Volume 41 — Arkansas Reports

Hon. R. H. Powell, Circuit Judge. 1. Plaintiff must recover on the strength of his own title, if at all, and not for want of title in defendant. 19' Ark., 201, 2. Plaintiff can only have such title as Baldwin and Jago. had under tax deed and that is void upon its face. 29 Ark... 476, 489. 3.

Hon. X. J. Pindall, Circuit Judge. G. W. Chaffin was in no attitude to complain of the judgment in rem, for he was not the owner ; and Mrs, Chaffin has no standing in court, after suffering a default, without motion to set aside, accompanied by a meritorious answer, which should appear in the bill of exceptions. 38 Ark., 504. The complaint and account together fulfill all the requirements of the statute. Cohn v. Hager, 30 Ark., 25.

Hon. J. F. Read, Special Judge. 1. The doctrine of non-user does not apply. 2. The city by virtue of the dedication held the right in and to said alley in trust for the public and the statute of limitation does not apply. 3.

<p>APPEAL from Franhlin Circuit Court.</p> <p>Hon. G. S. Cunningham, Jr.</p> <p>The court erred in refusing the instructions asked by plaintiff. Cite Gantt’s Dig., Sec. 4113, 4608; Augellon Limtiations, Sec. 413; Melvin v. Frop’rs of Lochs, 5 Met., IS; Doswellv. De La Manza, 29 Dow., 29; Herman on Fstoppel, Secs. 220, 237; Jachi v. Chaffin, 34 Arh., 534; Logan v. Jelhs, Id., 549.</p> <p>The errors in refusing these instructions were not in any way aided bjr the instructions given at the request of the defendants. It is impossible to say that the result would not have been different if the jury had been properly instructed.</p> <p>There was total failure on the part of plaintiff to prove when the action was commenced. The commencement of of an action is the filing of the complaint and causing a summons to he issued. Gantt’s Dig., Sec. 4503. There was no evidence that a summons was ever issued.</p> <p>This court will not reverse upon the mere weight of evidence. 7 Arh., 174; 10 Id., 138, 474; 17 Id., 478; 23 Id., 51, 112.</p> <p>It was plaintiff’s own negligence, if he failed to introduce evidence to prove his cause, and the granting or refusal -of a new trial was in the sound discretion of the court.</p> <p>There-was a total want of evidence to show that the suit was begun within the period of limitation — no proof that a summons was ever issued, and the appearance of defendants was not entered, until after the statute bar had attached.</p> <p>The granting of new trials for “oversight” or “surprise” are in the sound discretion of the circuit court, which this court will not control. No good reason is shown why he did not prove by the clerk or the sheriff the issuance of a summons, if one was issued.</p>

Hon. J, H. Berry, Circuit Judge. Under the revenue law, in Gould’s Digest, minors could not redeem land sold for taxes, either to individuals or the ■State. Smith v. Macon, 20 Astlc., 17. The first favor of this kind shown to minors was in 1868, when one year was given to minors to redeem from individual purchasers, which privilege continued one year after disability was removed.

Hon. J. N. Cypert, Circuit Judge. Parol evidence was incompetent and cannot be allowed to explain the will. The intention of the testator mast be derived from the terms of the will. Declarations by the testator of his intentions, whether made before or after making the will, are inadmissible. Robinson -v. Bishop, .23 Ark., 378; 1 Greenl. Ev., sec. 290; 3 Met., 423-426; 15 N. E., 317-330; 55 111., 514; 36 Iowa, 674.

Hon. X. J. Pindall, Circuit Judge. 1. The reservation of alien on 10 bales of cotton out of a crop is indefinite and void for uncertainty. Jones on Chat. Mortg. Held: thatreplevin would lie for three bales of cotton out of a crop. Here Neel’s mortgage calls for ten bales, and he took all that was left.

Hon. J. N. Cypert, Circuit Judge. 1. It does not appear from the transcript of the judgment that personal service was had on Morris by an officer authorized to make the service, and the pleas of limitation and payment could have been made here as well as in Virginia. 2. The plea of bankruptcy was proper. 3 Am. Reports, 116; 8 lb., 418; 11 lb., 386; 33 lb., 641; 34 lb., 337, 483.

