Volume 44 — Arkansas Reports

Hon. M. T. Sanders, Circuit Judge. Oliver v. Memphis $ Little Rock Railroad Company, 30 Ark., 128, fully settles the right of the plaintiff to the exemption claimed under section 2, act of January 20, 1855, unless it be shown to have been forfeited by a foreclosure sale.

Hon. J. N. Cypert, Circuit Judge. Interest should have been allowed appellant on his advances. When one party pays money the benefit of which is claimed by another party, interest should be allowed to the party who pays the money. 2 Story on Contracts, section 1025. This .case is similar in several respects to Sutton v. My-rick, 39 Ark. A trustee cannot improve his cestui que trust out of his land.

Hon. J. A. Williams, Circuit Judge. Three years’ adverse possession of personal property, with or without the knowledge of the plaintiff, vests the absolute title in the defendant. Gantt’s Digest, see. lf.1%0; 18 Ark., 384; lb., 463; 33 lb., 134.

Hon. R. B. Rutherford, Circuit Judge. A nolle prosequi - is not an acquittal in the sense that a future prosecution is barred by it; but as between the State and the individual indicted it is an acquittal. So far as that indictment is concerned, the defendant goes without day. The county is liable only where there is an acquittal.. Bradley County v. Bond, 37 Ark., 226. A nolle prosequi is not an acquittal.

Hon. D. W. Carroll, Chancellor. The August contract is plain and unambiguous; there is no room for construction; it means just what it says ; no latitude or discretion is given to either party in the matter of making new accounts or giving credit, and if either partner sold or gave credit without the knowledge and consent of the other, he did so at his own peril, whether he thought or had reason to believe the customers were solvent and prompt paying or not.

Hon. M. T. Sanders, Circuit Judge. 1. There was no proof of value at all. Defendant was not indicted under the acts of 1883, page 10. Bishop, Cr. Pro., vol. 1, secs. 442, 360, 366; 13 Ark., 66. 2. The evidence was totalljT insufficient to sustain the verdict. There was no proof that. Shepherd was present or participated in the theft, or knew that the cow was stolen. The corpus delicti was not proven. There is no proof that the cow was stolen. Bishop Crim.

Hon. J. A. Williams, Circuit Judge. The attempted disposition of his property by O. P. Snyder, was at best only testamentary, and possessed none of the elements of a gift causa mortis. If it was testamentary, it was of no validity. A gift causa mortis, to be effectual, must be consummated prior to the death of the donor, subject to be defeated by reclamation or recovery, but must be as effectual as a gift inter vivos.

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. H. W. Carroll, Chancellor.</p>

Hon. M. T. Sanders, Circuit Judge. 1. Before the Burford notes were paid by foreclosure and sale, the original suit was pending, and appellant thus had full notice of appellee’s claim. To claim the benefit of a bona fide purchaser without notice for value, it is necessary to aver that the vendor was seized in fee and in possession, should state consideration, and deny notice previous to and down to the time of paying the money and delivery of the deed.

Hon. J. M. Smith, Circuit Judge. 1. The Greens had a right to make the contract discharging the note and mortgage. They had no knowledge that either the note or mortgage had been assigned. In such case the assignee takes subject to all equities, before the assignment and up to the time the maker had notice of the assignment. Wade on Notice, secs. 431-3; 3 N. H., 359; 19 John., 341; 18 lb., 493; 16 lb., 226; 8 Me., 77; and especially 2 John.

Hon. G. S. Sanders, Special Judge. All the allegations in the complaint which charge liability upon the defendants, or either of them, are positively denied under oath, and the burden is upon plaintiff. The only evidence produced to establish the liability of the' defendants, rests upon the declaration of defendant Jacks. Yerbal admissions ought to be received with great caution. (1 Gr.

Hon. H. B. Stuart, Circuit Judge. McKinney was in possession, and not wrongfully, inasmuch as Demby had failed to pay the three dollars on the ■day agreed upon, which was a condition precedent to delivery of possession. Both parties claimed under Ma-berry; plaintiff under a contract to sell and defendant under an actual sale completed by payment and delivery of possession.

Hon. E. T. Vaughan, Circuit Judge. Haines was entitled to all the equities that Puckett was. 6 John. Gh., 403; 49 N. H., 444 ; 33 N. Y. (6 Tiff.), 658. The proof fails to show any agreement on the part of Puckett to sell to McGlone. There was no “meeting of minds” nor “consideration,” two essentials to every contract. The findings of the Chancellor as to matters of fact, will be reversed unless sustained by the evidence.

Hon. R. B. Rutherford, Circuit Judge. The weight of authority and better reason are that a promise to pay after the adjudication but before the discharge in bankruptcy, will not revive the debt. 79 Kentucky, 538; 80 Ib., 81¡,1. The court erred in giving the instructions on its own motion. The first did not limit the time of the promise, and was otherwise objectionable.

