Volume 43 — Arkansas Reports

Hon. It. H. Powell, Circuit Judge. For appellant we submit that the right to hold the property, claimed by him in his schedule, was guaranteed to him by the Constitution and laws of the State, and of which he could not be lawfully deprived. This right was judicially determined by the Independence Circuit Court in granting the mandamus, by which the Justice was compelled to discharge the duty required of him by law.

Hon. F. T. Vau&han, Circuit Judge. 1. The term u protest zoaived ” has by general usage a legal signification which includes all those acts which by law are uecessary to charge an indorser. Parsons on Notes §c., Vol. 1,578: 1 Comstock N. Y. 186: 8 Lenie 16. It is a technical term to dispense with protest, notice of demand and non-payment, &e. 2. A note endorsed after due is payable on demand. 14 Ark. 336.

lion. C. E. Mitchell, Circuit Judge. A party asking equitable relief in removing cloud from title, must be in actual possession of land, or they must be wild or unoccupied, or not in the actual possession of another : otherwise the remedy is complete at law. 27 Ark., 233; 24 Id. 431 ; 2d Id. 612. The evidence clearly shows that appellees were not in possession at the commencement of the suit.

<p>APPEAL from Washington Circuit Court.</p> <p>I-Ion. A. B. Greenwood, Special Judge.</p> <p>The first objection made is by demurer to the jurisdiction of the County Court, and its power to render judgment.</p> <p>If the County Court had not jurisdiction all subsequent proceedings were invalid and any judgment for costs or otherwise is void.</p> <p>We submit that by act of the legislature of February 27, 1879, Acts 79, Page 13, all corporate powers were taken away from the counties and it was expressly enacted that the counties should neither sue nor be sued.</p> <p>Again, while the general Revenue law provides that district school taxes shall be collected in the same manner and by the same person as other taxes, yet there is no statute authorizing the County Court to make settlement for them or requiring the collector to settle them with the County Court — See Section 5422 Gantt’s Digest— and the County Court being a court of limited or prescribed jurisdiction, we submit it could not go beyond the authority by the act conferred upon it, even if previous revenue laws on other subjects had authorized a settle-' ment with the collector when the act creating these peeuliar districts and authorizing these taxes, had given no such authority.</p> <p>The statute not only declares that Counties shall have no corporate powers and that they shall not sue .or be s ued, but distinctly enacts that each school district shall be a body corporate with power to sue and be sued, &e. &c.,. See Sec. 53, page 71, Act 1877. And hence each district was the only proper party to sue for a right withheld or a wrong done it.</p> <p>The County Court certainly had no general jurisdiction authorizing it to bring in alleged sureties on a collector’s bond and litigate with them, if there was not statutory power for so doing.</p> <p>The Constitution, Sec. 20, Art. 7, as well as the statutes, declares a judge shall .not preside in a cause where “ either of the parties shall be connected with him,” &c* Does this not deprive him of jurisdiction to try a cause wherein his son was a party ?</p> <p>And when his son was brought before him in this case did he not know judicially, as well as personally, that Thomas J. Mullins was his son? He was bound under the Constitution to certify this case to the Governor for the appointment of a judge, &c. See Sec. 36, Art. 7, Constitution 1874. In Freeman on Judgments, Sec. 146, it is said the action of any judge in a matter wherein he is interested is coram non judice and void. See 5 Pickering 483, and Coffin v. Cottle, 9 Pick. 287 and Sigoxirney v LibJey 21 Pick. 101, Gray v. Minot 3 Cush 252, State v. Castleberry 23 Ala., 85 and Sec. 144 of Freeman on Judgments, this authority says, parties cannot waive objections to relationship and the judgment is void. See Converse v. McArthur 17 Barb. N. Y. 410 and 41 Barb. 200, ITall v. Thayer 105 Mass. 219 and other cases cited by Mr. Freeman.</p> <p>The next'error complained of is that the County Court refused to grant an appeal jupón j application made and bond filed. At the first term afterwards the county judge disapproved of the appeal bond, not because the signers were not amply good, butjjbecause they were litigants in the case.</p> <p>But this was quite immaterial. The appeal should have been allowed as a matter of right — Sec. 1193 Gantt’s Digest — and bond or no bond only determined the right to a supercedeas.</p> <p>As found by the Circuit Court, the county court at its next session adjourned the hearing in the case to a certain hour and before the hour arrived without notice adjourned his court, &c, and without fault or laches on the part of appellants, deprivedjthem of the right to appeal.</p> <p>Mandamus could not then issue {High on Extraordinary Legal Remedies, Sec. 14, P. 15) because there was no court in session to allow an appeal and no ‘ appeal could be granted at the next term by reason of that being beyond the time allowed by law; hence the only remedy the law afforded was certiorari.</p> <p>Upon the return of which under Sec. 1196 the Court was empowered to hear and determine the,, same, and correct any erroneous proceedings and the nextsection authorized the hearing of evidence dehors the récord, &¡c. See also Sec. 1197.</p> <p>These statutes modify the general rule and give latitude to reach the merits of the case. 25 Ark., 518,• 37 Ark., 318.</p> <p>The Circuit Court upon the evidence found the fact that appellants had been deprived of their right of appeal without fault or laches on their part, but rejected the practice of hearing the case upon its merits. ¿It also found specifically that the county had no interest in the money sought to be recovered and the County was the nominal plaintiff and that the county was not a body corporate or other person and had no capacity to sue, and that the judgment was rendered in faver of Washington County for the use of certain school districts, and yet rendered a judgment affirming the proceeding and judgment in the County Court. And the Circuit Court on appellee’s motion quashed the writ as to all of appallants but one, and refused to quash it as to him, and adjudged that the judgment of the County Court be affirmed in part and quashed in part.</p> <p>This, we submit, was a palpable error. Upon appellee’s motion the Court was legally bound to quash the writ or overrule the motion. As a Court of Law, it could not divide a judgment and quash it as to one and affirm it as to the others. See Freeman on Judgments Sec. 136. He says a judgment void as to one is void as to all.</p> <p>How strange to assume that when A, B and C are equally liable and sued together, A and C must pay the claim and B be discharged because he is a son of the judge, his discharge being for a want of jurisdiction in the court and not upon any defense personal to himself —such never was the law. See Shuford v. Cain 1 abb. Ü. S.' 302.</p> <p>Kitchens v. Hutchins 41 Geo. 620, Com’l Bank v. Wilson 14 Grants ch. 473. G. M. Ij. Ins. Co. v. Cloar 36 Mo. 392</p> <p>The relationsphip of the party to the judge was made known for the first time in the circuit court. No objection was made to the judge below and unless made was waived.</p> <p>Gantt’s Digest Sec 1159; 12 Ark, 191; 19 Ark., 97; White v. Beagan, 25 Id. 622.</p> <p>But this would not affect this cause as the judgment was quashed as to the relative.</p> <p>The second -ground is that the county court had no jurisdiction as to the subject matter. Acts 1874-5 p. 144 Sec 78. Acts 1879, p. 115 Sec. 8 sub’d 8. Acts 1875, p. 67, Sec. 41.</p> <p>Thirdly, it was claimed by appellants that the county had no interest and was an improper party to the proceeding. The school tax by the acts referred to must be levied by the county court and collected like any other tax. The only forum authorized to make the settlement was the County Court. 14 Ark., 170; 24 Id., 143.</p> <p>Lastly it is assumed that the county had no legal capacity to sue. It is assumed that this is a suit brought and prosecuted by a county instead of a settlement under statute by the County Court. The act Feb. 27, 1879 had no reference to settlements of this character. This settlement was made with the sheriff by the clerk, and was conclusive after approval by the court, and spread upon the record. 14 Ark, 170 ; 22 Id., 236 ; 24 Id., 551.</p> <p>Certiorari could not be resorted to to open up the settlement with the sheriff. If there had been error in the settlement the statute provides that it may be corrected on motion at any time within one year. Gantt’s Dig., Sec. 5280.</p> <p>The defendants had a right to, appeal and if denied them by the county judge, could have obtained it by mandamus or could have obtained an appeal by application to the clerk of the circuit court. Gantt’s Dig., Sec. 1193,1057.</p> <p>It is not enough that a party may have been deprived of an appeal; he must also show that there is error in the record or the court cannot quash upon certiorari. 23 Ark, 107; 21 Ark, 426; 17 Ark, 440; McCoy v. Co. Court Jackson Co., 21 Ark., 475; Jefferson Co. v. Hudson, 22 Ark., 595.</p> <p>If the case is to he made out by collateral facts certiorari will not lie. 29 Ark., 179 ; 21 Ark., 426.</p> <p>It is assumed that the collector’s bond was joint and not several. The record shows nothing of the kind, and such is not the case. If the action may be joint or several the judgment may be quashed as to some and affirmed as to others. Freeman on Judgments, 136; 11 N. Y., 294-301; 10 Ohio St. 451 ; 24 Ohio St., 87-96.</p> <p>Our statute has made all joint obligations the same as joint and several, and ail or a part may be sued, audif all are sued judgment may be rendered against all or a part.</p> <p>Gantt’s Digest 3587,4480, 4479, 4702, and 4704.</p>

