Volume 40 — Arkansas Reports

Hon. J. S. Carrighan, Special Judge. 1. The homestead right of the widow ceased on her marriage. 2. The order of the Court selling the four lots subject to her dower, and her acceptance of it by the purchase of the reversion, is a valid assignment of her dower in the whole estate. 2. If not, she is, by obtaining that property in the manner she did, estopped from setting up a right of dower m the fractional lot bought by Webb. 3.

Mrs. Gillc?pie was a young woman recently come of age, living in the family of her brother, whom she regarded as her protector, though he had never been her guardian. Held: That the relations between them were of such reciprocal affection and confidence as imposed irpon him the duty, as her protector, of advising against such a bounty to another or accepting it for himself, and the lease should be set aside.

<p>1. Taxes : On lands purchased of the State; when they accrue. Lands purchased of the State are subject to taxes immediately after the purchase. Section 5078 of Gantt’s Digest requiring land holders to assess their lands for taxes on or before the 1st of January of each year is merely directory, and does not imply that lands purchased after January 1st shall not be subject to taxation until the following year. '</p>

How. J. H. Patterson, Circuit Judge. APPEAL from Scott County. Hon. J. H. Rogers, Circuit Judge. The States ancient right of taxation is fully and expressly conceded in Sec. 23, Art. 2, Const. It is inherent and based upon necessity. Cooley Const., Lim, 580 ; Burroughs on Taxation, 370. The Act of 1831, p. 64, “Overdue Tax Law,” is but the State’s remedy provided by her Legislature for the recovery of her taxes past due, and is a necessary one.

<p>1. Forcible Entry and Detainer : No Judgment in, for rents.</p> <p>The judgment for the plaintiff in an action of Forcible Entry, or unlawful detainer, must be only for possession and cost — not for rents, whether he obtains possession at the commencement or end of the suit.</p>

Hon. J. N. Cypert, Circuit Judge. .1. The Delatour decree was not void. The Court had jurisdiction of the subject matter, to enforce a lien for taxes. Sec. 5238, Gantt’s Digest. Even if Delatour failed to show that he had control or was seized of the lands, as required in Perry v. Shall, 30 Ark. 600, this was not a jurisdictional question, and the decree was simply erroneous, not void. Until set aside or reversed it is conclusive, 6 Eng. 5, 19; 13 Ark. 507. 2.

Hon. T. E. Sorrells, Circuit Judge.- The bond was assignable under Sec. 563, Gantt’s Dig., and appellant had the right to sue upon it. Ib. Secs. 2653 and 5044. Replevin and attachment are but executions before trial.

<p>APPEAL from Lee Circuit Court in Chancery.</p> <p>Hon. L. L. Mack, Circuit Judge.</p> <p>Argued on the merits.,</p> <p>Argued on the merits and cited Washburn on Real Property, Vol. 2)P. 441.</p>

Hon. J. M. Smith, Circuit Judge. Appellees had only a' right of possession, which could be transferred by mere delivery of possession without deed, the premises being in the Hot Springs Reservation.

Hon. J. W. Martin, Circuit Judge, on exchange of Circuits. This case must fail as an express trust, not being in writing, under Seo. 2962, Gantt’s Dig., but the facts here are such that the law implies a trust, and such trusts are excepted from the Statute of Frauds. Ib. Seo. 2963. This is one of those trusts which arises from the presumed intention ©f the parties. Story &q. Jur. Sec. 1195, 1197, 1201.

<p>APPEAL from Pulaski Chancery Court.</p> <p>IíoN. D. W. Carroll, Chancellor.</p> <p>We submit that the Chancellor was wrong. John C. Peay tried to create an estate in himself by his unaided oath. He had not a scrap oí paper or the testimony of any witness to corroborate his recollection of what he supposed to have happened many years ago. Under the old law his testimony would not have been admitted; under the present law his interest affects his credibility. His testimony is not only not sustained by anything in the record, but it is plainly contradicted.</p> <p>1. By his own testimony, his two depositions and his answer being contradictory.</p> <p>2. By the records of the county, which do not show that Bertrand was ever attorney in fact either for G-raham or for Mary W. Lebaron.</p> <p>3. By the records of the Probate Court, which show that the lots were always taken as a part of the estate of Q-ordon N. Peay.</p> <p>4. By the testimony of Rockafellow, who testifies to statements denied by Peay as to the facts attending the borrowing of the money and the making of the mortgages,</p> <p>5. By John C. Peay’s own letters, which are flatly in contradiction of his answer. These are not denied.</p> <p>6. By the plainest conclusions of common sense. Under the Constitution of 1868 a mortgage of the homestead was void. Can any one suppose that Rockaiellow would have lent the money on a void and worthless security ? There is nothing to explain such conduct on his part, and the supposition that he acted in this manner would involve a manifest absurdity-</p> <p>It would be going a good way to say that a man might establish title to land in himself by transactions in pais, and in parol, relating to matters long past, without any farther evidence. That would be to place titles at the mercy of all the infirmities of human memory; but when the testimony which seeks to do this is self-contradictory, is contradicted by everything in the case, and is unreasonable in itself, it certainly cannot be done.</p> <p>Besides there was no kind of consistency between the title set up in the answer and that relied on in the hearing. This should have cut off the defence thus made. The chain of title set up in the answer was different from that which the defendant now is compelled to rely upon. Therefore the decision should have been the other way. Byers v. Fowler, 12 Ark., 288. But the testimony ot Peay broke down completely, and therefore it should have been disregarded. The Santissima Trinidad, 7 Hf/ieai., 338-839.</p> <p>The claim of J. C. Peay to homestead on lot 7, in block 100, is good. Const. 1868; 32 Art, 227; 27 16., 657; 31 lb., 15.</p> <p>A homestead may be claimed out of an equitable estate. 41 Vt., 398; 46 lb., 485; 66 III, 164.</p> <p>The mortgage was not acknowledged by Mrs. Peay. It does not bind her. 35 Ark., 61; 32 lb., 458; 20 lb., 190.</p> <p>The mortgage is not binding on the heirs of Gordon N. Peay because it was executed without consideration, and without the existence of any liability between him and Rockafellow.</p>