Hon. J. W. Martin, Circuit Judge. No damages are alleged or proven, but the suit is for the penalty prescribed by sec. 5721 Gantt’s Dig. This statute is essentially primitive, and to incur the penalty there must be intentional wrong — for penal statutes must be strictly construed. 9 Bac. Abr., 252, “Statute”; 2 27. J. 8., (1 Penn.) 210; Steelman v. Bolton, Id., 231; Adams v. Scull, 3 27. J. S., (2 Penn.) 741; Id., 950. To incur a penalty there must be an intentional omission.

<p>Appeal : Final decree: What is not.</p> <p>A decree in favor of the plaintiff for the title and possession of land and improvements, and ordering' a referenee'to a master to ascertain tlie necessity and value of repairs put upon them by the defendant, for which he claims compensation, is not a filial decree from which an appeal can be taken.</p>

<p>Parties : Necessanj, in actions involving title to lands.</p> <p>In actions involving title to lands tlie heirs of a deceased claimant are necessary parties. The administrator cannot represent them. The court should order them to he made parties and can make no decree affecting their interest without their presence. The administrator-has no interest or right of possession unless the lands are needed to pay the debts of his intestate.</p>

Hon. R. H. Powell, Judge. Under the constitution of 1868, it was decided that a-tenant in common was entitled to a homestead. Greenwood & Sons v. Maddox On the death of a tenant in common, his widow and minor children are entitled to homestead. Williams v. Wethered,. 37 Tex., 130; Eornv. Tufts, 39 E. E., 478.

Hon. L. L. Macic, Judge of the Circuit Court. The testimony adduced by defendants to show conveyance from plaintiff,s ancestor to Kimbro, is either hearsay ■or irrelevant. 1st Creenl. Rv., sec. 189; note to Bauerman v. Radenius, 2 Smith Lead. Cases., 397.

Hon. J. K. Young, Judge of the Circuit Court. ■ The mortgage contains no clause by which appellant released and relinquished her claim to dower in the land. It should have contained zoords importing a releasof her claim to dower in order to bar her. Gantt’s Dig., secs. 838-839-849 ; 13 Mass., 222; 9 lb., 220; 13 Bide., 382; 51 Me., 367; 25 lb., 94; 7 Iowa, 12; 7 Bladcf., 410 ; 4 Kent Com. Star, p. 59.

Hon. J. N. Cypekt, Circuit Judge. The evidence shows clearly that the claim was allowed in= due time, and was not barred. The order of the probate court, at a subsequent term, setting aside the allowance of the claim at a preceding term,, was null and void, and the appeal should have been dismissed. Gossett v. Biscoe, 12 Arle., 95; McMorrin v. Overhalt, 14 Arle., 246. The probate court properly allowed and classed the duplicate claim, upon proof of loss of the original.

Hon. F. T. Vaughan, Circuit Judge. 1. Intimidation of voters existed sufficient to change, or make uncertain the result of the election. McCrary on Elections, secs. 416, 417, 418, 419, 422, 424, 425, 426, 429, 432. 2. Frauds were perpetrated by persons other than officers •of election, sufficient to change or make uncertain the result. Ib., secs. 441 — 2, 365 — 6, 387, 391 — 2—3; Mann v, Cassidy, 1 Brew., p. 1; 2 Id., p. 40, 49, 53. 3.

Hon. T. F. Sorrells Circuit Judge. Sec’s. 2267-8-9, Gantt’s Dig., have been repealed by the Revenue Acts of July 23, 1868, and April 8, 1869, the latter covering the entire ground, being upon the same subject, embracing all their provisions, and clearly intended to supersede them. See 10 Arle., 591; 31 Arle., 19; 1.2 Mass., 545; 7 lb. 140; 4 Pide, 21; 14 111., 335; 10 Pick, 39; 19 Cal., 501; 37 N. B., 295; 30 Vi., 344; 75 111., 613; 35 Arle., 506.

Hon. E. H. Powell Circuit Judge. 1. This court will reverse rvhere the court below improperly, or without a careful and considerate exercise of •■discretion, refuses a continuance for good cause shown. 2. The verdict is-not responsive to the issue, and upon “the verdict, a judgment for the penalty of the bond could not be rendered, without a finding by the jury of the truth •of the breaches of the boud. Gantt’s Dig., secs. 4391 — 5; 1 Ark., 137; 6 lb., 497; 101b. 256. 3.

