 14 below it, against which the surveyor-might, on his part, entertain such decided objections as to materially weaken the force of the exhibit as evidence.

Hon. J. H. Rogers, Circuit Judge. There was a misjoinder of plaintiffs. They had two demands, separate, distinct, definitely ascertained and reduced to judgment. All community of interest and connection of plaintiffs was severed by the decree, and by the judgment. Bliss on Code Pleading, secs. 61, 67 ; Taylor, Landlord and Tenant, sec. 116. 1, Complaint properly amended. Gantt’s Digest, 4616. 2. Plaintiffs properly joined, lb. secs. 4475 and 4477. 3.

Pión. J. K. Young, Circuit Judge. STATEMENT. Benjamin W. Green, as administrator of the estate of Wm. W. Andrews, deceased, and W. P. Hart, filed in the Hempstead Circuit Court their complaint in equity, alleging, ■•in substance, that Andrews and Hart were tenants in common of certaiu town lots (which it described) in the town -of Fulton, in said county.

Information in the nature of the writ of Quo Warranto. 1. It was competent under Art 7, Bee. —, Const. 1868, for the Legislature to impose on County Courts the duty of ascertaining the facts authorizing the assumption of corporate powers, &c. Afc the time Arkansas City attempted to incorporate, the •Circuit Court had been deprived of all jurisdiction, the act of 1868 having been repealed by act of April, 1869. State v. Jennings, 27 Arh., 419. 2.

Hon. X. J. Pindall, Circuit Judge. At common law, the husband was entitled during coverture to the possession, rents, &c., of wife’s land. This was a vested right', 2 Black. Com., 433 ; 2 Kent Com., Lecture KKVII1., *p. 130; Butler S Hargrave’s note No. 280 to Coke on Littleton, sec. 594, Sc., subject to be conveyed without wife joining, and since by Statute, subject to -execution.

Hon. E. H. Powell, Circuit Judge. The condition of the bond was, “That he would well •and truly perform the duties of his office, and pay over to the proper officer of person all moneys that may come to his hands by virtue of his office.” Gantt’s Dig., sec. 1,001. McCanany received this money by virtue of his office as •clerk and master, and appellee is clearly liable. See Gantt’s Dig., sec. 4,814; 76., sec. 1,018 ; 76., 997; 76 7Y. ■G., 78; 63 7V. G., 508; 75 TV.

IIon. A. B. Stuart, Circuit Judge. 1 The verdict was contrary to the evidence and the first instruction, and was such as to shock the sense of justice. 1 Parsons Gont., 520, et seq., notes (/) (i) and (n), p. 524, (o), 522 (i) ; Temple v. McLachlan, 2 Bos. cfi Pul., 2V, JR., 136 •, Farnsworth v. Garrard,! Campbell, 38; Withers v. Green, 9 How, 227-8 ; 11 How, 475 ; 6 2V. H., 481; Thasv. Williams, 1 Ad. and JEl., 28 ; B. G. L., 258 ; Bac.

.Hon. J. K. Young, Circuit Judge. The occupation was a tort, a mere trespass, and not a ■“debt by contract,” within the meaning of Art. 9, Sec. 1, Const. 1874. Thomp. on Homesteads, sec. 381; State v. Melogue, 9 Ind., 196; Crane v. Waggoner, 27 Ind., 52, and 83 lb., 85 ; 1 Parsons, 6 Ed., 475 ; Bliss on Code Pleaa., secs. 128 and 152 to 154; Gantt’s Big., 4023. 1.

Hon. J. H. Berry, Circuit Judge. 1. From the first of September, 1874, the note only bore six per cent., and the judgment should only have borne that rate. Newton v. Kennerly, 31 Ark., 626; Pettigrew v. Summers, 32 lb., 571; Ragan v. Bell, —Ark., MSS. 2. A note payable at a future day, with interest greater or less than six per cent, in which nothing is said about the rate after the maturity, draws the stipulated rate only till maturity, and afterwards six per cent.

Hon. W. L. Jacoway, Circuit Judge. 1. The court erred in ordering that execution should issue for future alimony. Gantt’s Dig. secs. 2203, 2205, und that future alimony be a lien. lb. secs. 3605; 2202. Wilson v, Wilson, 2 Dev. & Bat. N. O., 377. 2. The alimony is excessive and double attorneys fees not authorized. Bishop Mar. tG Diu. secs. 604-5, 611-12-13. 3. It was error’ to decree alimony for the life of the wife.

Hon. G. M. Barker, special judge. 1. Appellees did not tender a deed before suit. Lewis v. Davis, 21 Ark., 235 ; McDermott v. Gable, 23 lb., 200; Smith v. Henry, 2 Eng., 207; which is always requisite in actions at law. In equity, under peculiar circumstances, the rule is sometimes relaxed. McGhee v. Blacktoell, 28 Arle., 21; Anderson v. Mills, lb., 175; but never at law. The general rule in equity is laid down in Wakefield v. ■Johnson, 26 Ark., 506. 2.

Hon. R. H. Powell, Circuit Judge. 1. It could not have been the intention of the Legisislature, sec. 3, Act 1875, to vest in one-third of the voters-of a county the power to have repeated elections, without limit, at the expense and annoyance of the other two-thirds, for the removal of . a county seat to one and the same point. Such a construction is unreasonable and absurd.- 2. The Circuit Court should have heard the case de novo,. and made all necessary orders.

Hon. J. W. Martin, Circuit Judge. This court has decided that a new' will not be granted. o.n mere weight of evidence, but only.where the case is so-clear as to shock the sense of justice “at first blush,” and has gone so far as to apply the doctrine to a finding of the-court sitting as a jury, which is not based on the same foundation of reason. The same reason exists for reversing-the finding of a sole judge, as for reversing the opinion of a judge on questions of law.

Hou. J. A. Williams, Circuit Judge. 1. Maudamus will lie against a ministerial officer to compel him to perform an act enjoined by law. Gantt’s Dig. sec. 4150. It was the duty of the county treasurer to pay the warrants out of any funds iu his hands for that purpose. Acts 1875, sec. 68, p. 77. The warrants conform to sec. 67 of said act in every particular. 2.

