Volume 39 — Arkansas Reports

<p>1. Master and Servant: Liability of master for negligence of servant.</p> <p>A master is not liable for an injury to a servant occuriing from the negligence of a fellow-workman, unless the latter was known to be careless, or incompetent, so as to impute negligence to the master in employing him.</p> <p>2. Same : When negligence of servant is negligence of the master.</p> <p>When the performance of duties peculiar to the master, and properly appertaining to him as such, is intrusted to one who is, in other respects, a mere workman, upon the footing of others, such workman quo-ad hoc, and to the extent of the master’s duty intrusted to him, stands in the master’s place, and his negligence binds the master.</p> <p>3. Same: Liability of master for negligence of middle-man.</p> <p>Whenever the master delegates to another the performance of a duty to his servants which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in. which that duty is performed by the middle-man. whom bebas selected as his agent, and to the extent of the discharge of these duties by the middle-man, he stands in the place of the master; but as to all other matters he is a mere co-servant, and the question is not whether the master reserved oversight and discretion to himself, but whether he-did in fact clothe the middle-man with power to perform the duties to the servant injured.</p> <p>. 4. Same : Master’s duty to explain dangers of machinery.</p> <p>It is the duty of a master in assigning a servant to duty at or about dangerous machinery, to give to the servant detailed and special warnings as to all latent dangers not discoverable by a reasonable and ordinary exercise of diligence by the servant; but the master is not required to explain patent dangers at all, which are ordinarily incident to the service, and which it may be reasonably expected, under the circumstances, the particular servant can see and appreciate.</p> <p>5. Practice: Exceptions to instructions, how made.</p> <p>It is the duty of counsel to the court to specify their objections to instructions, but it is sufficient for the recod'd to show a general objection to a particular instruction, which must prevail if any material part of it he had, unless it be divisible into wholly disconnected parts.</p>

Hon. J. N. Cypert, Circuit Judge. The act of indorsement forms a new contract with the indorsee, which constitutes, or implies, a promise that the paper is due and payable according to its teuor. It is an original undertaking. (Parsons’ Pills and Notes, Vol. II, p. S3.) Evidence can not be admitted to show how parties understood the contract of indorsement, unless there is fraud, lb., p. Sip.

■APPEAL from Conway Circuit Court in Chancery. Hon. W. D. Jacoway, Circuit Judge. Public corporations can not be bound, unless the agent or attorney is expressly authorized to do the act. Parsel v. Barnes Bro., BS Ark., B61; Story on Agency (6th.ed.), Sec. 307 a; Whiteside v. U. S., 3 Otto, B57; Bancroft v. Thayer, 8 Reporter, 39. (U. S. Ct.

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. D. W. Carroll, Chancellor.</p> <p>The mortgage is void for uncertainty in the description of the land. Fuller v., Fellows, 30 Ark., 657; Mooney v. Goolidge, ib., 6Jfl; Howell v. Bye, 35 ib., 477; Bowers v. Andrews, 52 Miss., 596; Hughes v. Streeter, 24 III., 647; Shackelford v. Bailey, 35 III., 387.</p> <p>It was error for the Chancellor to look into the title papers filed by intervenor and piece out the description in the deed by reference to them. Percifull and Wife v. Platt, 36 Ark., 456; Hall v. Bonville, ib., 492.</p> <p>The decree is correct and in accord with Doe v. Porter, 3 Ark., 18; Mooney v. Goolidge., 30 Ark., 640; Montgomery and Wife v. Johnson, 31 Ark., 74-</p>

<p>APPEAL from Lee Circuit Court in Chancery.</p> <p>Hon. J. N. Cypert, Circuit Judge.</p>

APPEALS from Sebastian Circuit Court, Fort Smith District. lion. J. H. Rogers, Circuit Judge. The conveyance was an assignment, and not a deed of trust. Crittenden v. Johnson, 11 Ark., 94; 'Hoffman v. Mack-all, 5 Ohio St., 184- The deed was void on its face. Raleigh v. Griffith, 37 Ark., 150. A sale on credit, or at retail, or in any other mode than that prescribed by our statute, renders the assignment void. Raleigh v. Griffith, 37 Ark., 150.

Hon. J. H. Rogers, Circuit Judge. To maintain trespass, appellees must have been in actual or constructive'possession at the time of the seizure. Putnam, v. Wyley, 8 John., ; Hume v. Tufts, 6 Blackf. (Ind.), 136; Cannon v. Kinney, 4 HI. (3 Scan.), 9; McFarland v. Smith, 1 Miss. (Walk.), 17%; Belle v. Monahan, Dudley (S. G.), 38; Dallam, v. Filler, 6 Watts S. (Pa.), 3%3; Hammer, v. Wilsey, 17 Wend.

Hon. J. H. Eogers, Circuit Judge. 1. There had not and could not have been a return of nulla bona on plaintiff’s execution. Meux v. Anthony, 11 Ark., lt-11; Sale v. McLean, 89 ib.; Clark v. Anthony, 3 ib. 2. Plaintiff’s remedy was adequate at law. Field v. Jones, 10 &a., 889; Latham v. Barton, 6 Black/., 97; Mill. B. F. A. v. Clayton, 9 Allen, 101; Freeman on Judgments, sec. 1/86; Bump on Fraud. Convey., p. 58A 3.