<p>1. Appeai : From County Court’s refusal of liquor license.</p> <p>Upon the refusal of a County Court to grant license to soli liquor the applicant may appeal to the Circuit Court.</p> <p>2. Liquor : Discretion of County Court in granting license to sell.</p> <p>The County court has the discretion to grant or entirely refuse license to sell liquor at all, in township or city wards, where the county and township, or ward, have voted for license: but if it license some it cannot arbitrarily refuse other applicants in the same township or ward who are of good moral character and comply with the requirementsof the statute; and when some are refused, the Court should give its reasons, so that an appel. late court may see whether a sound legal discretion has been exercised.</p>

Hon. M. T. Saunders, Circuit Judge. Poll books must be returned by judge of election. Secs. 41,42, 43, cfee., Acts 1875, p. 100. The statute is mandatory, HeCrary on Elections, Se os. 199-200. The board of canvassers may determine whether what purports to be, are the returns, lb., Sec. 82. Proof of genuineness of returns transmitted through private and unauthorized channels, lb., Secs. 160, 441-2-3.

H. Mathes, Special Judge. It was error to instruct the jury that although the defendant might be guilty of several distinct sales of liquor, yet, if they found that each of said sales had been put in evidence upon a former trial, without any election by the State as to which offense it would rely on, the former conviction would be a bar. 1 Bish. Or. L. Sees. 1065 — 997—1049—51—52, ' The correctness of the instruction is apparent. 40 Ark., 453; Whart. Or. Eo.

Hon. J. M. Bradley, Circuit Judge, The indictment was drawn under See. 1298 Gantt’s Digest, and meets the statutory requirements lb See., 1796. It need not be in strict statutory form. Lacefield v. State, 34 Ark’s., 275.

Hon. J. M. Bradley, Circuit Judge. The 3d and 4th instructions of the court were erroneous and misleading. The evidence clearly shows, taking all the circumstances into consideration, that the Derringer pistol was carried and intended as a weapon.

R. B. Rutherford, Circuit Judge. The instructions of the court are not embodied in the bill of Exceptions — nor do they appear in the transcript. The evidence, circumstances and surroundings clearly establish, that witness purchased and appellant did sell the whisky. It was the merest subterfuge to evade the law.

J. M. Bradley, Circuit Judge. This is clearly gaming or betting under See. 1564 Gantt’s Big. The 8d instruction clearly erroneous. This is not a case of gaming.

Hon. R. B. Rutherford, Circuit Judge. Municipal corporations in this State have express power to regulate drays, carts &c. &c; the power to regulate includes the power to license, and to charge a reasonable amount, as a means of regulating. Acts 1875, Secs. 17, 6, 12, 22; Const, Art II, Sec, 23; 10 Ohio, 257, 261 ; 12 Cent. L. J., 379 ; 20 Am. haw Reg., 473, 476 and notes; 88 III., 221; 11 Mich., 352; 40 Id., 258; 60 Penn. St, 451; 34 Ark., 608; 33 Id., 436; 1 Dill: Mun.

