Volume 42 — Arkansas Reports

Hon. Jambs A. YaNtis, Special Judge. 1. It must be presumed, in the absence of evidence to tlie contrary, that tbe Texas court proceeded according to law. Broom’s Leg. Max., pp. 696, 70S; 2 How., U. S., Sfl; Freeman on Judg., sec. 565; 22 Ark., S89. 2. If there was error in the proceedings of the Texas court, it could be corrected only by some direct proceeding, and can not be taken advantage of in a collateral proceeding.

Hon. J. W. Martin, Circuit Judge. Where a note is transferred only by way of collateral security or indemnity against probable future loss, it is not such a holding for value as comes within the rule that protects the holder against all equities of others interested. IS Ark., 150; 5 Johns. Ch., 54; 20 Johns., 637; 6 Hill, N. Y.,93; 4 Barb., 304; % Land Gt., 166; 18 Barb., 187; 2 Kern., 561; 6 Penn.

Hon. L. L. Mack, Circuit Judge. The deed of Amanda Nichols and Mary Holden to Eergus Suoddy was not properly identified or proved, and was inadmissible in evidence. Gantt’s Digest, see. 851¡.; Wilson v. Spring, 38 Ark., 181. The third instruction asked by defendant was in the words of sec. 1¡,113 Gantt’s Digest, and was applicable to the facts of the case. Mrs. Shirey Avas S2 years of age and was barred. Carter v. Cantrell, 16 Ark., 151¡.; Brinkley v. Willis, 88 Id., 5.

Hon. J. G-. Emerson Circuit Judge. 1. Plaintiff in error had been once before in jeopardy for the same offense. Const, art. 2, secs. 8 and 10; 26 Ark., 260; 17 Mo., 54,1; 4-1 lb., 254; 7 Ind., 824; 32 Mo., 480; 48 Cal, m3; 141ml, 139; 14 Ohio, 295 ; 20 Pick., 336; 7 Allen, 328; 12 Ohio St., 214; Kelly Cr. Prac., secs. 218-19-22; 4 Ark., 162; 9 lb., 497. 2. By the change of venue to Cross County the Craig-head Circuit Court lost jurisdiction of the cause.

Hon. C. E. Mitchell, Circuit Judge. The second indictment was for larceny of entirely different denominations from that charged in the first, not a single item being the same. The variance between the proof adduced on the first indictment, was no bar to another prosecution. State v. McMinn, SJ¡, Ark,, 160, 163-lf..

TI011. X. J. Pindall, Circuit Judge. 1. An officer must exercise a reasonable discretion in making a levy, and be is not liable for an inadequate levy unless his estimate in making such levy is so far from that which a prudent and discreet man would make as to render him liable from a presumption of negligence or a desigu to injure. Lawson o. State. 10 Ark., 38; Freeman on Ex., sec. 353 ; 7 B. Mon., 398; 8 Wend., 46; 34 Am. Dec., sec. 46. 2.

Hon. J. N. Cypert, Circuit Judge.. While the seal used was not as prescribed by statute, yet it might properly be held to be a private seal, within the meaning of the statute. (Sec. 1JS0®, Gantt’s' Digest.) Tr.e strict construction of the statute contended for’, is neither necessary for the protection of creditors or subsequent purchasers, nor is it just or equitable.

Hon. J. W. Martin, Circuit Judge. The act approved April 29, 1873, is unconstitutional because: 1. Under our statute counties are corporations, and the act authorizing the issue of the bonds was a special act conferring corporate powers in violation of section 48, article 5, Constitution 1868. Gantt’s Digest, sec. 937; ¡¡.9 Ala., 507; 11 Ga., 307; 46 Md., 500; 33 Mich., 97; 4 Hill, 384; M HI, 654; 39 lb., 166; 3 Otto, 308; 2.

Hon. G. B. UbNisoN, Special Judge. 1. The court erred in permitting appellee to file their ■second answer pleading payment, after the testimony had been concluded and the argument of counsel made, and in remarking in the presence of the jury, that evidence had been introduced to sustain two defenses, accord and satisfaction ■and payment. Secs, J¡,611 to 1¡.621¡,, Gantt’s Digest; Const., art. 7, sec. 21¡.. 2.

Hon. E. T. VaughaN, Circuit Judge. Money belonging to a married woman need not be scheduled.

Hon. X). W. Carroll, Chancellor. 1. A mortgage remains a valid lien until the debt has been discharged; it can be satisfied only by payment. Extension of time; giving new notes, or execution of subsequent mortgages, does not discharge it, but the original remains in force until discharged by payment.

Hon. J. M. Bradley, Circuit Judge. 1. It was error in not permitting appellant to prove by Ross, who held the inquest, the other and additional material statements — in short, all of the declarations made at the same time and on the same occasion. 31¡, Tex., 659 ; 39 Ih., 58 ; Pomeroy’s Arch. Cr. Pr. $ PL, 385, crncl notes, etc. 2.