Hon. X. I. Pindall, Circuit Judge. Under codes which allow equitable defences in actions at law, a mortgagor, when sued for the mortgaged property, may claim the right to redeem, and may mitigate the recovery against him by reducing the judgment to the amount actually due on the mortgage. Jones on Ghat. Mort., 448 ; lb., 706. Ours is such a code. Gantt’s Digest, Sec. 4569.

HoN. J. H. Beery, Circuit Judge. The Justice bad no jurisdiction, and hence the Circuit Court had none on appeal. See. 40, Art. 7, Const. 1874, gives jurisdiction to Justices in matters of damage to personal properly, &c., i. e., that which the property sustains, and not of personal tresspass or torts. It is only where the corpus of the property sustains injury. Sée 1 Chitty on Pleading, p. 191, 16 Am. Ed. by. Perkins.

Francis Circuit Court in Chancery. Hon. J. N. Cypeet, Circuit J udge. The proof of the existence of the main road is conclusive. Gantfs Fig., sec. 5305-6; Angelí on Highioays, sec. 132-5; Nashville v. State, 1 Baxter, 55. The evidence is conclusive that this branch road did exist and had not been vacated in 1870.

Eon. W. D. Jacoway, Judge of the Circuit Court. •Argues upon the merits. This bill was filed under Sec. 5794, Gantt’s Dig. That section is a literal copy of Civil Code, par., 12, sec. 513, Ch. 9, and is taken bodily from par. 12, sec. 519, Ch. 10, Myers’ Kentucky Code, see p., 145-9.

Hon. G. S. Cunningham, Circuit Judge. 1. The indictment is fatally defective. 2. The Act upon which it was based admits of but one construction and that is: it is made a felony to remove the property, etc., where the lien is recorded.

Hon. J. H. Rogers, Circuit Judge. Mandamus lies to compel the performance of a ministerial duty, &c. 1 Ark., 121. Logan county was not named in the act of Nov. 30, 1875, and the amendatory act applied to counties therein named. Act Mar. 21, 1881. The act is unconstitutional; it is not in harmony with the spirit or letter of the constitutional provision governing amendments. Art. §, sec. 23, Const. 1874; Cooley, Const. Lim., 4fh -Ed. p. 107; lb. 158.

Hon. W. D. Jaco way, Circuit Court. Appellant was entitled to compel the Administrator to resort to the unsold lands to pay the debts, before subjecting those purchased by him. A Court of Equity has jurisdiction to marshall assets, or enjoin a sale which would cast a cloud on title, and having taken jurisdiction-for one purpose, will determine all matters in controversy arising out of the subject matter of the suit.

Hon. ~W. I). Jacoway, Circuit Judge. The answer' does not allege that the town Council failed to vote to authorize the Mayor to make the contract but merely that the yeas and nays were not called and recorded. The authority was derived from the vote and not the calling and recording the yeas and nays. It was the duty of the Recorder to amend the record acording to the facts. 1 Pill, on Mun. Corp., See. 233 and note.

Hon. R. H. Powell, Circuit Judge. 1. Wbeeler and Poster being tenants in common, the heirs of Wheeler became tenants in common with Poster after Wheeler’s death, and no act or claim of ownership by Foster or those claiming under him could destroy that relation, as to those of the appellants who were minors. 17 Ark., 608; 20 lb. 359; lb. 547; 23 lb. 325, 336; 31 lb. 345. 2. Appellants claim as heirs of Wheeler, who died in possession.

APPEALS from Sebastian Circuit Court. Hon. Jas. E. Read, Special Judge. In view of all the circumstances of this case, it would be difficult to conceive of a more wanton, arbitrary and oppressive exercise of Judicial discretion than in this instance. The motion to set aside the judgment, and allow defendant to plead to the merits was not a motion for a new trial, for he had had no day in Court.

Francis Circuit Court. Hon. J. N. Cypebt, Circuit Judge. A one day note is just as much within the rule as one for a thousand years. Newton vs. Kennerly, 31 Ark., 626; Woodruff vs. Webb, 32 lb., 612. Parol evidence is not admissible to vary the terms of a promissary note by proving the intentions of the parties. Martin vs. Cole, 104 XI. S. (14 Otto), p. 30.