Hon. J. M. Bradley, Circuit Judge. Conveyances made to hinder or delay or defraud creditors are void. Gantt’s Dig. Seo. 2954; 14 Ark, 69 ; 4 Vt., 405 ; Bump Fr. Couv., 234; 3 John. Gh., 500; 23 Ark., 259; 29 Ala., 607 ; 3 Dev., (N,. G.) 39. The frauds in the Harbison-Curry conveyances were participated in by all parties to them. 17 Ark, 146; 26 Conn., 480 ; 37 III., 341.

Hon. J. M. Bradrey, Circuit Judge. No re-signing by the foreman of the Grand Jury was necessary. It was returned into court in the presence of the Grand Jury, and filed, docketed and numbered. The original file mark was not erased, but it was refiled aud signed by the clerk. This was sufficient.

<p>APPEALS from Carroll Circuit Court,</p> <p>lion. J. M. Pittman, Circuit Judge.</p> <p>The indictment is in the language of the statute and good. Gantt’s Dig., Sec. 1275.</p>

Hon. J. M. Pittman, Circuit Judge. There is no question of law in this case. The evidence, though not extremely lucid and perhaps somewhat contradictory, is sufficient to support the verdict.

<p>1. Criminal Law ; Sabbath breaking by keeping store door open.</p> <p>To commit the offense of Sabbath breaking by keeping a store door open on Sunday, it is not necessary to keep it so opened as to induce customers to enter and trade. It is sufficient if the door is partially open, or intentionally left unlocked, so that any person may enter as readily as if left open. Or if it is opened to the knocking of a stranger and he admitted or invited in, this is a keeping open within the prohibition of the statute.</p>

Hon. H. B. Stuabt, Circuit Judge. 1. It was improper to require defendant’s witnesses to answer whether they had not been indicted for this same crime. Anderson, v. State, 34 Ark., 257. This was not cured by the court directing the jury to exclude from their consideration and pay no attention to the fact that they had once been so indicted. 123 Mass., 222 ; 25 Am. Ref., 85. 2.

A, B. Greenwood, Special Judge. 1. The complaint shows a good defense to the sale of the land. Hanna was mislead by the information received from, the clerk and prevented from defending. The clerk is the custodian of the records and papers. No copy of a complaint is served on a defendant. Appellant was guilty of no laches and entitled to relief. Pom. Eq. per.

Hon. David W. Carroll, Chancellor. The right of property, and its quiet enjoyment are higher than any Constitutional sanction. It is subject only to the taxing power and the State’s right of Eminent Domain. These powers must be legally and Constitutionally exercised. Const., Art. 11, Sec. 22. No one can be compelled to part with his property. 60 Maine, 290. The statute only makes articles of incorporation presumptive evidence and hence may be enquired into by the courts.

Hon. R. B. Rutherford, Circuit Judge. The Mayor has the same power and j urisdiction as J ustices of the Peace, in all matters, civil and criminal, “ All persons shall before conviction be bailable by sufficient sureties, &c.” Declaration of Rights, Sec. 8. See also Sec. 1670 Gantt’s Dig. The bail bond was properly made payable to the State. Ib. Sec. 1723.

Hon. R. B. Rutherford, Circuit Judge. Wright, to whom appellant surrendered Spain, was a Deputy Sheriff. Falconer, the Sheriff, had not qualified under his new election. As to the sufficiency of the surrender see Sternberg v. State, 41 ArJc. Wright, was not a Deputy Sheriff, and the surrender to him of Spain was not a delivery to the Sheriff or jailor.

Hon. G. S. Cunningham Circuit Judge. There was no such separation, setting apart or delivery of the cotton, as would authorize replevin. If the cotton had been burned or destroyed at the gin the loss would certainly have fallen on Graves. See 16 Ark., 90 ; 33 lb. 830; 35 lb., 169; 39 lb., 442. If the delivery of any property is accompanied by • any act to show that it is qualified it will not become absolute. 106 Mass., 433; 11116., 453.

<p>APPEAL from Ouaehita County.</p> <p>Hon. B. F. Askew, Circuit Judge.</p> <p>1. All fees allowed in criminal cases, shall, if the defendant is acquitted, be paid by the County, and if convicted, hen by the defendant, if he has property sufficient for that purpose, if uot, then they shall be paid by the County where the conviction is had. Acts 1874-5, page 169, See. 5; Gantt’s Dig., Sec. 2015.</p> <p>Nor is the County liable for costs in cases of conviction, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property, unless the court trying the case shall certify that the costs cannot be made out of the defendant, lb. Sea. 2016.</p> <p>The proof, in the ease does not show, that any of the defendants in the list of cases, in which appellee claims fees, were at any time acquitted; nor that any of them were convicted and did not have property to pay the costs; nor that execution ever issued against any of said defendants and returned unsatisfied for the want of property to satisfy same, nor that the court in which the cases were pending, had at anytime adjusted and certified the costs and expenses therein, down to the County Court. The appellee wholly failing to show any inability on the County to pay any of the costs claimed by him, he is not entitled to recover.</p> <p>2. Our Statute of Limitations in its scope and application, is general. And Counties and municipal bodies, not possessing the attributes of sovereignity are subject to its restrictions. JBouv. Inst. Yol. 1, See. 859; See also, Lane v. Kennedy, 13 Ohio St; 42 Callaway.v. Nolly, 31 Mo., 393.</p> <p>The rights involved in this case are of a private nature in reference to which, there is no reason why a County should not fall within the limitation statutes, and be affected by them. Billon on municpal corporations, 3, Ed. Sec. 675., See also Sec. 668.</p> <p>The proof shows that appellee’s right of action did not accrue, if at all later than the winter of 1874-5, and that the answer of the Statute of Limitations is a complete bar. Gaines et alv. Hot Spring County, 39 Arh., 262.</p> <p>The County is made by law liable for the eosts of criminal prosecutions originating in her Circuit Court, of offences committed within her teritory ; Gantt’s Dig., See. 2015, and 2016.</p> <p>It matters not whether there is a conviction or acquittal; the responsibility of the County is the same, except that in case of convictions, the County is not liable until insolvency of defendant is determined by return of execution or order of the court. There is no claim that any convictions were ever had in the cases in which appellee makes his charges.</p> <p>Not only so, but the County is responsibile for the laches and negligence of the prosecution. Gantt’s Dig., See. 1864-65.</p> <p>A critical examination of our Criminal Statutes, leads inevitably to the conclusion that the Statutes of Limitations has no application to the claim of the appellee, since the date of the accrual of the right of action in the first instance, is dependent upon the conduct of the State, or the prosecutions. 10 Arle., 223, and all subsequent decisions on the subject.</p> <p>In this case the accrual of the right of action is determined on the general principle, that one, having waited a reasonable length of time for another to act so as to protect his rights, has the right to say when the right of action accrues. In other words the State becomes a kind of trustee. 22 Ark, 1.</p> <p>Besides the State (the sovereign) and her paymaster (the County) are not permitted to plead the Statute of Limitation.</p> <p>At the time of the presentation of his claim to the County Court for allowance, he had a right to assume that the criminal prosecution had been dismissed or abandoned.</p> <p>The memorandum sworn to by him immediately after the destruction of the records of the County, Dec. 19th, 1875, and made out a year before on bis retirement from office is as full as he was permitted to make, Gantt’s Dig., See. 1799-1800, and that his testimony in epnfirmation of the truth of the same, is sufficient to raise the presumption of its truth. It being shown that no other proof could be had, the proof is sufficient.</p>