For the statement of this case see the opinion of the Chief Justice, on page 89, which is referred to to avoid repetition. 1. This court has no jurisdiction to grant the writ, cite and comment on Allis, ex parte, 7 JEng., 100; Crise, ex parte, 16 Ark., 195; Good, ex parte, 19 ib., ipil; Jones v. Little Mock, 25 ib., 287; Price $ Barton v. Page, 25 Ark., 535; Pitch v. McDiarmid, 6 Ark., p85. 2.

Hon. T. F. Sorrels, Circuit Judge. 1. There was no evidence to support the verdict. Martin v. Scull, 83 Ark.; State v. Jennings, 10 ib., Iffl. 2. The court erred in refusing appellant’s instructions numbered 1, 2 and 6. {Merrick Fenno v. Hutt, 15 Ark., 3ff3; Frellson v. Green, etc., 19 ib., 378; Cooper v. Reynolds, 10 Wall. U. S., 308.) The first, second, third, sixth, ninth and tenth should all have been given.

Hon. T. E. Sorrells, Circuit Judge. 1. The court had no jurisdiction of the minor heirs of Mrs. Haley. The appearance of the guardian did not give jurisdiction. Gantt’s Digest, sec. J¡£81. Argues upon the merits.

Hon. W. N. Dyer, Special Judge. Appellant had a good defense under section 3576 Gantts Digest. By section 706 of Gantts Digest, the County Judge must defend on behalf of the county, and no other officer is entitled to defend for her.

L. L. Mack, Circuit Judge. The answer of defendants, not denying notice down to time of paying purchase-money (and which was never paid), is clearly bad. Byers v. Fowler, 12 Ark., 218; Massie v. Eugart, 32 Ark., 251. Courts of equity have discretion to determine rights of parties, notwithstanding the lapse of time, when the facts are susceptible of being clearly ascertained. Plaintiff was not barred by limitation.

<p>1. Chancery Practice: Reforming deeds; married women.</p> <p>Courts are not in the habit of reforming deeds of married women.</p> <p>2. Married Women: Conveying by power of attorney.</p> <p>A married woman has no power to convey lands "by power of attorney.</p> <p>3. Swamp Lands: Patents to, as evidence of title.</p> <p>Patents for swamp lands are conclusive evidence of the legal title, and must prevail, unless the opposing claimant shows a prior right or superior equity.</p>

<p>1. Stjtrbmh Court: Power to review decision of Circuit Judge on application for bail. -</p> <p>The Supreme Court, in the exercise of its superintanding.control over inferior courts, has power to review, on certiorari, the decision of ¡a Circuit Judge refusing bail.</p>

Hon.--, Circuit Judge. . 1. Defendants having pleaded an estoppel, the burden of proof was upon them to show clearly and, satisfactorily what the estoppel was, and the particular acts creating it. Danley v. Sector, 10 Ark., 887.

Hon. J. N. Cypbrt, by exchange with Hon. J. M. Smith, Circuit Judge. STATEMENT. Eordyee sued Young in the Garland Circuit Court for use and occupation .of a lot in Hot Springs, from the second day of October to the institution of the suit, on the third day of July, 1879.

Hon. T. F. Sorrells, Circuit Judge. For the facts of this ease, see page 141. A county may plead the statute of limitations to a suit on its bonds or warrants. Billon on Mun. Corp., sec. 538, and note f to see. If) 5; Rerry v. Parish of Vermillion, 21 La. Ann., 6f5; Baker v. Johnson Co., S3 Iowa, 151; Be Cordova v. Galveston, J Texas, IflO; Amy v. Dubuque, 98 U. S., IflO. The warrants are unsealed, and are barred.

<p>1. Pleading: Nil debet.</p> <p>An answer, in effect a plea of nil debet, is inadmissible under the Code practice.</p> <p>2. Statute of Limitations: On sealed instruments, dated before Constitution of 1868.</p> <p>The statute of limitations of ten years, and not five, is applicable to an instrument under seal, executed before the adoption of the Constitution of 1868.</p> <p>3. Same : On actions on guardian's bonds.</p> <p>An action on a guardian’s bond does not accrue to the ward until there is a final settlement of the guardian in the Probate Court, and the amount due the ward ascertained and adjudged to him.</p>

Hon. X. J. Pindall, Circuit Judge. 1. Common carriers were insurers, etc., except against the act of God and the public enemy, by the common law, and no restrictions by contract were allowed. (Could v. Hill, 2 Hill, 623; Lawson on Carriers, sec. 24, et seq.) But in modern days such restrictions have been relaxed as to liability, in consideration of reduced rates, etc., over its own lines, and where connecting lines are used, over such.

Hon. T. E. Sorrells, Circuit Judge. The homestead was sold without the consent of the heirs, and sec. S161 Gantt’s Digest, restores it to them. Argue elaborately upon the facts, and insist that the administrator (Johnson) has charged unauthorized commissions, and has failed to áccount for assets coming to his hands, etc.

Hon. J. H. Berry, Judge of Circuit Court. This was a proceeding under secs. 4.944 — 48.Gantt’s Digest The testimony admitted below was objectionable, because: 1. Some of the witnesses who gave an opinion as to damages had not been on the land, and it was not shown that they had any knowledge of how the right of way affected it. 2.