Hon. X. Plaintiffs muniments of title were not admissible in evidence, because— 1. The Justice had no jurisdiction to create “a lien on land” and condemn the same to be sold, &c. See latter clause sec. 40, Art. 7, Const. 1874. Said pretended judgment was not entered in the docket of the Circuit Court for common law judgments- Act Jan’y., 1875; Acts of 1874-5, p. 111. 2.

Hon. L. L. Mack, Circuit Judge. The payment to Wyse of Armstrong’s debt, gave plaintiffs all the rights and remedies he held for his protection, and Equity will keep the judgment alive and in full force for their protection. They are subrogated, given his standing, for the enforcement of all remedies available to him. 35 Ark., 24; Bispham Eq., Sec. 335 ; 1 Story Eq. Jur., Seos. 567, 635, 638; 16 Ark., 216; 31 lb., 411; 32 lb., 346.

There was no service on petitioner, and the judgment should be quashed. Gantt’s Dig., see. 4788. The Sheriff’s return on its face shows no service, because it fails to show:— 1. Service on any station agent or officer of petitioner. 2. That it was served within the county of Craighead. 3. That President, Cashier, &c., or other Chief officer was absent, &c. 4. That said station agent was an agent of this petitioner. Cite Gantt’s Big., sec. 4515, amended by Act Meh 9, 1877.

<p>Wills. Two of different dates. Finding of Circuit Court.</p> <p>The finding of the Circuit Court, sitting as a Jury as to which is the later of two wills will not be disturbed unless there is a total want of evidence to support it. The dates to the wills are not conclusive.</p>

Hon. W. D. Jacoway, Circuit Judge. Tbe conveyance to Mrs. Witbey, was a mortgage to secure a debt on her husband. Appellee by proper proceeding might have enforced the collection of his judgment out of that claim, but he failed to do so, and upon payment by Harman of the debt, a conveyance by Mrs. W. was necessary, from the fact that the deed was absolute on its face. If any fraud was perpetrated it was not by appellant.

Hon. X. J. Pindall Circuit Judge. Appellant and appellees were tenants in common, and the possession of one is the possession of all .Segwick Sj Wait on trial of title to land. Par., 276 ; and note 2.

<p>APPEAL from Lincoln Circuit Court.</p> <p>Hon. X. J. Pind all Circuit Judge.</p>

Hon. X. J. Pindall Circuit Judge. 1. The amended complaint should have been verified. Gantt’s Dig., See. 4597; Newman, Plead & Dr., p. 643; Bliss on, Code, Practice See. 173. 2. The acceptance* of the order was a novation of the original debt, and appellant became responsible to Slead, and thereby fully satisfy the demand of Mrs. Willis. Hilliard on Contracts, vol. 1., p. 424; Parsons on Cont, vol. 1., p. 187; De Colleir on Guarantees, p. 108; Story on Prom. Notes See. 438.

Hon. J. H. Beery, Circuit Judge. The docket of the Justice, and parol evidence were admissible to show an arbitration of the matter in controversy between the same parties, and an award which was in full force. See Freeman on Judgments, Sea. 273; 1 Greenleaf Ev. Sec. 273 and, notes ; 43 N. H. Taylor v. Dustin; 4 Texas, 101; 53 Me. Walker v. Chase ; Wood v. Javlcson, 8 Wendell; 7 Cranah, 567; Driscoll v. Damp, 16 Wis., 106 ; Válandingham v. Royan, 1QIU.

<p>1. Practice in Supreme Court: Verdict not reversed unless without evidence.</p> <p>The verdict of a jury will not be reversed in this court, unless it appears from the bill of exceptions that there was no evidence of importance to sustain it.</p> <p>2. Practice: : Instructions must be in bill of exceptions.</p> <p>The motion for a new trial is no place for the instructions of the court. They, and the ruling of the court upon them, and the exceptions to the ruling, must bo in the bill of exceptions or they will not be reviewed here.</p>

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. J. A. Yantis Special Judge.</p> <p>The cause should have been transferred to the Federal Court. Act Congress, March 3d, 1875, Sec. 2, Dillon Removal of Causes, Sec. 1, 14, 15; 7 Blatah, 255 ; 1 Dillon, C. C. R., 73; 2 Ibid, 501; 103 U. S., 485 — 216; 6 Reporter, 226; 7 Reporter, 329 ; Reporter, 569; Reporter, 515; Revised Stat., U. S. lsf Ed’n, Sec. 779, 829, &c.; 106 U. S., 118.</p> <p>The State Court had the right to judge of the sufficiency of the petition to remove the cause, under the act of March 3. 1875, and properly refused it. Cites 4 Dillon, C. C. R., 262 ; 5, Ohio, 183; 16 Peters, 97 ;7 Law Reports, 599 ; 5 Law Reporter, 599 ; 7 Reporter, 362; 6 R. S., 428 ; 6 U. S. Digest, 213; 6 Offo, 199 ; 6 Wheaton, 379; 9 Id., 822; 26 Am. Rept., 150; 21 Law Reports. 211, Brightly Dig., 127; 23 Am. Reports, 143, and note to 138 ; 6 Otto, 201 — 3 ; 10 Otto, 264; 6 Wheat, 379.</p> <p>Appellant had his remedy by causing a transcript to be filed in the Federal Court, under the act.</p> <p>It was within the sound discretion of the Circuit Court, to allow the cause to be removed, and unless that.discertion was abused, this court will not disturb its ruling.</p>

Hon. X. J. Pindall, Circuit Judge. The bill of exceptions was signed by the “regular Judge,” He overruled the motion for new trial and should have signed the bill of exceptions. This case differs from Watkins v. State, 37 Ark., 370 . The case should be reversed for errors, apparent- on the record. The bill of exceptions should have been signed by the special judge who presides at the trial. There is nothing before the court for review. WatJcins v. State, 37 Ark., 370.