Hou. M. T. Sandeíis, Circuit Judge. The presumption that one in possession of stolen property is the thief, is not one of law, and. a weak one of fact; is not at all conclusive, and of itself is not sufficient for a conviction. Boykin v. The State, 31¡, Ark., When a man in whose possession stolen property is found, gives a reasonable account of how he came by it, it is incumbent on the prosecutor to show that the account is false. (3 Greenl.

Hon. David W. Carroll, Chancellor. Contends that the act is constitutional. That the law contemplated a sale of the lands after one year, and not a redemption, and that the Chancellor erred in sustaining a general demurrer to the bill, and in not granting the alternative relief prayed, citing numerous authorities. The law contemplated a sale, not a redemption. The title of the act is not a safe criterion to judge of the intention of the Legislature.

Hon. G. S. Cunningham, Circuit Judge. The use of the words “ at least” means three clear days, as held in the English and Texas cases cited by the Attorney General. When a certain number of days are required to intervene between two acts, the day of only one of the acts may be counted. Gantt’s Digest, see. 5648. But in England and Texas it has been held that the words “ at least” mean so many clear or full days. Robinson’s Practice, vol. 1, ch. 78, pp. 430-1; 1 Texas, 107.

<p>APPEAL from Howard Circuit Court.</p> <p>Hon. H. B. StuaRT, Circuit Judge.</p>

Hon. W. D. Jacoway, Circuit Judge. 1. The first instruction for defendant should have been given. 1 Parsons on Partnership, p. 122. 2. It was error to refuse the second. 1 Qa., J¡,18; Am. Dec., 665; Meigs, 508; 33 Am. Dec., 161; 1 Met., 193 ; 35 Am. Dec., 358. 3. Expenses and time of plaintiff not allowed as damages. 31/, Ark., 181}.. Instruction No. 1 properly refused; there was no evidence to support it. 8 Ark., 31}6.; 5 Ib.,61; 38 lb.,733; Story on Agency, sec. 39.

Hon. J. W. MartiN, Circuit Judge, on exchange of circuits. 1. The title to land can not be tried in this action, but where the title of chattels depends upon the ownership of the soil from which they have been taken, the title may be incidentally investigated, with a view to determine the ownership of the chattels. Wells on Replevin, secs. 58, 79 to 85, and cases cited.

P. T. VaughaN, Circuit Judge. 1. The record does not show that the jury were properly sworn. Sec. 1921 Gantt’s Digest; 21 Ark., 1J¡J¡.; 17 lb., 332; 11 Ib., 155. 2. The prosecution was barred by limitation, the indictment not having been found within three years. The finding of the first indictment did not stop the statute, as it was for a different offense, and does not come within the exceptions of the statute.

<p>APPEAL from Franklin Circuit Court.</p> <p>Hon. W. L. Jacoway, Circuit Judge.</p>

<p>APPEAL from Franklin Circuit Court.</p> <p>Hon. G. S. CuxninohaM, Circuit Judge.</p>

Hon. L>. ~W. Carroll, Chancellor. 1. Pulaski County was the beneficiary of the grant of June 15, 1832, and the State having used county funds in the construction of the east wing of the State House, holds that portion as trustee for the county. Acts Congress, March 2, 1881; June 23, 1836; June 15, 1882. 2. The rights of Pulaski were recognized by Governor Pope, and by the Legislature, and the State paid the •county rent for two of the rooms in the east wing. 3.

<p>Feus: Witnesses in several cases.</p> <p>In civil cases -witnesses are entitled to their ferriage and per diem in every case in which they are summoned, however numerous.</p>

lion. E. T. VaugiiaN,-Circuit Judge. 1.. The statutory presumption of negligence arises only in case of killing or mortally wounding stock, and does not apply to the mere wounding of stock. In the latter case, there should be evidence of negligence on part of the company or its agents. (Sec. 8, Acts 1875, p. 134.) The act only applies to animals killed or by fair intendment to those wounded unto death.

<p>Special Judge : Parties can not agree on — must be elected.</p> <p>A special judge must be elected by the attorneys at the court, as provided by the Constitution, and not by agreement of pai'tiesto the cause to be tried. A judgment or decree rendered by a special judge selected by agreement, is coram non judice and void.</p>

Hon. G. S. Cunningham, Circuit Judge. Where a defense is vaguely or badly stated, the remedy of plaintiff is by motion to make more certain, and not by demurrer. {31 Ark., 379, 657; 3 Appellant complied with all substantial requirements of the statute. Gantt's Digest, sees. 173%-3-l¡,.

J. M. Smith, Special Judge. The fact that Fisher was induced to engage board by means of false representations as to a past or existing fact, not having any connection with the hotel or its business, is not a public offense. There must be something obtained feloniously, with intent to cheat or defraud the party from whom it is obtained.

