Volume 46 — Arkansas Reports

Hon. B. F. Askew, Circuit Judge. If, at the time of said purchase by Yeager of said lands, they were not really swamp and overflowed lands, but dry lands, then they did not belong to the state, but to the the general government, and Yeager obtained a good title, which could not be afterward set aside by the'government. Mitchell v. Branch, Ark., J¡.31.

Hon. F. J. Wise, Special Circuit Judge. STATEMENT. At a sale of his intestate’s lands made by McGaughey as administrator of the estate of Fountaine Brown, deceased, on the 2d day of March, 1868, the lands were purchased by James A. Brown upon a credit of twelve months, and after-wards the sale was reported to and confirmed by the probate court.

<p>1. Criminal Practice : Appeal from J. P. Jurisdiction.</p> <p>On appeal from a judgment of a justice of the péace in a criminal case, it is too late for the defendant to object in the circuit court to the jurisdiction over his person.</p> <p>2. Same : Change of venue, order for.</p> <p>The order for a change of venue in a criminal case, from one justice to another, need not set forth the ground of the removal. That appears from the affidavit therefor, which is part of the record.</p> <p>3. Same : Change of venue before J. P. Jurisdiction.</p> <p>It is not necessary to the jurisdiction of a magistrate to whom a cause is transferred, that a supporting affidavit for the change of venue was filed before the change.</p> <p>4. Same: Appeal to circuit court, objection to jurisdiction.</p> <p>On appeal to the circuit court an objection to the jurisdiction of the magistrate who tried the cause for want of a supporting affidavit for change of venue to him from another magistrate, is waived by not making the objection before the trial justice.</p> <p>5. Same: On appeal, trial is on merits.</p> <p>On appeal to the circuit court, the trial is on the merits, and technical objections to the forms of procedure in the justice’s court are futile.</p> <p>6. Same : Separate appeals from J. P. Joint trials in circuit court.</p> <p>On trial of two defendants before a justice of the peace upon a charge of assault with a deadly weapon, and also of assault and battery, they were separately tried and convicted; one for assault and battery, and the other for an aggravated assault, and they appealed, giving a joint bond for the fine and cost. Held: That the circuit court might try them jointly.</p> <p>7. Same : Verdict, uncertainty of.</p> <p>A general verdict of guilty, and a fine of one dollar against a defendant who is ehar’ged with an aggravated assault, and also an assault and battery, will be presumed in this court, from the smallness of the fine, to apply to the lowest grade of offense, and is not uncertain.</p>

Hon. R. H. Powell, Circuit Judge. It is by no means necessary that a man should be married or have children to be the head of a family, although the having a wife is possessing a family. 1$ Ark., 532; Thompson H. $ Ex., secs. 4.4-5, and, 72; 31 Tex, 680; 21 111, 4.0-5; 6 Bush., 11; 27 Ark., 658. Is a married man to be cut uff from his homestead, whenever his wife dies, in case he has no children?

Hon. J. G. Prierson, Circuit Judge. Having procured all these claims, appellee Driver proceeded to secure them in a very singular way. He did not, like any one else would have done, take a mortgage with interest from date until paid. He calculated the interest on all the claims at the rate of 10 per cent, up to the date of the execution of the mortgages, and added this interest to the principal.

<p>1. Practice in Supreme Court : When judgment of trial court presumed right.</p> <p>Where all the facts are not before the appellate court, the presumption is that every fact susceptible of proof which could aid the appellee’s case was established by the evidence.</p>

Hon. M. T. Sanders, Circuit Judge. First — The mortgage is void for ambiguity and uncertainty in the description of the place where the cotton was to be grown and the indebtedness to be secured. It was only intended to secure, and only secured, the $100 in supplies to be advanced, and not previous indebtedness.

Hon. F. T. Vaughan, Circuit Judge.' First — The court of chancery had jurisdiction, and once having taken jurisdiction, will retain it and enjoin the sale of personal property. 30 Ark., 138; Mansfield’s Digest, sec. 3731; 34 Ark., 603; 39 Ark., 413; 38 ib., 371; 98 111., 305; 105 ib., 334; 4? Conn., 394• Second — No lien is given by the‘statute on particular articles for the specific tax on such article. The statute is ■silent on the subject. See. 5713, Mansfield’s Digest.