Hon. R. Ii. Powell, Circuit Judge. 1. The Court of Common Pleas was a court of superior jurisdiction, and its judgments are not void, only voidable. 11 Ark., 519; 31 lb., 83; 21 lb., 367.

Hon. W. D. Jacowat, Judge of Circuit Court. 1. When the legal and equitable titles became united in Bourland, that did not operate as a merger, or extinguishment of the debt; he held the mortgage as guardian, and the equity of redemption in his own right. 2 Black. Com., 177 : 4 Kent Com., 102 ; Bouv. Inst., sec. 1995 ; 2 Broom 2.

Non. J. W. Martin, Circuit Judge. The opinion states the case. There was no breach of the contract if plaintiff was ready to deliver, on demand, any kind of ordinary material for house building.. 2 Parsons on Gont., sec. 657. A ■demand of “some bricks” or “some lumber” not sufficient. Defendant should have stated how much he claimed to be due and demanded payment in building material. Until •this was done there was no default.

Hon. Tiiomas Marcum, Special Judge. 1. The decree alone without the whole of the record and papers was not admissible. To have any validity or effect it was requisite to show that the court had jurisdiction of the defendants as well as of the subject matter. 2 Wharton Ev.,see. 824 et seq.; 1 Greenleaf, 511. The whole record should have been produced or exemplified. 2 Whart.

<p>APPEAL from Montgomery Circuit Court.</p> <p>Hon. J. M. Smith, Circuit Judge.</p> <p>STATEMENT.</p> <p>This was a proceeding in the Circuit Court of Montgomery county, in the nature of a quo warranto, prosecuted in the name of the State by the prosecuting attorney of the judicial circuit, by authority of the Attorney General, to vacate the appellant’s charter for a toll bridge, and seize his franchise to the State. The petition alleges, in substance, that the county court of the county had before then granted to appellant a charter to build a toll bridge along the east side of the Caddo river, at the Caddo Gap Narrows, on the Arkadelphia and Mt. Ida road. That the bridge erected there by the appellant had been washed away, and he had never rebuilt it; but instead, had erected a small structure about ten feet long over a narrow drain, and was continuing to exact from the traveling public exorbitant tolls for crossing it. That it was not such a bridge as was required by the charter, but was a gross imposition upon the traveling public, was of no public utility, but to the contrary an obstruction to public travel, and should be abolished, The appellant answered, that at the point at which the bridge was located, the Caddo river passes through a narrow gap, between almost perpendicular mountain cliffs of rock, and the road runs through said gap on the north side of the river at the foot of the bluffs, and just above theedge of the water. That at the time the charter was granted the road was far below the high water mark, and was subject to frequent overflows, and frequently impassable. That in pursuance of the charter, he had, at great expense, built a substantial wooden bridge, 345 feet long, along said bank through said narrows, and the great force of the current, in high water, had swept it away. He had, at great expense, rebuilt it six times, and it had every time been carried away by the current. That finding that no wooden bridge would withstand the current in a sudden rise of the river, he had excavated a portion of the bluff, and filled up the space of 335 feet occupied by the bridge, with a good, solid and substantial embankment and turnpike of solid rock and earth, entirely above overflow, leaving a space of about ten feet to be filled by abridge, in which he had built, and constantly kept in good order and repair, a substantial and sufficient bridge, and had at great expense kept said turnpike in good order and repair. He denies that said bridge is an imposition, and asserted that without it the road would be impassable much of the year. The turnpike is as safe, solid and substantial, as any part of the road in the county. He had taken no toll from any citizen of the county, and none from any other not authorized by the charter.</p> <p>A demurrer was sustained to this answer and the appellant appealed.</p>

<p>APPEAL from Miller Circuit Court.</p> <p>Hon. G. D. Boyston, Circuit Judge.</p> <p>STATEMENT.</p> <p>Bramble sued Beidler before a justice of the peace, upon a note for $200. Beidler answered that the note was given for the S. W. of the S. W. £, section 20, T. 15 S., E. 28 W., for which the plaintiff executed to him “a good and perfect deed with full covenants of warranty and seizure, representing that the tract contained forty acres more or less ; ’whereas in fact there were about 33^-^ acres in the tract belonging to the plaintiff at the time of the purchase, ánd the remainder belonged and still belongs to the St, Louis, Iron Mountain & Southern Eailroad Company. Wherefore said defendant prays an abatement in the amount due on said note to the value of said G-j-8^ acres, at $15 per acre, the amount agreed on per acre for said land, to-wit: the sum of $92.75.”</p> <p>The plaintiff demurred to the answer, and the defendant demurred to the action for want of jurisdiction in the justice’s court. The last demurrer was overruled and the first sustained by the justice, and the defendant appealed to the circuit court from the final judgment against him on the note. The Circuit Court, on motion of the defendant, dismissed the action for want of jurisdiction*in the justice of the peace, and the plaintiff appealed.</p> <p>1. The action was on the note, and the defendant could not oust the jurisdiction of the justice by putting in a defense of which he had no jurisdiction. JaJceivay v. Barrett, 38 Vt., 317.</p> <p>2. Even if title to land might have been involved, the-judgment was premature. The justice should have inquired: into the truth of the defense set up.</p> <p>3. The relation of landlord and tenant existed, and appellee could not deny appellant’s title. Pintará v. Goodloe, Hempstead, 503.</p> <p>It is not alleged in the answer that appellee is not in possession, hence he will be presumed to be in possession, and he will not be allowed to dispute the title of the vendor. Lewis and wife v. Boslcins, adm’r, 27 Ark., 61, and cases cited.</p> <p>4. The Circuit Court erred in dismissing the whole cause* eveii if the title to land was involved to the amount of the counter claim of $92.75.</p>

Hon. J. W. Martin, Circuit Judge. The costs should have been tendered with the plea. 29 Arle., 544 ; 1 Ch. PI., 478, and notes x and c; 2 Bing. N. O., 88 ; 1 lb., 693 ; 1 Oh. PI, 485, note A; 4 B. If plaintiffs had the right to sue in the courts of this State, and to maintain both actions,(32 Arle., 332,) they had the right to recover costs upon the merits. See also 1 Oh. PI., top p., 466 ; 1 Tidd’s Pr., (3 Am., 9 Hng.