Hon. M. T. Sanders, Circuit Judge. Burkett having no written contract had no laborer’s lien. Nor had he any lien as a pledgee — he was merely the servant of Hurt, and as such hauled the cotton to the gin. But if he -was a pledgee, he lost his lien by leaving the cotton with the ginner, and Gates’ trustee came into peaceable possession, and lawfully. Retention of possession is as essential to a pledgee as to get possession. (8 Jones, N. G., 453; 38 Ga., 391; 19 La.

Hon. J. M. Bradley, Circuit Judge. The parties had no jurisdiction of the action. The Constitution expressly limits the jurisdiction in such actions to cases involving one hundred dollars or less. Art. 7, sec. 40, subdiv. 2.

<p>APPEAL from Sevier Circuit Court.</p> <p>Hon. W. T. Campbell, Special Judge Circuit Court.</p> <p>The writing obligatory under seal was executed after the. adoption of the Constitution of 1868, and was not barred until the expiration of ten years. Schedule to Const. 187 sec. 1; Dyer v. Gill, 33 Ark., J¡,10.</p>

Hon. C. E. Mitohel, Circuit Judge. 1. The offer to compromise and confess judgment, under sections 4752, 4758-9 Gantt’s Digest, the acceptance by defendant, and the judgment rendered thereon for eighty-five dollars, and payment by the clerk as ordered by the ■court, was a full disposition of the case, and should have been final. 2. The Kirbys had no cause of complaint. They were not subrogated to the rights of the owner of the land.

Hon. J. A. Williams, Circuit Judge. 1. The complaint is deficient in not stating that defendants consented to accept the cotton as bailees, or to act as plaintiff’s agent in the matter. (Chitty PL, 10th Am. ed., vol. 1, 'p. 884-) Nor does it contain sufficient averments to constitute a cause of action for money had and received. {36 Ark., 6767) Before there can be a bailment, there must be title and right to possession.

Hon. H. B. Stuart, Circuit Judge. A bond for title by a married woman is void. (.Felkner v. Tiglxe, 39 Ark., 357.) The deed is good and valid, although the husband did not join in the execution thereof. (Roberts v. Wilcoxson, 36 Ark., 355.) The statute and Constitution does not limit a married woman’s power to convey her real estate to any particular purpose or consideration. (She need not acknowledge a consideration.) 35 Ark.,480.

Hon. J. M. Bradley, Circuit Judge. Proof of good character as a man of peace, creates a reasonable doubt of guilt. The court erred in refusing tbe eleventh instruction for defendant. 38 Ark., Carlton on Homicide, 311; Burrell on Cir. Ev., 531. When a witness for the State is recalled, defendant has the right to cross-examine on the whole case. Or. JEo., see. 44¶- The testimony of Hughes should have been excluded, the survey not having been made as required by law.

Hon. J. A. Williams, Circuit Judge. 1. The court erred in admitting the testimony of Ike Harris. One convicted of petit larceny, even after pardon, -cannot testify in a criminal ease. Digest, $4,8$; 35 Ark., 4Jff); 39 lb., $29; Greenleaf Bo., 12th ed., sec. 378 and note. 2.

Hon. J. M. Pittman, Circuit Judge. Appellant was neither a sewing machine company nor a general agent of a sewing machine company, nor the sub-agent or employe of a general agent, and hence not liable to pay the' license imposed by section 4, act of March 31, 1883, page 211.

<p>APPEAL from Pulaski Chancery Court.</p> <p>Hon. D. W. Carroll, Chancellor.</p>

Hon. Mark Valentine, Special Judge. Whatever balance remained after paying the mortgage debt belonged to the mortgagers. (2 Jones on Mori., sec. 1687.) It was the Master’s duty to collect the money and hold it subject to the order of the court.

Hon. D. W. Carroll, Chancellor. 1. Lucchessi and Henry were purchasers pendente lite, and bound by the result of this suit. 2. The defense of want or failure of consideration has failed. Rudd & Andrews had already bought the block of Edgerton, and on the following day procured Edgertón’s bond for title. At the time of the final hearing they tendered in open court the absolute deed of Edgerton for the property.

Hon. J. M. Smith, Circuit Judge, A purchaser by quit-claim deed is not entitled to protection as an innocent purchaser for value without notice; he takes only what the vendor can lawfully convey. (3 How., 333; T3 Wall., 8®3; 34 Texas, 44P H Minn., 405.) Fletcher’s deed was a mere release, and the Rowlands had nothing to release. Appellee purchased with full notice of appellant’s title, actual notice, and it matters not whether his deed was recorded or not.