<p>1. Action : Parties : Suits ayainst county treasurers for funds withheld.</p> <p>Either the State, as trustee of an express trust, or the county treasurer, may maintain an action on his predecessor’s bond for the amount of school funds found, upon settlement with the County Court, to be due from him.</p> <p>2. Action on Official Bonds : Settlement with County Court conclusive.</p> <p>In an action on a treasurer’s official bond, his settlement with the County Court is conclusive against him and his sureties.</p>

Hon. William Walker, Circuit Judge. 1. There is no statute requiring the prosecuting witness, nor any witness, to indorse his name on the indictment. Section 1778, Gantt’s Digest, only provides that the names of the witnesses examined must be indorsed, etc. This is for the convenience of the prosecuting attorney and clerk. The indictment good, without the name of a single toitness indorsed. 2.

II011. James K. Young, Circuit Judge. The right to recovery depends upon the construction of portions of section 8 of act 58, p. lllp, Acts of 1875. Clause 29 allows mileage in serving each writ, process, notice, etc., except county matters.

<p>1. Criminal Practice : Arraignment: Nunc pro tunc order.</p> <p>A nunc pro tunc order in a criminal case after trial, showing that the accused was arraigned before trial, can not be made in the absence of the prisoner, and the record must affirmatively show his presence; otherwise, the case will be treated in the Supreme Court as if he was tried without plea, and be reversed.</p> <p>2. Same : Entry showing grand jury sworn.</p> <p>The record-entry of the swearing of the grand jury must show that all of them, as well as the foreman, were sworn; otherwise, the judgment of conviction will be reversed ; and, upon return of the case to the Circuit Court, unless a nunc pro tunc order that all were sworn can be truthfully made, the prisoner may be held to answer a new indictment.</p>

Hon. J. H. Rogers, Circuit Judge. 1. The court had power to render the decree in personam against Johnson. Price v. Stale Bank, 14 Ark., 50; McLean v. Baclgett, 4 ib., 244 J Fowler, Admr., v. Byers, 16 ib., 196 ; sec. 13, chap. 117, Gould’s Digest, etc. 2. The service was in accordance with the law at the time (sec. 6, chap. 117, and sec. 14, chap. 133, Gould’s Digest), and sufficient.

Hon. J. H. Rogers, Circuit Judge. 1. The suit was premature. C. F. B. Co. v. Parks, 32 Ark., 152. 2. Plaintiffs did not put themselves in a position to receive any benefit from the omission of the collector to attend at Port Smith (Cooley on Taxation, 216), and no injury resulted to them. They had ample opportunity to pay the taxes, but failed.

<p>APPEAL from Perry Circuit Court.</p> <p>Horn J. M. Smith, Circuit Judge.</p>

Hon. L. L. Mack, Circuit Judge. 1. Jones’ administrator, never having paid the debt, has no rights in this suit. {Bone v. Torrey, 16 Ark., 87; 1 Story Eq., 502; McNairy v. Eastland, 10 Yer., 310; Scanlan v. Settle, — Meigs, 170.) He was not a party in fact to the decrees. His only remedy was by original bill, in a direct proceeding. He has slept until barred by limitation, and the presumption of payment arises. 2.

Hon. J. M. Smith, Circuit Judge. Appellant sold whisky and threw in the powder. This was a mere subterfuge to evade the law.

PETITION for writ of prohibition to Judge of Pulaski Circuit Court. This controversy arises under act of March 21, 1881. Acts 1881, p. 116. 1. Coal oil inspector is not such an “officer” as is contemplated by section £7, article 7, Constitution of 1874. (Sheboygan v. Parker, 8 Wallace, 98; Conith v. Sutherland, 8 Serg. £ JRawle, 145; People v. Bennett, 64 Barb.

Hon. J. W. Martin, Circuit Judge. 1. The act of March 21, 1881, commonly called the “three mile law,” prohibits the sale of “any vinous, spirituous, or intoxicating liquors of any kind,” and proof of the sale of any kind of spirituous or intoxicating liquors wopld have been competent. 2. If the sale was prohibited “by an order made,” it was after the order had been made, for it could be- no offense, under that law, to sell before. Acts 1881, p. 11/.0-1. 3.

<p>APPEAL from Perry Circuit Court.</p> <p>Hon. J. M. Smith, Circuit Judge.</p> <p>United States revenue license will not avail as a defense for a violation of a State law. See U. S. Rev. Stat., see. 3243.</p>

<p>APPEAL from Pulaski Circuit Court.</p> <p>Hon. E. T. Vaughan, Circuit Judge.</p> <p>1. There was‘error in permitting the dying declaration of the deceased to go to the jury on the second trial. It was a mere expression of opinion, and should have been excluded. (Greenleaf.', sec. 159; Whart. Cr. Law, vol. 1, see. 678.) It may be contended that, being good on its face, it was admissible. It is not necessary that it bear on its face the blemish of inadmissibility; it is sufficient if it appear when taken in connection with the circumstances. The judge must decide this question, not the jury. (Greenleaf., sec. 160.) Nor can it be left to the jury to be weighed and disregarded if worthless. State v. Williams, 67 N. G.</p> <p>2. After the trial, Jenkins was ascertained to have been convicted of felony. A dying declaration is but testimony, and the declaration incompetent. (Williams v. The State, ubi supra.) This was not strictly new undiscovered evidence, tending to impeach a witness. It goes to the competency of Jenkins, and incompetency says that a witness shall not testify at all.</p> <p>Discusses Graham $ Wat. on New Trials, p. 988, vol. 3, and Gonith v. Green, 17 Mass., 515, contending that it is mere obiter dicta, etc. The law does not require an impossibility of a man.</p> <p>3. The testimony of Aiken was-hearsay and irrelevant, from which hurtful inferences would naturally be drawn by the jury. (Graham £ Wat. on New Tr., vol. 2, 612.) It was neither original evidence nor part of the res gestee. Greenleaf, secs. 100-1-8, vol. 1.</p>

<p>APPEAL from Mississippi Circuit Court in Chancery.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

Hon. James Brizzolari, Circuit Judge. 1. The judgment should only have borne interest at six per cent. 2. The note was void. A married woman can not execute a valid note except in course of trade, etc. A note to charge her separate estate must show the consideration.