Hon. J. W. Martin, Circuit Judge. STATEMENT. Clifton and Pace recovered judgment against the appellant before a justice of the peace, in Eaulkner county, for $35.00, for negligently killing two oxen in the running of' their train. The defendant appealed to the Circuit Court,. and on the trial there, it was proved, among other things, ■and admitted by the parties, that the killing occurred in Pulaski county.

Hon. R. H. Powell, Circuit Judge; STATEMENT. In January, 1866, J. W. Golightly executed to J. N. S. Gibson, by the name of Spotwood Gibson, the following-deed, to-wit: “John W. Golightly To ^-Mortgage. “Spotwood Gibson. ‘ ‘Know all men by these presents : That I, John W. Go-lightly, for and in consideration of one dollar, in hand paid, and for the further consideration that Spotwood Gibson has executed, as security for the party of the first part, a promissory note for the…

<p>APPEAL from Mississippi county.</p> <p>Hon. L. L. Mack, Circuit Judge,</p> <p>STATEMENT.</p> <p>R. C. Prewett, a regular practising physician of Mississippi county, presented to the county court of that county a claim against the county for $40, for medical attention and medicines to J. M. Burge, as a pauper. The claim was allowed by the county court, and II. C. Dunavaunt, a citizen and tax payer of the county, appealed for the county to the Circuit Court.</p> <p>On the trial, before a jury in the Circuit Court, the evidence was, in substance, that Burge was a very poor man, and was, and had been for sometime, sick. The. county judge was called to see him, and finding him in need of medical attention, and without any means at all to employ aphysician, went to the courthouse and ordered the clerk of the county to enter Burge’s name upon the list of county paupers, in a book kept for that purpose, which was done. The judge then requested Dr. Prewett, who had been doing-the pauper practice for the county, to give such attention and medicines to Burge as he needed. Prewett rendered the services to the amount and value of his claim. At the time the judge employed his services, Burge was, in fact,, receiving the attention of another physician, but this was not known either to the judge or Prewett.</p> <p>The court instructed the jury against plaintiff s objection,, that the count)7 judge had no authority to declare a person a pauper, in vacation, and unless they found from the evidence that Burge was declared a pauper in term time, before the services were rendered, the county was not liable for them.</p> <p>And refused to instruct for the plaintiff, that</p> <p>“If the jury find from the testimony that Burge was a. pauper, (whether declared so by the county court in term-time or not), that the plaintiff was employed by the county court to attend him professionally, and did so, they- will find for the plaintiff if his charges are reasonable.”</p> <p>After verdict and judgment for the county, and motion for new trial overruled, the plaintiff filed his bill of exceptions and appealed.</p> <p>Lee cotinty v. Laclcie, 30 Ark., 764, is not a parallel case. The services here were rendered by direction of the county judge, for a price agreed upon.</p> <p>Lee Co. v. Laclcie, sup., only professes to construe secs. 669-71-2-3-4-6, Cantl’s Dig. This case comes clearly within sec. 675, lb., and the allowance of the claim was-such an approval as cured any irregularities.</p>

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

Hon. J. W. Martin, Circuit Judge. STATEMENT, This was a petition by Brizzolari against Crawford, as auditor, for a mandamus to compel him to issue to the petitioner a warrant for his services as Special Judge of the Sebastian Circuit Court for the Fort Smith district.

Hon. W. D. Jacoway, Circuit Judge. 1. The evidence was insufficient to support the verdict, Oliver v. State, 34 Arle., 632. The statements of Burris, af not contradicted nor improbable, will naturally be believed. 1 Oreenleaf Ev., sec 218. Testing the evidence by the rule in Bevins v. State, 11 Arle., 455, there was none to. ¡-sustain the verdict. 2. The evidence of Rollow and Hogins was not admissible. 35 Am. R., 69.

Hon. X. J. Pinball, Circuit Judge. The complaint, as amended, shows no cause of action in '.Fargason & Co., and though not demurred to, the objection was not waived. Newman Plead and Pr.,p. -. The suit should have been in the name of the real party in interest. No one, under the Code, except trustees, etc., can sue for the use of another. Gantt’s Digest, see.-; State, ■use, v. Rottaken, 34 Ark., 144.

Hon. X. J. Pindall, Circuit Judge. STATEMENT. This is an action by an administrator to recover from the second husband of the widow, after her death, a lot of personal property which had belonged to the first husband, and which she had retained. The property consisted of stock, and their increase, farmingimplements, and household furniture.

Hon. T. F. Sorrells, Circuit Judge. The court erred in refusing the secoud instruction for plaintiffs. Upham v. Dodd, 24 Arh., 545; Robinson v. Kruse, 29 lb., 575. The second instruction for appellee should not have been given.

Hon. T. F. Sorrells, Circuit Judge. STATEMENT. Trucks sued Hall in an action of forcible entry and detainer for a tract of land in Dorsey county, alleging that he was the owner, and entitled to the immediate possession of it, and that Hall, on the-day of-, 1878, “did forcibly enter upon it, and now unlawfully detains and withholds the same from his possession.” Hall answered, claiming title in himself, and denying that he forcibly entered upon the land, or unlawfully…

<p>1. Marriage Contract : For a child’s part of the husband’s estate; Effect of.</p> <p>A wife who has entered into an ante-nuptial contract with her husband for a child’s part of his personal estate upon his death, stands on the footing and with the same rights and remedies of a distributee. She is not a creditor and can take nothing until the debts are paid.</p> <p>A Administration : When distributive shares are payable.</p> <p>An Executor or Administrator can not pay legacies or distributive shares until two years after the date of his letters, unless ordered to do so by the probate court; and such order can not be made unless ■it appear from his settlement that the assets are sufficient to pay all (demands against the estate.</p>

Hon. J. Brizzolari, Special Judge. STATEMENT. On the second of May, 1878, Hershy filed in the Circuit •Court, at Eort Smith, his complaint in equity against ■Stryker and others, alleging in substance, that on the twenty-ninth day of January, 1867, Wood B, Eogers was entitled to the one-sixth part of the estate of his late father, John Eogers, and on that day sold and conveyed the same for $5000 paid in land, notes and money, to John B. Latham, by the following deed, viz:…

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. James M. Blackwell, for himself and other resident taxpayers of Dardanelle special school district, in Yell county, filed his complaint in equity in the Yell Circuit Court for theDardanelle district, against the appellant, to enjoin the collection of a special school tax levied by the county court for the maintenance of a free school in the district, alleging that at an election held by order of the board of directors on the —…

Hon. T. E. Sorrells, Circuit Judge. statement. Hughes filed in the Dallas Circuit Court his petition against Ross, as collector, alleging that the county court of said county, at the October term, 1879, levied a tax of two mills on the dollar to pay the idebtednéss of the county existing at the ratification of the constitution of 1874.