Hon. H. S. Carter, Special Judge. The claim was barred by the statute of non-claim. The claim was one against the guardian of a minor and not against the estate of Dawson. It was never presented to the administrator for allowance; nor was any notice given him ; nor did he enter his appearance, so as to give him the right of appeal.

AP PEAL from Conway Circuit Court in Chancery. Hon. W. D. Jacoway, Circuit Judge. Courts will sustain compromises between debtor and creditor when not procured by fraud. 2 Parsons on Contracts, p. 618 and note X. It was error to assess as damages the amount of the judgment with accrued interest. Not more than 10 per cent upon the amount enjoined should have been awarded. Gantt’s Pig., sec. 3482-8-4; High on Injunctions, sec. 966 to 970.

The statute of limitation commenced to run from the date of acceptance, and five years having elapsed, the suit was barred. — 5 Arh., 536; Gantt’s Digest, See.-4125; 1 Stanton, Ky. Digest, p. 146, No. 74. Appellant was not individually liable — he accepted it in his representative • capacity, payable out of the rents of the estate. — 1 Parsons on Contracts, p. 128; 215., p. 498, note q; Story on Prom. Notes, p. 65, Sec. 63.

Hon. W. D. Jacoway, Circuit Judge. Although plaintiff was not liable to McAllister for damages, he was induced to pay a large amount by the fraudulent representations of McAllister and the other defendants. 35 Ark., 107; 36 Id. 543; 37 Id. 348.

Hon. J. K. Young, Circuit Judge. 1. A party cannot maintain forcible entry, etc., who has never reduced the premises to possession. Wray v. Taylor, 56 Ala., 188; Treat v. Stuart, 5 Cal., 113; Bennett v. Montgomery, 8 iV. J. L. (3 Hals) 48; 38 III, 237; 38 Gal, 619; 1 Lans. (N. Y.) 222. 2. Mills was an intruder, and in the eye of the law a trespasser. 10 Ark., 50; Beaty v. Jones, 1 Gald. (Tenn.) 482. 3.

. APPEAL from Lawrence Circuit Court. Hon. R. H. Powell, Circuit Judge. The legal capacity of parties cannot be raised on general demurrer. Gantt’s Lig., sec. 4565; Bliss on Code Pleading, sec. 408; Lee vs. Walker, 3 'Nut, 61. A demurrer that rests upon a fact not, stated in the complaint should be overruled. Struver vs. Ocean Ins. Go., 16 Howard, 422, and quoted with comment in II Estee on Pleading, pg. 363, see. 11.

APPEALS from Ghicot and Jefferson Circuits. Hon. T. F. Sorrells, Judge of Chicot Circuit Court. Hon. X. J. PiNjdall, Judge of Jefferson Circuit Court. STATEMENT.

Hof. X. J. 'Pindall Circuit Judge. The instructions were erroneous, and the verdict contrary to the evidence; 2d Parsons on contracts, 5th Ed.p. 753; Sec. 2957 Gantt’s Digest; 14 Wendel, 546; 20 lb. 267; 23 lb. 372. This Court will not reverse on weight of evidence. The property was properly turned over to appellee; /Sec. 5041,' Q.D. ■ ■ Finding tbe value of each article useless.

Hon. X. J. PiNdall Circuit .Judge. The Probate Court can, in some cases, order a sale of a ward’s property after the maturity of the ward. Const., Art. Y12, See. 34; 33 Ark., 428; JBis’p. Eg., Sects. 546, 549; 32 Ark., 92 ; Gantt’s Digest, See. 3094; 7 Ark., 107; See. 3066 Gantt’s Digest. There were no doubt irregularities, but they can be corrected only by appeal. 25 Ark., 476.

Hon. J. N. Cypert, Circuit Judge. The question presented in this case is the power of the Circuit Court, upon parol testimony alone, to enter a mmc pro tunc judgment after the expiration of the term. Appellant submits that the Court, after the expiration of term, can, upon parol testimony, amend a judgment rendered.

Hon. T. F. Sorrells, Circuit,Judge. If the scrip had not been burned Walker could have compelled its acceptance in payment; 12 Ark, 721. If this be so, can a party recover on burned or lost scrip ? If so, then the first and third instructions asked by appellant should have been given. It is true there is a provision for re-issuance; Gantt’s Digest, Seo. 609, but the County should have given him credit for the amount he owed, and issued scrip for the excess.

Hon. R. H. Powell, Circuit Judge. The deed is grossly loose, if not defective in description, and it would be an immense strain upon the maxim “Id cerium est, &c., to find this land. Exceptions should not be sustained unless the ambiguity is patent, and if by the description given a starting point can- be found, then, we admit the Court had no right to reject the deed on account of uncertainty. H was a questionable method of attacking a title of one in possession.