Hon. M. T. SaNDees, Judge. The doctrine of Main v. Alexander should be reconsidered by this court. The object of the law being to secure proof of the execution of the instrument, and the proof by subscribing witnesses going only to the execution of the instrument, the purposes of the law are entirely accomplished by giving effect to such an acknowledgment as appears to the mortgage.

Hon. R. B. Ruthereord, Circuit Judge. 1. There was a total failure of consideration in the matter of the trade between-Beavers and appellant. Therefore Beavers had no title to the mare in controversy, and hence could convey none to Locke, and for the same reason Locke could convey none to appellee. 2. Beavers could give nothing more than the bare possession to Locke, which possession was fraudulently obtained and illegal. 3.

Hon. E. T. YaughaN, Circuit Judge. 1. Under sections five and fifteen of the act of March-22, 1881, entitled “An act to regulate the manner of assessing real property for local improvements in cities of the first class,” the city council are left without any discretion, and are compelled to levy a tax for such amount of estimated cost or deficiency as may be certified to them by the board of improvement, and thereby the taxing-power is made subservient to the contracting…

Hon. J. Frank Wilson, Special Judge. The note was not due, and the suit was prematurely brought. Pomeroy on Rem, etc., sec. 519; Gantt’s Digest, sec. 568; Wait’s Action and Def., vol. 1, p. 6^0; Story Prom. Notes, Ifti ed., sec. §85; 17 Ark., ^§.

<p>1. Dower: In personalty governed by law of intestate’s domicile.</p> <p>The succession to an intestate’s personal property is governed by the law of his domicile, without regard to its actual situs at the time of his death. By a legal fiction it is deemed to be in the place of his domicile, and the rights of his widow, heirs and distributees are determined by the intestate laws of that domicile.</p> <p>2. ADMINISTRATOR: Ancillary: His ditties.</p> <p>It is the duty of an ancillary administrator in this State to pay the debts of the deceased which are proved here; to settle his accounts in the court that appointed him, and to transmit the residuum to the administrator in chief for distribution among the persons entitled to it. The court here may, however, sometimes order him to pay it to the heirs or legatees.</p> <p>1, Dower: In personalty.</p> <p>2. Ancillary Administrator: His duties.</p>

Hon. J. A. Williams, Circuit Judge. A provision in a note for an attorney’s fee in case of suit, does not destroy its negotiability. (35 Ark., 147.) Such a stipulation is valid, in the absence of fraud. 59 Penn., 804; 4 Watts, 186; 8 Wright, 38; 1 P. F. Smith, 7; 8 P. $ H. JR., 110; 34 111, H9; 8 Blackf, iff); 1 Ind., 331; 89 Ib., 158; 38 lb., 381; 34 lb., 334; 35 lb., 104; 38 lb., 323; 32 Iowa, 181,; 11 Bush., 180; 23 La.

Hon. X. J. Pindall, Circuit Judge. The proof that Mary Williams furnished the means to pay for the property, and that she was indebted to Robert, and caused the title to be made to him, does not support the allegation in the answer, of a purchase with the means of Robert Williams. Marshal v. Green, 81¡, Ark.; 1 Whit-taker, N. Y. Frac., ¡¡91; Sanford, 665.

Hon. J. M. Bradley, Circuit Judge. 1. Baxter never occupied the premises as a homestead, and the property was not exempt. Const., sec. 5, art. 9; Thomptson on Homesteads and Ejc., sec. 21¡.5; Johnston v. Turner, 29 Ark., 280. 2. The issue should have been tried by jury. 23 Ark., 101; 32 Barb., 291; U¡. John., 1¡.3JP; 55 Barb., 390, 399; 1 Denlo, 1P62; 31 Ark., 65If..

Hon. R. B. Rutherford, Circuit Judge. The demurrer should have been sustained, first, because section 1743 Gantt’s Digest prescribes .the manner of proceeding in such cases; and second, because the facts stated exclude the idea that the State ought to recover. Where a party is in court to answer an indictment, he is subject to the orders of the court.

Hon. E. T. VaughaN, Circuit Judge. 1. Before the adoption of the Code affidavits could be made before clerks. Although section 2539 Gantt’s Digest omits clerk, there are no words of exclusion or prohibition in it, nor does i.t repeal any former law. It only intended to make the certificates of the officers named proof as stated. If any other officer should take it, proof of his authority •might be produced aliunde, which is waved in this case.

Hon. G-. B. BukisoN, Special Judge. Courts of chancery have jurisdiction and will exercise it to surcharge or falsify, re-state or set aside settlements of administrators for fraud. S3 Ark., 727 ; 34 lb., 63 and \l7. 1. The court had no jurisdiction. The administration •was still pending in the probate court, and the parties had full and ample remedy there.

E. T. Vaughan, Circuit Judge. 1. Appellant not liable on the exception in the granting clause of the mortgage. There was no privity of contract. The exception is in the granting clause, not in the conditions. See 83 Iowa, Iff; 51 lb., 637; 57 111., 198; 23 III., seo. No obligation to pay Adkins’ debt was imposed by Patton’s accepting a mortgage reciting another mortgage. 2. As to the verbal contract.