Hon. R. IT. Powell Circuit Judge. This was a simple money contract for services rendered as teacher. If the directors made any such contract they exceded theirpo wers and authority, and the appellant'as a quasi public corporation is not bound. Story on Agency, Sec. 172; Perry on Trusts, Vol. 2, Sec. 475, 511. The directors may be personally liable, but not the district. 2 Ark, 338; 38 lb., 454. See School Act 1875 Secs. 61, 62, 67, Ac.

Hon. J. M. Bradley Circuit Judge. The bill shows equity and was properly brought, and the proceedure is that recommended by this court. 31 Ark., 546 ; Bump on Fraud. Conveyances p. 551. There was no misjoinder of plaintiffs. All were interested in the subject matter, i. e., the object of the suit. Gantt’s Dig., Sec. .4475Story Eq. PL, Sec. 72; Culvert on Parties, Ch. 1, See. 1, p. 3-11; 6 John. Gh’y, 139; Bump. Fr. Conv., p. 547. Plaintiffs had no common interest.

J. M. Pittman Circuit Judge. There was no attempt to file this mortgage under the Act of March 10, 1877. A mortgage is filed when it is delivered to the proper officer for the purpose. Jones Chat. Mort.. 2d Ed., See. 271; 25 Minn., 81; 12 Arh., 64; 28 Arh., 248-250, no matter whether endorsed by the clerk or not, 6 Ark. 211. The law requires all mortgages to be recorded, Gantt’s Dig., 5021.

Hon. R. H. Powell, Circuit Judge. No exceptions'was taken to the instructions of the court, and no instructions were asked by either the State or defendant. The evidence sustains every material allegation in the indictment, and the verdict is not such as “to shock the sense of justice.”

APPEALS from Bradley Circuit Court. Hon. J. M. Bradley, Circuit Judge. It was not necessary to negative the prescription by a physician. All attempts to state anything in reference to physician’s prescriptions may be treated as surplusage. The exceptions in the law are not in the exacting clause and need not be negatived. It is matter to be shown in defence. Wilson v. State, 35 Ark., 414 ; Blackwell v. State, 36 Ark. 178.

Hon. G. S. Cunningham, Circuit Judge. The instructions are not embodied in the bill of exceptions, nor does the record show any restriction of the counsel to a five minute speech. It was within the sound discretion of the court to suspend the trial to procure evidence of the prohibitory order. Johnson v. State, 32 Ark., 309.

Hon. C. E. Mitchell Circuit Judge. This is an indictment under Sec. 1423 Gantt’s Dig. The court clearly erred in excluding the testimony offered. The charge was dismissed as to Royal, and proceeded against Dillingham alone, but if it had not, a case against Dillingham and another was a case against Dillingham, as the greater includes the less.

Hon. M. T. Sanders Circuit Judge. A deed defectively acknowledged conveys an equitable title. The Act of 1883, curing defective acknowledgments perfected the acknowledgment to the deed, and although executed to the firm of Mayfield & Myrick, it passed the title to be held in trust for the benefit of the firm. 3 Snead, p. 595; Parsons on Part., 333; 4 Heisk (Tenn.) 506; 55 Miss., 348; 19 Vt., 615.

Hon. J. M. Smith, Circuit Judge. The acknowledgment of the deed to Henderson was defective, and hence the deed was void. Chenault had actual notice that Mrs. Stone claimed the property. It was owned by appellant prior to her marriage, which was consummated in 1878, prior to the adoption of the Constitution of 1874, and was not such a separate estate as could be conveyed by her as a femme sole.

Hon. G. S. Cunningham, Circuit Judge. 1. The sale was never reported to nor confirmed by the Probate Court, nor was any deed brought into court. 38 Ark, 80, 81. 2. A married woman cannot bind herself by promissory note or writing obligatory to pay for land. Ghalla v. Temple 39 Ark) 29 Ark, 351; 35 Ark, 365. Nor has the Constitution of 1874, nor the married woman’s Act since, enlarged her power to contract.

Francis Circuit Court. Hon. M. T. Sanders, Circuit Judge. In Daño v. M. & L. R. R. R., 27 Ark., 564, there was an attempt to construe the laborer’s lien law of 23d of July, 1868.