Hon. J. N. Cypert, Circuit Judge. This is an action-for injuries to stock, under act of February 3, 1875. 1. Owners of stock injured, who have actual notice of the injury, can not recover double damages, where no notice is posted. N o man can add to his damages by his-own acts, as by waiting until the time for posting expires, before making claim, in order to get double damages, etc. State ex rel. Rice v. Powell, 44 Mo., 436; Wright v. M. ¿'I. Tel.

Hon. J. M. Smith, Circuit Judge, on exchange of Circuits. 1. Under section 432 Gantt’s Digest, all parties having a lien, etc., may interplead, but there is no law authorizing the owner of a mere lien, not ascertained and fixed by adjudication, to become a party to a strictly legal proceeding. Wilson v. Lassen, 5 Gal., 114,; Shaffer v. Bromará, 29 Barb. {N. Y.), 25. 2.

<p>Special Judge: Selecting by agreement of parties: Appeal from orders of-</p> <p>Parties to'a suit in which the presiding judge is disqualified, can not by agreement, select a special judge to try the cause. No such agreement can impart judicial power, and all orders and proceedings of such judge, including his grant of appeal to this court, are -void, and the appeal will be dismissed at the appellant’s cost.</p>

Hon. X. J. Pindall, Circuit Judge. 1. Probate judgments are conclusive, unless for fraud in obtaining them, and until appeal taken. 5 Ark., 305; ib., 705; n ib., 95; U ib., 8U; k Otto, Iff6. 2. The fourth judgment was upon an obligation contracted by the administrator, as a part of the necessary expenses of administration, and a valid claim against the estate.

Hon, J. H. Rogers, Circuit Judge. The answer stated, full defenses, and the demurrers were improperly sustained. This proceeding was based upon the decree in Drake v. Tlvyng, which was reversed at the May term, 1881, of this court.

Hon. J. M. Smith, Circuit Judge. This claim is based on section 5286 Gantt’s Digest, and the proceedings regulated by act of Feb. 27, 1879. The statute of limitations does not run in favor of or against the State, or county, which is a civil division of the State for political and judicial purposes, etc., unless expressly named. State v. Thompson, 10 Ark., 61; Hill v. State, 28 ib., 609; Cole v. White Co., 32 ib.,51. .

Hon. J. N. Cypert, Circuit Judge. The court erred in not allowing proof that cotton was higher in price at the time of the sale, at Memphis, and that cotton of the same grade, etc,, usually brought more in New Orleans than in Memphis. This tended to show bad faith, and, taken in connection with plaintiff’s suspension shortly afterwards, was a circumstance tending to show fraud. Plaintiff' should have collected $55 a bale from the insurance company.

Hon. T. P. Sorrells, Circuit Judge. Argues that upon the facts and testimony, appellant was entitled to relief against a fraud perpetrated on her.

Hon. R. H. Powell, Circuit Judge. Sections 3598 and 3599 of Gantt’s Digest must be construed with section 3596, when considering the power of the court, and the grounds upon which that power may be exercised. Although Vinson’s petition, on its face, showed grounds to set aside the judgment, under the seventh subdivision of section 3596, yet he showed no meritorious defense to the original action.

Hon. D. W. Carroll, Chancellor. The State’s debt and lien have been fully paid off and discharged, and she has no right to foreclose. The foreclosure in the Chicot Circuit Court was only for overdue interest and the advance interest, and there was no foreclosure of the stock mortgage given by Smith, the lien of which still subsists in full force.

<p>Evidence : Of other offenses than the one charged, inadmissible.</p> <p>On ^ trial for the larceny of a horse, evidence of the stealing of a saddle from another party soon afterward to equip the horse for riding, is not admissible to prove the intent in taking the horse, nor can the jury consider it, if admitted, as a circumstance, in making up their verdict as to the larceny of the horse. It is a distinct offense, and one theft can not be proved by evidence of anotheij. t ■</p>

Hon. R. H. Powell, Circuit Judge. 1. The law presumes every man capable of performing such contracts as he undertakes, in a proper manner. 7 Ark., 436. ' 2. The sixth instruction was erroneous. The value of a growing crop is too remote and uncertain, etc. (1 Sedgwick on Lam., 186.) It can not be proved that a crop would have been made; there are too many contingencies.

Hon. J. Brizzolari, Special Judge. 1. It was error to render a decree vesting the title to the land in the administrators. 2. The whole proceedings, from beginning to end, are erroneous, even if Nevill executed the bond. Heirs are not bound by obligations of their ancestor, beyond the estate descended.

Hon. ~W. D. Jacoway, Circuit Judge. 1. The appellants were only bound for the costs in the justice’s court, and the defendant having been convicted there, the bond became void. 2. In any event, appellants could only be held liable in case of acquittal, but in this case the prosecution was dismissed by the Prosecuting Attorney. Gantt’s Digest, secs. ww-m-m.