Hon. G. S. CuNningham, Circuit Judge. The agent was not authorized to receive goods for storage, but if he was, the railway is only liable as a warehouseman, and it was incumbent on plaintiff to show negligence. (.Pierce on JR. JR. Law, 428, 448 ; Hutchison on Carriers, sec. 701-8; 60 N. Y., 138.) The lost articles were not baggage. Thomps. on Carriers of Pas., 510-11; notes. 1 and 2.

lion. IT. B. Stuart, Circuit Judge. The court erred in excluding the testimony of Laura Cooper. The wife of one jointly indicted with others, on a separate trial, is a competent witness for the co-defendants, except in cases of conspiracy, principal and accessory, etc. Review Collier v. State and Casey v. State, and cite 1 Gr. JEv., top p. 389, par. 335; 2 Ashmead, 31; 1 Redding-ton,62; 1 Bishop Cr. Pro., see. 1019; 1 Mass., 15; 31 Me., 62,64; 1 Met.

Hon. E. T. Yaughan, Circuit Judge. Under the rule for the measure of damages, laid down in 25 Arkansas, 161/,, if the mule was worth anything at all, the jury should have found for the plaintiff. Review the testimony, and contend that the evidence fairly shows that the mule was worth something, and that the verdict should have been for plaintiff'.

Hon. R. B. Rutherford, Circuit Judge. 1. A justice of the peace has no jurisdiction of actions ex delicto for conversion of a chattel. Const. Ark., art. 7, secs. Jfi, 11; 31¡, Ark., 188; 5 lb., 87. 2.

Hon. M. T. Sanders, Circuit Judge. 1. Mrs. Ellis was a trustee or agent of her husband, and was bound to protect the interest of her husband, for whom she held. Perry on Trusts, secs. 2J¡£, 265, 285. 2. By occupying the property and assuming control of same, after the departure of the husband, she became his trustee, and could not abuse that trust, nor make a profit out of it, or buy it. 16., secs. 19J¡,, 200, 209, ^29-80-81. 3.

H011. W. P. Grace, Special Judge. It was error to render a decree against a minor without appointing a guardian ad litem, or sufficient proof that his disabilities had been removed. Gantt’s Dig., sec. 1190,. Jj.Jj.93; 39 Ark., 62; lb., 106.

Hon. William Walkek, Circuit Judge. Taxes are not within the meaning or intent of the words “ and all lawful charges,” in section 2697 Gantt’s Digest. They refer entirely to such charges as were allowed to be made by the clerk, and which were on file or ascertainable in his office. Rover on Jiul. Sales, sec. 1162; Freeman on Ex., 323, 333 ; 6 Cush., 70; 13 Cal, 609; 2 Burr., 1052, etc.; 3 Met., 521; 9 Serg. $ R., 109; 1 Bibb, 295.

Hon. E. T. VauohaN, Circuit Judge. A certificate of indebtedness can only be given by the Auditor when the Auditor audits and settles a claim. ■ (Gantt’s Dig., sec. 2779) He is only allowed and required to audit and settle sucb claims as are not “ expressly required by lam to be audited and settled by some other officer.” Sec. 2774- Attorney’s fees under the “ over-due tax act ” (Acts 1881, p. 68) are audited and settled by the court, and come within the exception of section…

lion. C. E. Mitoiiell, Circuit Judge. The allegation of adultery is clearly sustained by the depositions, and the divorce should have been granted. Gantt’s Dig., sec. 2195, clause 3.

Hon. J. H. BeRRY, Circuit Judge. An equity of redemption in personal property is subject to levy and sale under execution. Herman Chattel Mortgages, pp. 389, 448, 445, 456, 452, 464-, 456, 458, 459, 460; Herman on Executions, p. 150, sec. 118, note 41 Ereeman on Executions„ sec. 117 and note. By the act of the Legislature (Acts of 1877, p. 88), in the absence of stipulations to the contrary, the mortgagee took the legal title and possession.

<p>1. Leoislatdre : No power to annul contracts.</p> <p>The Legislature has no power to deprive one of the benefit of a contract lawfully made by the commissioners for letting out public contracts.</p> <p>2. Contracts : Public bindiny.</p> <p>In 1882 the board of public contractors let to Mitchell tfie public binding for the State for the years 1883 and 1884, specifying the size and price of the binding. In March, 1883, the Legislature provided for the printing and binding of a new Digest of the Laws of the State, to be printed on royal octavo paper, which is of larger size than any specified in Mitchell’s contract, and for which no price was specified in his contract. Held, that the binding of a Digest was not in contemplation of the parties to the contract, was not embraced in it, and he was not entitled to it.</p> <p>1. Legislature: No power to annul a contract.</p>

Lion. J. H. Rogers, Circuit Judge. There was no such contract of sale, payment of purchase money, part performance, and entry into possession as would take the case out of the statute of frauds. 8 Ark., 278; 20 lb., 550; 19 lb., 24; 3 Paige, If,78; 2 Paige, 177; 10 lb., 535; 1 Hoff., 470 \ 5 Wend., 61¡8; 1 Ark., 391; 16 lb., 466 ; 21 Ark., 533; Story Eq. Jar., sec. 760; 1 McMul-len Eq.,817; 1 Rich.