<p>1. Administration : Settlements of administrators, ho-w corrected.</p> <p>Chancery has no power to correct the mere errors in an administrator's settlement; it must be done by appeal to the Circuit Court.</p> <p>2. Same ; Fraudulent settlements. Notice of the settlement.</p> <p>It is a very great irregularity for the Probate Court to confirm an administrator’s account before the notice of filing the account has been given as required by law ; but the omission of the clerk to give the notice can not make the account fraudulent.</p>

Hon. E. T. Vaughan, Circuit Judge. I. a. When a suit is bona fide, brought on probable cause, a promise to compromise is a valid consideration. 1 Chitty on Cont. 46 (16 Am. Ed. and note m.); 1 Whart. on Cont., Secs. 533 and 193; 29 Ark., 131; 21 lb., 69; 17 Am. Dee., 118; 6 T. B. Monroe, 91; 9 La., 397; 29 Am. Dec., 448 and note p. 452; 45 Jó., 257 ; 2 Douglass, 344; Pollock on Cont. p. 396. b. An erroneous deduction of law is no cause for annulling the contract. 5 Am.

Hon. F. T. Vaughan, Circuit Judge. The indictment is in the words of the statute. Gantt’s Dig., Seo. 1512; 33 Ark., 140 ; 40 Ark, 361. The indictment was based upon the Act of March 21st, 1881, and fails to follow the language. It is clearly insufficient. Acts of 1881, p. 135; State v. Moser, 33 Ark, 140.

APPEALS from Pulaski Circuit Court. Hon. F. T. Vaughan, Circuit Judge. 1. The lands were bought and paid for in 1873 while the Levee bond act was supposed to have been in force and before the passage of the act of Deo. 14, 1874 prohibiting the Treasurer from receiving levee bonds. Woodward et al v. Campbell, 39 Ark. 580, is not in point, because in that case notes were given for the deferred payments, and the payments were made after the passage of the act of Dec. 14.

Hon. J. W. Martin Circuit Judge. The court erred in modifying the first instruction asked by plaintiff by inserting the words “assenting to its terms, and thereafter holding himself in readiness to perform the same.” When two persons enter into a verbal contract and subsequently reduce it to writing, that constitutes a valid contract. It is then consummated, and no holding in readiness to perform is necessary to make it binding.

Hon. R. B. Rutherford, Circuit Judge. It was error to exclude the charter. For the nature and character of these special privileges of franchises see Kents Com. 3d Vol. Marg.p. 458, (12 Ed.). The County Court had jurisdiction to grant the franchise, and no informality in its order vitiated its action, or subjected it to collateral attack. Const. Art. 7. Sec, 28; Acts 1874-5 p. 242; 83 Ark. 191; 36 lb 641 and 467 ; 19 lb. 561.

Hon. C. E. Mitchell Circuit Judge. The parol purchase from L. R.Meek by J. L. Meek was valid, as he paid purchase money, and was then entitled to possession and title. Carroll v. Wilson, 21 Ark. 32; MoNeal v. Jones 21 Ark. 279. Appellant’s deed should be canceled for fraud on his part, as he paid nothing for it, and had notice of the right of appellant. Wynn v, Garland 19 Ark. 23; Sheilds v. Tramel et al. 19 Ark. 61; Cook v. Bronawgh 13 Ark. 183.

Hon. J. M. Pittman Circuit Judge. It was error to permit plaintiff, after submission of the case to the jury to amend the complaint. Gantt’s Dig., Secs. 4613-4616. The jury should have found the separate value of each article. 37 Ark., 545. The bill of exceptions not setting forth the instructions nor all the evidence, this court will affirm. 40 Ark, 185. The amendment was proper. Gantt’s Dig., 4616; 33 Ark, 811; 1 Mete. 339.

Hon. H. S. Cartee Special Judge. The return endorsed on the summons was signed by a “DeputySheriff, ” without disclosing the name oí his principal, and is void. Freeman on Judgments 3d Ed. See. 521; 1 Ark 268. The record was not duly authenticated. Act of Cong. May 20th 1790; Hempst. 538. Judgments of Justices of the Peace are not within the Act of Congress, 1 Gr. on Ev. See. 505 and note 6; Gantts Dig. p. 136, note b. cfee-; 5 Wend. 148; 21 Am.

Hon. J. G. Frierson Circuit Judge. Mrs. Jackson was engaged, in business on her .own account as a partner of Conner, and they bought the land as a partnership investment and it was used for partnership purposes. Being so used, it ought to be treated as personalty, and the $1000 invested by her can be entitled to no superior recognition or preference. The Act of 1883 cures all defects in the acknowledgment of the mortgage.

R. G-. Shaver Special Judge. (Argue upon the question of notice, and the merits generally, which questions are not gone into by the Court.) The petition of appellants does not show that they are interested parties. Under Sec. 81, Act Mch. 9, 1875, Acts 1874-5, p. 34, 35, &c., no one other than interested parties have a right to interfere to prevent annexation. The petition does not show that the territory had been accepted by the town of Lockshurg.

Hon. C. E. Mitchell Circuit Judge.. Tbe instrument is not a bill of exchange, but a mere certificate of indebtedness from appellee to the drawer. 11 Ark, 314. It was drawn on a particular fund. 16 Ark., 494. The acceptance was contingent and the contingency might never happen. The most that could be said of the order and acceptance is, that anactionfor money had and received might be maintained. 14 Ark., 389; 5 Ark., 401.

Hon. E. T. Vatjghn Circuit Judge. While the instructions, most of them, are law, they were not applicable to the proof in this case, and hence abstract and misleading. 37 Ark., 591-598. The court should have added to the 8th instruction, the prayer of defendant, “it is only for culpable negligence of defendant after being apprised of the situation of plaintiffs’ property that defendant is chargeable.” This is elementary law.

Hon. J. M. Bradley Circuit Judge. The transcript of the proceedings in the Justice’s Court shows no valid judgment in favor of J. S. Terry against defendant. 1. Judgments of Justice’s are tested by their substance rather than their form. Freeman on Judg. /Sec.47-53, 53 a &c., 55 and note. The form of the docket entry is sufficient. 2. Defendant does not allege that he was not duly summonsed, nor does he allege that the judgment was rendered without notice or fraudulently.

APPEAR from Bradley Circuit Court. Hon. J. M. Bradley Circuit Judge. The Justice failed to properly authenticate his transcript. Gantt’s Dig. /See’s.3825-3828 ; 2 Dng., 203; 16 Ark., 485 ; 19 Arh., 647. There was no judgment rendered in the Justice’s Court, hence there could be no appeal. The judgment in the Circuit Court was coram ■non judice and void.