Hon. J. A. Williams, Circuit Judge. The contract sued on was made prior to October 13,1882, ;and was for the balance of 1882 and the entire year of 1883. No contract is alleged to have been made at any time in 1883, and being in parol, was within the statute of frauds. 13 JR. I., 480; 55 Mo., 97.

Hon. C. E. Mitchel, Circuit Judge. The written contract with Hibbard should have been admitted in evidence. It was part of the res gesta, and showed the terms, specifications and conditions, and who were the contracting parties. Wharton Ev., vol 3, see. 10 15-16; Parsons Cont., vol. 2, 517-18-19; 18 Ark., 65; 1 Paige, 13; 8 Pick., 56. The two contracts, as to terms and conditions, were one and the same. 7 Ark., 321; 1 Phil.

Hon. D. W. Carroll, Chancellor. Mrs. Tate had a clear and undisputed title to an undivided fourth of the south half of the tract, claiming under her patent and tax deed. She was a tenant in common, and as such had a right to the possession. Freeman on Cot. $ Part., sec 87; 1 Bouv. Inst., sec. 1881; I Wash. R. P., Ifth ed., 656. Being thus rightfully in possession she could not maintain ejectment, and must sue in equity. 36 Cal., 321.

Hon. W. H. Cate, Circuit Judge. First — The court decided that Driver was under no obligation to pay the plaintiff rent upon the improvements made by himself. In 1)2 Ark., 1)1)2, this court decided that a mortgagee in possession was under no obligation to pay rent on improvements made by him. But there the possession of the mortgagee was rightful. Here the possession was wrongful.

Hon. J. M. Pittman, Circuit Judge. The mortgages in this case were not within the principle of Lund v. Fletcher, 39 Ark., 325, nor Martin et al. v. Ogden, lj.1 Ark., 186. It was expressly stipulated in the mortgage that nothing should be sold without the written consent of mortgagees. The fact of leaving Bates in possession of the mortgaged property did not render the mortgage void. The rule in Twyne’s case does not obtain where there are registration laws.

Hon. J. M. Pittman, Circuit Judge. Appellants rest this case on the mortgage given by Buttle to Orr & Lindsey, and insist that it is fraudulent and void. The mortgage authorized the mortgagor to retain possession and retail the goods, and did not require him to account for the sales of the first week. Nor was he required to account for the proceeds subsequently, further than that he was to pay $50 or more (at his option) regardless of the amount he should sell.

Hon. W. H. Cate, Circuit Judge. First — The unauthenticated copy of the record of an agreement between appellants and the Allendale Trust Company should have been excluded. The clerk had net attached his certificate or seal thereto. It was not proved to have been a true copy, or that it had ever been entered into or executed by appellants. 1 Oreenl. Fv., see. 501. Second — The first instruction was error.

Hon. F. T. Vaushan, Circuit Judge. The appellee, a constable, was removed from office upon information filed by the prosecuting attorney. The court held that under an information no fine could be imposed nor could appellee be held for costs and that the prosecuting attorney was not entitled to a fee. The removal-was for criminal conduct on the part of the appellee.

Hon. J. B. Wood, Circuit Judge. The indictment charges the appellees with a trespass and defines the offense in the words of the statute. Sec. 1658, Mansfield’s Digest. A genera] demurrer was sustained to the indictment.

Hon. G-. S. Cunningham, Circuit Judge. First — The court erred in permitting the cross-examination of defendant as a witness, and the evidence of Tom Osborne, for the purpose of contradicting McCoy, and proving him guilty of an entirely different crime, viz.: accessory after'the fact, to go to the jury. It was not only improper, but highly prejudicial to defendant. 2 Ark., 229; 37 ib., 261; 39 ib., 278; 1 Dish. Or. Pro., sec. 1120 to-1129; 38 Ark., 221; J¡S ib., 367.