Hon. B. EL Crowley, Special Judge. The gravamen of the complaint is that by reason of defendant’s unlawfully building and constructing its road-bed above the grade of plaintiff’s road, that the road-bed and right of way of plaintiff was obtructed, to its damage, etc. Plaintiff had only an imaginary railroad at the point of intersection, no actual work had ever been done, and none is alleged in the complaint. The railroad, was only in contemplation.

Hon. C. E. Mitchell, Circuit Judge. The indorsements were only a guarantee, not an acceptance, and to hold appellant liable . as a guarantor, there must have been demand, protest and notice. 2 Green, 189 ; J Ark., 76; 7 Pet., 112; 2 Bailey, S. G, 1; 35 N. H., 295-, Hi, La. Ann., 305; 1$ Barb., 61/.6; 29 La. Ann., 538; 11? Ark., 230.

Hon. J. Gr. Emerson, Circuit Judge. The instructions (especially the second) are too broad and misleading. Under them the jury might have found the amount he might have made at the hotel business, which is remote and speculative. 9 Ark., 891¡.; SO lb., 50; 8 Am. Law Reg,, 369 (A. S.); 71 Penn., 51; 5 Am. L. R. (N. 8.), 7LS. STATEMENT.

Hon. J. N. Cypert, Circuit Judge. Prairie hay is a natural production, and being such, the plaintiffs produced nothing by cutting it, but simply changed its form, or assisted in putting it in a marketable condition. Having produced nothing, they were not entitled to enforce a lien against the hay. 27 Ark., 564- Appellee was a laborer within the meaning of the statute, and entitled to a lien on the production of his labor.

Hon. W. F. Pace, Special Judge of the Circuit Court. The price paid for land may be put in evidence to show its value. (Mills on Em. Domain, sec. 168; Pierce on Railroads, p. 225; 100 Mass., 350; 58 Pa., 26 ; 7 Allen, 313; 68 Ill., 380.) The right to prove the market value of the land before and after the building of the road is clear. Pierce on R. R., p. 225; 13 Met., 316; 118 Mass., 546 ; 65 Me., 230; 2 Iowa, 288; 36 Ib., 323; 74 Pa.

Hon. J. II. Patterson, Circuit Judge. Plaintiff was a non-resident, constructively served by publication, and no personal judgment could be rendered against him. This court has jurisdiction to review the judgment and correct errors which appear upon the face of the record. 39 Ark., 15JP; 99 lb., 37; 9,6 lb., 536. The record conclusively shows the appearance of Silver, and that he was in court when the damages were assessed.

Hon. II. JB. Stuart, Circuit Judge. That a person can not be put twice in jeopardy for the-same offense is well settled. The difficulty in applying-the principle is where there are degrees in the crime, and where an included offense is tried by a court having no jurisdiction of the highest grade. All offenses of larceny are degrees of the same offense. (Code, sec. 260.) Justices-have .jurisdiction in petit larceny.

Hon. G. S. Cunhingham, Circuit Judge. Gage’s testimony was clearly admissible and it was error to exclude it. This is such a palpable error, and the verdict is such a departure from the law and evidence as to shock one’s sense of justice. 30 Ark., IfiS; 33 lb., 757. 1. The indictment is good, substantially in the words of the one in Witt v. The State, 39 Ark., S16. 2. Though the court may have erred in excluding Gage’s testimony, yet the verdict was right on the whole case.

<p>Liquor: Local option law: Evasion of.</p> <p>Defendant had a billiard salodi at Dardanelle where the local option law was in foi'co. Coats, by the defendant’s direction, delivered to defendant’s son at his billiard saloon, money for a quart of whisky. Defendant sent to his dram shop outside of the local option limits, got the whisky there, and his son delivered it to Coats at the billiard saloon in Dardanelle. Held, that the sale was in Dardanelle and defendant was rightly convicted.</p>

Hon. J. A. Yantis, Special Judge. The jury, upon Judge Rogers’ disability, were, by operation of law, discharged; in other words, it was a mistrial, and upon the election of the special judge, a new jury should have been impanneled, and heard the cause anew. The bill of exceptions is marked filed by the clerk, but was not entered of record, nor in any loay made 'part of the record, and can not be considered by this court. 85 Ark., 386; 37 Ik, 370.