Hon. J. N. Cypert, Circuit Judge. A person who purchases an estate (although for valuable consideration), with notice that the right is in another, makes himself a mala fide purchaser. The fraud consists in taking that which the taker knows belongs to another, and not in want of consideration. (La Neve v. La Neve, 3 Atk., 61{,6; 2 Eq. Lead. Cas. (3d ed.), 135, and notes; Duncan v. Jandons, 15 Wall., 175; Tyrrel v. Morris, 2 Dev. $ Bat.

CROSS-APPEALS from Phillips Circuit Court, in chancery. Hon. J. N. Cypert, Circuit Judge. C. B. Sims, being a married man and head of a family, had a homestead of 160 acres, which, under the Constitution of 1868, he could not mortgage or otherwise incumber. {Greenwood Son v. Maddox Toms, 27 Ark., 648.) Even if he agreed to mortgage the entire place, he had not the lawful right and power to do so. He mortgaged all he could, including the most valuable improvements.

Hon. R. H. Powell, Judge of Circuit Court. 1. Appellant was the assignee for value and before maturity, and the defenses asserted were not available. Gantt’s Digest, sec. 565; Daniel on Neg. Inst., vol. 1, sec. 1 and 8. 2. Failure of title in Rainey is not a good defense in a court of law. 18 Ark., 699; 13 ib., 11; 18 ib., 851; 17 ib., 854; 81 ib., 186. 3.

Hon. R. C. Newton, Special Judge. 1. Parol proof to establish a trust like this is unquestioned. 1 John. Gh., 583; Sib., 406-7-8; Story Eq., 1S10-11; 1 Qreenl. Ev., S66; 4 Kent Gom., 305; 9 Ark., 518; 13 ib., 187; 11 ib.,8S; 15 ib., 315. A resulting trust not within statute of frauds. Gantt’s Digest, seo., S963; S John. Gh., 408-9-10-11-1S-13; Dyer v. Dyer, Lead. Gas. in Eq., vol. 1, 138-40-1, and notes; 1 Wend., 6S6-648-9. 2.

Hon. J. K. Jones, Circuit Judge. Under the acts of Adj. Sess., 1875, p. 179, et seep, appellant, as the legal representative of the owner of the equity of redemption (ib., see. 1Í) is the only person to whom the Legislature intended to grant the privilege of -redemption. The favor of permitting lands to be redeemed was granted, not to purchasers at tax-sales, but to those who really mortgaged the lands, their heirs, assigns, or legal representatives, and to those only.

Hon. J. H. Berrt, Circuit Judge. A special agent can not delegate his power to another. (Story on Agency, sec. 18, 13; 1 Parsons on Gont, 88; 1 Daniel Neg. Inst., p. 831.) The coúrt erred in refusing the second, instruction. Appellant never authorized the payment, nor ratified the same to Greenberry Kerr. Story on Agency, sees. 98, 181,413. The verdict will not be disturbed unless palpably wrong. SI Ark., 163, 196.

<p>1. ■ Mortgage: Description: Schedule: Recording.</p> <p>When a schedule of the articles mortgaged is referred to as the means of identifying them, and is the only .means afforded hy the instrument, it is essential to the validity, of the instrument, and must he recorded with it. But when the instrument sufficiently identifies the property and refers to a schedule of it for convenience, the schedule is not essential to its validity and need not he recorded.</p> <p>2. Same: Of merchandise retained by mortgagor to sell, etc.</p> <p>A mortgage of articles of merchandise left in the possession of the mortgagor with power to sell in the ordinary course of business, is void except between the parties to it; but as to other property not to be sold by the mortgagor, it is good.</p>

Hon. J. H. Rogers, Circuit Judge. 1. No exception was taken or noted by defendants to the amending of the verdict by the court. But the court had the right to reform the verdict. It was its duty to see that the verdict was formally and properly rendered. Gantt’s Digest, sec. 1676; Tucker $ Stiles v. Cochran, Sup. Ct. N. IT., Am. Law Deg., vol. 7 (N. S.),254; Haycock v. Greup, ib., 533; Crary v. Carradine, etc., 1¡. Ark., 216. 2.

Hon. J. N. Cypert, Circuit Judge. 1. The contract was against public policy and void. Mull v. Dyson, 10 Eng. Law f Eg. B., TJ. S. Dig., 1858, vol. 6, ed. of John Phelps Patman. 2. Nothing was collected by suit or compromise, so as to allow appellees to recover. The action of a County Court in auditing and allowing a claim is not a judicial determination, etc. Shirk v. Pulaski County, 1¡. Dillon, 810. 3.

Hon. X. J. Pindall, Circuit Judge. The bringing of the suit by W. E. and making John A. Varner defendant were proper. (Gantt’s Digest, sec. 44,76.) When brought in, John A. had a right to be made party plaintiff. (lb., see. Newman PI. and Pr., p. 59-61; Allen v. Thomas, 3 Mete., 198.) W. E.,. as landlord, had the right to sue, and there can be no doubt as to he and John A. jointly maintaining the suit.

Francis Circuit Court. Hon. J. N. Cypert, Circuit Judge. 1. The record of the Probate Court is conclusive. (Gantt’s Digest, secs. 1196-7.) The judgment good on its face. After jurisdiction is acquired its exercise is subject to the rules of practice prescribed for the court. (11 Ark., 383.) The rule in this case prescribed by Gantt’s Dig., secs. 114— 15-16. No requirement that the ease shall be heard, at the term to which the notice is returnable.