<p>1. Attachment: Sale of attached land. Filing bond before sale. Proof of attorney's authority to appear.</p> <p>In an attachment suit before a justice of the peace against a non-resident, served by warning order, an attorney ad litem was appointed by the justice for the defendant, who filed an answer and made defense for him, but judgment was rendered for the plaintiff and the land attached was sold, and the purchaser brought ejectment against, the occupant and recovered, and the occupant appealed to the Supreme Court, where it was held that the recital in the justice's record of the attorney’s appearance and defense had reference to his authority under the appointment, and did not show jurisdiction of the defendant’s person, and that the sale was void for the failure of the plaintiff to file before the sale, the bond required in such cases against defendants only constructively summoned. At the trial, after the appeal, the circuit court refused to allow evidence to prove that the attorney had also been employed by the defendant. Held, error: The offered proof did not contradict the justice's record, and the attorney's authority was proveable by parol evidence, and the evidence was material in showing that the justice had jurisdiction of the defendant’s person by the appearance through his authorized attorney, and the bond was therefore not necessary to authorize the sale.</p>

Hon. M. T. Sanders, Circuit Judge. STATEMENT. Phillips county filed in the circuit court of Lee county fits petition against the county court and treasurer of Lee county, stating, in substance, that in pursuance of the act •of the legislature creating Lee county and providing for the ascertainment of its share of the indebtedness of the ■counties out of which it was carved, the amounts due to the parent counties had been ascertained and adjusted ac•eording to the act, and…

Francis Circuit Court. Hon. M. T. Sanders, Circuit Judge. “The personal property of any resident of this state who-is married or the head of a family, to be selected by such resident, not exceeding in value the sum of $500 in addition to his or her wearing apparel and that of his or her family, shall be exempt from seizure on attachment or sale on execution, or other process, from any court, on debt by contract.” Const, art. 9, sec. This language is slightly ambiguous, but…

Hon. W. A. Bevens, Special Judge. Rirst — The decree is void for want of jurisdiction. There was no element of equitable jurisdiction in the defense and cross-complaint. Jurisdiction in equity cannot be conferred by the transfer of causes purely legal and containing no grounds of equitable cognizance. Crawford, Aud., v. Carson et al. 35 Ark., 583; Apperson 8g Co. v. Moore et al., 30 Ark., 58; Roberts et al. v. Jacks, 31 Ark., 608.

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. E. E. Tiller, Circuit Judge.</p> <p>First — The court erred in refusing to reform the notes, so as to make them bear 10 per cent, interest, after as well as before maturity. Mere mistakes of law are not remediable in equity. ' But where an instrument is drawn and executed, which is intended to'carry into effect an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draughtsman, either as to facts or law, does not comply with, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to make the instrument conform to the agreement. 1 Peters, 1; 2 Curtis, C- C., 277-9; 98 U. S., 85; 13 Ark., 129.</p> <p>Second — The court erred in crediting the amount of the stated account with the interest paid by Collins after the maturity of the note, in excess of 6 per cent. This interest was paid under a mutual misapprehension.of the legal effect of the notes, and was a mere naked mistake of law. 12 Pet., 32; 1 ib., 1; 15 Ohio, 218; 34 Miss. (5 George), 528; 7 Wend., 315.</p> <p>First — Equity will not undertake to reform a written instrument except upon the clearest evidence. 1 Ves., 317; 1 Bro., 94; 5 Mason, 577; 2 Johns. Chy., Gellaspie v. Moore; 14 Ark., 487; 15 ib., 277. In this case it is not pretended that the notes were not written as intended by the parties. It is only alleged that there was a mistake as to their legal effect, that both parties supposed the notes would draw 10' per cent, until paid, and that if they had understood the law they would have drawn the notes differently. In such cases equity can afford no relief. Kerr on Fraud and Mistake, Am. ed., 488; 8 Pom., Fq.-Jur., sec. 843; Ark., 495; 8 Wheat., 174; 49 Ind., 434; 47 ib., 98; 18 Mich., 354; ® Abb., C. C., 471; 1 Puss. $ M., 418; 8 Mylne £ K, 851; 8 Gomst., 19; 43 Iowa, 388; 48 N. Y., f08; 4% Iowa, 107; 38 ib., 138; 40 Ind., 366; 8 Md., 85; 6 ib., 479; 46 III, 489; 98 D. S., 85.</p> <p>Second — The court properly credited Collins with the interest paid in excess of 6 per cent. This is not an action for the recovery of money paid under a mistake of law, but all it presents is the existence of a large debt due by Collins to Rector and payments by Collins from time to-time on general account, and Rector had no right to apply the- payments to the satisfaction of interest in excess of that not contracted for.</p> <p>Third — In the account, which the court below found to be an account stated, the interest is computed at 10 per cent, throughout. This may have been done with knowledge' of the law, or ignorance of it; but if an error of law, it is one-the courts will correct. 8 Story Fq. Jur., 18 ed., sec. 584; 11 Wheat., 856; 8 Atk., 118; 7 Penn St., 805; 3 Dessan. (S. C.), 93. But this was not a mistake of law, but of fact; not of the legal effect of the instrument, but an error as to what the instrument really was. Pollock Cont., p 891.</p> <p>Fourth — Appellees have not appealed, but if the decree is opened the entire account will be restated. 40 Ark., 394• Appellant should be charged rent at the real rental value of the place, not what she received. 36 Ark., 17.</p>