Hon. R.H. Powell, Circuit Judge. I. Six’s title had become perfect by performance of the, conditions recited in the deed, and appellant’s rights had intervened, and no outside or parol conditions could effect it, Digest Sec. 3894-5. 1. Rushing by remaining quiet until title perfected was estopped, 11 Ark., 249; 4 Ark., 425; Washburn on Beal Property. ' ' . 2.

Hon. D. W. Carroll, Chancellor. No notice of the letting anew was required by the act. The subsequent letting was merely a continuation of the proceedings under the advertisement in the first instance.

<p>1. Practice in Supreme Court: Motion for new trial. Bill of exceptions.</p> <p>Unless tlie bill of exceptions contains the motion for new trial or refers to and identifies it as part of the record, and also shows that the ruling of the Court in overruling the motion was excepted to, the case will be dismissed in the Supreme Court.</p>

Hon. J. N. CypeRt, Circuit Judge. 1. Appellants should have been allowed to answer the amended complaint. 2. The power to redeem under the act 1879, after sale, is purely statutory, and must be pursued as such. Dickinson v. Hays, 26 Minn., 101. Prior to this act a sale under power of mortgage, barred the equity of redemption, and purchaser had complete title and right of possion. Pope v. Boycl, 22 Ark., 538.

Hon. E. H. Powell, Circuit Judge. 1. The action was not barred by limitation. Danley v. Danley, 22 Ark., 263; &tedham v. Matthews, 29 lb., 650; Livingston v. Cochran, 33 lb., 294. 2. The decree in the foreclosure suit was not an estoppel. The sole object was to foreclose the equity of redemption, and not to subject her dower right. There was no decree of sale of her dower. No issue was made as to her right to dower.

Hon. L. L. Mack, Circuit Judge. 1. The evidence fails to show a majority of the adult inhabitants in the prescribed area, in favor of the petition. 2. The Court erred in ruling out the counter petition. 3. There was no case for a jury trial. 4. Some of the jury were incompetent. Some had fixed opinions. Some were signers of the petition and parties to the suit, &c., &e.

Hon. G. S. Cunningham, Special Judge. 1. Appellee was not a passenger; the relation of carrier and passenger did not exist between the company and him. but if he was technically a passenger, he was barred by reason of his contributory negligence in riding on the top of a freight car when there was a passenger car provided for him in which it was his duty to have been, and which was not involved in the calamity.

Hon. J. W. Martin, Circuit Judge. A correct construction of the Act of March 18, 1881; Acts p. 94, includes all moneys unjustly retained by the State. Jones’ representatives cannot get patent or title, and the State should give them back their money, to which she has no right, and for which she had given no “quid.” The lands were confirmed swamp lands and rightfully sold. The money was not “ erroneously paid ” nor erroneously received.

Hon. R. H. Powell, Circuit Judge. Jurors fees are not taxable as costs in a criminal case, nor the fees of Talesmen. See Acts 1875, Seo. 38, p. 185; lb. p. 25, See. 58 and p. 125, Sec. 8. The compensation of jurors in the Circuit Court is a pai’t of the “expenses of Court” to be paid as expenses of fuel, stationery, sheriffs fees, &c. Gantt’s Digest, Sec. 1176.. If Matlock had been convicted, no judgment could have been rendered against him for jury fees as part of the costs.

Hon. R. H. Powell Circuit Judge. The reversal of a judgment restores the parties to the same condition in which they were prior to its rendition. Freeman on Judgments, see. 481; Harrison v. Trader and wife, 29 Ark., ,97-8. On appeal by the State, the effect of the judgment was suspended, and neither defendant nor his bail could profit by its provisions. 29 Ark., 97-8. The liability of the bail could only cease upon & final discharge of defendant.

Hon. Gr. S. Cunningham, Special Judge. Touching the question of negligence, there is no evidence whatever on the part of plaintiff. Everything was done that could have been done to save the horse. No power could have stopped the train after the horse got on .the track. L. R. † F. 8. R. v. Henson, 30 Ark.

Hon. T. F. Sorrells, Circuit Judge. The power of a Court of Chancery to grant a new trial has been established in Leigh v. Armond, 35 Ark., 123. It was there decided that where, by any accident, it happened without default of the complainant, that the Court failed to dispose of the motion for a new' trial at the proper term, a court of equity would interpose and grant relief.

Hon. T. F. Sorrells, Circuit Judge. 1. The note was not commercial paper, and there could be no liability on the part of Barnett as endorser. 5th Ark. 481. 2. Bradley county having ceased to be a corporation by Act Feb. 27. 1879, the endorsement was a nullity. A county cannot become the assignee of a written contract, since that Act, at least. Even before, it is doubtful whether it would not have been ultra vires for a county to have become purchaser and endorsee of a note.

Hon. J. H. Berry Circuit Judge. Having failed to properly schedule the property and obtain a supersedeas, Healy by purchase obtained title. Norris v. Kidd, 28 Ark., 485.' The property was subject to execution by common law and by statute. Freeman on Kx., sec. 175; Gantt’s Dig., sec. 2630. The spirit oiSee. 2626, Gantt’s Dig., is that “the right of pre-emption” of a settler who resides upon or cultivates land shall not be sold. Appellee had no pre-emption right.