T. C. Peek, Circuit Judge. 1. The judgment is void for uncertainty. 2. The court erred in sustaining a general demurrer to the bill. 3. The court erred in deciding the cause res judicata. 1. Courts of equity do not reform married women’s deeds. 89 Ark., 180; 1 Bish. on Married Women, sec. 599; 88 Ark., 1¡A0. 2. The matter was res judicata. 38 Ark., j57; 10 lb., 186; 13 lb., 103; lj lb., 30j; 11 lb., 151; 88 lb., 176; 81¡. Minn., j.; Jj9 Texas, 81¡B.

Hon. D. W. Carroll, Chancellor. 1. The court had power to review the award. Gantt’s Digest, chapter 6, sections 251, 252, 253, 25Jp, etc. 2. The main contest was whether there was a partnership or not, and the arbitrators wholly failed to decide the point, but undertook to compromise, or do general ■equity. Nor was the award final, nor co-extensive with the submission, and the exceptions on these grounds should have been sustained.

Hon. J. M. Pittman, Circuit Judge. Appellant had the right to show the insolvency of the judgment debtors, that nothing could be made, and hence appellant was not damaged.

<p>On motion to correct the decree Heretofore entered in this case.</p>

Hon. J. P. Peel, Special Judge. Where consideration is impeached for fraud, party claiming under the deed cannot aver in its support considerations different from that expressed in the deed. (Kerr on Fraud and Mistake, p. 191, and authorities.) Where deed is assailed by creditors, no evidence is admissible which contradicts the deed or changes its character. 1 Bump on Fraud. Conv. {3d ed.), top pp. 596-598-9 and 42-43; Condensed Rep.

Hon. J. G-. Frierson, Circuit Judge. 1. As to the exclusive rights of the owner of a ferry franchise, see Gantt’s Digest, section $1923. While appellees did not pretend to keep a public ferry, they did keep a private one, which is within the spirit and policy of the statute. Only bank owners have the right. Sec. £904 Gantt’s Digest; £5 Ark., £8. Appellees had no right of entry or way on or over appellant’s lands even in eases of absolute necessity. They were trespassers.

Hon. J. A. Williams, Circuit Judge. .Before a vendor by title bond can have a decree against his vendee for the purchase money, he must at least bring a deed into court and tender it, otherwise he must fail. £8 Ark., £7,176; Dart, on Vendors, Waterman’s ed., 619-£0; Sugden on Vendors, 116; 6 Hare, £1¡!7; 1 Tar. Russel, ch. 78. Review cases in 17 Ark., £79; £6 lb., 606; £8 lb., £7; £8 Ark., 179, and contend that no tender of deed was necessary.

Hon. M. T. Sanders, Circuit Judge. This was a suit on a bond executed under section J¡,06 Gantt’s Digest. 1. The liability of appellants should have been settled and determined in the original suit. (Act March 10, 1875, pages 7 and 8; Acts 1875, adj. sess.; 34 Ark., 707.) The •suit on the bond was unauthorized. 2. The court had no right to try the cause without a jury. (Sec. 4641 Gantt’s Digest; lb., sec. 4685.) There was no waiver of a jury trial.

Hon. J. M. Bradley, Circuit Judge. The carrier, having stipulated for exemption from loss by fire, was only liable for negligence, and the burden of proving such was on plaintiffs (39 Ark., 583), and there was not a shadow of evidence to show that the fire originated or was caused or permitted by the negligence of appellant or its servants or employes. The extraordinary circumstances of the burning call for some explanation on the part of appellant.

Hon. J. A. Williams, Circuit Judge. Plaintiff was entitled to a judgment in the alternative for the ties, if to be had; if not, their value. Gantt’s Digest, secs. 4688, 4718. The owner of land may recover timber cut and taken therefrom, when worked into rails, cross-ties, etc., by a trespasser, whether it be found in his possession or that of his vendee. 8 Itawle, 4^8; 8 Wendell, 505; 84 Am. Dec., 66-7-8, 71 and 75; 4 Dill.

<p>1. Agency’: Declarations of agent as proof of.</p> <p>The declarations of a husband as to his agency in transacting business for his wife, are not sufficient evidence of his authority to act for her.</p> <p>2. Lex Loci: Contracts.</p> <p>Matters bearing upon the execution, the interpretation and validity of a contract, are to be determined by the law of the place where it is made.</p> <p>3. Motion eor Hew Trial: Assignment of errors.</p> <p>The assignment in the motion for new trial, that “the judgment of the court • is contrary to law,” is too general to question in this court the correctness of the declarations of law made by the Circuit Court.</p>

Hon. J. M. Pittman, Circuit Judge. In executed contracts to obtain a rescission the party-must allege and prove a distinct case of fraud, where a fraud is relied on for relief. {18 Bush., Ky., 893; 59 III., 375.) Here there was no fraud. Appellant submitted the machine to a practical test; appellee saw it work, and accepted its performance as satisfactory. He cannot now object or demand rescission. 1 Srn $ M., 44-3; 13 Peters, 86.