<p>I. Negligence : When presumed against railroads.</p> <p>A railroad company is not liable, under our statute, for unavoidable accidents in regard to stock, but the killing of stock by its tr^in being proved, negligence is presumed against the company until disproved.</p>

Hon. J. W. Martin, Circuit Judge. Where, upon trial for killing stock, a railroad introduces the engineer and fireman, or either of them, who were on the engine at the time of the killing, etc., who state facts which show that the injury occurred without negligence, etc., the statutory presumption of negligence is rebutted, and the burden is shifted back to plaintiff to establish negligence by preponderating evidence. Railroad v. Talbot, 13 Cent.

Hon. X. J. Pindall, Circuit Judge. 1. The creditors were entitled to be made parties. Gantt’s Dig., sec. 4475, 4482. 2. Her administrator ad litem should have been appointed. Gould’s Dig., secs. 9-12, ch. 1; Wade v. Bridges, ad’r., 24 Arle., 569 ; Mangum v. Cooper, ad’r.,28 Arle., 253 ; Haglin et al v. Rogers, 37 Ark., 494. When a suit abates by death of a sole plaintiff, only his heirs or legal representatives can revive it. Story Eq. PI., sec. 385, 365, 378 ; 7 Eng.

Hon. J. R. Eakin, Chancellor. Neither the bond or deed to Counts were ever properly acknowledged, or recorded at all, nor is there any explanation given why this was not done, and appellant purchased without notice either actual or constructive. A pile of lumber or rock on a vacant lot in a city, is not such open, visible, notorious and adverse possession as to affect subsequent purchasers with notice, or put them on enquiry.

<p>APPEAL from Drew Circuit Court.</p> <p>Hon. J. M. Bradley, Circuit Judge.</p>

Hon. L. L. Mack, Judge of the Circuit Court. 1. The husband was the agent and trustee of the wife, in fact and in law, and the revenues, incomes and wages of her separate estate, are bound in equity to pay appellant the amount due him. 8 Arle., 366; 3 lb., 21; 9 Ib., 202; 17 Ib., 154. The possession of the husband was the possession of the wife. 6 Hums., 160 ; Wheeler on Slavery, 90.

Hon. Jas. A. Yantis, Special Judge. 1. The failure to record a mortgage until after the death of the mortgagor, and until after the rights of general creditors had intervened, will not render such mortgage void, as to such creditors. Haskell v. Sevier, 25 Ark., 152; 12 Ohio St., 38-47; Jones Oh. Mort., p. 208, see. 240. 2.

PETITION for writ-of certiorari. Logan Circuit Court. 1. The appeal was not taken under the regulations prescribed by law.. The law prescribed certain regulations for taking an appeal, and it can be taken in no other way. The bond in this case was approved by the justice when it should have been approved and the supersedeas issued by the clerk. Gantt’s Dig., sec’s. 2104 — 5, Sc.

Hon. J. H. Rogers, Circuit Judge. 1. Plaintiffs remedy was by special proceedings under the act January 22, 1855. G. 2. The lands were not permanently injured, and when the possession is in a tenant under lease, the owner in fee cannot maintain the action for a nuisance or for injuries of a permanent chai’acter. Wood Law of Nuisances, 863; Pierce on Railroads, 272. 3.

Hon. J, N. Cypert, Circuit Judge. 1. The testimony is conclusive that a subscription was made in 1866, at which time there was constitutional prohibition to the grant of such authority. But for want of legislative authority this subscription was not binding on the city. Hence the act February 7, 1867, ratifying said subscription and authorizing the issuance of bonds, etc. The statute is plain and unambiguous, and there is no room for ■construction or interpretation.

Hon. G-. S. Cunningham, Judge. 1. There is no bill of exceptions, hence nothing before the court, but what appears upon the face of the record. 2. The indictment is in the usual form, and sufficient.

<p>Indictment : For misdemeanor, when sufficient.</p> <p>xVn indictment charging a statutory misdemeanor substantially in the-language of the statute is generally sufficient.</p> <p>2. Same: For failing to work road.</p> <p>It is not necessary that an indictment for failing to work the road after notice to do so should allege the manner in which the notice was-given.</p>

Hon. G. S, Cunningham, Circuit Judge. 1. Not necessary to state the names of the parties with whom defendant played. MedlocTs v. State, 18 Arle., 363 ; Orr v. State, 18 Arh., 540. 2. The indictment sufficient. Gantt's Dig., sec. 1564. STATEMENT.