Hon. E. H. Powell, Circuit Judge. Every presumptiou is in favor of the regularity of official acts, and unless misconduct of the officer is plainly and conclusively proved, his acts will be upheld. Wharton on Ev., sec. 1318. The unsupported evidence of appellee would not justify a decree cancelling the deed. Opinion, Treat, J. Morrison v. McKee et al, St. Louis Ot. Ot.; Sawyer v. Hovey, 3 Allen, 331: Bispham’s Equity, sec. 470; Northwest Mutual Life Ins.

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

Hon. X. J. Pindall, Circuit Judge. STATEMENT. On the twenty-ninth of May, 1876, W. Gr.

' Hon. J. W. Martin, Circuit Judge. 1. The jury, from the evidence, should have found-appellant guilty of murder in the first degree or acquitted him. If appellant murdered the deceased at all, it was a malicious premeditated murder by lying in wait, and was murder in the first degree under our Statute. 2. It was error to overrule the motion for continuance. The discretion of the court below was a legal discretion, and when abused will be reviewed by this court.

Hon. R. H. Powell, Circuit Judge. STATEMENT. Ida Brown filed in the Sharp county Circuit Court, at the August term, 1880, her complaint in equhy against her husband, James Brown, for divorce, alleging as causes therefor, that “for a period of more than one year last past he had commenced and pursued a course of unkind, harsh and tyrannical treatment towards her; that he treated her with uniform unkindness and great harshness, which continued with little intermission until…

Hon. X. J. Pinball, Circuit Judge. STATEMENT. In February, 1878, Mrs. McGehee sued Thompson before a justice of the peace, in Jefferson county, for rent for the year 1877, and had a landlord’s attachment issued and levied upon eight bales of cotton produced by him on the rented premises. Bloom claimed the cotton, and upon delivering to the constable the affidavit and bond to interplead, required by the Statute, was permitted to retain it.

Hon. J. W. Mabtin, Circuit Judge. The court erred in ruling out all evidence of a warranty by Evins, and that appellants were concluded by the bill of «ale, inasmuch as no warranty was therein expressed.

Hon. J. M. Smith, Circuit Judge, (by interchange). Plaintiffs failed to show that the heirs of Henry A. Greggs the issue of his marriage with Esther, had died before maturity, and that she died without other lawful issue. A plaintiff in ejectment must recover on the strength of his own title.

Hon. J. H. Rogers, Circuit Judge. 1. ‘ ‘An instruction given with reference to facts hypothetically stated in it, the existence of which there is no evidence to show, is calculated to mislead the jury and erroneous.” 41 Miss., 131-339-240 ; 2 George, 464; Burgwyn’s {Md.) Digest, Title “Law and Fact-,” 1 Marshall, {Kyi),, 460 ; 3 lb., 98 ; 1 B. Mon., 213 ; 7 lb., 371. 2, There was a total lack of evidence to sustain the verdict.

Hon. L. L. Mack, Circuit Judge. 1. Plaintiff failed to prove ownership of the spokes. The allegation of ownership is not such an allegation as the Statute calls material, and requires to be specially denied by the answer. The denial of an allegation of ownership is covered by the general issue. McOlintock v. Lacy, 23 Arle., .215.

Hon. J. K. Young, Circuit Judge. STATEMENT. Mrs. Gossett and her minor children, the heirs of John Gossett, deceased, filed in the Ouachita Circuit Court their complaint in equity against Meyer, alleging in substance, that in 1875, her husband, the said John Gossett, to secure a debt he owed to Meyer, had executed to him a deed upon certain stock and a tract of land in Nevada county, called the Beard place.

Hon. J. W. Martin, Circuit Judge. STATEMENT. In February, 1879, Hallum & England, partners in the practice of law, filed in the Lonoke Circuit Court their complaint in equity against Lane, alleging that as practising attorneys of said court, they had, at the employment of Lane, instituted and prosecuted a suit in equity for him in said court, against one Everett, for the recovery of a certain tract of land in said county, (which they described) and for rents ; and that they…

<p>1. Appear from Probate to Circuit Court: Affidavit for: Statement of transcript.</p> <p>The statement in an appeal transcript from the probate o the Circuit Court, that an affidavit for the appeal, as required by law, was filed, will not he countervailed by the fact that such affidavit was not filed with the other papers in the case in the Circuit Court. If the statement be false the record should be corrected in the probate court, and then carried to the Circuit Court by certiorari.</p> <p>2. Practice : Notice served on Sunday.</p> <p>The objection that notice of the proceedings was served on Sunday must be made before answer or the hearing of the cause on its merits, or it wiE be considered as waived.</p> <p>3. Administration: Petition for sale of land in litigation, for payment of debts.</p> <p>The fact that creditors petitioning the probate court for tbe sale of a decedent’s lands for payment of his debts to them, are themselves suing the estate for an undivided half of the lands, is no ground for the denial of their petition; hut the court may, in its discretion, suspend the proceedings until the litigation about the title is ended.</p> <p>4. Appeals from Probate Court : Practice in Circuit Court.</p> <p>Upon appeal from the probate court the Circuit Court tries the case ele novo, and makes such orders as the probate court should have made, and may order a sale of land to pay a decedent’s debts where the Probate Court has improperly refused to do so.</p> <p>5. Administration : Probate sale of lands; Credit.</p> <p>The credit in probate sales of land for payment of debts is not limited to six months as in other judicial sales, but is left to the sound discretion of the court.</p>

Hon. J. H. Eogers, Circuit Judge. 1. The order reinstating the lost writ of summons was irregular, unwarranted, and unsupported by sufficient proof. 2. The demurrer reached back to the complaint, and should have been sustained. The statement of the cause of action for rent is not an issuable fact — a mere conclusion of law. It was necessary to allege an express agreement for sufficient consideration, or that defendant occupied or received the rents and profits.