<p>Petition for Mandamus to Clerk of Circuit Court, of Crittenden County.</p>

Hon. R. H. Powell, Circuit Judge. The court had jurisdiction. Two of the appellees reside in Sharp County, and part of the subject matter exists in said county. The liability of Lawrence accrued prior to the act of 1879, repealing secs. 937-8-9 and 1¡S16 Gantt’s Digest; and a law which abrogates all remedy is inoperative, and is to that extent unconstitutional.

There was a complete sale and delivery in the city of St. Louis. The order was received by appellants, and goods delivered to the Iron Mountain Railroad, a common carrier, before the dispatch countermanding the order was received. Black & Reaves disclosed no authority to countermand the order, and even had the telegram reached appellants before delivery of the goods they would not have been bound to respect it.

CROSS-APPEALS from Lincoln Circuit Court iu Chancery. Hon. John A. Williams, Circuit Judge. The court erred in divesting Wm. E. of his possession and control of the land, and in decreeing partition. The instrument was good as a covenant to stand seized for the use and benefit of the children.

Hon. R. H. Powell, Circuit Judge. 1. In condemnation proceedings only those damages which are direct and peculiar to the property, resulting naturally and necessarily from its use when the road is skillfully and properly constructed, can he recovered. Damages from faulty construction or defective drainage must be recovered in another suit. Pierce on Railroads, p. 179; 31/. Iowa, 1¡.58; 1^, Am. ¿> E. R. R. Gases, 198; Mills on Em. I)om., sec. 220. 2.

Hon. G. S. Cunningham, Circuit Judge. The indictment is substantially in the language of the statute. (Mansf. Digest, sec. 1571.) Our statute does not fix a particular period as the precise time when a female is supposed capable of consenting, as was done by the statute 18 Miz., sec. 7, but places it at the age of puberty; thus changing the rule of the common law, if indeed any rule establishing a certain age for puberty existed at common law.

Hon. H. S. Carter, Special Judge. The jurisdiction of a court of chancery to set aside sales made in pursuance of orders or judgments of probate courts for fraud, either before or after the administration is closed, is unquestioned. 3%. Ark., 63; Dyer v. Jacoway, ft® Ark., 186. Probate courts are courts of limited jurisdiction, and have none over real estate except that given by statute, and before they can acquire jurisdiction the statute must be followed and complied with.

<p>APPEAL from Yell Circuit Court in Chancery.</p> <p>Hon. H. S. Carter, Special Judge.</p> <p>Same briefs as in the preceding ease.</p>

<p>1. Statutes: Repeal of: Effect on. pending suits: Obligations of contracts : Attorney’s fees.</p> <p>The act of February IT, 1883, repealing the over-due tax acts of 1881, did not affect suits then pending under those acts, nor deprive attorneys of any rights to compensation for services in such pending suits.</p> <p>2. Attorney’s Fees-: Not apporfionable.</p> <p>An attorney’s services can not be apportioned by time.</p> <p>3. Legislature: Power over courts and subsequent Legislatures.</p> <p>ISTo Legislature has power to prescribe to the courts rules for interpretation, or to fix for future Legislatures any limits of power as to the effects ■of their action.</p>

PETITION for Mandamus. The act of April 10,1888, page 326, does not repeal and abrogate that portion of the act of March 12,1881, which provides the method of payment of fees in suits brought on the relation of private citizens. It applies only to suits brought by order of the county court. Statutes are not repealed by implication “unless there is such a manifest repugnance between them that both cannot be in force.” 28 Ark, 80Jy.

Hon. J. M. Pittman, Circuit Judge. No act or record of a county surveyor is conclusive, and appellant should have been allowed to show the incorrectness of the German survey, and the correctness of the Maxwell survey. Gantts Digest, see. 988. Section 991, lb., makes the surveys of the county surveyor the only legal evidence, in the same sense that other records are, i. e., the best evidence to establish lines, boundaries, etc., but was not intended to make them conclusive.

Hou. C. E. Mitchel, Circuit Judge. 1. The answer setting up no matter of set-off’or counterclaim, the cause was at issue, and the replication was improper. 34 Ark., 613; Gantt’s Digest, sec. 4579. 2. The evidence discloses but one fact, that plaintiff was alone responsible for the accident.

