Volume 45 — Arkansas Reports

Hon. C. E. Mitchel, Circuit Judge. The blank contract was no contract, and as far as that instrument is concerned is of no avail to take this case out of the Statute of Frauds. That as to the receipt first above referred to, it can be of no avail here.

Hon. J. M. Bradley, Circuit Judge. No verdict was in reality returned. See Bouvier Law Diet. No jury had been empanelled ■ to return a verdict nor had the alternative provided in such an event by Sec. 2184 Mansf. R. S. been complied with.

Court. Hon. R. B. Rutherford, Circuit Judge. The writ was an attachment containing a summons clause, and intended to serve the purpose of both writs. That this is permissible, is settled by 4.0 Ark., 328. Besides, a failure to issue a summons at or before the time of issuing the attachment, is not ground for quashing the writ. 8 Iowa, 3'og; 10 Id., 418; 13 Minn., 327. Sec. 4303, Gantt's Dig., provides the test as to whether an action has been begun: A summons must be issued.

Hon. J. M. Bradley, Circuit Judge. This was replevin by Meyer against Harriman for two mules. The opinion states the case. Meyer failed to prove title to the mules or right to possession; but proved by award of arbitrators an order or award that the mules should be sold to pay a debt due him, the sale to be made by a commissioner; and then proved a sale and purchase by Appellant, and his own refusal to accept proceeds of the sale.

Hon. R. B. Rutherford, Circuit Judge. It signifies nothing that Featherstone’s deed to his wife was void, for under his contract and power of attorney he acquired general rights, as against his clients at least, after he had commenced suit and gone to expense, which they did not have the power to deprive him of. He certainly had a right to prosecute the suit in their name to recover, if Hart had no title, which they could not deprive him of by a sale.

Hon. J. M. Bradley, Circuit Judge. Although this is an anomalous kind of proceeding, still the answer of the State to the plea in abatement may be considered as a demurrer, and as such should have been sustained. The question is no longer an open one, it being fully settled that a party who sells liquor within a local option district may, since the passage of the Act of March 26, 1883, be indicted either for selling without license or for violation of the local option law.

APPEAL &om Lincoln Circuit Court. Hon. J. A. Williams, Circuit Judge. The Court should have permitted Appellant to testify in his own behalf. The procedure in bastardy cases under Acts 1879, pp. 96, 93, is a civil one, and of a quasi criminal nature. See decisions of different States upon similar acts. 10 Ctish. (Mass.), 283; 2 Conn., 333; 6 J. J. Marsh, 383; 6 Lit., 89.

Hon. G. W. Denison, Special Judge. The indictment charged two offenses, and the State failing to elect upon which count it would proceed, and a demurrer being sustained to it, the -order remanding the accused and holding him on his bail is a nullity. Gantt’s Dig., Secs. 1840, 1842 and 1844. No bail having been fixed by the Court, the sheriff had no authority to take bail. 28 Ark., jpy. There was no proof that Poe was sheriff, or had authority to take bail: 28 Id., 346.

Hon. R. B. Rutherford, Circuit Judge. The indictmeift charges but one offense, committed in different modes and by different means, which is allowable. Mansjeld’s Digest, Secs. 1827-30, 2108; and the suggestion of the prosecuting attorney was sufficient to show only one offense was charged. 32 Ark., 203; 33 lb., 176, 180; 34 lb., 436. The case should have been referred to another grand jury, and Appellee been held to answer a new indictment. MansJield’s Digest, Sec. 2169.

<p>APPEAL from Greene Circuit Court.</p> <p>Hon. W. H. Cate, Circuit Judge.</p> <p>The indictment meets all the requirements of Secs. 4641-3-9, Mansf. Dig.</p> <p>The offense consists in practicing medicine without being registered. Mansf. Dig., Sec. 4655. The allegations that Defendant practiced without having filed a certificate of medical examiners, and without a certificate of registration, constitute no crime. It is not always necessary to file the certificate of examiners, lb. 4652, and the failure of the clerk to give him a certificate would be a breach of duty of the clerk, but not a crime on part of Defendant. Ib., Sec. 4649.</p>

Hon. F. T. Vaughan, Circuit Judge. 1. There is no evidence upon which the verdict could be based, and it is grossly wrong and shocking to one’s sense of justice. 2. The Court erred in giving the instructions asked for plaintiffs, and in modifying the third asked by defendant.

Hon. H. B. Stewart, Circuit Judge. Admitting, for argument, that no deed was made to Thornton, the execution sale was public, and at the end of seven years, the title under the'-sale would be good by limitation. Gantt's Dig., 4.113 ; 38 Ark., 181. Possession once established will be presumed to continue. 34 Id., pp8. The deed to Thornton having been lost, parol evidence was admissible to prove the sale to him.

Hon. G. S. Cunningham, Circuit Judge. The court erred in assessing the fine at $1,400. The indictment was drawn under the 5th Sec. of Act, March 8, 1879, and the fine should have been not less than $200 nor more than $500. The proof showed only a single sale. To make Appellant liable under the Revenue Act, I883, p. 192, the indictment must have charged him with engaging in the sale of liquor without paying the tax.