Hon. J. H. Rogers, Circuit Judge. The claim of appellee, was unliquidated, not ascertained by judicial proceedings, not even a debt by contract, merely a claim for supposed fraud. A judgment for damages is a personal judgment; so is a decree for title. Monroe & Harlan’s Ky. Dig., vol. 1, sec. 18, p. 569 ; sec. 179, p. 581.

• Hon. J. H. Rogers, Circuit Judge. ' The bill was properly brought in the name of the State, and sufficiently states the case. 2 Story Uq. Jur., sec. 1341 et seq. and notes. STATEMENT. The bill in this case was brought in the name of the State, on the Chancery side of the Circuit Court of Scott county, against James Grigsby and wife, Emma, by Mr. Little, the prosecuting attorney of the twelfth judicial district, assisted by Mr. Sandels, a member of the bar.

<p>1. Practice: Exceptions ; Motion for new trial.</p> <p>Exceptions to tlie rulings oí the court in excluding testimony are considered abandoned unless the rulings are made grounds for new trial.</p> <p>2. Beplevin: Evidence of title; Possession.</p> <p>In an action for the conversion of personal property, the mere facts of lawful possession in plaintiff, and wrongful taking by the defendant, are suffieient. Proof of the transfer by which the plaintiff acquired title is unnecessary. The possession is presumed lawful until the contrary appears.</p> <p>3. Same: Landlord’s Lien.</p> <p>A landlord’s lien will not sustain replevin for the crop. I-Ie must enforce it by attachment or bill in equity.</p>

Hon. J. K. Young, Circuit Judge. STATEMENT. In 1877, McGehee, Snowden & Yiolette, merchants and partners, filed in the Ouachita Circuit Court their complaint in equity against James E. Toney, E. M. Green and J. M. Pace, alleging that they had recovered judgments against said Toney in said court in 1875, for about ten thousand dollars ($10,000), upon which executions had been issued, and returned nulla bona. ■ That in 1866, Toney and William T. Stone jointly owned valuable…

.APPEAL from Hempstead Circuit Court in Chancery. Hon. J. K. Young, Circuit Judge. The relation of brother and sister, the confidence reposed, ■her ignorance of the value, etc., appellee’s knowledge of the value, quality, etc., and the false representations-thereof, etc., furnish the strongest grounds for equity interference. Story’s Eg. Juris., vol. 1, sec. 190 et seq., 193 -et seq.; 30 Arle., 535.

Hon. J. N. Cypert, Circuit Judge. Davis was not in possession of the land, nor under any obligation to pay taxes at the time of the tax-sales. He was a mortgagee, and eventually acquired the equity of redemption by fair purchase. Sec. 5234 Gantt’s Digest docs not affect the validity of the tax-sale, it only lets in the remainderman to redeem. Mrs. W.’s remedy was by ejectment. Gantt’s Digest, secs. 2259-60-62; 27 Ark., 157; 26 Id., 647. Partition did not lie.

<p>1. Justices ok the Peace : Jurisdiction; Trespass on real estate.</p> <p>A justice of the peace has no jurisdiction of trespasses upon real estate.</p> <p>2. School Districts : Corvorations; capacity; liability.</p> <p>School district are hy Statute quasi ^public corporations with capacity to sue and besued,butarenotliable for trespasses committed hy their officers. I'or these the officers are personally liable.</p>

Hon. H. B. Stuart, Circuit Judge. “The party objecting to the decision must except at the time, etc., and time may be given to reduce the exceptions to writing, but not beyond the succeeding term.” Sec. 4694, Gantt’s Digest. The words (exceptions taken and noted) were written in the bill of exceptions, but the clerk failed to enter the motion for new trial. It was the duty of the court to have granted the motion for nunc pro tunc order.

Hon. Jabez M. Smith, Circuit Judge. The payment insisted on is the same claim adjudicated in the probate court, and appellee is estopped by the judgment therein from setting it up. Freeman on Judgments, secs. 319, a; 221-2 and 249; Hopkins v. Pea, 6 Wheat.f 109 ; Kendall v. Stokes, 3 Howard, 100. 1. The reply was properly stricken from the files. It contained neither a counter-claim nor set-off. Gantt’s Dig., seed4579. 2.

<p>1. PAYMENT: Pendente lite; Judgment for cosí.</p> <p>Payment of the debt sued for, during the pendency of the suit, wiB not bar a judgment against the defendant for the cost.</p>

Hon. J. M. Smith, Judge. The county could receive and hold the property as a charitable use, as a gift for the use of the public. Att’y Gen’l v. Helis, 2 8. & 8t., 67-76 ; 7 Johnson, Ghy., 292; 2 How., 127 ; 55 Ind., 297 ; 2 Dill, on Mun. Corp., 431,; Hill on Trustees, 453 ; 2 Sneed., 305 ; 30 Penn. St., 437 ; 5 O. St., 237. A private citizen can sue to prevent an injury to the public, or to restrain public officers from exceeding their duty, 2 Dillon on Mun.

Hon. John H. Bogers, Circuit Judge. STATEMENT. On the twenty-third day of August, 1880, Hicks sued Brown in the Circuit Court at Greenwood, in Sebastian county, upon a judgment he had recovered against him before a justice of the peace of the county, on the twenty-fourth day of August, 1870, for $200.

Hon. J. H. Rogers, Circuit Judge. statement. This was a suit in equity instituted by Fort against Thomas B. Blagg and others, in the Circuit Court of Sebastian county, at Greenwood, on'the twenty-fifth of August, 1879.