Hon. C, B. Mitchell, Circuit Judge. A new trial should have been granted on the ground of surprise. The court we think abused its discretion in refusing it. Levy v. Brown, 11 Arle., 21. This is no proper case of surprise, and differs from Levy v. Brown, 11 Arle., 21, where the whole question turned on the matter of diligence. This looks too much like an afterthought.

J. M. Smith, Judge of the Circuit Court. The contract is not illegal. The most that can be said of it was that it was an attempt to evade a law that never existed. His case comes within the rules laid down in 30 Ark., 555. The contract is unobjectionable and should be enforced specifically. 16 Ark., 340; 20 Ark., 615; 19 lb., 51.

Hon. C. E. Mitchell, Circuit Judge, 1. As to first ground of demun-er, see 1 Pars, on Notes and Bills, 279; 1 Dan. Neg. Inst., 610. 2. On the second, see 12 Wheat., 183; 7 Curtis, 108; 1 Parsons Oont., (6ih Ed.), 593. 3. On the third, see 1 Pars. Cont., (6th Ed.), 593. By these authorities, none of the defenses, except fraud, would have been available. 4.

Hon. J. N. Cypert, Circuit Judge. 1. The court erred in rendering judgment for double the amount of the verdict. The whole question of damages was submitted to the jury and the amount was a matter for them to determine. Sec. 2461 Gantt’s Rig. The property levied on and sold was described in the schedule. It may or may not have grown out of the property described in the schedule, or resulted from it, but it had undergone material change and was different in description.

Hon. M. T. Sanders, Circuit Judge. An infant must sue by his guardian or next friend. Gantt’s Dig., sec. 4491. There was a misjoinder of parties and interests at law — three separate and distinct causes-of action joined in one suit. 33 Arle., 658. The bond is void because it does not disclose who the beneficiaries are, and parol testimony was not admissible to-ascertain the intention. The bond was not identified. 1. The suit was properly brought in the name of the-guardian.

Hon. X. J, Pindall, Circuit Judge. 1. The response to the motion to dismiss the appeal ■clearly showed merits and reasonable diligence, and this is •all the law requires. 2. The delay was caused by the negligence of the clerk, ■and not of appellant. No excuse was offered in cases in 31 Ark., 268, 551 ■and 32 Id., 295, and the doctrine of those cases should ■not be extended. In this case a showing was made as suggested in 32 Ark., 292, and it was a reasonable showing.

Hon. J. N. Cypert, Circuit Judge. Meyer was both beneficiary and trustee, and the real purchaser of the laud at his own sale. “It is a stern rule of equity that a trustee for others is not allowed to purchase either directly or indirectly for his own benefit at the sale. He cannot be both vendor and purchaser.” Imbodenvs. Hunter. 23 Arle., 622 ;■ Lenox v. Notrebe, Hempst, 251 1 /Story, Lq., secs. 321-2.

Hon. J. B. Smith, Circuit Judge,'on exchange, &c. Watkins had no interest in the property prior to the execution of the deed of trust. It was an ancestral estate,, coming to his child by her mother’s side, and on her death went to her next of kin on the mother’s side. 15 Arle., 555; 27 Ark., 65; 34 Ark., 564.

Hon. C. E. Mitchell, Circuit Judge. 1. While a ministerial officer may justify under process, regular on its face, and issued by a court with apparent jurisdiction, still, where he has knowledge of previous defects he is not protected. 1 Wis. ,457; 31 Iowa, 533; 91 111., 324. 2. The process was not regular or fair on its face.

APPEAL fi’om White Circuit Court in Chancery. Hon. J. W. Martin, Circuit Judge, in exchange of circuits . Where a purchase money note is re-assigned to the vendor, thus uniting the debt and the lien in the same party, he can enforce the lien. 33 Ark., 78; 18 Ala., 371; 29 Ark., 218 and 440; 24 Id., 566. A vendor of land has a lien not only against his vendee, but against all subsequent purchasers with notice. 18 Ark., 142.