<p>1. Practice in Supreme Court: Finding of Circuit Court, &c.</p> <p>Upon an application to the Supreme Court for certiorari to quash a judgment of the Circuit Court for want of service, the finding of the Circuit Court that the defendant was a resident of the county at the commencement of the action, is conclusive.</p> <p>2. Summons: Service in other counties tkan that of the action.</p> <p>The service of summons upon all the defendants may be made in other counties than that in which the action is brought, if at the commencement of the action either of them resided in the county.</p>

J. B. Wood, Circuit Judge. 1. This is a prosecution under Sec. 1594., Gantt’s Dig. The indictment is insufficient, because it cannot be ascertained from it in ivhat house it was intended to charge the gaming had been carried on. 2. The evidence fails to show that the gaming was during the period when Appellant had license. 1. The indictment follows the statute, Sec. 1836, Mansf. Dig., and the form in Brockway v. State, 36 Ark., 629.

Hon. R. H. Powell, Circuit Judge. STATEMENT. To an indictment for an aggravated assault by shooting, with intent to inflict great bodily injury, the defendant pleaded former acquittal before a justice of the peace; alleging that he* had been arrested and carried before a justice of the peace for examination, and tried upon a charge of an assault with intent to kill; that he pleaded not guilty, and upon examination the justice found the evidence insufficient to charge him…

Hon. J. B. Wood, Circuit Judge. This case brings up the naked question, as to whether the circuit court has the discretion for any cause, or by stress of any emergency, to say, that a paper which ordinarily would be of no validity unless filed yesterday, may be filed to-day, as of yesterday. In other words, to prevent a failure of justice, shall have the same force and effect as if filed yesterday.

Hon. R. B. Rutherford, Circuit Judge. The “bar” arising from bankruptcy, is strictly a personal privilege, and is “waived” by the subsequent promise. Turner v. Chrisman, Adm’r., 20 Ohio, 333, 339 ; 1 Mass., 129; McKinley v. O’Keson, 3 Barr (Pal), 369 ; Dusenbury v. Hoyt, 33 N. Y, 523■ ■ Under the circumstances, suit is brought upon the old debt, and the new promise is either alleged, as in this case, or proven to avoid the bar.

Hon. M. T. Sanders, Circuit Judge. The Circuit Court erred in permitting plaintiffs to introduce testimony controverting the return of the marshal as to the articles attached, and showing that he attached goods not embraced in his return, and in refusing the 2d and 3d instructions for defendant. The liability of defendant is based upon the bond given under Sec. pop, Gantt's Dig.

Hon. F. T. Vaughan, Circuit Judge. The execution of a note for a husband’s debts does not bind the separate property of the wife. 33 Ark., 363. As Grisard agreed to furnish certain supplies, which were the consideration of the mortgage, and failed and refused so to do, the consideration failed, or rather never existed. He is at fault and should be forced to place her where she was before executing the mortgage. Reporter, Vol. X, p. ‡20; Jones on Real Mortg., 3d Ed., Sec. 612.

<p>1. Common Schools: Mandamus to compel directors to provide schools.</p> <p>It is the duty of the directors of a school district to provide equal school facilities for the blacks and whites. They cannot claim to apportion the school funds and limit the school terms to each class according to their scholastic population ; and when but a few days more than three months are left of the scholastic year, and they show no intention to provide a school for that time, they may be compelled to do so by mandamus. (Eakin, J., dissenting:—holding that'the directors may, in their discretion, apportion the funds according to the scholastic population of the classes.</p> <p>2. Mandamus : When will issue.</p> <p>The writ of mandamus will issue whenever the refusal or failure of an officer to act in a matter in which it is his plain duty to act, may deprive one of a legal right.</p> <p>3. Mandamus : Parties.</p> <p>The parents of children of scholastic age are proper parties to a petition for mandamus to compel the directors of a school district to establish schools.</p>

Hon. J. B. Wood, Circuit Judge. 1. Neither upon the theory of a conspiracy—wholly unproved, if one existed—or upon that of appellant being an accessory, nor yet as part of the res gestee, was the testimony of Armstrong, or as to his acts or declarations after the killing, competent evidence against appellant. Whart. Cr. Ev. 699; 1 G. Ev. 108-11, if Ed; 55 N. Y., 563 ; ff Pal. 113; 33 N. H. 216; 30 Vt, 1O0 ; 123 Mass., ffi; 13 Allen, 5J0 ; 10 Neb.t 393 ; 58 Ala., 391. 2.

Hon. D. W. Carroll, Chancellor. 1st. The goods still being in the hands of the assignee, and ■capable of identification, appellant had, by virtue of the act, March 9, 1877, a statutory lien upon them, which could not be ■defeated except by the purchase of the goods by a purchaser for value, which the assignee was not. Act, March p, i8jj; Washburn on Real Estate, Vol. II, p. jó.

Hon. John A. Williams, Circuit Judge. 1. The indictment does not state that any hands had been apportioned to appellant. Mansf. Dig., Secs. 3902-3-3. 2. The record appointment of appellant was the best evidence, and the court erred in permitting parol evidence to be introduced that he was overseer. Ib. Sec. 3893. 3. The paper purporting to be an apportionment of hands by plantations improperly admitted. Ib. 3922-3. 4. The jury was not sworn. See Mansf.