Hon. J. W. Martin, Circuit Judge. The third section of the act of April 1, 1881, Acts of 1881, pp- 191-2, is void because: 1. It is in conflict with see. 21, art 2, Constitution of Arkansas. 2. It is repugnant to sec. 22 ib. 3. It is in violation with sec. 1, art. Up, Constitution of the United States. 4.

Hon. J. 'W. Martin, Circuit Judge. Eor the rule prior to 1874, see. art. 12, sec. 6, Const. 1868; 29 Ark., 346, 650 ; 30 ib., 385, 727 ; 32 ib., 777; 33 ib., 432. The object of the Constitution of 1874, art- 10, sec: 7, was to confer upon femme coverts an additional means of acquiring property, by adding “grant” and power, and capacity, to make present disposition, by adding “ conveyed.” B.efore— without a statutory conveyance — she could only devise or bequeath.

Hon. J. N. Cypert, Circuit Judge. 1. Under our statutes no equitable lien can exist. Mortgage liens arise only on the proper filing for record. (Notice does not preserve the lien. 33 Ark., 63, and cases cited. 2. Mortgage is a conveyance of land as security. (Jones on Mort., sec. 16.) The grant is essential to create a mortgage.

Hon. J. N. Cypert, Circuit Judge. There was no malice, no improper motive, no harshness, no wrong intent, and therefore no room for exemplary damages. Where goods are wrongfully taken and returned before action brought, plaintiff can only recover nominal damages. In tort the rule is, compensation, and in no case can plaintiff recover more than will compensate him, unless there-is malice.

<p>Mortgage Description of property: Parol evidence to identify.</p> <p>It is notnee'ssary that the prop erty mortgaged should be so described as to be capable of identification by the written recital, or by the name used to designate it in the mortgage. A description which will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient; and parol evidence is admissible to show that a particular article is included within the general words of a description. As between the mortgagor and the mortgagee, a specific and particular description of the several articles by which to identify them from other like articles of the mortgagor, is not necessary. [In this case a mortgage of “thirty head of stock cattle, and eleven head of stock horses,” held sufficiently descriptive as between the parties. — Rep.]</p>

Hon. J. N. Cypert, Circuit Judge. The case of Plournoy, et al. v. Payne, adrar., is conclusive of this case. See (%8 Ark., 87, et seq.) The remedy was by appeal. Courts can mot go into the merits of a cause on certiorari.

Hon. T. F. Sorrells, Circuit Judge. 1. The stream was not a navigable stream nor river. The Daniel Ball, 10 Wall., 568; Brown v. Ghadham, 31 Maine, 9; Morgan v. King, 35 N. T., Ip51¡.; Moore v. Ban-borne, 2 Mich., 519; Veazie v. Moon, ll^ How., 569. 2. But if navigable, the license'or grant from the State authorizing the company to build a railroad, and for that purpose erect a bridge, is a complete defense. Gilman v. Philadelphia, 3 Wall., 724; III.

Hon. D. W. Carroll, Chancellor. Appellants are not peddlers, and the collector should be enjoined, if not the city. Cites sec. 13, art. 16, Constitution; Taylor, Cleveland $ Co. v. Pine Bluff, 34 Ark., 607; Gantt’s Digest, sec. 3451; Webster Dietr.', “Peddler.” Relies upon the opinion delivered by Eakin, J., on the motion for the ancillary injunction, holding that injunction will not lie to restrain proceedings under city ordinances making peddling a criminal offense, etc.

Hon. W. D. Jaco way, Circuit Judge. 1. The evidence plainly showed that there was no negligence on the part of appellant’s employés, but that everything in their power was done to avoid the injury, and the court should have instructed the jury to find for the defendant. The first instruction for plaintiff’ was erroneous. Reviews R. R. v. Duffie, 35 Ark., 602; R. R. v. Barker, 33 ib., 350; R. R. v. Payne, ib., 816, and cites R. R. v. Talbot, 13 Cent. Law Jour., p. 10. 2.

Hon. J. W. Martin, Circuit Judge. 1. J. T. Brown, Jr., should have been substituted as party defendant, being the real party at interest. The constable only a nominal party. Brown offered the bond required by sec. ^86 Gantt’s Digest. 2. The record in Brown v. Henry should have been admitted as evidence. Snead v. Wegman, 23 Mo., 263; Key v. Dent, Iff. Md., 86; Wells v. Shipp, 1 Miss. (Walk.), 353. 3.

Hon. J. N. Cypert, Circuit Judge. 1. There was no contract of sale. Myrick was in possession of the land, with a lien upon the rents, and not as purchaser. 2. And being so in possession, held the same, as mortgagees, as security for their claims. Mortgagees in possession, without special authority, will only be allowed for such improvements as are absolutely necessary for the support of the property and to keep it from waste and danger.

Hon. J. W. Martin, Circuit Judge. No privy examination of the wife was necessary. Constitution 18741 art- 9, sec. 7; 35 Ark., 480 ; 36 ib., 355. 1. The deed was void for uncertainty of description. 3 Wash. Real Prop., eh. 5, see. 4 par. 23-37-40 ; 35 III., 391; 24 ib., 647; 44 Mo., 247 ; 41 N. II, 337. 2. Eraud is any cunning artifice or deception used to circumvent, cheat or deceive another.