Hon. J. W. Martin, Circuit Judge. 1. The action did not survive; Gantt's Dig., 4760; Const., art. 5, sec. 35; 39 Mo., 485. 2. The evidence did not justify an instruction allowing-vindictive or exemplary damages, and an instruction to that effect was misleading and prejudicial, 15 Ark., 492; 16' Id., 628; 21 Ark., 69. 3.

<p>1. Advancement : Purchase by father in name of child.</p> <p>A purchase hy a father in the name of a child is regarded prima facie as an advancement, and not as a resulting trust for the father; and the rule has been held to apply to a purchase in the name of a son-in-law. Balter & Leathers, 3 Porter, (Lid.), 558.</p> <p>.2. Trusts, Resulting- : Stale, not enforced by the courts.</p> <p>Courts will not enforce a resulting trust after great lapse of time, or laches on the part of the supposed cestui que trust.</p> <p>To warrant a court of equity in enforcing a stale trust, not only must the trust he clearly established, but the facts must have been fraudulently and successfully concealed hy the trustee from the knowledge of the beneficiary.</p>

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. J. M. JBradley, Circuit Judge.</p>

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. J. M. Bradley, Circuit Judge.</p>

C. E. Mitciibl Circuit Judge. The wife has uo present rights and was improperly joined. ■37 Arle., 298. I. The 2nd sec. art. 12, Const. 1868, as interpreted, is in conflict with bill of rights, and inconsistent with the genius of our government. It assumes to prevent the alienation and disposal of private property, an assumption of power by the government that cannot be conceded. Const. 1868, sec. 24, art, 1; 11 Arle., 481; Cooley Const.

Hon. J. N. Cypert, Circuit Judge. This was a mere money demand, and the suit should have been revived in the name of the administrator and not the heirs of Mrs. Tyree. Gantt’s Big., secs. 3640,3641, 4327, 4328 ; 18 Ark., 85, 170 ; 16 Ark., 672 ; 18 lb., 319-, 211b., 179; 15 lb., 436; 22 1b., 535; 18 lb., ■30, lb., 448.

Hon. J. W. Martin, Circuit Judge. Fraud is a crime and easily charged, but where an answer denies all allegations of a fraud, it is conclusive unless overcome by testimony. Bump on Fraud, Oonv. 558-9, 3rd Fd. In order to sustain the findings and judgment of the court below, the proof must clearly show, 1st. That the conveyances were made to hinder, delay and defraud creditors. 2nd. That the appellants participated in this in accepting the conveyances. 3rd.

M. L, Rice, Special Judge. The note is a negotiable instrument, Gantt’s Digest, sec.. 566, and the bank is an innocent holder for value before maturity and by sec. 4, Act Peb’y 9, 1875, the note is valid, notwithstanding any usury between original parties. Although the language of the Constitution makes usurious contracts void, yet.the word “void” has been construed to mean “voidable” ' in many cases. 2 Hill, 522; 13' Mass., 518 ; 3 Met., 448 ; 3 Oowen, 89.

<p>APPEAL from Dorsey Circuit Court.</p> <p>Hon. J. M. Bradley, Circuit Judge.</p> <p>The indictment was good. Quise v. State, 37 Ark., 456,</p>

Hon. G. L. Cunningham, Circuit Judge. The bargain was made at Mulberry, the money paid there to one of the firm and the liquor delivered there, and the •sale actually took place within the prohibited limits. STATEMENT.

J. M. Bradley, J. Without confessing error, we submit this case for the ■consideration of the court. Gctmeron v. State, 13 Ark., 712, seems to be “in the ■teeth” of the court’s instruction on its own motion, to say ■nothing of the refused instructions.

Hon. J. K. Young, Circuit Judge. On the second declaration of law prayed by defendant, see .22 Ark., 136; 9 Id., 112. On the 3d : The act of congress makes an express limitation upon the disposal of the lands, (see act, Gantt’s Digest),and the act of the legislature granting the lands to the •C. & F. R. R., is subject to all the conditions nnd limita tions contained in the act of congress.