<p>APPEAL from Johnson Circuit Court.</p> <p>Hon. W. D. Jacoway, Circuit Judge.</p> <p>The indictment is entirely formal and in the very words of the statute. This is sufficient. Sec. 1512 Gantt's Digest.</p>

Hon. C. E. Mitchell, Circuit Judge. 1. The act prohibits liquor /dealers, and everybody else, from selling without license. 2. If appellee had no license as charged, he had neither State nor county’license. If he had only one, either State or County, he was guilty if he sold whisky; if he had both, he was innocent, and it devolved on him to prove the fact. The indictment was good.

F. T.Vaughan Circuit Judge [on exchange of Circuits]. It was the duty of the State to require defendant’s presence in Court while trying the cause. Griffin v. State, 37 Ark., 437; Owen v. State, 38 Ark., 512;. See. 1888, Gantt’s Dig.; See. 10, BUI of Bights; 1 Bishop, Cr. Pro., see. 268, and notes.

Hon. L. L. Mack, Circuit Judge. To the N. W. S. W. i of S. Brookfield’s title was undisputed, Taylor’s deed not even purporting to convey that piece. Tne mortgage was void and no notice, because it failed to specify the lands purported to be conveyed by it, with any certainty. Mooney v. Cooledge, 30 Ark., 640; Fuller v. Fellows, Id., 657. In paying off the mortgage, Driver only paid his own debt.

Hon. H. J. Pindall Circuit Judge. The burden of proof was on plaintiff to show negligence, and the court erred in ruling that the burden was on defendant to show a want of negligence. L. P., M. P. & T. P’y. v. Talbot, 39 Ark.; and Taylor &¡ Co., v. L. P., M. P. &¡ T. P. Co., 39 Ark. There was no evidence to support the verdict.

Hon. J. H. Beret Circuit Judge. This is a summary action under Seo. 3651, Gantt's Dig. This section has been strictly construed in Norris v. State, 22 Ark., 524. Eor rulings of other States on similar statutes see Milburn v. State, 11 Mo.; Noble v. Whetstone, 45 Ala., Freeman on Ex., seo. 368, and authorities there cited.

Hon. W. D. Jacoway Circuit Judge. One who asks specific performance, must show either that he has performed or is able to perform the contract on his part. Adams Fq., 190-193; Story Fq., vol. 2, sec. 778, 6th ed; 11 Ark., 378 ; 19 lb., 51. There was no such part performance as to take the case out of the statute of frauds. 18 Ark., 466; 21 lb., 533 ; The exchange of personalty had no connection with any contract for the exchange of lands.

ITon. X. J. Pindali. Circuit Judge. The Court had jurisdiction. 20 Ark , 526; 80 Ark., —; 67 Mo., 247; 54 Mo., 201. 1. James should have been chai’ged with the whole of the personalty and of both notes. No dower was ever assigned to Mrs. D., nor did she assert any right to such during her life. On her death, if the right survived, it passed to her legal representatives, &c. Acts 1859, p. 299; Bish.

Hon. H. B. Stuart, Circuit Judge. Fraud is never presumed but mast be proven. Circumstances of mere suspicion leading to no certain results are not a sufficient ground to establish a fraud. A fraud-lent intent will never be imputed to an act that may have as well accrued from a good as a bad motive. 9 Ark., 452;' 31 Ark., 556; 23 Ark, 123.

Hon. J. A. Yantis, Special Judge. 1. Fraud vitiates all contracts. The sale should have been rescinded, and a lien declared on the land for the purchase money paid. See 1 Abb. Forms, 432. The answer was in the nature of a cross-bill. 25 How. Pr. 389; Abb. Forms, 429 and 430.

Hon. J. H. Rogers, Circuit Judge. The act of March 17th, 1879, so far as it requires the , property to bring two-thirds of its appraised value, is conceded to be unconstitutional, but the right of redemption may be extended to sales under judgments rendered upon contracts in existence prior to the passage of the law. A law may be valid in part and invalid in part, and the valid will stand if separable, &c. Cooley Con.

Hon. L. L. Mack Circuit Judge. The promise was collateral, and clearly within the statute of frauds. The statute is against “any promise to answer for the debt, default, &e., of another.” Promises to “see paid” have been universally held to be collateral. Kentz v. Adams, 12 Ark., 174, and cases cited; Chitty on Contracts, p. 447, note 2 and * 448, note 1. The statute of frauds was not pleaded, and cannot be interposed as a defense in this Court.

APPEALED from Crawford Circuit Court. Hon. R. H. Rutherford, Circuit Judge. The endorsement of £he mortgage was sufficient. The filing of the mortgage was under the act of 1877, and it was the filing, not the endorsement of the words, that created the lien and made it penal to remove the properly.

Hon. S. W. Williams Special Judge. The Chancellor mistook the case in holding that it was simply an application to sell a deceased’s lands for payment of debts, and within. the exclusive jurisdiction of the Probate Court.

Hon. M. T. Sanders, Circuit Judge. There are no exceptions to the instructions, and the . only grounds set up in the motion for a now trial are that appellant was surprised at the testimony of Watson. Newly discovered evidence that only goes to the impeachment of a witness is no grolind for new trial. 36 Ark, 260; 38 Ark, 509.