Hon. J. N. Cypert, Circuit Judge. Argued on the evidence, and the verdict is such a departure from the law and evidence as to shock a person’s sense of justice. {SO Ark., 403; 33 4b., 757) The title was to remain in appellants until paid by fifteen bales of cotton to be shipped, and to be applied particularly to that purpose, which was not done.

Hon. W. D. Jacoway, Circuit Judge. The third and fourth instructions asked for plaintiff were undoubtedly law. Plaintiff had a mortgage from both Burks and Johnson, while appellee had one from Burks only. May was a trespasser when he took possession of Johnson’s and Oakes’ crop, and the payment of the rent gave him no claim. 1. Appellant failed to make and file the affidavit reqnired by section- 2 of the act of March 10, 1877, and his mortgage was void as against appellee. 2.

Hon. J. M. Smith, Circuit Judge. No order was made by the court to hold an adjourned term. Gantt’s Digest, sec. 116J¡,. No correct copy of the sci. fa. was served.

Hon. J. W. Martin, Circuit Judge. ■STATEMENT. This was an indictment of the appellant for selling, without license, compounds of ardent liquor known as Home Bitters and Home Sanative Cordial. Upon trial before the court, Brown, a witness for the State, testified that he had purchased from the appellant, in Pulaski County, a bottle of each of the compounds mentioned in the indictment and had drunk' some of both. Each contained alcohol.

Hon. J. N. Cypert, Circuit Judge. The intention of the Legislature was to secure the property sold by the vendor in the hands of the vendee and subject it to the payment of the debt (Act March 9, 1877), and not to go beyond or outside of the property sold, orto substitute personal liability therefor. See Ward v. Carlton et al., 26 Ark., 6627.

Hon. J. W. Martin, Circuit Judge. 1. Defendant not liable for obstructing the flow of water across its lands, unless it be a natural stream, flowing within defined limits.

, Hon. J. M. Smith, Circuit Judge. The complaint contained no allegations as to when or where the services were rendered; states no cause of action. The right to recover depended upon the customary and usual charges at the place performed. The depositions were irregular. , 1. The motion for a new trial is not incorporated in the hill of exceptions, or referred to in any way. 35 Ark., 536 ; 3¡ ib., ¡20; SO ib., 585 ; 28 Ark., ¡50. 2.

Hon. M. L. Bell, Special Judge. 1. The former judgment of the County Court was final, and there could be no readjudication except on appeal. [Bird v. Brown, 5 Ark., 709; Colby v. Lawson, ib., 303.) The County Court could not set aside this judgment after the close of the term. 27 Ark., 202; 2 ib., 66; 5 ib., 23; 6 ib., 92; ib., 282; 13 ib., 21¡.l. 2. The matters were res adjudicata, and appellees were estopped by the former judgment.

Hon. X. J. Pindall, Circuit Judge. . The railroad was not at the time a common carrier; it was in process of construction; it had no agents authorized to receive or contract for freight; it ran no trains. The employés of the ‘contractors .using the construction train had no authority to bind the company. There was no agreement or undertaking by any one to forward the freight to Collierville, Tenn.

<p>1. Special Judge:</p> <p>When a special judge, elected in the absence of the regular judge, is disqualified in a particular case, another special judge may be elected for that case.</p> <p>2. Practice : Court can not direct verdict of jury.</p> <p>It is the settled ruling of this court that the Circuit Court can not, under the provision of our Constitution, determine the sufficiency of evidence, and direct the jury what verdict to find, when there is any evidence tending to sustain the issue.</p> <p>3. Damages: Excessive cured by remittitur.</p> <p>A verdict for excessive damages may be cured by release of the excess, in actions for torts, as well as in actions on contracts. Eakiit, J., dissenting, holding that an excessive verdict should be set aside in toto.</p> <p>4. Same : In torts, how assessed: For death of child.</p> <p>Damages for injury to real or personal property must be ascertained and assessed fi-om the testimony of witnesses; and so for the death of a person earning, or capable of earning wages or doing service. But where damages are claimed for the death of a child incapable of earning anything, or rendering service of any-value, the value of its probable future services to the parent during its minority, is a matter of conjecture, and may be determined by the jury without the testimony of witnesses. Eakin, J., dissenting, holding that there should be proof in all such cases.</p> <p>5. Same: Jury subject to restraint of court.</p> <p>Our statute does not, and could not, under our Constitution, limit the recovery of damages for injuries resulting in death, or for injuries to persons or property. But a jury is not without restraint, and if its assessment be so enormous as to shook the sense of justice, and to indicate that the verdict is the result of prejudice or passion, the Circuit Court should set it aside; and, if it refuse, this court will reverse the judgment.</p> <p>., Special Judge.</p>

lion. X. J. Pindall, Circuit Judge. The following is the bill of lading referred to in the opinion of the court: “Richmond and Danville Railroad Company, Through Line. “ Received of Seddon & Bruce, in outward apparent good order, inward condition of contents unknown, and for which, viz., the condition of contents, this company or any of its connections shall not be responsible, 13 packages, 26 buckets, value unknown, to be transported by the Richmond and Danville Railroad…

Hon. X. J. Pindall, Circuit Judge. 1. Tne deed under which Mrs. Oliver claims does not “ expressly set forth that the same is designed to be held exempt from the liabilities of her husband.” (Gould’s Digest, p. 766, sec. 8), and the marital rights of her husband attached, and may be subjected to appellant’s claim. Taylor v. McCoy, 88 Ark., 91; 1 Wash. Beal Prop., *p. 277. 2.