Hon. X. J. Pindall, Circuit Judge. In equity fraud may be presumed from facts and circumstances. Myrickv. Jacks, 33 Ark., 430. It clearly appears that John M. Hall was merely a trustee for John B. Hall, and the attempt to pass title to Allen & Co. was fraudulent and void. The judgment by confession before the clerk was not void. Oh. 133, see. 140, Gould’s Dig., were not repealed by sections--of the Code. 29 Arle. 110-1 ; 7 Ark., 397.

.APPEAL from JPulasJci circuit court. Hon. John Fletcher, Special Circuit Judge. An employe assumes the risks naturally incident to the 'business he engages to perform, and if he knows of defects in tools, machinery, or incompetency of co-servants, etc., and continues knowingly to use such tools, or in connection with such incompetent servants, he assumes the risk, etc. ■5 Ohio, 78; Wood on Master and S&rvant, secs. 326, -419 ; 106 Mass., 282 ; 88 HT.

Hon. W. D. Jacoway, Circuit Judge. 1. There is no response to the amended answer of defendants, except a general denial in short of its truth. There is, therefore, no charge of fraud or bad faith in any of the transactions constituting defendant’s chain of title. And the bona fides of Mrs. Hackney’s possession and claim of title is not in issue in this suit. The general denial can avail nothing against the titles as set out with the certificates of acknowledgment and record.

Hon. J. M. Bradley, Circuit Judge. 1, The indictment should have been quashed. The word “but” was meaningless and unintelligible, and charged no offense. It .is not idem sonans as bet. Woolridge v. State Tex., Court of Appeals, 1883. 2. The evidence of Scott was competent, he having been ■convicted, paid his fine and been discharged. 1 Gfreenl. Bv., sec. 390; Moss v. State, 17 Arle., 330; McKenzie v. State, 24 Arle., 638.

Hon. H. B. Stuart, Circuit Judge. The information follows as near as may be the form of the English information as given by 1 Bishop on Or. Procedure, sec. 609, (Ed. of 1866), and is the proper proceeding for the removal of officers. '/Sec. 27, Art. 7, Const. 1874. STATEMENT.

Hon. R. H. Powell, Circuit Judge. 1. Every person is entitled to a trial by jury in a criminal case, Art. 2, sec. 10 Const., and judgment by default can not be rendered. In the circuit court the case stood for' trial de novo. Gantt’s Big., sec. 3,826. 2. The motion to dismiss was joint, and if sustained as to-one should have been as to both joint defendants. 3.

Hon. R. B. Rutherford, Circuit Judge. The object of the statute is to protect not only the congregation en masse, but each and every member of the congregation, while engaged in religious worship. The disturbance ■of one or more is sufficient. McBlvey v. State, 25 Tex., ■507-, Friedlander v. State, 7 Tex. (Ot. App.), 204; Vockerham v. Slate, 7 Humph. (Tenn.), 11.

Hon. J. K. Young, Circuit Judge. 1. The mortgage is void for want of sufficient description. 57 Iowa, 662; 35 Ark., 169. 2. The note of Brooks was assigned before the execution of the mortgage to appellees, and hence ITamiter and wife-had no interest in the cotton in controversy which they could mortgage. 37 Ark., 312. 3. Parol testimony not admissible to vary and contradict the written assignment of the note. 1 l)anl. Reg.

J. W. Martin, Circuit Judge. Several of the same series of notes as the one sued on* had been declared void by the Pulaski circuit court, and said judgment was a bar to a recovery in this suit. Appellee was only entitled to recover the amount due on the note to the party from whom he received it at the date-of the trial. The purchase of a franchise of a railroad at execution sale is void, and the conveyance so acquired is nullity» Pierce on Railroads, sec. -,

Hon. D. W. Carroll, Chancellor. The money lent by Donahue was advanced to take up a. mortgage executed by appellees to E. W. Parker & Co. If the security taken by Donahue fails he is entitled to be subrogated to the security held by Parker & Co. 1 Jones on Mort., sec. 874 et seq. ;■ 64 N. Y'., 397, 401; 32 Arle., 258. A separate acknowledgment by a married woman is not required by our statute and constitution.

Hon. T. F. Sorrells, Circuit Judge. “ Speculative damages, or damages which may be supposed to result as a consequence of locating and operating a railroad within a hundred feet or such a matter to the house ■of defendant, cannot be taken into account iu estimating ■damage, etc.” Mills on Eminent Domain, pp. 158-9.