Francis Circuit Court in chancery.' Hon. M. T. Sanders, Circuit Judg^ A court of equity alone has jurisdiction of a matter of subrogation. Pomeroy Eq., Vol. Ill, Sec. 14.19 and Note i; Story Eq., Vol. I, Secs, ójy-6-q; ji Ark., 421; lb., 144. Against the clerk, Stewart, appellant had but one cause of action. This gave the court jurisdiction of the whole subject matter, for having assumed jurisdiction for one purpose, it will retain it for all purposes.

Hon. D. W. Carroll, Chancellor. Sec. 1637, Gantts Digest, is a dead letter, as it is not in the power of the legislature to declare in a few generalities what shall be a crime. The affidavit charges no offense known to the law. 1 Ark., 178,179; 33 Id., 361; Gantts Dig., Sec. 1796, stib. 2. It is not sufficient to charge petitioner with willfully failing to provide for his helpless child, or as a husband, failing to provide for a helpless wife. 2 Whart. Cr.

Hon. H. B. Stuart, Circuit Judge. 1. Confessions, to be admissible against the party making them, must be voluntary and not in response to threats, promises or intimidation.

Hon. J. M. Pittman, Circuit Judge. The indictment is insufficient, because it fails to allege that ardent spirits were sold, either openly or secretly. The pleader must either follow the statute in describing the offense or use words of similar import. Acts 1883, p. 300, Sec, 1; 4.3 Atk., 343; 1 Bish. Cr. Pro., 2 ed., Sec. 612. Nor does the indictment describe the device. The using the statutory words is not always sufficient. Gantts Dig., Sec. 1780; Bish.

Hon. J G. Frierson, Circuit Judge. 1. The final judgment in the contempt proceedings, and in refusing to allow plaintiff to plead to the cross-bill were appealable, and reviewable after final decree. 22 Ark., 499; 11 Humph., 389; 3 Heisk., 244; 3 Humph., 23. 2. The judgment in the contempt proceedings was erroneous, because: 1st. The penalty adjudged and enforced ■ was expressly forbidden by statute. Gantt's Digest, Sec. 822 ; 44 Wis., 411.

<p>APPEAL from Sevier Circuit Court.</p> <p>Hon. H. B. Stuart, Circuit judge.</p> <p>Reviews the evidence and contends that the verdict is contrary to the instructions of the court and not supported by the evidence. The scintilla doctrine, as heretofore expounded, may be profitably reviewed and perchance modified by this court.</p> <p>When appellant demanded the child was the time for appellee to claim compensation; if, he ever had any legal right to remuneration, it ceased after that demand.</p> <p>The only ground of the motion for new trial wás that the verdict was contrary to law and evidence, hence that is the only question in the case, jg Ark., 482; 4J Id., jgi. The court instructed that if appellee maintained, etc., the child, from 1869 to 1882, they should find for him. The evidence shows that he did.</p>

Hon. R. B. Rutherford, Circuit Judge. The court erred in not permitting Hershy to file a bill of exceptions setting out the oral evidence, so that the case might be properly presented to this court. He did not file it before, for the decree was such as not to require it, and when plaintiff was- permitted to amend his decree, so as to render one necessary, the defendant ought to have been permitted to file one.

Hon. G. L. Cunningham, Circuit Judge. The state court had no jurisdiction, because the federal ■court first obtained jurisdiction of the case. There was no conflict of jurisdiction between the courts, as. the federal court had released appellant, and the commissioner acted merely as an examining court. 8 Blatchjord, 250.

Hon. J. G. Frierson, Circuit Judge. Appellee’s intestate was unlawfully upon the car of the company; he had no right to be there, and was a mere intruder, a trespasser, to whom the railway company owed no duty whatever; and it was not liable even for the negligence of its servants, until he was known to be there, and afterwards the company’s servants were guilty of such gross negligence as amounts to wilful and' intentional mischief, or wantonly and maliciously injured him.

<p>APPEAL from Benton Circuit Court.</p> <p>Hon. J. M. Pittman, Circuit Judge.</p> <p>1. Only one cause of action was set out in the complaint; trespass in taking possession of the land. The allegations of negligence in constructing the road-bed were a separate cause of action, and no facts were alleged upon which á judgment could be based. If there was no trespass, the allegations as to negligence in construction cut no figure. By no rule of law can one be held a trespasser in taking possession of land by authority of one in possession who has the legal right thereto. The widow, having a life estate, sold the right of way to the company and placed it in possession, as she had a right to do. 33 Ark., 360; Mills Em. Dom., Secs. yj-yj. The heirs could sue separately for permanent injury to the freehold, but not jointly with the widow in trespass for going on the land and taking right of way.</p> <p>2. Damming up surface water and flooding land is not an element of damage in right of way cases. 1 Redfield on Railways, 347; Mills Em. Dom., Sec. 18g, and cases cited in note.</p> <p>3. The judgment does not conform to the verdict. The verdict was in favor of all the plaintiffs, and the court could not render judgment in favor of part of them for the full amount of the verdict.</p> <p>As to the right to amend by striking out the name of Malinda Baker, see Mans. Dig., Sec. 3080. She had only a life estate. Const. 1874, Art. g, Sec. 6. The heirs at law, though not in possession, could maintain this suit for injury to their inheritance. Sutherland on Dam., Vol. 3, p. 3g2, et seq.</p> <p>The testimony as to flooding by surface water was admissible, as it tended to damage the inheritance. Ib.</p> <p>Whoever by artificial means changes the condition of another’s land, whereby he is damaged, ought to respond in damages. 44 Ark., 360.</p>

Hon. G. M. Barker, Special Judge. STATEMENT. The appellee embarked at Prescott on a through freight train of the appellant, for Emmett, a station on appellant’s road, eight miles distant, without any attempt to learn that the train would stop there.