Hon. C. E. Mitchel, Circuit Judge. First — The allegations of the complaint show that deceased was not in the exercise of due care and caution, and was guilty of such gross negligence as to contribute to his injury, and preclude a recovery. There are no allegations that the point where the trestle was located was any part of a street or public highway, or was used by the public under a lease from the company, or that deceased had no knowledge of the structure.

Hon. R. B. Ruthbreord, Circuit Judge. The common law is in force here, and cattle running at large that go upon the lands of another are trespassing, and their owner is liable for the trespass. The owner is guilty of contributory negligence, and must take the risk of such injuries as may occur to them, if not proximately and directly the result of the unlawful act of the land owner.

Hon. J. M. Pittman, Circuit Judge. Barry was a special agent, authorized to solicit orders, by sample, for appellants. He was paid a commission on all orders taken. He did not handle the goods; had no control over them. The orders were taken in the name of the firm; the goods were shipped directly to the purchaser, and a bill sent, showing the amount of goods and indebtedness to the firm. Barry had no authority to collect. SO Amer. Hep., 795; 68 Mo., 298; SO Penn.

Hon. R. H. Powell, Circuit Judge. A written receipt in full is evidence of the highest and most satisfactory character, and when given with full knowledge of the facts and circumstances, and there is no fraud, misrepresentation, mistake or imposition, it will bar a recovery, though given for a less sum than the party claims. 89 HI., 21%. The burden of pi’oof invariably rests on the party seeking to explain it. H III, Jf.%5.

Hon. R. B. Rutherford, Circuit Judge. The appellee contracted to “deliver” the goods. The bill of lading is a contract in writing, to be construed like all others, according to the legal import of its terms, and all antecedent agreements are merged and extinguished. Lawson on Gont. of Gar., sec. 11%; 16 Ohio, I¡,%1.

PETITION for Mandamus. A constitution is framed and adopted in contemplation of, and with reference to the political sub divisions of the state, and “ the law of the land,” as it thus exists. Cooley’s Con. Lim., 1st ed.,*p. 60, 64; ib.,* p. 353,etseq.; James v. Reynolds, 8 Texas, p., 851; Button v. Albertson, 55 LI. Y., p. 54; People v. Porter, 90 N. Y., p. 71.

Hon. M. T. Sanders, Circuit Judge. First — The verdict was contrary to the evidence. There was no evidence showiug any negligence whatever on part of appellant. The defendant was treated as an insurer, when by the contract his liability was limited to that of a forwarder or private carrier. Second — The verdict was contrary to the instructions of the court. Third — The court erred in refusing the first instruction for appellant.

Hon. C. E. Mitchbl, Circuit Judge. First — There must be a wrongful detention after a demand, not a wrongful possession at any time. 81¡. Ark., 93; JfO ib., 555. Second — The first, second and third instructions for plaintiff are too broad and general, and calculated to mislead.

Hon. John A. Williams, Circuit Judge. The filing of the amended complaint was the bringing, a new suit. 84 Ark., 144• Defendants voluntarily appeared and went to trial on the merits. Tillar, Stanley & Co. were made parties on their motion. It was too late to object in the circuit court, and move to dismiss for want of jurisdiction. 4 Ark, 70; 14 ib., 234; 35 ib., 276 ; 25 ib., 99; 2 ib., 195. The case stood for trial de novo in the circuit court.