Francis Circuit Court in Chancery. Hon. J. N. Cypert, Circuit Judge. 1. The order allowing alimony pendente lite was erroneously made. Counts v. Counts, 30 Arle., 73; Koch v. Koch, 42 Barb., 515; Rhame v. Rhame, 1 McCord, ch, 197. 2. The power of the court to enforce its orders as to maintenance, as in cases of contempt did not authorize it to ■dismiss the complaint of appellant without hearing.

Hon. Hawes H. Coleman, Special Judge. STATEMENT. To the annual consolidated account of Jacob W. Crow, us guardian of Calvin and Julia Eeed, filed in the probate court of Clark county, and showing a balance due him of $53.44, Julia Eeed, still a minor, filed her exceptions, charging him with failure to charge himself with sundry sums of ■money received by him, and with taking credits-to which he was not entitled.

Hon. X. J. Pindall, Circuit Judge. STATEMENT. On the twelfth day of January, 1870, Barkley M. Gillespie and brothers, owners in fee of a certain tract of land in Jefferson county, conveyed it by deed to Marshall Jackson, Sanders Smith and Jacob Keith, as tenants in common.

Hon. J. N. Cypert, Circuit Judge. 1. It was wrong to compound interest. Gantt’s Digest, ■secs. 4277 and 4283 ; 21 Arle., 182 ; 22 lb., 2. 2. Probate court had no jurisdiction. Avery Peterson was married, and the guardianship ceased. Gantt’s Digest, ■ sec. 3094. What jurisdiction had the probate court after =the guardianship ceased? The interest should have been at ten per cent, and no commissions allowed.

Hon. W. D. Jacowat, Circuit Judge. STATEMENT. At the December term, 1881, of the Johnson Circuit Court, D. W. Campbell and S. N. Moore were indicted for the murder of J. M. Wilson. Upon the trial on the 21st of December, 1881, Ed. Swanson, a witness for the State, testified as follows : “I know the defendants ; was present at the time of the shooting of J. M. Wilson at the house of Alf. Jones, in Johnson county, on the 28th day of January, 1881.

Hon. W. D. Jackoway, Circuit Judge. Defendant was out on bail bond, conditioned as prescribed By sec. 1723 Gantt7s Dig., and failed to appear at any time in person. Bee. 1888 lb., provides that the “ trial77 may be had in the absence of defendant, but no. valid judgment (criminal) can be rendered against one who at no time has been personally present.

Hon. J. N. Cypert, Circuit Judge. 8ec. 1888 Gantt’s Dig. provides : “If the indictment is-for a misdemeanor the trial may be had in the absence of the defendant.” It was purely within the discretion of the court to try the case in the absence of the defendant,, or to require his personal presence if deemed necessary.

Hon. T. F. Sorrells, Circuit Judge. There is no law making the $3 tax any part of the fine .and costs in a criminal case. Sec. 5053 Gantt's Dig., is the ■only Statute on the subject which provides that there shall be levied and collected a county tax, etc., a tax of $3 on ■each criminal conviction. This act provides for the levy and collection of the $3 as a tax — not as a part of the fine ■and costs, etc. The Circuit Court cannot levy a tax.

EBBOB to Scott Circuit Court. Hon. J. H. Bogers, Circuit Judge. STATEMENT.

Hon. E. H. Powell, Circuit Judge. STATEMENT. At the June term, 1881, of the Circuit Court of Izard county, the following indictment was found against the appellee: State of Arkansas v. J. H. Graham Indictment for non-feasance in office.

Hon. H. B. Stuart, Circuit Judge. STATEMENT. On the twenty-seventh of September, 1881, TheodoreSchlief was tried and convicted before a justice of the peace, in Polk county, of malicious mischief, in shooting-a mule of C. B. Sale; was lined twenty dollars, and further adjudged to pay to Sale, for damages, the sum of twenty-five dollars, and also to pay all cost of .the prosecution, and was ordered into the custody of the sheriff until the fine and cost were paid.

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. On the eighth day of September, 1880, Eufus Gill was indicted in the Conway Circuit Court for Sabbath breaking, by selling liquor on Sunday, on the twenty-ninth day of August, 1880. A bench warrant was ordered but not issued until January 25th, 1882, and served the next day.

Hon. J. N. Cypert, Circuit Judge. STATEMENT. On the fourth day of December, 1878, Atkins sued’ Swope, in the Monroe Circuit Court, on a promissory note-for $430, due December 1st, 1878, for rent of land for that, year, and caused a specific attachment to be issued and levied upon cotton, produced on the land, to enforce Ms landlord’s lien for the rent.