<p>1. Attachment : Removing property out of the State.</p> <p>The removal by a debtor of a material portion of his property beyond the limits of this State, not leaving a sufficiency to pay his debts, gives cause for attachment against his property, though he had no intention to cheat, hinder or delay his creditors by the removal.</p> <p>2. Delivery: Symbolical: Transfer of warehouse receipt.</p> <p>A warehouseman’s receipt for cotton stored in his warehouse is such a document of title that its transfer, by indorsement or otherwise, clothes the transferree with the legal title and constructive possession of the cotton; and this without notice to the warehouseman of the transfer, or agreement by him to hold for the transferree. By executing the paper he consents to become the bailee of any one to whom it may be transferred, and becomes such bailee from the time of the transfer.</p>

<p>Replevin: Affidavit: Description of property.</p> <p>An affidavit in replevin must describe the property sued for in such manner as to identify it. Rut after trial and verdict on the merits it is too late to object to the insufficiency of the affidavit.</p> <p>2. Same : Office of affidavit.</p> <p>In a justice of the peace’s court the first office of the affidavit is to procure the order of delivery. When that is accomplished it has performed its office as an affidavit and thereafter serves as a complaint.</p>

Hon. M. T. Sanders Circuit Judge. The evidence shows that the appellant, immediately after the delivery of the trust deed, took possession and remained continually in possession until after the attachment.

Hon. J. A. Williams, Circuit Judge. The court erred in dismissing the bill absolutely. It showed equity on its face, and if dismissed at all, should have been dismissed without prejudice. ' The general rule is that the cestui que trust should be joined as a party plaintiff, but one notable exception is where the disposition of the property was within the power of those before the court. (5 Beao., 1737) See also 23 Art, 507; 31 Ark., 210. .

Hon. H. B. Stuart, Circuit Judge. The board of supervisors had but one duty to perform, which was to examine the statement, and if found correct, to enter of record. (Acts of 1878, pp. 187-9.) This act is identical with section 6, Acts 1873, pages 143-5, and the course of procedure was settled in 34 Ark., 840. The board of Howard had no power to dismiss the cause for want of prosecution.

Francis Circuit Court. Hod. M. T. Sanders, Circuit Judge. It is not negligence for a railroad’s servants to call out the name of a station before reaching it, nor was it so to stop before crossing another railroad, nor do the two acts together constitute negligence. The call is only designed to admonish passengers that a particular station is near, that those destined there may prepare to alight. (SI Mick., 236; Ift Am. Bep., 566; 12 Am. $ Eng. By.

Hon. J. M. Pittman, Circuit Judge. The appellant was convicted of murder in the first degree. The facts sufficiently appear in the opinion.

Hon. M. T. Sanders, Circuit Judge. Before a court of equity will decree a specific performance of a parol contract for the sale of land the contract must be dearly and conclusively proven; must have been partially performed, and the acts of part performance must be referable to and done under and in consequence of it. 39 Ark., 4®9; 4 Wall., 513; 21 Ark., 279; 13 Penn. St., 16; 1 Johns. Chy., 131; 3 Vcs., 381; 1 Bailey Eq., 118; Freem. Ch., 290 ; 5 Md., 184; 5 Rich.

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. J. M. Bradley, Circuit Judge.</p> <p>The judgment was a final one, and subject to appeal. 6 Ark., 899; 38 Ark., 39D</p>

Hon. J. F. Wilson, Special Judge. The contract as entered into amounted simply to an unwritten mortgage, which could not be acknowledged or recorded, and created no lien. (Gantts Dig., see. lt.288.) Had it been in writing and recorded it would have been void.

Hon. M. T. Sanders, Circuit Judge. The note being a joint one, whatever in law satisfied it as to one of -the parties satisfied it as to all. The liability of the makers was not changed by judgment; a satisfac-' tion of the judgment as to one released the others. A release of one of several obligors is a release of all. (1¡. Ark., 510; 6 Eng., 513; 16 Ark., 351; 1 Hill, 185; 3 Den., 238; 17 Mass., 580; Story on Prom.

Hon. R. H. Powell, Circuit Judge. No compensation can be recovered for damages to a land owner on account of destruction of his crop and throwing down his fence while constructing a railroad, in a proceeding to condemn the right of way. It is a tort, and an independent action must be brought therefor. Mills on Em. Lorn., sec. notes S, J and 5.

Hon. E. J. Wise, Special Judge. 1. Richardson was never seized of an estate of inheritance in the land, but merely held the naked legal title in trust; and a widow is not entitled to dower in a trust estate. (Sugd. on Vend., 8th Am. ed., p. 700; Bisp. Eq , sec. 80; Story Eq. Jar., sec. 1201; Ferry on Trusts, sees. 98, 126; 20 Ark., 272; If. Kent Com., *p. ff3-60; 1 Wash.

Hon. C. E. Mitchel, Circuit Judge. The court erred in striking out the answer of defendant and in affirming the judgment of the justice without a hearing. (85 Ark., 1^5; 86 lb., 501; 1$ lb., J¡A5) The cause should have been tried de ñoco, and defendant had the right to answer or go to trial and have a hearing without any answer whatever. See cases supra.