Hon. R. H. Powell, Circuit Judge. See. 2140 Gantt’s Dig. was literally complied with, not only as to the appeal bonds, but also as to the supersedeas bond. Sec. 7, Acts 1881, p. 151, refers only to supersedeas bonds and not appeal bonds. See. 2104 is still in force, and is the only law in force regulating appeals from Justice’s Courts.

Hon. G. S. Cunningham, Circuit Judge. It was not necessary to charge in the indictment to whom the whiskey was sold. It was sufficient to prove a sale to any one without having license.

Hon. F. T. Vaughan, (on exchange) Circuit Judge. In cases of misconduct by the jury of the degree and character here shown, both principle and authority require the verdict to be set aside, at any rate, unless it be clearly shown that the defendant was not prejudiced thereby.

Hon. R. B: Rutherford, Circuit Judge. It is the “act” and not the “intent” that constitutes the offense under the Acts of 1874, p. 54. Appellant changed the road at his peril. The cutting of a new road does not affect his guilt or innocence.

C. E. Mitchell Circuit Judge. As the defendant was permitted to ask the witness, Lizzie Autrey, in regard to promises she had made, &c., he should have been allowed to show that her answers were false. 2 Greenl., Ev., p. 562, seo. 577. Proof of want of chastity was admissible. 1 Phillips Ev., 760-1; Hofler v. State, 16 Arh, 534. The testimony of the prosecutrix was not corroborated.

Hon. G. D. Denison, Special Judge. The transcript in this case does not show the empannelling of the grand jury that found the bill of indictiment, and the case must therefore be reversed. Stuart v. State, 18 Ark., 744; Straughn v. State, 16 Ark., 44; Beverly Brenn v. The State, 7 Bug., 624; Cornelius v. State, 7 Bng., 782; Green v. State, 19 Ark., 178. There is no record of the presentment or filing oí the indictment.

<p>APPEAL from Mississippi Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p> <p>Cites: Constitution 1874, 1836; Cooley, Const. Lim., p. 31; 5 Wheat, p. 696; 10 Wall, 91; 13 How., 381; Smith’s &. C., 2nd Yol. 225; Missouri v. Iowa, 7 Howard; 10 Pet., 662; Missouri v. Kentucky, 11 Wall., 395; Bole v. 111. Cent. R. Co., 1 Black’s R. 204.</p> <p>Cites: Const, of 1836 and 1874; Mo. v. Ky., 11 Wall., 395; Bates v. III. Cent. R. Co., 1 Black, 204; Myers v. Perry, 1 La. Am., 372; State v. Muller, 35 Iowa, 199; Rover on Interest at Law, ch. 34, especially pp. 337-342.</p>

<p>1. Certiorari: Jurisdiction of SupremefCourt. Appeal,</p> <p>The order of a Chancellor at chambers, dissolving an injunction ' issued by him in vacation, is interlocutory and cannot be quash- • ed by the Supreme Court on certiorari, nor appealed from until final judgment in the Circuit Court.</p> <p>2. Injunction: Power of Circuit Judge to dissolve in vacation.</p> <p>A Circuit Judge has power to dissolve in vacation an injunction ordered by himself in vacation, but the defendant can have no damages on the bond.</p>

Hon. F. T. Vaughan Circuit Judge. 1. There was no testimony to sustain the hypothesis that appellant made himself drunk for the purpose of killing Barnes or any one else. 1 Duval, (Ey.) 224. 2. The second instruction was misleading. Wharton’s Gr. Ev., see. 50, note 4. 3. The fourth instruction was erroneous, under the late and better American decisions, because First.

Error, to Yell Circuit Court. Hon. W. D. Jacoway Circuit Judge. The insertion of a summons clause in the writ of. attachment by the clerk, did not invalidate it. 8ec. 6, Oh. 19, p. 169- Gould’s Digest; Gantt’s Digest, sections 388,-389, 4616, av-d 4619,

APPEAL frpm Yell Circuit Court. , , Hon. W. D. Jacoway Circuit Judge. • Appellant was a trustee, and it was his duty to protect the trust estate; he was empowered by the deed to employ counsel, and he should have been allowed credit for the $85.00. Appellees’ judgment was for only $128.40, but the Court ordered the payment by appellant of $324.50. This was error. The order was final. Adams commenced selling goods immediately after taking charge, and paying creditors.