<p>APPEAL from Conway Circuit Court.</p> <p>.Hon. W. JD. Jacoway, Circuit Judge.</p> <p>STATEMENT.</p> <p>This was an indictment in the Conway Circuit Court, for obtaining money by falsely personating another, charging that “The-said James Kirtley on the seventh day of March, 1881, in the county and State aforesaid, unlawfully, ■feloniously and falsely, did represent and personate J. P. Allnutt, and in such assumed character, unlawfully and feloniously did receive from one B, H. Montgomery the sum •of twenty dollars,” describing it, etc.</p> <p>Upon the trial W. P. Childres for the State, testified in substance, that on the evening of the seventh day of March, 1881, in Morrilton, Conway county, Arkansas, about an hour after dark, defendant and Britt Treadway came into Wells & Hawkins’ store together, where witness was, and tried to boi’row ten dollars from a Mr. Scott, to get Polk Davis out of the calaboose; and failing, they swore they would get him out, and started out. Witness and a young man followed to see what they would do, and found them around the corner of the house .talking. He heard one of them say: “Montgomery has got plenty of money, and let’s get it,” and the other replied, “all right,” and both started toward the calaboose, witness and the young man following some six or ten paces behind. When they arrived at the calaboose Treadway said, “Montgomery, how are-you getting on?” Montgomery replied, “Polk, bad enough.” Treadway said, “give ten dollars more and I’ll turn you out.” Montgomery, cursing, said, “I gave you ten dollars awhile ago to turn me out and you went off and left me in here.” Treadway then caught hold of the bare-of the door and shook them violently, and in an angry tone-said : “Dry up immediately, or I’ll come in and chain you down, flat of your back.” This seemed to frighten Montgomery, who replied: “Oh! no, Mr. Allnutt, don’t do that; I’m sober now, and want to be out of here.” Tread-way then said: “ Give us ten dollars more and I’ll turn you out. I chai’ged you ten dollars for your first release, and for your second will charge you twenty dollars.”' Witness then asked defendant if Treadway had any of Montgomery’s money. He said, “yes, he has ten dollars ; I had it in my possession not five minutes ago.” Witness then told Treadway that there was no law for robbing a man, if he was a prisoner, and he was fixing himself,, perhaps, for a term in the penitentiary. At this he handed to Montgomery, through the calaboose window, what appeared to be a bill, saying: “Here, Montgomery, is your money.” Defendant then placed his hands on witness’' shoulder, and said: “Hold on, Mister; that man’s .got plenty of money, and we want it to release Davis.” Witness-stepped back and defendant then stepped up to the window, and said : “ Montgomery, if you want to get out, give me-twenty dollars and I’ll release you. If not, I am going to bed, and will leave you here till morning, if not for a week.” Montgomery replied: “Oh! no, Polk; don’t do-that. I’ll give you twenty dollars if you will pledge yourself to turn me over my horse, so I can leave town.” Defendant-replied : “ Hand me twenty dollars, and I’ll turn you out and deliver up your horse immediately.” Montgomery handed him a twenty dollar bill (witness describing it), and as defendant turned off with it, witness took hold of his arm and told him he ‘ ‘ could not rob that man in that way, if he was a prisoner;” and held his arm until he returned the money to Montgomery. Defendant then got on his horse, which was hitched near by, and rode off. Witness reported to Allnutt what had occurred, and he went to the calaboose and turned Montgomery out. J. P. Allnutt is called “Polk Allnutt.”</p> <p>Fillmore Cleveland, for the State: “Heard Britt Treadway talking to Montgomery, at the calaboose, about some money, wanting him to give to defendant twenty dollars, to get him, Montgomery, out of prison ; and Montgomery was addressing Treadway as “ Mr. Allnutt;” and Mr. Childress made Treadway hand back to Montgomery-ten dollars he had taken from him. Treadway then stepped off and defendant went to the window and told Montgomery to give him twenty dollars, and he would turn him out. Montgomery spoke to him as “ Mr. Allnut,” and handed to him a twenty dollar bill, that looked green. Did not see the kind or denomination of the bill. Defendant, on receiving the bill, said, “ here is the officer,” and handed the bill to Treadway, who refused to take it; and Childress caught hold of defendant, and he returned the bill to Montgomery, and then got on his horse and rode off.”</p> <p>J. P. Allnutt, for State: “Was town marshal of Morrilton; had put Montgomery in the calaboose, the day spoken of, for being drunk and boisterous. When he got sober took him before the mayor and he was fined, and when released he got drunk and noisy, and witness put him in the calaboose again and kept him there until informed by Childress, that night, of the conduct of Treadway and the defendant.</p> <p>The defendant introduced no evidence.</p> <p>The instructions passed on by the court sufficiently appear in the opinion. The defendant was found guilty, and his punishment fixed at one year in the penitentiary; and after motion for new trial overruled, he filed his bill of exceptions, and obtained an appeal from one of the judges of this court.</p> <p>The indictment is good. See. 1375, Gantt’s Big. Treadways. State, 37 Arle., 443. The instructions fairly present the law of the case. There was no error in permitting the State to prove that Allnutt was the town marshal. The object of defendant in personating, was to induce Montgomery to believe that, as marshal, he would release him.</p> <p>The instructions asked for appellant are, some of them, misleading.</p> <p>The 2nd and 3rd exclude the idea of defendant’s guilt as an accomplice, or aider or abettor, or that he and Treadway could, jointly, commit the offense.</p>

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. Indictment in the Pope Circuit Court, against Henry Robinson, for Sabbath breaking; charging that “the said Henry Robinson, on the twelfth day of November, 1880, in the county and State aforesaid, unlawfully did sell one pint of ardent liquor against the peace,” etc. A demurrer to the indictment was overruled, and after trial and conviction, the defendant brought the case to this court by appeal.

Hon. W. D. Jackoway, Circuit Judge. The J. P. could only sit as an examining coui-t, on a charge of felony ; and if, instead of convicting of assault, and battery, he had simply discharged him, it would not have barred an indictment and conviction on a charge of maiming. How, then, could a conviction have been a bar? To hold this plea good, would establish a most pernicious precedent.

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. Indictment in the Johnson Circuit Court, in five counts,, against J. A. Rhea and F. R. McKennon, for gaming; the-first count charging that “the said J. A. Rhea and F. R. McKennon, on the tenth day of February, 1880, in the county and.State aforesaid, unlawfully did mutually bet the-sum of five dollars in money together with each other, and with W. M. Brown, and a man whose name is to the grand jurors unknown, on a certain game of…

Hon. G-. D. Eoyston, Special Judge. STATEMENT. This was an action at law upon a penal bond, instituted' in the Nevada Circuit Court, December 17th, 1878 ; the complaint charging, in substance, that on the 14th day of August, 1876, the sheriff of Nevada county, under the-orders of the county court, let to the defendants a contract for building a county bridge over Dorcheat creek, in said county, they being the lowest bidders therefor, at the price-•of $1,500.

Hon. R. H. Powell, Circuit Judge. STATEMENT. Indictment against W. B. Scarlett, for selling ardent spirits within three miles of Evening Shade College, in violation of the Act of twenty-sixth of February, 1879, prohibiting the sale, or giving away of ardent spirits, within three miles of Evening Shade College.” The sufficiency of the indictment only has been passed, on by the court, and its defects are sufficiently shown in the-opinion.

Hon. W. D. Jacoway, Circuit Judge. STATEMENT. Haile was convicted in the Circuit Court of Pope county,, for carrying a pistol upon the following agreed facts : “On the twenty-sixth day of September, 1881, in the-county-of Pope, and State of Arkansas, the defendant did carry uncovered, and buckled around his waist, but not uncovered, and in Ms hand, a large revolving pistol, known as the Colts army pistol, and such as is used in the army and navy of the United States, when he…

Hon. J. K. Young, Circuit Judge. Defendant should be prosecuted under the laws of Arkansas, sec. 1659, Gantt’s Digest, he having brought the stolen property into this State.