Hon. R. B. Rutherford, Circuit Judge. The written instrument was the best evidence to establish the relationship existing between the parties. 5 Ark., 651; ib., 678; 8 ib., 804; IS ib., 185; 1 Or. Ev., p. p., 88 108. It clearly created the relation of landlord and tenant. See 31 Ark., 435; Taylor Land. $ T.,p. 19, and, note 5 on p. p. 19-80; 34 Ark., 179. Under the code plaintiff could join the note with his claims for rent. Gantt's Dig., sec. 4550; 33 Ark., 107.

Hon. G. S. Cunningham, Circuit Judge. Plaintiff’s action accrued more than eleven years before suit brought, viz.: on the day of the approval of the fifth and final account. They are barred. Gantt’s Dig., sec. 1¡.1S7; 33 Ark., 658; 39 ib., 11$; S3 ib., 93. It certainly accrued when the court, at the instance of the guardian of the only minor heir, ordered a distribution in April, 1873. Oantt’s Dig., secs. 157 to 168; 5 Ark., £68; 21 ib., £08 and £50.

<p>1. Vendor and Vendee: Lien for purchase money. Waiver.</p> <p>Richardson sold and conveyed to Green, in trust for his wife, a tract of land, and for part of the purchase price Green executed to Richardson his note, on which Richardson recovered judgment, and after-wards filed a bill in equity to inforce his lien upon the land for payment. Held: That neither the acceptance of Green’s personal note, nor the recovery of judgment on it, was a waiver of the lien — • that Green was not a stranger to the purchase, the taking of whose note would be a presumed waiver of the lien.</p>

Hon. David W. Carroll, Chancellor, The appellee in this suit seeks to litigate over again the very same issues decided in the ejectment suit. The cause' is res judicata. The sale in solido was for the best interests of the estate; it was regular, legal and fair, and no fraud or undue advantage is shown. Fraud must be specifically alleged and proved. 31¡, Ark., 71; 44 ib., Adams £ Thomas; 41 ib-, 378.

Hon. M. T. Sanders, Circuit Judge. First — The court erred in refusing to require plaintiff to submit to an examination of his person by competent experts. 1$ Iowa, 375; 60 How. Pr., 11$; 21¡, Am. Law Reg., 527; 29 Kans., 1$6; 8. C., 44 -Tm. Rep., 659.

•Hon. J. B. Wood, Judge of the Circuit Court. Agreements entered into to evade a public statute, or against public policy, are void. 3b Ark.,- 762; 1 Dillon, 280. There was no consideration for the bond for title, and courts of equity do not enforce nude facts. 2 Story JEq.. Jur., secs. 787, 973, 987. The law of this case is stated in Gaines v. Molen, bl Ark.r

Hon. D. W. Carroll, Chancellor. First — In case of division of a religious corporation, the title to the church property will remain with those who retain their connection with and continue to conform to the usages and discipline of the organization with which they have been before connected, although they may constitute . only a minority.

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. R. B. Rutherford, Circuit Judge.</p> <p>The ordinance is constitutional and valid. Acts of Incorporation, see. 16; Mills on Em. Dom., secs. 6, 7 and 8; Mayor of Cartersville v. Lanham, 13 Law Reporter, 552; 26 Mich., 476; 10 Lea {Tenn.), 85; 80 III., 459 ; Dillon Man. Corp., vol. 1, p. 284.</p> <p>The court excluded the ordinance upon the ground that the costs and charges were incident to a penalty.' The costs of the proceedings means cost of seizing, impounding, feeding, etc., and merely the costs of any trial.</p> <p>The power may be exercised without imposing a penalty. The owner cannot complain if he is not .punished to the full extent of the law. 26 Mich., 476, and'cases cited.</p> <p>“Due process of law” does not necessarily mean a judicial or legal proceeding, a judicial determination. 12 Kans., 271.</p> <p>Personal notice not necessary; sufficient if by publication. 48 E. V, 313; Shaio v. Kennedy, N. C., Tenn. Rep , 158; 8 Ired. Law., 493; 6 ib., 168; 12 Kans., 268; 41 Penn., 481.</p> <p>The judgment should be reversed. Secs. 5145-5181, Mansf. Dig., and cases cited note to sec. 1265.</p> <p>This ordinance is attempted to be upheld under sec. 757, Mansf. Dig. The ordinance is void, no penalty being provided, and the city had no power_ to seize, impound and sell for costs only. 26 Mich., 476.</p> <p>It is void because it attempts to deprive the owner of his property without legal proceeding first had to condemn, or “ due process of law.” 39 Am. Hep., 208; ¡¡,0 ib., 115; 7 Gush. (Miss.), 2¡¡7; 35 Am., 1¡,20; ¡¡,6 N. Y. (Ct. App.), ¡¡89; Ip0 Am. Bee. 279; 53 ib., 328; 10 Ohio, 36; 26 N. J. (Laid), 72; ¡¡5 N. Y, 356.</p>