<p>APPEAL from Pulaski Chancery Court.</p> <p>IIon. D. W. Carroll, Circuit Judge.</p> <p>Since the adoption of the constitution of 1874, a married woman may convey her property for whatever purpose she pleases, merely by signing the body of the deed; no matter if the acknowledgment be defective, or if there he no acknowledgment at all.</p> <p>The constitution puts a married woman, in dealing with their own property, in the same category as a man, as a femme, sole, or as a person acting sui juris.</p> <p>The language of Section 7, Article IX, is that. the property of any femme covert in this State maybe devised, bequeathed and conveyed by her the same as if she were & femme sole.</p> <p>In Stirman v. Cravens, 29 Ark., 584, this Court held that a person may convey property simply by signing the deed, even though not aclcnowledged- at all.</p> <p>In Roberts and Wife v. Wilcox & Rose, 36 Ark., 355, this Court held that a mortgage defectively acknowledged was yet good as a conveyance between the parties.</p> <p>So there can be no question but that this conveyance was good and valid as between Joyner and Dodd.</p> <p>When, then, the breach of condition occurred, a new estate was created. In contemplation of law the equitable title passed out of the mortgagors, Joyners, to and into the mortgagee, Dodd, leaving the said mortgagee nothing to do but to pursue his remedy, to take possession. So when the sale was made to Parker, being after the breach of condition, and when the debt had become past due, the Joyners had no estate in the eye of the law, which they could convey; but only an equitable right of redemption, upon the payment of the mortgage debt.</p> <p>Burdick v. McVanner, 2 Denio, 172; 2 Jones on mortgages, sec. 1174.</p> <p>Now, this acknowledgment to the mortgage was defectively framed either intentionally, or unintentionally.</p> <p>If.intentionally and purposely done, it presents so shocking a case of fraud as to demand correction at the hand of a Court of equity. The legal status of Mrs. Joyner is therein sought to be used as a means of committing a fraud, which no Court will allow.</p> <p>If unintentionally and unwittingly done, then the intention of the parties to make a good conveyance of it ought to be carried out. “Equity considers that done whicji ought to be done.”</p> <p>Evjen though the conveyance was imperfect, by means of the, acknowledgment, the intention of the parties being presumed to be to make an honest conveyance, equity will create a trust in the hands of a subsequent purchaser for the benefit of the grantee. Wadsworth v. Wendell, 5 Jones, Chy. 224; Daniel v. Davidson, 17 Vesey, 433; S. C. 16, Vesey, 249.</p> <p>The acknowledgment and record were cured by the “Betterment Act,” March 8, 1883, Sec. 6.</p> <p>Appellate Courts must decide cases according to the law in force when their decision is made. No matter how the law may have been when the judgment of the lower Court was rendered. Yeaton v. U. S., 5 Cranch, 281; Watson v. Mercer, 8 Pet., 88; Bacon v. Callender 6 Mass, 309; Cooley Cons. Lim., 381. Curing acts cannot be considered as taking away vested rights. State v. Newark, 3 Dutch., 197; 16 Ohio, 599; 11 Ohio, 641; 11 Iowa, 389.</p> <p>“The acknowledgment by a married woman of a relinquishment of dower in a deed containing no relinquishment of dower, is not sufficient for a deed in which she is the grantor.” 33 Ark. 722.</p> <p>•The property in this cause was owned by Mrs. J. at the adoption of the Constitution of 1874, and its pro visions can have no retrospective effect. 2 Bishop, Married Women, Sec. 37; 36 Ark., 361, 371, 587.</p> <p>A mortgage past due confers no greater right in the mortgagee unless he is in actual possession, 25 Ark., 277, 22 Ib., 136; Jones on Mortgages, Sec. 771.</p> <p>A mortgage not properly executed and acknowledged is invalid against third parties, although recorded, even with actual notice. 9 Ark., 112; 18 Ib., 105; 20 Ib., 190; 22 Ib., 136; 35 Ib., 67, 374.</p>

■ Hon. J. M. Cypert Circuit Judge. For purpose of scire facias see Bour. Law Diet., 499. It is a.continuation of former suit and not an original proceeding. Wolf v. Pounsford, 4 Ham., 497-; 1 How. (Miss.) 267; S'Scam., 544; 7 Vt. 52, It is the proper remedy to revive a judgment against an ancestor so-as to compel heirs to satisfy it out of lands descended. 7. Ark:, 442; 13 8. $ M. (Miss.) Com.

Hon. J. N. Cypert, Circuit Judge. 1. No demand upon the maker and refusal to pay were alleged in the complaint. 15 Arle., 9; 22 Id., 540; 14 Id., 334. 2. The note was negotiable, and three days’ grace should have been allowed. 16 Ark., 336; 15 lb., 14. The suit was prematurely brought. The note did not fall due until the 4th of November, one day later than the institution of this suit, and there was no allegation of demand on the maker at maturity. 15 Ark, 14; 32 lb., 697. 3.

WRIT OF CERTIORARI to Bradley Circuit Court. Hon. J. M. Bradley, Circuit Judge. The order of the Circuit Court directing the County Court to make a contract and build a Court room, &c., was clearly beyond its jurisdiction and void. Art. 7, Sec. 28, Const. 1874; Russell, et al. v. Jacoway, 33 Ark., 191. Even the County Court could not make a contract unless an appropriation had first been made- Worthen v. Roots, 34 Ark., 356.

. APPEAL from Yell Circuit Court iu Chancery. . Hon. W. D. Jacoway Circuit Judge. • That equity will afford relief in cases like this, whenever the new trial sought should have been granted, is well settled. The sufficiency of the bill depends therefore on that of the motion for new trial. 1. One partner cannot bring replevin against his partner or his vendee, until division. 32 Ark., 470; 31 lb., 830. 2.

Hon. W. D. Jacoway, Circuit Judge. Holland had curtesy in the land under the Constitution ot 1874, subject to the wife’s fight to sell, 1% N, Y, 208 Cooley Const. Lim., p. 447; 2 Bishop on Married Women, Sec. 43, 148, 150, 777; 54 N. Y., 280. .A Justice has no jurisdiction where a lien on lands or title or possession thereto is involved.