Hon. D. W. Carroll, Chancellor. By sections 9 and 28 of the Act 1853, January 11, the M. & L. R. R. Co. was given authority to mortgage its charter, and was exempted from taxation for tweuty years from its completion. By the foreclosure and purchase, the purchasers became the owners of the original charter, and entitled to all the exemptions thereby granted, including exemption from taxation. The answer admits all the material allegations of the bill.

Hon. J. B. Wood, Circuit Judge. The records of the county court were the best evidence of the appointment of Barber as road-overseer, and of Hamilton as apportioning justice, and should have been introduced, unless shown to have been lost or destroyed. Until this was done, parol testimony was inadmissible. 5 Wend., 231; 87 Maine, 429; 17 Qonn., 588; Gantt's Dig., sec. 5,308 etseq.; 1 Wharton on Ev., secs. 63-65; 4 Arle., 129. The indictment was never filed with the clerk.

Hon. J. M. Pittman circuit judge. Cities and towns are authorized to license, regulate, tax and suppress tippling houses, etc., within their limits, Acts 1874-5, p. 8, sec. 12; Acts 1883, p, 97, but they cannot grant a license in any ward of a city unless there has been a majority vote in such ward for license, lb. and Erb v. State, 35 Ark., 638; Acts 1881, p. 132; Acts, 1879, p. 36.

Hon. W. D. Jacoway Circuit Judge. Where a homestead entry is cancelled, the first legal applicant for the land thereafter takes it, notwithstanding any hardships it may cause a party living thereon. — Decision /Sec’y Int., Dec. 1st, 1875, in Oox v. Gilliland. Appellant being the first applicant, and having the homestead certificate, prior in time to appellee’s pre-emption application, has the better right.

Hon. X. J. Pindall, Circuit Judge. Section 3,782, Gantt’s Digest, provides that: “In all •cases where executions shall be stayed on any judgment rendered by a justice of the peace, such judgment shall be ■a lien on all the personal property subject to execution belonging to the defendant at the time of the rendition of the judgment.” Defendant’s property m one township is as much subject to execution as in another.

Hon. J. W. Martin, Circuit Judge. Even if the amendment to the bill was not passed, all the other provisions were and could be easily carried into effect without reference to it. When part of an act is-unconstitutional and void, and a part good which may be separated from it, the rule is that the good shall be binding. 2 8.

Hon. E. H. Powell, Circuit Judge. 1. The justice had no jurisdiction to try the case. 8ec., 40, Art. VII, p. 29, Const. 1874. 2. There is no allegation that the damages alleged ever grew out of, or arose from or by virtue of any contract •expressed or implied. The complaint must state all facts necessary to give jurisdiction ; there can be none by intendment. 34 Ark., 532 ; 36 lb., 272. 3.

Hon. R. B. Rutherford Circuit Judge. There is nothing in the statutes of this State to bringmocldng birds .within the classification of such property as could be the subject of larceny, and the rule of the common law must prevail. — 2 Blackstone, 391 ; 2 Kent, 348; 2 Bishop, sec. 684-, 1 Wharton, p, 675; 48 Ala., 161;• 19 Am. Dee., 348; 20 lb., 775. Anything that is recognized as personal property by law, 'is the subject of larceny.

Hon. W. D. Jacoway, Circuit Judge. The power to regulate includes the power to license.Sec. 17, Acts 1874-5, p. 9 and 10; AUerton v. Chicago, Am. Law Reg., Vol. 20, AT. 8., p. 473; Cincinnati v. Bryson, 15 Ohio, 625, and cases cited. The power to “regulate” does not include the power to “license, tax, etc.,” as used in other portions of the act.

Hon. C. E. Mitchell, Circuit Judge. This is not a case coming under sec. 1, Acts 1875, p. 103. The cost except in equity follow the final judgment. — 1 Ark., 345; 1 Stewart, Ala., 63. Overruling a demurrer not a final order or judgment. — 27 Ark., 113. Costs at law adjudged to winner. — 5 Pick., 259; 16 Am. Dec., 405.