Hon. G. B. Denison, Special Judge. A proper affidavit is a prerequisite to an appeal from a justice’s to the circuit court. It is jurisdictional. 1$ Ark., 188, and Ark. Hep., passim. An affidavit for appeal made by a client before his attorney of record, who is an officer authorized to administer oaths, is a nullity, against public policy and void.

Hon. L. A. Byrne, Circuit Judge. All that portion of Powers’ evidence as to conversation and transactions between him and deceased comes within the rule of exclusion in Const. 1874, schedule, sec. 2. Not witihin the letter, but within its spirit and meaning. Powers was directly interested and as much a party to the suit as if his name bad appeared in the record as such. The judgment for appellee is, in effect, a judgment for Powers, in that it releases him from obligation.

Hon. D. W Careoll, Chancellor. Section 6 of article 16 of the constitution provides that all property subject to taxation shall be taxed according to its-value, that value to he ascertained in such manner as the general assernbly shall direct, making the same equal and uniform throughout the state.

Hon. B. E. Askew, Circuit Judge. The clerk’s deed to appellee being void (Bagley v. Castile, Ark., 77), no rights accrued, and no protection is given at law to acts under it. Cochran v. Cobb, land commissioner, J¡3 Ark., 180. Hence appellee was not entitled to any tender for value of any improvements, percentage, etc., provided in section 264.9, Mansfield’s Digest, as held in Douglas v. Flynn, 43 Ark., 399; 40 Ark., 443.

Hon. M. T. Sanders, Circuit Judge. In this case the appellee sold the entire place to appellant, representing that he had a good title,… Held: “ Where a vendee has accepted title, he is presumed to have examined the evidences thereof, and held them sufficient, and in the absence of fraud, must rely upon his covenants of warranty.” As to what will constitute fraud, the court, in the same case, says : “It is not every misrepresentation of the vendor, in regard to the property…

Hon. C. E. Mitchel, Circuit Judge. There are two questions involved in this case, to-wit: First — Had the town council of Magnolia authority to adopt and enforce the ordinances and collect the license taxes thereunder demanded and paid ? Second — If the exactions were unlawful did or did not .appellees pay the same voluntarily, that is to say, was the compulsion shown by the pleadings and testimony sufficient to render the payment involuntary in the legal sense?

Hon. R. H. Powell, Circuit Judge. The Supreme Court of the United States, per McLean, J., in the case of Lloyd v. Scott, said: “ Where a party agrees to pay a specific sum, exceeding the lawful interest, provided he do not pay the principal by a day certain, it is not usury, for the reason that by a punctual payment of the principal he may avoid the payment of the sum stated, which is considered as a penalty.” Lloyd v. Scott, Ip Peters, MB.

.Francis Circuit Court. Hon. M. T. Sanders, Circuit Judge. To support the action of attachment to enforce a lien for rent, the relation of landlord and tenant must exist. As to who and what a tenant is, see Wood on Land, and Ten., see. 1. The appellee was not the landlord of appellant; he was the tenant of the heirs, and could not attorn to a stranger, or change his relation. The relation of landlord and tenant once being fixed, is a covenant which runs with the land.