Hon. C. E. Mitchel, Circuit Judge. The property should have been entered for taxation in the district where appellant resided. Mansf. Dig., Sec. 3614. The circuit court has jurisdiction and may grant injunctions in such cases. Ib., Sec. 3731; 30 Ark., 101; 30 Ark., 123; High on Inj., Vol. I, Sec. 300, 2 ed. The circuit court may grant injunctions, etc., in all cases of illegal or unauthorized taxes and assessments. Sec. 3431, Gantt’s Dig.

Hon. R. H. Powell, Circuit Judge. The fact that Bryant was dead when the execution was sued out does not render the sale void; at most it is only voidable. 10 Ark., 331; 33 Miss., 382; 23 Td., 382-396; 13 How., (U. S.) 283; 13 Md., 121; Rorer on Judgment Sales, Sec. 663; 18 Iowa, 333; 3 Green, (Iowa;) 383; Freeman on Judgments, Secs. 130, 133.

Hon. J. K. Young, Circuit Judge. The amount was within the jurisdiction of the justice, and he had jurisdiction of the person of the garnishee, because he was served according to law. Sec. 343, Mansf. Dig. It was argued in the court below that judgment of the justice, failing to show affirmatively that testimony was taken before rendering it, was void upon its face and quashable on certiorari. Such an argument is erroneous. 33 Ark., gp; 17 Ark., 380; lb., ‡‡0. 1.

Hon. J. M. Pittman, Circuit Judge. 1. The appellees failed to produce any title to the land whatever. 2. There was no issue joined in the case. The Strouds failed to answer at all. The burden was on them to prove their damages, and the court cast the burden of proof on appellant. ‡‡ Ark., 26‡. What protection will this judgment be in the future if another party should set up and prove title to the land?

Hon. —. —.--, Circuit Judge. There was abundant evidence for the jury to find that de■ceased had given up a combat he had just had with the ■appellant and was retiring home, leaving the appellant in no danger, and the appellant' renewed the conflict and killed him with an oaken club, two and a half feet long, with a knot on the end of it. Appellant, instead of avoiding the combat, forced it.

Hon. J. A. Williams, Circuit Judge. The demand and allowance oT the rebate, and the giving of the note, was a novation of all previous contracts. There ..was no express warranty. Bocage & Co. not only knew of the defects in the machine before they purchased it, but wrote plaintiffs at length, setting forth the defects, as appears from their letter to plaintiffs of May 17, 1883.

Hon. R. H. Powell, Circuit Judge. 1. The receipt did not release Reynolds and Doughty. It was nothing more than a covenant not to sue Reynolds and Doughty; and a promise by a creditor to receive part of his -debt in payment of the whole, is nudum pactum and void. Pinnell's case, 5 Coke, nj; 2 Gr. E., Sec. 28; Chitty on Cont.\ 6‡5! 33 Ark., ffj2.

. Hon. R. H. Powell, Circuit Judge. 1. There was no service in the j ustice’s court on the railroad „ and the justice had no jurisdiction in the premises, and the circuit court acquired none on appeal. 2. No claim having been made in the justice’s court for double damages for not posting, no claim for such should have been entertained in the circuit court. 4.2 Ark., 483. 3. The verdict was contrary to the evidence.

Hon. G. B. Denison, Special Judge. The complaint shows that R. V. Ferguson, one of the plaintiffs, was not administrator de bonis non of the estate of James Purcelly at .the time this suit was brought; if he had been he could not have maintained the action. It is properly brought by the heirs. 34 Ark., 144.

Hon. R. B. Rutherford, Circuit Judge. At the time the judgment was rendered againt Latham, he was the owner of the property. Within three years, and while the lien was still in force, a scire facias was sued out, and upon it was entered a judgment of revivor, relating back to the date of the writ. In proceedings to revive, no notice is required to any one except the defendant.

Hon. R. B. Rutherford, Circuit Judge. Make the same points and cite same authorities as in Her-shy v. Rogers, ante. Not only was the deed, under which Berman claims, executed subsequently to Hershy’s judgment and while the lien was in force, but it was executed under a power of attorney, and it does not appear that the power of attorney was ever filed for record, nor is it exhibited. It, therefore, affords no proof of the alleged conveyance by Wood B. Rogers. Mansf.

Hon. C. E. Mitchel, Circuit Judge. There was a complete novation of appellants’ debt, whereby they became released, and it was assumed by Murray, and to this' assumption appellee consented.