J. M. Bradley Circuit Judge. The assignment of the judgment did not confer upon Adams the right to sue in his own name. Judgments are not included in our statute of assignments, and in regard to their assignable qualities they are mere choses in action., 11 Ark., 744, 748; 23 Ark., 171.

Hon. M. T. Sanders Circuit Judge. Tbe County Court had no jurisdiction to Ieyy the taxes because no legal assessment of lands had been made by the assessor, for: ' ' 1. He did not file in the clerk’s office his official oath required by law.; Sec. 20, Art. 19, Const. In addition to this.he is required to take the oath prescribed by Acts 1875, Sec. 6 p. 228. 2. He did not view each particular tract of land before valuing same. Gantt’s Dig. Seo. 5117. 3.

Hon. J. M. Pittman Circuit Judge. Fines, forfeitures, &c., are payable into the treasury of the county where imposed or where the convietion is had. See. 1, AetD'ea. 14, 1875, p. 135. The payment' of costs by a county does not entitle it to the fine or forfeiture. The payment by Benton county was voluntary. She perhaps looked to Secs. 2015-16-17, Gantt’s Dig., and Ouachita County v. Sanders, 10 Ark., 467, made under former statutes..

Hon. J. M. Pittman Circuit Judge. 1. Serving on the grand jury that found the indictment • is no disqualification from serving on the petit jury, it is only grounds for challenge. Gantt’s Digest, Seo. 1911. 2. When the jury was sworn the jeopardy commenced, and when it was discharged or a juryman withdrawn it operated as an acquittal. Const., Art. 2, Seo. 8; Bishop Cr. Daw, 856-8; 26 Arle., 260. 3.

Hon. J. C. Palmer Special Judge. The certificates being issued on bank note paper, in the similtude of bank notes, and intended to circulate as money were void. Gantt’s Dig. Sec’s. 748-752; Bishop on Gont. Sec. 458; 5 Ark, 358 j 32 Id., 631; 17 Mass. * p. 259; 21 Iowa, 565 ; 9 Paige, 470; 12 Wall., 342 ; 4 Id., 447; 3 McLean G. G., 102 ; lb., 265. If appellee had any right it was against the individuals who signed them. Gcmtt’s Dig., supra; 32 Ark, 640-2-3.

Hem, R. H, Powell Circuit Judge. The indictment is in almost the exact words of the statute, and the motion in arrest was properly overruled. Ads 1874-5 p., 129-180. The mortgage was duly filed and “ abstracted under the Act of 1877, and the evidence clearly shows that defendant both sold and bartered personal property upon which there was a duly recorded mortgage. The Act makes it a crime, and no intent to defraud need be proved.

Hon. F. T. Vaughan Circuit Judge. 1. In criminal cases counsel cannot bind a defendant by admissions, nor can he weaken nor impair the all-embracing force of the plea of not guilty. ■ He c'anuot waive any of defendant’s rights. 16 Ark, 601; 17 Id., 290; 20 Id., 106; 21 Id., 198 lb-, 228; 22 Id., 211. No admission at the trial can be of. any validity which is not made directly and with full attentive consent as a part of the record.

Hon. J. M. Pittman Circuit Judge. Appellees are -barred by limitation, Sec. 4117 Gantt’s Digest, also by two years limitation curing all defects in the manner of assessing, levying of taxes or any other irregularity of any officer. Seo. 5217 Gantt’s Digest. Having established a prima -fade title in appellant by the certificate of the clerk duly recorded, and chain of title from the State, the burden to disprove was on appellees.

Hon. H. B. Stuart Circuit Judge. So much of the testimony of C. S. Hill, J. C. Pettus and C. A. Hightower as relates to transactions with or statements oí M. O. Hill deceased should have been excluded. Sec. 2 of Schedule to Const. 1874. So much of the testimony of Mrs. C. A. Hightower as relates to the statements made by M. O. Hill in her presence and hearing, while she was his wife, should have been excluded. 1 Greenl. on Ev.

Hon. J. M. Bradley Circuit Judge. 1. No judgment was rendered by the justice, not even a verdict, and the Circuit Court had no jurisdiction. 12 Arh., 670. 2. The letter of Jno. A. Smith was written alter the sale, and falls within the rule of declarations made by a vendor after the sale when the vendee is not present. 17 Arh., 9 ; 33 Id., 207. 3.

Hon. M. T. Sanders Circuit Judge. It was error to allow the petition to be amended. The whole territory, as far as the inhabitants of the town were concerned, became part of the town upon the vote being taken, unless a remonstrance should be sustained, and the County Court had no authority to exclude any part of it. Corporation Aot 1875, See’s. 84, 35, 36, 87 and 90; 33 Ark., 508; 1 Dillon on Mun.

Hon. M. T. Saunders, Circuit Judge. It was error to refuse instructions No’s. 6, 8, and 10, asked for defendant in regard to the effect of drunkeness upon the mind. The State totally failed to prove the corpus delicti, and this is fatal. No witness swore that the party alleged to have been killed was dead, or killed, or that he had seen the dead body, or that even he had disappeared. 2 Greenl. on Ev.'Scc. 278; 4 Id., See’s. 131, 132; Bishop on Cr. Pro., See. 5010 note.

Hon. J. M. Bradley Circuit Judge. There was no evidence of a legitimate character showing that the defendant ever personally offered a reward, but on the contrary the testimony shows that but one reward was offered and that by the firm, nor was there any evidence to show that the men arreBted were the ones who committed the burglary. Plaintiff failed to show that the conditions of the reward were complied with.

Hon. J. M. Bradley, Circuit Judge. The transcript from the Justice returned on certiorari, shows that there was service, though informal, that the defendant appeared by attorney, and that the Justice had jurisdiction of the subject matter. Certiorari, at common law was a writ issuing out of Chancery or King’s Bench. Paeon’s Abs. Title, Certiorari. It is in the nature of a writ of error. 112 Mass'., 206.