Hon. C. E. Mitchel, Circuit Judge. Admitting for the sake of argument that Briggs had a lien on the note, the justice of the peace could not enforce it. He had no jurisdiction to do so, and in refusing to make Driggs a party he did right. The enforcement of such a lien belongs exclusively to courts of equity. Const. 1871, ari- 7, sees. 15,10.

Hon. Q-. S. Cunningham, Circuit Judge. 1. The new company was bound by the contract entered into by Everett, as the representative of its promoters; and, 2. The new company has ratified and adopted Everett’s contracts, thus making them its own. Redfield on Railways, p. 16, sec. 5; 1 Mylnc £ G., 650; 7 Eng. L. E., 1:34; 1 Simons, IV. S.,586; 9 Simons, 264,; 3 Mylnc § C., 773; 9 Ham, 129; Field on Corp., sec. 221; 45 N. PI., 375; 1 Redf. Am. R. R. Cases, 1; 49 Pa.

Hon. C. E. Mitchel, Circuit Judge. 1. The demurrer to the first plea was properly sustained. Holland v. Moon, 39 Ark., 121. 2. The statute of limitations does not commence to run against a married woman until after discoverture. 39' Ark., 358; 1$ 1 b., 305.

Hon. C. E. Mitchel, Circuit Judge. The husband is liable for the torts of the wife during coverture. If committed in his company, or by his order, he alone is liable, the presumption being that they are done under his compulsion or coercion, etc. 2 Kent Com., sec. 14.9; 2 Hilliard on Torts, 506; 21. Ind„ 427; 8 Minn., 236; Wright (Ohio), 9; 38 N. Y.,178; Pomeroy on Rem., sec. 320; Bliss on Code PI., sec. 85; Newman on PI., 278.

Hon. C. E. Mitchel, Circuit Judge. The court erred, in quashing the attachment. If it was defective in not running in the name of the State, the court should have amended it, or treated it as amended. IS Ark, 414, 417. There is no law requiring separate affidavits or attachments on debts due and not due. Secs. 437, 440 Gantt’s Digest; Acts 1881, p. 9.

Hon. C. E. Mitchel, Circuit Judge. The motion for a new trial is made no part of the bill of exceptions. 30 Ark., 585 ; 34 lb., 4®0; 39 lb., 483; 40 lb., 251. The bill of exceptions must show that it contains all the evidence. 2 Eng., 408; 17 Ark., 327; 35 lb., 41®-

Hon. E. T. Vaughan, Circuit Judge. The conclusions to be drawn from the evidence are: First- — That the raft was coming through the opening in the bridge in a quartering position, the most dangerous position it could assume for the purpose of passing through a narrow space.

Hon. C. E. Mitohel, Circuit Judge. 1. The probate court is a court of record, a superior court, and the presumption is in favor of the regularity and vadility of its proceedings. (11 Ark., 589; 19 lb., 185; 18 lb., 898.) Even if the agreement constitutes a partnership it will be presumed that a settlement had been made and a balance struck, and appellants could sue. Parsons on Part., 878. 2.

Hon. J. B. Wood, Circuit Judge. Reviews the evidence in detail, and contends that it does not establish the complaint. A divorce will not be granted on grounds of ill treatment, where such treatment may be attributed to the misconduct or fault of the complaining party, or is not of such character, duration and frequency as to evince settled hatred, total loss of affection, and a fixed purpose of mistreating complainant.

Hon. J. M. Bradley, Circuit Judge. The demurrer admits that appellant is the owner of the land, and that the sheriff’s deed is a cloud upon his title, and that said deed was procured by fraud and misrepresentation. This makes a case for a court of chancery. It is the only forum to afford the relief prayed. 2If. Ark., lf.31; 29 lb., 612; see also 19 Ark., 139, which we think is conclusive.

Hon. J. G-. Frierson, Circuit Judge. This case is not governed by the act of December 7, 1875. (Acts 1875, p. 51.) The spirit of the proviso reaches this case. It is the duty of the county court to keep the court house in good repair. Gantt’s Digest, sec. 668. This case also differs from 38 Ark., 788, and If, Dillon, %09. In one the principal part of the account was for something that the county had no right to pay.

Hon. C. E. Mitchel, Circuit Judge. The verdict is contrary to the evidence and is excessive. Plaintiff had no power to refuse to receive the goods and sue for their value. He could only sue for such damages as wére caused by1 the delay.

Hon. F. J. Wise, Special Judge. Appellee was only a tenant at will of appellant, as he claimed title to the land by virtue of a verbal contract to purchase. (Gantt’s Big., sec. 2960.) One who is a tenant of the vendor is also the tenant of the vendee. (18 Ark., 284.) An implied tenancy is as good as an express one. 33 Ark., 686; 41 lb., 535; 42 lb., 540. See also McAdams Landlord and Tenant, sec. 29; 25 Barb., 31$; 1}B Vt., 8Ip 3 Wm. BL, 1173; 3 Smith Lead.