Hon. C. E. Mitchel, Circuit Judge. X. While it may be the duty of a railroad, to the public, to provide and maintain a firm road-bed and safe track at all times, it is not so as to its employes. One of the .ordinary duties and risks of an employe on a gravel train, whose duty it is to. assist in keeping up the road-bed, is the passing over track not always safe and secure.

Hon. R. H. Powell, Circuit Judge. 1. The court erred in admitting testimony to show the confessions of John Morris, a co-defendant, against appellant, after the crime was committed. 1 Bisk. Cr. Pro., Secs. 1019, a, and 12‡8; 2 lb., Secs. 229-30. Even if a conspiracy had been shown, the confession made after the transaction was not admissible in a separate trial. Authorities supra; 32 Ark., 220; 37 Id., 67. 2.

Hon. R. B. Rutherford, Circuit Judge. The indictment is in strict conformance with Sec. 1589, Mansf. Dig. It was not necessary under our statute that the indictment should' aver whether the intent to produce the abortion was before or after the period of quickening. It is immaterial whether the foetus had quickened or not. Bish. Stat. Cr. Ch,, ¿‡.

Hon. R. B. Rutherford, Circuit Judge. The ordinance was void for want of power in the town council to pass such an one. By Mansf. Dig., Secs. 731, 764, power is given to punish lewd and lascivious behavior in public places, but that is no authority for passing this ordinance. 31 Ark., 464. A mayor’s court is a tribunal unknown to the laws of this state. It is no' greater misnomer to call a justice of the peace a “magistrate” than a mayor a court.

Hon. J. M. Pittman, Circuit Judge. One who has not the title in fee, but who has the rightful control, use and profits of real property, can, without being in actual possession, maintain trespass against one who without right wrongfully ■ damages the same. Actual residence is not necessary. Thompson Home & Ex., Sec. 241; 10 Ark., 16; 3 A. K. Marsh, 331; 26 Kan., 269; 7 Id., 303; 27 Id., 348; 33 Vt., 643; 23 Penn. St., 139; 3 Binney, Pa., 288.

<p>1. Jurisdiction : Practice in stipreme court.</p> <p>This court will not overlook the want of jurisdiction of a cause in the trial court, though the question has not been raised.</p> <p>2. Same : Of J. P. for injury to personal property.</p> <p>Under the Constitution of 1874, a justice of tbe peace has no jurisdiction in an action for injury to personal property where the damages claimed exceed one hundred dollars.</p>

Hon. L. A. Byrne, Circuit Judge. The indictment charges one offense and the demurrer should have been overruled. Mansf. Dig., Sec. i88j. ' Sec. i88y does not make it an offense to keep open a barber shop, and the allegation in that respect was merely descriptive of the manner of laboring.

<p>I. Liquor: Indictment for selling: Proof.</p> <p>Under an indictment for selling liquor without license without specifying in what quantities it was sold, a defendant, who has license to sell in quantities not less than a quart, cannot be .convicted on proof of selling in less quantities. He should be indicted for keeping a dram-shop, or for selling in less quantities than a quart.</p>

Hon. L. A. Byrne, Circuit Judge. 1. The circuit court erred in giving the instructions asked by the state, and in refusing the instruction asked by appellant, for there was no direct evidence of a sale to the minor, Will Arnold; and the question as to whether there were circumstances in evidence justifying the jury in finding that there was an indirect sale—that the minor was using Rowland to screen his own participation in the purchase—should have been submitted to the jury…

Hon. W. H. Cate, Circuit Judge. It was a matter of fact lor the jury to ascertain whether the sale was made to the minor or to Hughes, or, in fact, whether there was a sale at all. A careful scrutiny of the evidence fails. to- disclose any evidence tending to prove a sale to the minor. Under the state of facts a jury would not have been warranted in finding that a sale was made to the minor.

<p>1. ■ Criminal Law: Carrying weapons: What is a journey?</p> <p>One who is going from home by the highway to a definite point far enough distant to carry him beyond the circle of his neighbors, and to detain him throughout the day, and not within the routine of his daily business, is upon a journey within the meaning of the exceptiori in the statute against carrying weapons.</p>

Hon. J. B. Wood, Circuit Judge. To convict on this charge the proof must sustain the allegations. Gantt's Digest, Section zóop, is in part as follows : “ If any person shall sell to or buy for any minor, intoxicating spirits of any kind, without,” etc. Under this section the defendant would, from , the evidence, be guilty beyond a doubt. This section was repealed by implication by Act of March 8, z8pp, Sec. zp. Redmond v. State, 36 Ark., 60.

Hon. F. T. Vaughan, Circuit Judge. The defense, in this action, contended for these principles, namely: 1st. That, under the statute, to entitle a person to ride on defendant’s railway train,'he must do one of two things; he must either pay his fare to the proper officer (the conductor), or he must have provided a ticket and deliver up the same when demanded.

Hon. B. F. Askew, Circuit Judge. The appelleé, by voluntarily making himself a party to the first suit, became bound by the result, and on the dismissal of his appeal in the circuit court the judgment of the justice, which was against him, stood affirmed and in full force until reversal. In the second suit the plea of res adjudicata or former recovery should have been sustained. The appellee was a party to the first suit in the manner prescribed by law.