Hon. W. D. Jacoway, Circuit Judge. The order was not final. (Freeman on Judgments,secs. 1£, £6, £7, S3 3J±, 36; Gantt’s Dig., secs. ]$l-3; £9 Ark., lflO; J¡. Otto, 11; £ Nash FI. £ Pr., l¡ih cd., sec. 3£.) But if it were final, still plaintiffs had the right to sue upon it. Freeman on Judgments, £d ed., sec. 1¡,3£, etc. STATEMENT.

J. W. Martin, Circuit Judge. 1. The men boarded by Herman were the hands of Stapp and not of Wallace, and any verbal promise made by Wallace to pay their board, not being in writing, fell clearly within the statute of frauds and could not be enforced. Gantt's Dig., sec. 8951; Kurtz v. Adams, 7 Mig., 174. 2. The alleged deposition of Kerrigan was a mere memorandum agreed to be used in a different suit, and agreed only for that purpose. 1.

Hon. X. J. Pindall, Circuit Judge. 1. When one purchases land at execution sale under an agreement with the debtor to hold the title until the money is repaid, a trust arises. 19 Ark., 89; 20 Ih., 272 ; 81 lb., 272. 2. If a trust, and the execution defendant remains in possession, third parties are affected with notice. 33 Ark., jj,65. 3. Mere silence, when there is no obligation to speak, or acquiescence which induces no one to act, is not an estoppel. S3 Ark., 165. 4.

Hon. R. B. Ruthereord, Circuit Judge. Appellant was subrogated to all the rights of the judgment creditors under whose execution he bought. (Bump Fr. Conv., 3d ed.,p. 506; 7 Blaekf, 66 S. (7., 39 Am. Dec., IS T7i's., 3SJj,; 1 Freeman Chy., 703.) The fourth plea was a good defense at law as well as equity.

Hon. R. B. Rutherford, Circuit Judge. The onus probandi was upon the plaintiff (22 Ark., 396), and he must make out his case by competent testimony, (4 Ark., 91f). lie mast establish his right of possession as well as wrongful detention of the identical property sued for. (17 Ark., 54.9; 3 JEng., 519.) Where there is no evidence to support the finding, this court will grant a new trial. 5 Ark., 61¡,0; 14 lb., 202.

Hon. J. M. Sjiith, Circuit Judge. Tlie answer of defendants was a sufficient defense to the •case. Acta of 1876, pp. 8 ami 9, sec. 8731). Gantt’s Dig. The Circuit Court had no jurisdiction. The sum in controversy could in no event exceed §100, and justices have •exclusive jurisdiction wherein the amount does not exceed $100. Sec. 4.0, art. 7, Const. The proceedings were strictly in accordance with the statute. See. 1704, 174% Gantt’s Digest.

Hon. J. W. Martin, Circuit Judge. The first and second instructions for appellee are certainly law. 37 Ark., 569; Field on Dam., sec. 168; Cooley on Torts, pp. 674.-5; 3 Ohio, 178; 6 lb., 105; 8 lb., 570.. Appellant’s instructions properly refused. The first and third are abstract, and the others do not properly declare the law applicable to this ease. See authorities supra. The modification of number two was more favorable to appellant than appellee.

Hon. David M. Carroll, Chancellor. An Auditor’s deed \b prima facie evidence of regularity, and imports title good on its face. 17 Ark., 516; 7 lb., Jfik; 15 Ark., 331; lb., 365. An abandoned improvement grown up, gives no right, being no improvement. (21 Ark., 33.) The act of eleventh of January, 1851 (Gantt’s Big., sec. 3905), was passed after this land was forfeited and at a time when it was subject to donation.

Hon. R. W. CROCKETT, Special Judge. The writ of scire facias is a provisional remedy, and the affidavit of Eloyd Smith should have been admitted. /SWi 2536 Gantt’s Dig. The discharge in bankruptcy was no answer to the scire facias, as the debt was a fiduciary one. Sec. S3, Bank. Act of 1867; In re Jas. W. Seymour, Int. Ben. Bee., 60; S. G., 1 B. G. B., 25. Smith’s affidavit was properly excluded, and there was no evidence whatever that it was a fiduciary debt.

Hon. S. C. Hall, Special Judge. Appellants have had adverse possession for sixteen years, and appellees are barred. As to what is adverse possession, see 17 Ark., 627; SO lb., 61fi; 33 lb., 150. Where one dies in possession of land it is prima fade evidence that he was seized in fee. Possession of land for the full period of limitation, amounts to an investiture of title.

Pión. X J. PiNDALL, Circuit Judge. If the deed was a forgery, no title passed, and there can be no innocent purchaser. 37 Ark., 205; 49 Am. Dec., 390 ; 32 Ib.,545; 20 Wend., 267; 39 Am. Dec., 557 ; 6 Bob. Da., 192; 28 Am. Dec., 4-82-685; 4 Whart. Pa., 382; 10 Penn. St., 295; Demo plus Juris a alieno transferee potest According to the weight of the evidence the deed toas a forgery.

lion. J. A. WiluiaMS, Circuit Judge. The approval of official bonds are judicial proceedings (■Oliver v. Martin, 36 Ark., 11¡3), and within the supervisory-jurisdiction of this court. Sec. J, art. 7, Constitution. There is now no sheriff in Desha County. Constitution, art. 7, sec. 50; Callaway v. Miller, 32- Ark., 666.