Hon. R. H. Powell, Circuit Judge. First — The price of crop depended on amount when gathered and ascertained, all of which was to be done by Hart; if so, sale vested title in him, and McCrady could convey nothing to Morton. 37 Ark., 190; 35 lb., 190; 31 lb., island 155; 19 lb., 367; Parsons on Con., vol. 1, 536-7-8; Powell’s Analysis Amer. Law, p. 375, par. 6-1.

Hon. H. B. Stuart, Circuit Judge. The act of Congress, approved September 15, 1851, vested in the State the swamp lands from its date. Rose’s Digest, 71¡.6; 80 Ark., 346. By the act of 1851 the commissioners were authorized to sell, and upon sale the title of the State passed to the purchaser. 1 b. A sale of the lánd by the land agent is no excuse for refusing to issue a patent certificate to a purchaser from the commissioners, while they were authorized to sell.

CROSS-APPEALS from Benton Circuit Court. Hon. Jambs A. Rice, Special Judge. The court below, without doubt, acted upon the idea that this deed created what, by common law, was a conditional fee, or an estate in fee tail general. See 1¡, Kent’s Com., page 11; 8 Blacks. Com., 110; 1 Wash, on Beal Prop., mar. ■page 66, et scq.

Hon. J. B. Wood, Circuit Judge. 1. Parol proof not admissible to show that a greater number of acres was conveyed than described in the deed. 33 Ark., 151. 2. The third instruction for defendant is in direct conflict with the law, a3 applicable to this case. lb. 3. Appellee estopped from claiming any interest by his express disclaimer. 30 Ark., 131; 9 Cal., Wlp. 4. The verdict contrary to the evidence.

Hon. J. B. Wood, Circuit Judge. 1. The transcript fails to show that the justice had jurisdiction. That must affirmatively appear. 2. There was no affidavit or prayer for appeal, or order of the justice granting it. (Gantt’s Dig., sec. 3823.) The Circuit Court should have required the justice to appear and show whether an appeal was allowed or not. 1.

Hon. Zenas L. Wise, Special Judge. It was the duty of the justice to investigate the matter set up in the interplea, and ascertain and adjudicate what the rights of all parties were. This was not an attempt to enforce a material-man’s lien, but an effort only to have the interpleader’s rights protected. Sec. ¿32 Gantt’s Dig.; 15 Ark., 129; 38 lb., 329; 33 lb., ¿75.

Hon. J. B. “Wood, Circuit Judge. There was a fatal variance between the complaint and the proof. The evidence showed that the work was done by Orr & Wirfs and not by Charles G-. Orr, and that it was done for Louisa Molen alone. Orr had no right to sue in his own name, and there was no proof that he was the successor of the firm. Gantt's Digest, sec. 4644; Acts 1877, p. %6; 1 Gr. Ev., secs. 58, 66. The evidence shows that Orr was the successor of Orr & Wirf.

Hon. R. H. Powell, Circuit Judge. In ejectment plaintiff must recover on the strength of ¡his own title, not upon the weakness of the defendant’s. The court properly instructed the jury. (See 19 Ark., £03; 38 1b., 181; sec. 3168 Gantt’s Dig.; 1 Gr. Ho., sec. 74; Gantt’s Dig., secs. 3493, 3494-) If Henry Norman, at the time of his death, had any kindred capable of inheriting, the title could never vest in the widow. Supra.

Hon. J. A. 'Williams, Circuit Judge. The only question is the construction of sec. 60, acts 1883, ¶. 835. The law allows the assessor $1.00 for each non-resident list, counting all the lauds in one township and range as one list; that is $1.00 for all lands belonging to each non-resident in each township, and $1.00 for all the lands in each township belonging to “unknown” owners.

Hon. F. T. Vau&iian, Circuit Judge. It was error to render judgment by default, for there was appearance, answer and motion to transfer. The court erred also in refusing to transfer to the Chancery Court. The answer presented an equitable defense, and the cause should have been transferred as prayed.

<p>Unlawful Detainer: No damages recoverable.</p> <p>In an action for unlawful detainer where possession is delivered to the plaintiff under the writ, the only judgment he is entitled to is for cost. No damages are recoverable for detention of the premises.</p>

Hon. J. M. Bradley, Circuit Judge. 'The confirmation of the sale is objected to because: 1. Misconduct of commissioner in going from place of sale to another place and informing parties that no bidders were present, and then making the sale when only those {notified were present, instead of returning that he could mot sell for want of bidders, when none came in response •to his advertisement as ordered by the court. 2. The price was grossly inadequate.