Hon. R. H. Powell, Circúit Judge. The demurrer admitted all the allegations of the paragraphs of the answer demurred to, and by going to trial the defendant did not waive his exceptions. Collins v. Karatopsky, 36 Ark., 317., The court evidently proceeded from the supposition that upon the purchase by Cohn of the equity of redemption, his mortgages became merged in the fee. This was erroneous.

Hon. R. B. Rutherford, Circuit Judge. The indictment charged a misdemeanor in the language of the statute. Mansf. Dig., 3330. This section permits one aggrieved to go before a justice, but does, and could, not make that the only course. The circuit court could not be deprived of jurisdiction. State v. Devers, 34 Ark., i8g; McLure v. State, 37 Ark., 42J. The statute was made for the benefit of the public—not for the gain of the individual.

Hon. H. B. Stuart, Circuit Judge. As to first ground of demurrer, appellee, in bringing his action of ejectment, must rely on the strength of his own title, and not on the weakness of appellant’s. This is a fundamental principle, about which there is no conflict in the authorities. Daniel, et al., v. LeFevre, ig Ark., 202. Party in possession of property, as well land as personal property, is considered to be the owner until the contrary is proved. Ib.

Hon. M. T. Sanders, Circuit Judge—on exchange with Judge Cate. The decision in this case will be determined by the construction placed upon Secs. 2‡^5 and 2‡6‡ of Mansf Dig. This court has not previously passed upon the question.

Hon. M. T. Sanders, Judge, on exchange of circuits. Sec. 1163, Mansf. Dig., is unconstitutional. Sec. 3, Art. XIII, Const. 1874, provides that no county seat shall be established or changed without the consent of a majority of the qualified voters of the county, etc., means a majority of qualified voters actually participating in the election. The provision is self-executing.

Hon. J. M. Pittman, Circuit Judge. The court erred in instructing the jury to assess the value ■of improvements made before the 8th of March, 1883. Acts 1883, p. 106; Kent's Com., Vol. II, p. 334, etc.' The judgment was correct, a single judgment fixing the liability ofall parties, and giving appellants the relief prayed upon their payment of the betterments found to be a lien of the land. 38 Wis., 636; 33 Mo., 20‡; 18 Bla. C. C., 202.

Hon. J. A. Williams, Circuit Judge. 1. A party who seeks equity must do equity. 2. Fraud vitiates all transactions, and no one connected with it can ask the aid of chancery to enforce any right growing out of such fraudulent transactions. The attempted conveyance or settlement of Portis upon his wife and children was void as to creditors and innocent purchasers. Wait on Fr. Conv., 92; 92 U. S., 183; 3 Johns. Chy., 4.81; 24 N. Y., 300.

Hon. J. B. Wood, Circuit Judge. 1. The injury, if any, was common to all the property in the vicinity, and not peculiar to plaintiff’s. A private action cannot be maintained for a public nuisance. One who suffers in common with the public from an obstruction in a public highway cannot sustain a private action. 5 Allen,- 223; 3 Id., 574; 4 Har. & M., 540; 28 Vt., 142; 36 Cal., 193; 1 Pa. St., 3 op. 2.

Hon. T. F. Sorrells, Circuit Judge. This was an action for damages for obstructing the passage from a street to the plaintiffs’ livery stable abutting on the street, by excavating in front of it in making a grade for the railroad.

Hon. John A. Williams, Circuit Judge. On the 7th of February, 1882, Francis Aiken and Narcissus Rubens, tenants on the land of Roth & Co., executed to Williams separate mortgages on their crops to be produced on the lands that year, to secure their indebtedness to him and for supplies to be furnished them during the year. The mortgages were filed for record March 17, 1882.

Hon. J. M. Pittman, Circuit Judge. The court had no jurisdiction. Appellant was tried at a special term, and the record does not show— 1. That he was lawfully confined in jail, nor by what authority. 2. It does not show that this special term did not interfere with any other regular term of court to be held by the judge. 3. Nor that it was not held within twenty days of the adjournment of the regular term. All this should appear of record. 2 Ark., 233.

Hon. W. H. Cate, Circuit Judge. (a) It was error in the circuit court, sitting as a jury, to consider evidence of gaming upon the alley, that is, rolling for… Held: the corporation could not have licensed it for that purpose, for the simple reason that no implied power to pass by-laws, and no express general grant of power, can authorize a by-law which conflicts with the statutes of the state or with the general principles of the common law adopted or enforced in this state.

Hon. C. E. Mitchel, Circuit Judge. No written pleadings-are required before a justice of the peace, Gantt's Dig., Sec. 3740, and on appeal to the circuit court no greater certainty or formality is required than before the justice. 36 Ark., por. Appeals from justices are tried de novo on the merits, and amendments and new issues may be made.