Hon. E. T. Yaughan, Circuit Judge. The record, as we conceive, presents two questions of law. Eirst. The statute not having begun to run at the date of the adjudication in bankruptcy, and the issuance of the certificate of protection, did the adjudication prevent its beginning ? Second. If the statute had begun to run, did the adjudication suspend its operation upon demands duly proved, during the pendency of them in the bankrupt court?

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

Hou. A. B. Greenwood, Special Judge. 1. Charles Boozier, having married Mary Hargrove, took possession of the property January 1, 1868, hence is liable from that date, if at all, for Rhoda Hargrove’s (now Moore’s) half interest in the same. 53 Ga., 485; 50 Ib., 81; 54 Ib., 359; Const. 1868, art. 12, sec. 1. 2.

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

Hon. J. ~W. MaRTIN, Judge, on exchange of circuits. The authority for issuing the distress warrant, and the proceedings under it, are found in sections 5247-5254 Gantt’s Digest. No time is limited for its service aud return, but, quere, is it to be regarded and treated as an execution ? As to the liability of the sureties, see Goree v. State, 22 Ark., 236.

Hon. J. A. WilliaMS, Circuit Judge. Where a creditor has retained an attorney and brought suit, and pending the suit sells his claim to a third person without the attorney’s knowledge, and such third person suffers the attorney to conduct the suit to judgment, and to secure money on the judgment through a receiver, the court will not permit such third person to withdraw the money without the attorney’s fee. 33 Ark., %33; 13 Ark.,t 193; 86 Ark., Porter, Taylor $ Co. v.…

Hon. C. E. Mitchel, Circuit Judge. I. Did the Circuit Court err in overruling the motion to dismiss the appeal ? Held: in that case, that dioses in action were exempt under the Constitution of 1868, because that Constitution “ abandoned the policy of exempting specific articles, and provided for the exemption of persoual property to the value of §2,000, to be selected by the debtor.” See. 1, art. 12, Const, of 1863.

Hon. C. E. Mitohel, Circuit Judge. 1. The doctrine of féllow servant is settled in this State. 39 Ark., 26; 35 Ark., 613. 2. The verdict was not sustained by the evidence. The-conductor, engineer, all were fellow servants, and even if there was negligence, which is denied, it was simply the-carelessness of a fellow servant, and was one of the risks incident to the employment. No negligence can be imputed to the company.

Hon. D. W. CARROLL, Chancellor.' This was a suit brought in Pulaski County, in reference to the title to lands lying in Saline County. The venue in such cases is local, and the Pulaski Chancery Court, therefore, had no jurisdiction.

Hon. J. B. Wood, Circuit Judge. The bill of lading, of itself, was not competent, as against defendant, to establish a partnership, or joint relation. It is only after the relation is established that the acts of one party are received to affect the other. 29 Ark., 626.

Hon. C. E. Mitohel, Circuit Judge. 1. There was conflicting evidence as to the time and manner agreed upon for the delivery of the corn, and it was for the jury to determine, not alone from the sale of the mother, but from all the evidence, whether appellee had complied with his contract to deliver the corn, or had been released; and, if not, the corn would still have been a charge upon the mule.

Hon. J. B. Wood, Circuit Judge. The court, without any evidence whatever, found for the plaintiff, and adopted a declaration of law to the effect that the delivery of the cotton to Senter & Co. not being specifically denied by defendant’s answer, must be taken as confessed. Defendant had not undertaken to answer; was not required to do so, in fact.

Hon. W. D. Jacoway, Circuit Judge. The points made by the learned counsel for the appellee are entirely technical, and destitute of substantial merit. Whatever force they may have had originally has been destroyed by the return to the certiorari. It is objected that the bill of exceptions is signed by “ W. D. Jacoway, late judge of theEifth Judicial Circuit of Arkansas.” This objection is certainly untenable.

Hon. J. M. Bbadley, Circuit Judge. 1. As to the question of limitation, this case is “on all fours” with 33 Ark., 141, and 38 lb., 243. Under certain circumstances a claim may be considered stale, but certainly not one confessedly not barred by limitation. 2. The allegations of fraud are sufficiently specific. (See 23 Ark., Ill; 20 lb., 526.) If merely to omit a debit is a fraud, certainly the taking of a false credit is.

Hon. David W. Carroll, Chancellor. There is no doubt but what the court rendering the original decree could'have provided for the care of the children and have decreed that the father should pay so much for the support of the children, although they were taken temporarily from his custody. Then, did the court, under a supplemental petition, filed at the same term at which the decree was rendered, have jurisdiction to make a supplemental decree?