Hon. J. M. Pettigrew, Circuit Judge. The indictment is bad because it does not set out with certainty the crime defendant is alleged to have intended to commit when entering the house. 24 Ges. 24; 12 Tex-Ct. of App., 395 ; Gantt’s Dig. See. 1796. Nor does it con. tain the word “ maliciously.” Gantt’s Dig. Sec., 1348 ; Waterman’s U. S. Or. Dig. p. 343, See., 230; 34 N. II. 510; 1 Chand. 166. As to what is an out house see Bowvierp. 147; Bishop Or.

Hon. R. H. PowELt, Circuit Judge. The mortgages were properly acknowledged and recorded, long before the rent contract was written, were regular, and certainly admissible for what they were worth. 38 Arh., 190. Parol evidence to fix the particular 10 acres, clearly admissible. 39 Arh., 394. Replevin does not lie to enforce a landlord’s lien, only attachment. 24 Arh., 549; 36 Id., 572; 39 Id., 575.

Hon. G. S. CunntnGHAM, Circuit Judge. It was a sale at Ozark. See Benjamin on Salea? Ath Am The sale was at Little Rock. The express company was the agent of the vendee to receive and deliver the goods, and the agent of the vendor to collect the purchase price.

The Legislature can’t delegate the power to make laws, but it can make a law to delegate the power to determine some fact or state of things, upon which the law makes or intends to make its own future action depend. Boyd v. Bryant, 85 Ark., 69. and authorities cited.

Hon. J. M. Bradley, Circuit Judge. The only effect of par. 5 Sec. 4, or of the 5th division of Sec. 5. Rev. Act 1883, was to practically amend Sec’s. 2 & 4 of Act March 8th 1879, so that dealers as referred to in these sections could sell in any quantity.

Hon. H. H. Cate, Circuit Judge. The evidence of the whipping of Hale was admissible to show malice. The instructions were as favorable! to defendant as the law would allow, and on the subject of accomplices were almost in the language of the Statute. Gantt’s Dig. Seo. 1237. A conspirator may repent and abandon the conspiracy before the crime is executed, and is not then chargeable as an accessory or conspirator, 3 Greenl. Em.

Hon. J. B. Wood, Circuit Judge. The indictment charges, and the evidence shows, a sale in JDeo., 1883, while the record of a former conviction shows a sale to the same minor in Sept., 1883. The burthen was on the defendant to show the identity of the two offences. If was not necessary for the State to prove that the minor did not have the written consent of parent or guardian. This was a matter of defense and the onus was on him to show it, if true.

Hon. J. B. Wood, Circuit Judge. Circuit Courts have exclusive original jurisdiction in all cases where the jurisdiction is not given to any other court. Const, Art. 7, Seo. 11. Justices of the Peace have exclusive jurisdiction in all matters of contract, and concurrent jurisdiction in all matters oi damage to personal property when the amount does not exceed $100. Art 7, Seo. 40, Const.

Hon. H. B. Stuart, Circuit Judge. The indictment is under Acts 1874-5 pp. 129-130, and the mortgage was duly filed and recorded under Acts 1877 pp. 80-82.

Hon. C. E. Mitchell, Circuit Judge. This was an indictment for slander under Secs. 1544 * * 1551; Gantt’s Digest. See. 1551 makes slander a crime, and if, because the punishment prescribed by Sec. 1551 does not make the ofíense definitely either a felony or a misdemeanor, but leaves it to a jury to determine, the penal parts of said section are void, yet the other sections are valid, and the crime could’be punished under Seas. 1995-6.

Under the three mile law as first enacted, there was no limitation as to'the time it should remain in operation. This order was made in 1881. By acts 1883, pp., 54 & 55, all orders before that date expired on 1st January, 1884. The indictment was found 13th April, 1883, when the prohibitory order was in full force. The pretence of a sale of turpentine was a mere subterfuge to evade the law.

Hon. P. T. Vaughan Circuit Judge. Appellant was not furnished with a copy of the indictment 48 hours before trial, Const. 1874, Art. 2 Sec. 10; Gantt’s Digest, See. 1825, and he refused to waive this right.

Hon. G. S. Cunningham, Circuit Judge. The deed being in proper form is prima faoe evidence of the legality of the sale,' 20 Ark., 114, and its recitals sufficient to make it evidence, 12 Id., 882; 21 Id., 582. Burden of proof upon party assailing title. 18 Id., 423; 15 Id., 301; 20 Id., 277,114; 7 Id. ,424. The statute requires suit to be brought within two years, 30 Ark., 44, and the statute begins to run from time of sale. 22 Id., 178 ; Gantt’s Dig., Sec., 3899, 4117.

Hon. G-. S. Cunningham, Circuit Judge. The “annual school meeting of the district” is not an election within the meaning of the law. Statutes in declaring what acts shall constitute an offense and in prescribing the punishment to be inflicted, are to be construed rigorously. 6 Hill, 616. School districts are bodies corporate, quasi municipal corporations.

Hon. C. E. Mitchell, Circuit Judge. The evidence as to the oral contract to take interest in the land in discharge of appellant’s note was inadmissible under the issue raised by the answer. Appellee pleaded payment and the evidence tends to show, if anything, accord aud satisfaction. Our code has not abrogated all the old landmarks, nor gone to the extent of abolishing the rule that the allegations and proof must agree.

<p>APPEAL from Ciarle Circuit Court.</p> <p>Hon. H. B. Stuart, Circuit Judge.</p> <p>Tbe acknowledgment, if void, was cured by the Act oj March 8, 1883, p. 107, and the trust deed bound the property to the exclusion of the execution. Act Feb. 11, 1875, p. 149.</p> <p>The deed of trust was good as between the parties there being no subsequent intervening rights. 25 Ark., 152.</p> <p>The acknowledgment having been taken before a party to the deed, was void. 46 Ga., 258; 61 IU., 307; 20 Iowa, 231; 20 Mo., 413; 83 111., 136 ; Jones Ch. Mort., Sec. 249 ; 12 Cent. Law J., 502, and the execution lien prevails.</p>

Hon. T. F. Sorrells, Circuit Judge, It was essential to the validity of the proceedings of the school meeting that notice of the time and place of the meeting should have been given by the sheriff as provided by the Act December 1, 1875. Acts 1875, p. 43; Hodgkin v. Fry, •33 Ark., 716. Notices required in relation to steps to be taken in assessing and levying taxes must be strictly complied with. Cooley on Taxation, pp. 218 and 335.