Hon. W. W. Mansfield, Circuit Judge. 1. The special fi. fa. was void, being made returnable ■one hundred and fifty days instead of sixty, from its date. Sec. 2602, Gantts Dig.; Nash PI. and Pr., vol. 2, 1109, et seg. 2. It was void because the lands were sold in a body. Sec. 2681, Gantts, Dig. 3. The land should have been sold by a Master Commissioner, Nash PI. and Pr., vol 2, 1106 ; Gantts Dig., '997 to 999. The sale was not approved by the court.

Hon. W. D. Jacoway, Circuit Judge. Bee. 1932, Gantt’s Dig., does not apply to misdemeanors. The offense was complete without the assistance of the witness, and the mere fact that he was engaged in the game, would not make him an accomplice. There can be no accessories in misdemeanors, and to apply the strict definition of an accomplice in cases of gaming, would make every bystander who does nothing to prevent or stop the game, a principal. The Statute would thus be nugatory.

Francis Circuit Court. Hon. J. N. Cypert, Circuit Judge. Sales under powers in deeds of trust, etc., are a karsb mode of foreclosure. They are scrutinized with great care, and will not be sustained unless conducted with great-fairness, regularity, and scrupulous integrity. They will be declared void for the slightest unfairness, or excess, or for anything that prevents competition.

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. X. J. Pinball, Circuit Judge.</p>

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. D. W. Carroll, Chancellor.</p> <p>Appellant was not a purchaser, pendente lite. On the death of Gonder, the suit should have been revived against Galbreath; and without this the court had no jurisdiction, and the sale would be void. He ivas a necessary party to the suit. Story Eq. PI., secs. 32(5 to 332, 340, 340a, 1-2, (anci note), 3-7-S-9 (and note), 350, and notes 1 and 2, 351-la-4-4a-6-7-8-9, 380-4-5-7, 427, and, especially, 379-387; 2 Hare, 81-96; 5 John. Oh., 342:13 Vesey, 160-3; lb., 435. The sale and decree are void. Story Eq. PI., secs. 427, 379.</p> <p>1. Appellant was a necessary party. At the time of the filing of the cross-bill by Hartsook, Galbreath was in possession of the lands, claimed in fee, under a chain of title duly recorded. Fletcher v. Hutchison, 23 Ark., 30.</p> <p>2. Even if not a necessary party, as a junior encumbrancer, oras the owner in possession, he was a proper party, and has had no day in court.</p> <p>Appellant was not a party, and cannot appeal. Gantt’s Big., sec. 1057; Tobeyv. Whitaker, 26 Ark,, 95. He was not an indispensable party to the suit. He claimed under a subsequent mortgage. His admission would have been a commencement of a new suit. Interest Reipublicae ut sit finis litium. He was not a party to the decree ; it is res inter alios acta. He was a purchaser pendente lite, and bound by the decree. Holman v. Patterson, 29 Ark., 358; Montgomery v. Birge, 31 lb., 491; Whiling v. Beebe, 12 lb., 425; Ashley v. Cunningham, 16 Ark., 175; Merrick v. Hutt, 15 Ark., 344; Pindall v. Trevor, etc., 30 lb., 250.</p>

<p>1. Attorney’s Lien : Upon judgment recovere l far ihe State.</p> <p>Tlie Governor has no power to employ counsel to represent the interests oJE tlie State in litigation, so as to give Mm a lien on the judgment recovered.</p>

Hon. L. L. Mack, Circuit Judge. STATEMENT. A demurrer ivas sustained by the Sharp Circuit Court, to-the following indictment, and the State brought error: “ The grand jury of Sharp county, in the name- and by the authority of the State of Arkansas,, accuses Nathan G. Hardister and Henry W. Brown,, of the crime of manslaughter, committed as follows,, to-vrit: The said Nathan G. Hardister, on the twenty-seventh day of October, 1880, in the county and' State aforesaid, then and…

Hon. J. W. Martin, Circuit Judge. STATEMENT. Freed, a merchant at Dardanelle, ordered of Walker Bros. & Co.,merchants at St. Louis and Memphis,a bill of dry goods. Walker, Bros. & Co. transmitted the- order to Lehman, Abrahams & Co., merchants at New Orleans, with directions to ship the goods to Freed, at Dardanelle, and send the invoice and bill of lading to them.

Hon. E, H. Powell, Circuit Judge. The powers of an executor before probate of will, are limited to the burial of deceased, payment of funeral expenses and the preservation of the estate. Sec. 46, Gantt’s Dig.; Diamond v. Shell, 15 Ark., 26; Newton, Fx’rr. Uocke, 5 Fng., 176; Ludlow r. Flournoy, et al., 34 Ark., 401. An executor is bound, even after grant of letters, to pursue either the directions of the will or the orders of the Probate Court. Sec. 73, Gantt’s Dig.

Hon. J. M. Smith, Circuit Judge. We have no Statute for the offense charged. At common law it was an indictable offense. Okitty Or. Law, vol. 2, p. 39-40, note ; Whar. Am. Or. Law, p. 804; Jennings v. Gomw'ltk, 17 Pick, 26. The indictment is sufficient. Whart. JPrec. of Indict, etc., vol. 2, p. 719 etseq; Ohitty Or. Law, vol, 2 p. 39. STATEMENT. Appellees were indicted in the Circuit Court of Garland county for keeping a common bawdy house.

EEEOE to Pope Circuit Court. Hon. W. D. Jacowat, Circuit Judge. Bee. 19, Act March 8th, 1879 (p. 38), is the law of this case. Warren was certain!y “interested in the sale” if he accepted any part of the proceeds ; and if he did not, it was competent for him to show it, by proof, as a defense, which he did not do. STATEMENT.

. Hon. W. D. Jacoway, Circuit Judge. The indictment does not state the age of the party to whom the sale was made. The age was a material fact, an essential ingredient of the offense. It fails to set out how appellant was “interested in the sale.” It is vague and indefinite. Johnson v. State, 37 Ark,, 98, following State v. Keith. It charges no unlawful act, but accuses appellant of having ap unlawful interest. The.