Hon. William Walker, Circuit Judge. The notes were usurious and the appellee had notice of the fact, and, under the ruling in German JBankv. Deshon, Jpl Ark., appellant is not liable. 1. Usury does not avoid the debt' in the hands of National Bank. 2. It is a purely personal defense, and if Looper, one of the joint makers, saw fit to pay the debt to the bank prior to any defense of that kind by Turman, he had a perfect right to do so.

Hon. J. W. MartiN, Circuit Judge. 1. Our statute and Constitution for 1874, creating and defining the homestead right, does not limit and restrict the uses to which the homestead may be applied. Thompson on Homesteads and Ex., secs. 135-6-7-8-9; 37 Ark., 383 and 398. 2. The husband never reduced the wife’s money to possession — he was only the custodian and agent of the wife, upon the express condition that it was to be invested in a homestead for her.

Hon. C. E. Mitciiel, Circuit Judge. An indictment charging defendant with embezzling a certain amount of money, to wit,-dollars, on a day certain, is sufficient. Bix v. Carson, Bussell $ Byan’s Grim. Gases, 303; 1 Moody Grim. Gases, JJ7; Jacobs' Fisher's Big., vol. 3, 3173; 1 Gar. Bayne, 313, JJ>J¡,; Arch. Grim. Fro., vol. 8,1331; Gantt’s Dig., secs. 1793-5; 9 Mete., 138; Boscoe Or. Eo., 1^39, marg.; 3 Car. £■ Payne, ; 5 lb., 300 ; Jacobs’ Fisher’s Dig., vol. 3, 3171.

Hon. M. T. SANDERS, Circuit Judge. Contends that the evidence totally fails to show any fraud on the part of Thomas Gist in the sale; that the appellant was an innocent purchaser, for an adequate price, from one who had a record title ; that fraud is never presumed, but must be proved. Cites Story’s'Eq., see. 381 ; 37 Ark., Ilf5. The conveyances were made to cover up the property of Thomas Gist, and defraud, etc., creditors, and void.

Hon. C. E. Mitchel, Circuit Judge. 1. The verdict ivas excessive and should be set aside. 39 Ark, 387; 2. The court erred in permitting and compelling witnesses to state in round numbers their opinion of the-damages. See rule 39 Ark., 167. 3. The assessor’s books were admissible to contradict the evidence of defendant. 8 Nev., 165.

Hon. C. E. Mitchel, Circuit Judge. 1. The verdict was excessive; so mueb so as to show passion, prejudice, or incorrect appreciation of the law applicable to the case. 39 Ark., 387. 2. Owner not entitled to increase of value derived from the contemplated railroad as part of his damages. Pierce on R. R., ¡>. 819; Const., art. 18, sec. 9. -3.

lion. C. E. Mitciihl, Circuit Judge. There does not appear any privity between appellees and Fellows in regard to the negotiation between Fellows and Tufts; nor does it appear that Fellows’ act of purchasing from Tufts placed the appellees in a worse position than if he had never purchased. So it matters nothow false may have been the representation of Fellows to TuTts^the ap-pellees have no rights growing out of that transaction. See Durvy v. Jarris, J¡.6 N. Y., 310.

Hon. J. C. Palmer, Special Judge. Erom a careful consideration of article 16, section 5, Constitution 187Jp, and section 1, act March 5, 1875, p. %%%, it is clear that it was the intention of the laws to exempt only such property as was used for public purposes, and not that used with a view to profit.

Hon. J. M. Bradley, Circuit Judge. The father of appellant, at the time' of the execution of the mortgage, was the “ head of a family,” withiu the meaning of the Constitution of 1868, which positively forbids the incumbrance of a homestead.

Hon. P. T. YausraN, Circuit Judge. The relation of master and servant can not exist between the lessee of the penitentiary and a convict. A convict is. not a servant in any legal sense. A servant must be an agent, and have discretionary power, which is inconsistent with his status as a prisoner. A convict is not the em-ployé of the keeper. The rule respondeat superior can not apply. TPboc/’d Master and Servant, p. Jh see. 4; Wait’s-Actions and Defenses, p. 807, secs. 1-2.

lion. M. T. BANKERS, Circuit Judge. The mortgagee had three remedies, but could have only one satisfaction. lie can sue, obtain judgment, sell other property, and collect what he can in any legal way; or he might take possession of the land mortgaged and apply the rents; or foreclose and sell the lands for the amount due on the mortgage. 7 Ark., 319; 18 Ark., 6J¡j6.

lion. M. T. SANDERS, Circuit Judge. There was no service on defendants, nor any service of the so-called writ of attachment. The man who served them was not an officer at all. The court acquired no jurisdiction in rem whatever. The judgment against Clopton was a nullity. It is true there are many errors that can be waived by-consent, but consent can not give jurisdiction.