<p>APPEAL from Lincoln Circuit Court in Chancery.</p> <p>Hon; J. A. Williams, Circuit Judge.</p>

Hon. J. M. Bradley, Circuit Judge. A voluntary conveyance, made to hinder, delay or defraud creditors, is void, as to creditors, the grantor being insolvent. 1 Conn., 525; 8 Ark., 745; Bouvier Law D., Vol. 2. p. 636; Bump Fraud. Corn., p. 296; Gantt’s Dig., Sec. 2954. The conveyance being fraudulent, the title never passed from H. D. Snyder, and the laud was subject to execution.

Hon. J. N.'Cypert, Circuit Judge. The fact of the redemption by the Ewart heirs, being prior to the sale to appellant’s intestate, is conclusively established by the record in the Ewart v. Carville suit, to which appellee’s intestate Jacks was a party duly served with process but made default, and Jacks was conclusively bound by the determination of that suit, since he had an opportunity of controverting plaintiff’s cause of action and refused to do so.

<p>APPEAL from Lincoln Circuit Court.</p> <p>Hon. X. J. Pindall, Circuit Judge.</p>

Hon. J. N. Cypert, Judge. Where a vendor during a negotiation for a sale makes a false and fraudulent representation that induces another to purchase, he is responsible for the damage sustained, by the purchaser, although the fraudulent representations were not made directly to him, but to another. Alexander v. Beresford, 5 Cushman, (Miss.), 747. In civil as well as criminal matters, a person is responsible for all consequences that reasonably result from his acts.

Hon. R. PI. Crockett, Special^Judge. The appellant was an innocent purchaser for value without .notice; he went into possession at once, occupied and cultivated the land all the time from the date of his purchase to the commencement of the suit, more than eight years, and the statutes of limitations, which he pleads, was a good defence. Gantt’s Digest, See. 4113; 34 Ark., 534; 38 Id., 181 — 193. The deed from Shannon to Winfrey was not on record.

Hon. John R. Eakin, Chancellor. At common law, in the English and Federal courts and a majority of the States including Arkansas, a mortgage is regarded as a conveyance in fee, the legal tide vesting in the mortgagee while the equity of redemption remains in the mortgagor. In many States, this has been changed by-statute or judicial construction until no title or estate passes to the mortgagee either at law or equity. 2 Wash. JR. P., p. 104; 108 n 8.

PI on. J. W. Martin Circuit Judge. In order to bar tbe claim of a mortgagee there must be an open, notorious and adverse possession. Birnie v. Maine, 29 Ark., 591. In this case there was no adverse holding; no disclaimer of appellant’s title.

Hon. J. N. Cypert, Circuit Judge. 1. It was error to declare a lien on the lands for the amount of the taxes upon the personal property. There is no law to warrant it. 2. It is not averred that Delatour was seized or had the care of the lands, and this case falls within the rule of Peay, adm’r v. Field, 30 Ark., 690; Gantt’s Pig., Sec. 5233.

Hon. B. E. Askew Circuit Judge. Promissory notes given for the purchase of land are subject to taxation. They are property within the meaning of the Constitution, and the Revenue Act of 1883, and hence taxable. Const. Art. 16 Sec. 5, Art. 2 Deck of Bights, Secs. 2 and 20; Gantt’s Big. Secs. 1529-30; Probst & Hilb v. Scott 31 Ark. 656; Bouvier Law Bid. - 4 Pet. 511; 17 Johnson 283; 2 Kent p. 406 note A. 9th Ed; Bouv. Inst. Vol. 1, Sec. 481, 468; Story on Const.

Hon. J. P. Wood, Special Judge. 1. So long as railroads are run on their published time table, parties purchasing tickets and contracting for transportation must take notice of the rules. And if they fail to do so they cannot ask the court to relieve them from their contract, and to make contracts for them. Thompson on Carriers of Pass., p. 68, Sec. 4, and p. 70, Sec. 6. 2. The verdict was excessive, and the jury misdirected as to the measure of damages.

Hon. R. H. Powell, Circuit Judge. 1. Where two parties have an interest in property, or when by agreement two persons place it in the hands of a common bailee, replevin does not lie, neither having the exclusive right to the possession. 37 Ark., 66; Gantt’s Dig., Sec. 5035; 17 Ark., 450, 39 Ark., 447; 16 Ark., 90. Between the parties there can be no question as to the gift or title of the wife, her possession being presumed legal prima fade evidence of title. 38 Ark., 416.

Hon. R. II. Powell Circuit Judge. 1. The annexed complaint good, the title sufficiently stated, with deed exhibited and set out. Acts 1875, p. 229. 2. The deed from the state is sufficient evidence of appellant’s title, and that all things required were properly done, until the contrary is shown. Act Dec. 13 1875, p. 92; 31 Ark. 609, 610. 3.

Hon. G. S. Cunningham. There was no proper service on Epps. Gantt’s Dig., See. 4511-4514. And the Justice had no jurisdiction to render judgment by default. Judgment without notice is void. lb., See. 4738. Epps only appeared for the purpose of moving to quash the return, and objecting to the Justice taking jurisdiction. This was not an appearance to the action, lb., 3736; 3 Ark, 532; 5 Id., 409; 18 Id., 308; 1 Id., 376; 5 Id., 517; 20 Id., 12.

Hon. R. H. Powell, Circuit Judge. The dwelling place of Krone’s family was not necessarily his domicile. The domicile of the family follows that of the head. Absence from the state does not make one a non-resident, however protracted, if he has the animo revertendi. 29 Arh., 280; 13 Mass., 501; 5 Bush, 671; 19 Wend., 11. “Residence” and “domicile” are not synonymous. One may have his residence in one state and his domicile in another.