Hon. M. T. Sanders, Circuit Judge. No particular church or school-house was mentioned in the order, and the proof showed there were several in the town and neighborhood. There cannot be two or more centers within a circumscribed area. 4J Ark., 150. The order was void. It is unnecessary to name the particular church, if it be apparent that the radius is to be from one center. ‡0 Ark., 290; 4-3 Id-> I5°-

Hon. H. B. Stuart, Circuit Judge. The condition of the note was, in effect, that the vendee should not pay the balance until a final settlement of the estate of Peter Carmichael had been made in the probate court, and the amount of outstanding liabilities ascertained.

Hon. J. B. Wood, Circuit Judge. The indictment is in the short Code form, charging the single offense of murder, and it is submitted: 1. On an indictment for murder or homicide a defendant cannot be convicted of an assault with intent to kill. Mansf. Dig., Secs. 2105, 2108. The subsequent section sets out the offenses which may be joined, and in none of the subdivisions does it permit homicide and assault with intent to kill to be joined in the same indictment.

Hon. F. J. Wise, Special Judge. 1. It is admitted that the full amount of the decree in favor of the Scull estate against Richardson and the Ashleys, was due and owing by the Ashleys, and that no part of the same was due or owing by Richardson, he having paid his full half of the purchase money. 2. That the Ashleys were to pay the same before they could get their title to the lands. 3.

Circuit Court. Hon. J. C. Riddick, Special Judge. The proceedings and judgment had after March 28th, were coram nonjudice and void. Art. 7, Sec. 21, Const. 187 ‡. This court takes judicial knowledge of the judges of courts of record, their terms of office, qualification, etc. 1 Gr. Ev., Sec. 6, p. p; 23 Ark., 337; lb. 316. Consent, either express or implied, could not give judicial power. 3p Ark., 2‡‡; 4.2 Id., 126.

Hon. J. W. Martin, Circuit Judge. The question is, did appellee become a trustee when he accepted the deeds, or was it an advancement. 1. The appellee’s admissions in his answer and deposition' make him a trustee. 2. The proof clearly establishes that he holds the land in trust.

Hon. J. B. Wood, Circuit Judge. By reference to the transcript filed in this case it will be .•seen that the clerk of the Saline circuit court has officially certified that the transcript contained a true and correct copy of each and every paper and court order, as the originals appear ■on file and of record in his office. This certificate was made •September 25, 1884, over a year ago.

Hon. C. E. Mitchel, Circuit Judge. 1. Fraud is never presumed, but must be proven, and the anus is on the one who charges the fraud to prove it. All that was required of the interpleader was to prove a sale. Having thus made a prima facie case, the law will presume that the sale was bona fide, and the burden is on the party attacking the sale. Wharton on Ev., Vol. I, Sec. 366; 2 lb., Secs. 1248-g; 18 Ark., iff; 6 Ark., 316; 3 Id., 346. 2.

<p>APPEAL from Independence Circuit Court.</p> <p>Hon. R. H. Powell, Circuit Judge.</p> <p>1. There is no breach of the bond alleged. Because the action of the probate court, through A. J. Young as the next friend of said minor, Ladd, requiring said W. B. Padgett, as administrator of said John J. Palmer, deceased, was null and void, as said A. J. Young was not the successor in office to said Palmer, as required by the bond. Hence the probate court had no jurisdiction to cite said administrator to appear to answer the demand of Young as next friend, nor any legal authority to render judgment thereon. 34 Ark., 144; 33 Ark., 425; 35 Ark., 93.</p> <p>2. At the death of Palmer, as guardian of said Ladd, it was the duty of the court to appoint him a successor; or at Ladd’s becoming fourteen years old, which was lo^g prior to the action of Young as his next friend, to have selected a successor to Palmer, who would be authorized under the terms of the bond to have required this defendant to settle. Sec. 3435 Mansf. Dig., and records of case in complaint; 33 Ark., 638; 33 Ark., 93.</p> <p>3. The claim under the bond became a debt against John J. Palmer’s estate at his death in 1875, and should have been presented to this defendant, duly authenticated, within two-years from grant of letters, and not being so presented was barred by the Statute of Non-Claim. Sec. 96 Mansf. Dig.; 13 Ark., 333; 18 Ark., 334.; 33 Id., 638; Purcelly v. Carter, anteT 299, and cases cited.</p> <p>4. The judgment, or rather order, of the probate court is an alternative or conditional one. And one upon which an attachment might issue. But not such a finality as' would warrant an appeal, or would authorize the institution of this suit. Mansf. Dig., 8328, 3334.</p> <p>5. If it is conceded that the action of the probate court is valid and binding, through A. J. Young as next friend of Ladd, then Young is the proper party to this suit and not H. S. Coleman.</p> <p>6. More than two years having elapsed after the action of the probate court, through Young as next friend of'Ladd, the claim is barred by limitation. 33 Ark., 638; Mansf. Dig., 4482.</p> <p>7. More than eight years- having elapsed after the death of Palmer, and the appointment of this defendant as his administrator, before the institution of this suit, the claim is barred by limitation. 33 Ark., 638; Mansf. Dig., 4482, 4488.</p> <p>8. More than ten years having elapsed after the signing of the bond, and before suit brought, the action is barred by limitation. 33 Ark., 638; Mansf. Dig., 4482, 4488.</p> <p>. The “ court of probate ” being a constitutional court, of exclusive original jurisdiction in matters relative to “administrators, guardians,” etc., its judgment upon the subject matter of this action was conchisive, and could not be attacked collaterally. Art. VII, Sec. 34, Constitution of Ark.; Montgomery and wife v. Johnson, etal., 31 Ark., 74; Carter v. Engles, 33 Ark., 203.</p> <p>This being an action to recover a trust fund, belonging to a minor, no plea of limitation could have prevailed, even if it had been interposed in apt time and in the proper court. The judgment of the court of probate, upon which this action was founded, was not barred by any limitation known to our laws.</p> <p>We are unable to say what the court might have held, as to the liability of the estate of the former guardian, if the defendant, as administrator, had filed a separate plea of non-claim, but the failure to present the claim to the defendant:, as administrator of the deceased guardian, did not release the defendant as security on the deceased guardian’s bond. See Ashby, et al., v. Johnston, et al., 23 Ark., 163, and authorities therein cited.</p> <p>The defendant having elected to file a joint plea of non-claim, which was clearly bad as to his liability as security on the bond (see authorities just cited), the plaintiff’s demurrer to it was properly sustained. A plea bad in part is bad in all. See Chitty’s Pleading, Vol.p■ 146.</p> <p>If the judgment against the estate of Palmer is erroneous,, which, under the pleadings, we do not admit, it is clearly right against the defendant, personally, as secuiity on the bond. See Gantt’s Dig., Sec. 4701; Brugman, et al., v. McGuire, et al., 32 Ark., 733.</p> <p>In bringing this action, as guardian, appellee relied upon Secs. 4472 and 4491, Gantt’s Dig. If Turner v. Alexander, 41 Ark., p. 234, had been published at the time, appellee would most certainly have conformed to the suggestion of this court, and brought the suit in the name of the ward.</p>