Hon. J. B. Wood, Circuit Judge. We submit that here is enough of the testimony to disclose the errors we complain of within the rule. We assign the following errors: First — The .children of LaOade have no interest in this suit, §md a judgment in their favor is erroneous. Mansfield’s Digest, sec. 3, provides that where there is a widow, the estate shall vest in her. If there are minor children it shall vest in them.

Hon. M. T. Sanders, Circuit Judge. First — No appeal was taken from the board of equalization to the county court. Act March 81,1883, sec. 80. The board is in some sense a court, with its jurisdiction limited to the matters specified in the act creating it, and the ■county clerk keeps a record of its proceedings. Sec. 83. If any appeal is taken, as the act does not provide the manner, etc., the usual method by motion, affidavit, etc., must be followed.

Hon. E. T. Vaughan, Circuit Judge. The court erred in amending plaintiff’s first instruction, and in giving it as altered, and in giving the first, second, third and fourth instructions for appellee. 5 B. J. Lea (Tenn.), 5]$; 56 Iowa, 337. These instructions are wrong : First — They tell the jury that the defendant was not guilty of negligence by not seeing Bauer on the track.

Hon. R. B. Rutherford, Circuit Judge. It will be observed that the words of general conveyance in the deed are restricted by the “ schedule thereafter,” to be filed by the assignee. The assignment was not, therefore, full and fair on its face as it was ruled by the court below, to be, in charges two and three, given for defendants. Minns v. Armstrong, 31 Md., 87; Guerin v. Hunt, 6 Minn., 375.

Hon. G-. S. Cunningham, Circuit Judge. First — The complaint should have been stricken from the files because it was altogether unnecessary, and the summons should have been quashed, because it was fatally defective in failing to require appellants to appear and show cause why judgment should not be rendered against them for the sum specified in the bail-bond, on account of the forfeiture thereof.

Hon. J. B. Wood, Circuit Judge. The contract was executed, and the firm of attorneys received a benefit, a consideration, something of value, for their release and satisfaction of their disputed claim. Anything that is of benefit to one or a detriment to the other is a sufficient consideration.

Hon. G. S. Cunningham, Circuit Judge. , Appellee’s plain duty was to have informed the conductor that she needed assistance to- get off the train, and then to have waited for him to stop the train and come to her assistance, and if he failed to do this, as is claimed in this case, and caused the train to start without giving her opportunity to get off with that degree of care that it was proper should have been exercised by a person in her feeble condition, it was her duty…

Hon. R. H. Powell, Circuit Judge. • 1. Is section 38, chapter 18, Gould’s Digest, which was omitted from Gantt’s Digest, but is carried forward in Mansfield’s Dig. as sec. 6585, authorizing the proceedings in the circuit court by devisavit vel non, the law? 2. This section has not been expressly repealed, and if repealed at all it is repealed by implication. Repeals by implication are not favored.

Hon. C. E. Mitchel, Circuit Judge. A court of equity, where it appears that the lands are in the possession of another, will not entertain a bill, nor grant relief, to remove a cloud from title; because the remedy is at law, by ejectment. 07 Ark., 47-4'> 30 ib., 579; 37 ib., 643; 44 ib., 436; 48 iK 28.

<p>1. Taxes: Illegal, may be enjoined.</p> <p>A court of equity has jurisdiction under the constitution to enjoin the collection of an illegal tax, when such injunction will present a multiplicity of suits.</p> <p>2. Taxation. Of occupations, trades, etc.</p> <p>The legislature has authority under the constitution to delegate to cities the power to tax occupations.</p>

APPEAL, from Lee Circuit Court. Hon. M. T. Sanders, Circuit Judge. Argue upon the merits. There is nothing before this court for determination, there being no properly prepared or,filed bill of exceptions. St. JL., I. M. cf S. Hy. v. Godby, Arle.

Hon. R. H. Powell, Circuit Judge. In tbe case of delay in the transportation of merchandise beyond the time stipulated, or if there is no stipulation, as was in this case, beyond a reasonable time for the transportation and delivery of the same, the damages would be the direct and actual losses sustained thereby, such as the decline in the value of property or actual injury thereto.