Hon. C. E. Mitchell, Circuit Judge. 1. There is no law in this State authorizing prosecution by information. — See. 8, Art. 2, Const. 2: The failure to erect a “sign board” is no crime. See. 4961, Gantt’s Dig., prescribes a duty but attaches no criminal responsibility upon failure. If the public suffers any inconvenience, the proper remedy is by mandamus. — 58' X. Y., 152; 37 2nd., 489-, 67 111., 118; 54 Iowa,. 485; 36 Ohio, 435.

■Hon. R. T. Powell, Special Judge. The legislature has seen fit to require that the officer-taking a married woman’s acknowledgment shall certify that the appearance of the wife is “voluntary,” and if the-, statute was “ ever so technical and rigorous, ” it is the plain letter of the law. It would hardly be doing justice to the-makers of this law to assume that this provision is meaningless, orwas mere matterof form. — Ford v. Buries, 37 Arle., 91.

<p>APPEAL from Lawrence county.</p> <p>Hon. R. H. Powell, Circuit Judge.</p>

H. F. Carter Special Judge of the Circuit Court. As between the original parties it was the duty of the -court upon a proper showing’ to reform the instrument and foreclose it.—Allen v. MeGauhey, et al, 31 Ark., 252 ; Bwaym v. Vanee, ex. et al, 28Id., 289. The amended complaint showed such a state of facts as made it the duty of the court to reform the mortgage and grant the relief prayed.

Hon. J. M. Smith, Circuit Judge. 1. A stated account depends upon the circumstance of the case (1 Story Eq., sec. 526), and only exists where the ■accounts have been examined and the balance admitted as the true balance, without having been paid. 2 Story Eq. PI., sec. 798 ; 7 Paige, 573. 2. When a plea of limitation is traversed, the burden of pi oof is on plaintiff to show both a cause of action and suing out of process within the period limited. 27 Arle., 343.

Hon. D. W. Carroll, Chancellor. The exemption clause of the act incorporating the Cairo- & Fulton R. R. Co., is to receive a strict construction. The rule governing in such cases is laid down very explictly in Bailey v. McGuire, 22 Wall., 226. It is never for the-interest of the State to surrender the power of taxation, and an intention to do so will not be imputed to it unless the language employed leaves no alternative. Ib.

Hon. Geo. S. Cunningham, Judge of the Circuit Court. Though the debt was barred, the lien was not. 28 Ark., .27; 35 lb., 68; 29 lb., 358; 14 Ark., 634; 25 Ark., 281-2. While the note here is not precisely a mort.gage, it is in the nature of a mortgage as between the parties. It is not simply a vendor’s lien created by equity, but is an-express legal lien created by contract. 37 Ark., 315,. 316, 317; 3 Otto, p. 199-, 36 Ark., 111.

Hon. D. W. Carroll, Chancellor. It is false and absurd to say that an act is a nuisance-because it is a violation of law, or that the city has authority to declare that to be a… Held: time and again, that the nuisance, to give jurisdiction for an injunction, must actually exist. A mere threat or an act which may upon some contingency or at some remote time prove a nuisance, will not warrant the interference of the court. Bisham’s Equity, 492; Kerr on Injunctions, 337, 338.

Lion. W. F. Pace, Circuit Judge. The facts alleged amounted to a rescisión of the contract and authorized the landlord to treat the lease as terminated. The abandonment of a contract by one, authorizes the other to disaffirm. 22 Arle., 260; 20 lb.,454 ; 11 Am. Law Reg., W. 8., 259.

Hon. J. H. Berry, Circuit Judgb. There must be actual possession to sustain forcible entry and detainer. 3 Wash. on Real Prop., 133-4; 28 Oal., 187; 79 N. Y., 93; 60 Mo., 56; Sedgwick and Wait,' Trial of Title to Lands, secs. 719-20-21-2-3. A scrambling or interrupted possession not sufficient. 8 Oal., 500 45 lb., 597; 49 lb., 75. It cannot be brought for taking possession of wild land, or land not occupied at the time by any person. 1 Green, JY.

Hon. W. F. Pace, Special Judge of the Circuit Court. I. The conduct of appellant in sitting on the side of a low flat-car with his legs hanging down on the outside of the car constitutes such contributory negligence on his part as precludes his recovering for the injuries he received. Todd v. Old Colony & Fall JR. railroad company, 3' Allen {Mass,), 18; Todd, v. O. Ü. & F. JR. railroad company, 7 Allen {Mass.), 207; Daggett v. 111.