Hon. C. E. Boesttea, Circuit Judge. The demurrer to the petition and the motion to quash ought to have been sustained, because: 1. The sixth ground is the only one tenable, and it does not change the result. Mann v. Cassidy, Brightly Lead. Cas. on Hleetions, p. 351. 2. There is no fraud charged, and irregularities, in the absence of fraud, will not vitiate. The People v. Cook, ib., 423, 270. 3. A majority vote for a disqualifiéd candidate does not elect the next highest.

<p>APPEAL from Nevada Circuit Court.</p> <p>Hon. J. K. Young, Circuit Judge.</p> <p>STATEMENT.</p> <p>At the June term, 1879, of the Nevada Circuit Court, the appellee recovered verdict and judgment against the appellant for damages for injury to a horse. The appellant filed a motion for a new trial, which was overruled, and it excepted, and time was given by the court until the third day of the next term to file a bill of exceptions; but the bill was not tendered until the fourth day of the next term, and was then signed by the coui’t, and filed, against the objections of the appellee. "Whether the bill could be allowed after the day given at the trial term, is the only question considered by this court.</p> <p>Gantt’s Digest, section 4694, authorizes the court to extend the time of filing the bill of exceptions, and limits that authority only to the provision that the time shall not be extended beyond the succeeding term. It was discretionary with the court to allow the bill of exceptions to be filed on the fourth instead of the third day of the term. When such discretion is not manifestly abused to the prejudice of litigants, this court will not interfere. Snow v. Grace, 89 Ark., 131.</p> <p>Appellee can not be heard to complain, for he did not appeal. (Clark v. Barnett, 84 Ark., 30.) Qui tacet concentire videtur. Broom’s Legal Maxims.</p> <p>There is nothing before this court for consideration, because there is no bill of exceptions. Appellee was only given to the third day of the next term, and he did not offer to file until the fourth day of the term. Cantt’s Digest,see. 4694; Lyonv. Evans, 1 Ark.,349; Lenox v. Pike, 8 Ark., 14; Berry v. Singer, 10 Ark., 484; McDonald v. Poster, 8 Ark., 478; Garabaldi v. Carroll, 33 Ark., 568 ; 6 Ark., ■ 819; Questions of Law and Fact, by Wells, sec. 881, pp. 639, 640; Hilliard on New Trials, sec. 7, p. 76; Robertspn v. Johnson, Cent. Law Jour., vol. 8, pp. 79-80, and cases cited; Cooney v. Burt, ib., vol. 6, pp. 855-6.</p> <p>The Massachusetts cases, Nye v. Old Colony R. Co., 184 Mass., 841, and Cooney v. Burt, 188 Mass., 579, relied on by this court, are based upon a statute entirely different from our own.- Sec. 7, eh. 115, R. S. Mass.; ih., ch. 189, sec. 60.</p> <p>Garabaldi v. Carroll, 33 Ark., 568, is not in point. That case only decides that the refusal of a judge to sign a bill of exceptions can not, itself, be made a subject of exception.</p> <p>An order by a judge giving until a particular day of the next term to present a bill of exceptions reserves tbe power to enlarge the time if necessary, to effectuate justice, but not beyond the last day of the term. Hunnieutl v. Peyton, 188 U. S., 354.</p>

Hon. X. J. Pindall, Circuit Judge. The true construction of the agreement is that it was a contract of lease for five years, with privilege to Hooker et al., of purchasing in the meantime on the terms stated. They could have made the payments and forced a deed, but Walters could not have enforced the payment of the $10,000 by suit if they saw proper, as they did, to treat it as a lease. If Walters can not recover the rent, he is without remedy.

Hon. J. N. Cypert, Circuit Judge. Contend that there was an absolute delivery of the deeds, and the trade completed. Where a deed is absolute on its face, no parol condition, reservation or defeasance can be proved to defeat the grant. 21 Ark.,p. lf.li.0; 20ib.,293. The burden of proof is on appellees, except as to the filing for record, and the evidence does not sustain them. Argues on the evidence, and contends that there was no> such delivery as would bind appellees.

Hon. S. J. Pindall, Circuit Judge. 1. The conveyance and delivery by a debtor to a creditor of more goods than were necessary to pay his debts was such as would lock up his goods indefinitely, and thereby hinder and delay other creditors, and so fraudulent as to warrant an attachment. Bramstaclt v. McWhirter, 9 Neb., 6; McChesney v. Alien, 7 ib., 27; Bump on Fraud. Corn., 392, Ififf, Jones v. Syer, 52 Md., 211. 2.

Hon. X. J. Pindall, Circuit Judge. Gabriel Calliotte having received $3,474, which was more than his legal or equitable share of his father’s estate, had no such right to partition as a court of equity would recognize, and his heirs having come into a court of equity, the Chancellor should have required him to do equity, and charged his interest with the debt, etc. 5 Cranch,328; Sec. 153 Gantt’s Digest; 31 Ark., 285; 11/ ib., 21/6; 15 ib., 1/12; Freeman on Cotenancy, sec.…

J. W. Martin, Circuit Judge. Internal improvement lands are subject to taxation after entry. (Section 39%5 Gantt’s Digest.) The entry still stands, and the forfeitures are presumed to be valid. The assertion of the right to tax is an admission that the title is out of the State. The certificate demanded was absolutely necessary to enable appe’lants to redeem. They had no remedy except by mandamus. It was the “plain legal duty” of the Commissioner to issue the certificate.