Hon. J. E. Borden, Special Judge. Bales was a bailee for hire, and his bailor could bring no action against him, either of trover or replevin, nor against his vendee, until the expiration of his lease. The action was not barred. Angelí on Lira., p. 128, note 8 (6th •ed.); 10 Ark., 888; 17 ib., 449; Bliss on Code PL, sec. 83; Story on Bail, sec. 39; Cooley on Torts, p. 449; 50 Ala., 19; Wells on Replevin, secs. 31 to 53.

Hon. G-. S. Cunningham, Circuit Judge. Five days' notice was not given as required by sec. 3006, Mansf. Dig. Nor was the notice waived by appellants. The exemption can be claimed at any time before sale ; but when it is claimed, the statute must be followed. 28 Ark., 485 ; 40 ib., 352 ; 33 ib., 464; 42 ib., 410. The statute is peremptory, and the notice must be given before the exemption can be claimed.

<p>1. Exemptions: Notice of filing schedule when waived by creditor.</p> <p>When a justice of the peace refuses to issue a supersedeas to restrain the sale of exempted property, on account of the failure of the debtor to give the creditor the five days’ notice of fii'ng his schedule, and the debtor appeals to the circuit court and the creditor appears there and resists the right of exemption he thereby waives the required notice.</p>

Hon. R. B. Rutherford, Circuit Judge. The complaint did not state a cause of action. It does not allege that the services were completed; that the suits had terminated, or the relation of client and attorney had ceased. Without such allegation there is no cause of action stated. See Phelps Sf Jones v. Patterson, 25 Ark., p. 185. A complaint must state facts sufficient to constitute a cause of action. This one does not.

<p>APPEAL from Chicot Circuit Court in Chancery.</p> <p>Hon. J. M. Bradley, Circuit Judge.</p>

Hon. E. T. Vaughan, Circuit Judge. Erom the facts of this case it will be seen that the entire defense was based upon an utter absence of negligence on the part of defendant’s servants, and upon the contributory negligence of the deceased, J. C. Lee. The acts of the deceased were not simply carelessness, but they amounted to recklessness and an utter indifference to his own personal safety, which, in any sane person, was inexcusable.

Hon. C. B. Wood, Circuit Judge. Parol evidence is not admissible at law to show that an-instrument, absolute on its face, was intended as a mortgage. 31 Ark., 166; 37 ib., Uf9. It is only in equity that it can be done. Notes to Chase’s Case, 17 Am. Dec., 302; 21 Wend , 36; 6 Hill, 219; 16 Barbour, 439.

APPEALS from St. Francis Circuit and from Pulaski Circuit Courts. The question of contributory negligence, in riding upon the platform, was, under the circumstances, a fact for the jury. Whether it was negligence or not depends upon the peculiar circumstances of each case, and is a fact to be submitted to the jury. The platform is often as safe, if not the saftest position one can ride.

Hon F. T. Vaughan, Circuit Judge. The proof shows conclusively that the money belonged to the husband, and known so to be by the garnishee, according to all legal requirements of notice. It was the bank’s duty to hold the amount to abide the litigation they knew was progressing. As to the sufficiency and effect of the notice, see Wade on Notice, secs. 11, 7, 10, 27, 28, 30, 89, 251, 672, 676, 681, 685, 7; 48 N. 7., 326.

Hon. R. B. Rutherford, Circuit Judge. The court erred in instructing the'jury that the burden of proof was upon appellant to prove the alleged fraud.

Hou. J. A. Williams, Circuit Judge. The judgment being for appellant, he, of course, recovered his costs, being the winning party, and the court had no power after the lapse of the term to modify the judgment. The original judgment had, long before the motion for modification, been fully paid and satisfied, and after that it could neither be modified nor appealed from. 33 Arh.y A59; 35 ib., 125; 39 ib., 110; ib., 271.

Hod. C. E. Mitchel, Circuit Judge.' First — The master is not an insurer of all the machinery furnished its employes ; he is only bound to use ordinary care in providing tools, machinery, etc., and he only stipulates to use reasonable care to prevent them from being defective. He does not warrant the servant’s safety, nor guarantee that the appliances may not prove defective. 35 Ark., 6I4; 44 539; 3 Wood on Rys., p. 1455 ; 68 ib., 551.