Hon. M. T. Sanders, Circuit Judge. 1. There was no resulting trust, as the money was not advanced at the time of the purchase, but afterwards.. (29 Ark., 630; 2 Paige, 238.) The payment could only have been a lien or advancement. 1/1 Ark., 301; 10 Paige, 626; 6 Black/., 195. 2. There was no subrogation, as the debt was paid and' extinguished, a deed made, and no assignment of the note or lien. The father was a mere volunteer for the benefit of the son.

Frands Circuit Court. lion. M. T. Sanders, Circuit Judge. The orders of the probate court were void for want of notice, and for want of jurisdiction over the person of the administrator. The administrator is not in court and subject to its jurisdiction without notice, except at the term when his settlements are to be filed or confirmed. An administrator can only be removed on complaint in writing by some interested person, supported by affidavit and on fifteen days’ notice.

Hon. M. L. Davis, Special Judge. The court erred in excluding from the jury the title bond and assignment, after proof of actual notice to appellee. While the acknowledgment is defective it is cured by acts 188S, pp. 107 and 188-9. But after proof of actual notice and of its execution, the documents were admissible without acknowledgment or record. Appellee was in no sense an innocent purchaser. The bond for title and assignment passed title without acknowledgment. Ilf.

<p>On motion to advance and affirm as a delay case.</p> <p>1. Practice in Supreme Court : In delay cases.</p> <p>The statute regulating the practice on motions to advance delay cases does not limit the right of filing the motion, or of having it acted upon to any particular time or term, but contemplates an affirmance of a superseded judgment when the court is satisfied that the appeal is taken for'delay, at the earliest practicable moment.</p> <p>2. Damages : On appeals in Supreme Court.</p> <p>The damages awarded against an appellant and his sureties in his appeal bond, on affirmance of the judgment below, are not intended as compensation to the appellee for the delay he has been subjected to. It is an award against the appellant for prosecuting- an improper appeal, and where his appeal is for delay only, it is intended that he should pay the award without getting the delay.</p>

Hon. C. E. Mitcher, Circuit Judge. 1. The complaint stated no cause of action. It alleges that the explosion was the result of negligence on the part of sen-ants and employes in the proper care and management of the engine, which engine was known to the servants and employes of defendant to be defective and unsafe.

Hon. J. M. Bradley, Circuit Judge. The note was barred by the statute of limitations. After the bar has attached, the promise to pay must be in writing. The indorsement of a payment, and an understanding between the parties that it shall take the note out of the operation of the bar, is not sufficient.

Hon. D. W. Carroll, Chancellor. 1. The act of April 28, 1873, was not constitutionally passed. The reading by title only is not sufficient. The journals show this affirmatively. It was never read in the, Senate at all. Sec. 21, art. 4 Const. 1868. 2. The appellant’s property is neither adjacent, adjoining or contiguous to the city within the sense of the act, but is separated by a large tract.

Hon. R. H. Powell, Circuit Judge. Chapter 18, p. 178, Gould’s Digest, for the attachments of boats and vessels, has been decided by the Supreme Court of the United States to be obnoxious to sec. °2, art. 3, Const. U. S. Ad. Hinds Cases, 4 Wall., 671, approved in Thompson o. Robinson, 34 Ark., 54-

Hon. F. T. Vaughan, Circuit Judge. 1. The transcript from the United States Court was not competent evidence. The same matter was not in issue, nor was the cause between the same parties. (Greenl. on Ur., 9th ed.,vol. l,sees. 522-28; 1 Macq. U. L. Cases, 913; Jacob’s Fish. Dig., vol. 5, p. 7922; 1 Gray, 299, 303.) And the instruction based on such incompetent evidence was erroneous and misleading. 26 Ark., 513. 2.

Hon. H. JB. Stuart, Circuit Judge. Section 8883 of Mansfield’s Digest is broad enough to let in the employment of a physician and the allowance of reasonable compensation in case of violent sickness. The policy of the law and the dictates of humanity have ever been to provide for prisoners and .convicts. The prisoner had no estate, hence the county is liable as it is for the costs of prosecution, feeding, etc. Section 3890 of Mansfield’s Digest is directory merely.

<p>Cost : After offer to confess judgment.</p> <p>Wlien on appeal to the Circuit Court the plaintiff recovers less than the defendant offered to confess judgment for in the justice’s court, all costs subsequent to the offer must be taxed to the plaintiff.</p>

APPEAL fi’om Randolph Circuit Court in Chancery. Hon. E. E. Brown, Special Judge of Circuit Court. A suit at law can be maintained by ai holder and owner of an unindorsed promissory note. (86 Ark., 501.) Appellant alleged that he was the absolute owner and holder of-the notes and mortgage. He joined the payee and all parties claiming any interest in the notes and mortgage as defendants. This was sufficient. '88 Mo., 180; 36 lb., 193.