Hon. M. T..Sanders, Circuit Judge. This indictment is under Act of March ji, i88j, Sec. 21‡> Mansf. Dig., Sec. 5862, and under Maitsf. Dig., Secs. 1755, 1757, and none but a justice then acting, as such can be indicted. 1. Because the failure is a misdemeanor in office, and part - of the penalty is removalfrom office. 2.

Hon.’M. T. Sanders, Circuit Judge.. • While the bill charges fraud., yet the fraud is to be inferred from the settlements of the administrator, and consists solely in his failure to charge himself with a sufficient debit on proceeds of a saw-mill, and in being allowed improper credits. These were mere irregularities or errors, correctable only by appeal. The estate was finally settled in the probate court, which had exclusive jurisdiction of the matter.

Hon. J. A. Williams, Circuit Judge. 1. A simple statement of the facts of this case show, that the debtor was insolvent; that he conveyed the land to his daughter for a nominal consideration pending litigation by his creditors; that he had no other property subject to execution. This brings it within 22 Ark., iff; 32 Id., 231. Nor can he prove a different consideration from that expressed in the conveyance. 30 Ark., fif; 20 Wall., 31. 2.

<p>1. Railroads: Ejecting a passenger for ref using to pay fare.</p> <p>Under Section S474 °f Mansfield's Digest a railroad conductor cannot eject a passenger for refusing to pay his fare, except at a usual stopping-place, even though that would take him to his destination.</p> <p>2. Same: Same: Damages.</p> <p>A passenger can recover only nominal damages for being ejected from a railroad train at a place other than a usual stopping-place for refusal to pay his tare, unless actual personal or pecuniary damages have ensued.</p> <p>3. Damages : Excessive : Must be excepted to.</p> <p>A party cannot object in the supreme court to excess of damages in the trial court unless the objection be made there and .assigned as error in the motion for a new trial.</p>

The question presented here is: Did the judge have the right, after the adjournment of the January term, to change, alter or modify the decree of the Lonoke circuit court? We think not. At the close of the term at which it is rendered the judgment of the circuit court becomes final, and passes beyond, the control of the court.

Pión. J. B. Wood, Circúit Judge. ' 1. The justice, Steigler, had no authority or jurisdiction to try appellant. The change of venue was to-Allen, J. P., of Sulphur township. Mansf. Dig., Sec. 2338, 2380; 38 Ark., 32‡; 36 Id., 268; 38 Id., 221; 33 Id., 329. 2. The justice not having jurisdiction, the circuit court had none on appeal. 3 Ark., 27, 366; 6 Id., 3J3; 10 Id., 266; 32 Id., 117. 3. The warrant did not state facts to constitute a public offense.

Hon. M. T. Sanders, Circuit judge. 1. The cdurt erred in admitting incompetent, yet relevant and material, testimony, and could not cure the error by attempting to exclude it. 44 Ark., 334; 38 Id., 237; 66 III., 2ig; 7g Id., 402; 123 Mass., 222, 232, 236; 23 Am. Rep., 84-3; 6 Hill, 318. 2. The testimony of Johnnie Rison, as to appellant’s striking his wife on a former occasion and at a different time, was inadmissible.

Hon. H. B. Stuart, Circuit Judge. First, is the complaint multifarious as to any of the defendants? We do not pretend to say that this question is without difficulty; but we think, upon reason and the decided weight of authority, it is not. The two sections of our statute which bear upon the subject, Mansf.