Volume 47 — Arkansas Reports

Hon. M. T. Sanders, Circuit Judge. The history of this litigation appears in ji Ark., ‡2$, and id Id., iy. In the latter case this court reversed the decree .nd remanded the cause, with directions to refer it to a master :o ascertain the value of the thirty-three bales of cotton, and whether Watkins owed Greer & Baucum any other debt except he Dougan debt; if so, what amount, and whether the parties or either of them had made any appropriation of the proceeds.

Pión. J. B. Wood, Circuit Judge. The first question that strikes us in reading the transcript in this case is, by what right were the appellees, H. Aronson, Menken Bros., Berry, Jack & Co., and Hill, Fontaine & Co., allowed to intervene, and take advantage of informalities in the proceedings of the appellant? They were only subsequently attaching creditors. They had no equities superior to those of the appellant.

Hon. R. B. Rutherford, Circuit Judge. We submit that the ruling of the lower court was wrong, for the following reasons: 1. Because there was no relevant testimony before the court going to sustain the interplea. The affidavit they introduced was directly against them. And the testimony of the deputy clerk, if competent, was worthless, it being a mere opinion as to matters that could not be proved^ by opinion..

Hon. W. H. Cate, Circuit Judge. The original note, out of which the two notes sued on grew, was made in the state of Tennessee, and by the laws of that state it was illegal, and subjected the taker, appellee’s intestate, to indictment and fine under the criminal laws' of the state of Tennessee. Thompson & Sieger’s Dig. Tenn. Stat., sec. 1944a £t seq.; Agreement of Counsel; Bill of Exceptions.

Hon. W. H. Cate, Circuit Judge. The justice had no jurisdiction. Section 40, Article 7, Constitution of 1874, provides that justices of the peace “shall have original jurisdiction in the following matters:” 1. Exclusive of the circuit court in all matters of contract up to $100. 2. Concurrent, in all matters of damages to personal property not in excess of $100.

Hon. H. B. Stuart, Circuit Judge. The mortgage executed-December 2, 1867, and recorded December 12, 1867, from F. M. Caruthers to Charles Cargile, recites the fact that a deed conveying the lands in controversy had that day beén 'made from said Cargile to said F. M. Caruthers, which deed has been lost and was not recorded, but still conveyed the title to F. M. Caruthers. Gilbert v. Bulkly, 3 Conn., 262; Strawn v. Norris, 21 Ark., 80; Neal v. Speikle, 33 Ark., 64.

Hon..H. B. Stuart, Circuit Judge. The question involved is, whether the right of way over appellee’s land, as claimed by appellants, had ripened into an easement by prescription at the time of the alleged trespass by appellees?

<p>Fees: For certificate of tax sale.</p> <p>If a collector of revenue for his own convenience includes several different tracts of land in one certificate, he can collect of the purchaser the fee of one certificate only; but if he does so at the request of the purchaser he is entitled to the aggregate fees of a certificate for each separate tract.</p>

Hon. O. D. Scott, Special Judge. There are three patent facts apparent in this evidence, which we think conclusive of the case. I. That the train passed Emmett without slacking its speed, and was running at the rate of ten or twelve miles an hour. 2. That the conductor gave no orders, used no threats or compulsion to plaintiff, or any of the passengers, to risk their lives in jumping from the train. 3.

Hon. J. M. Bradley, Circuit Judge. The circuit judge allowed and ordered paid a bill for $1174 for feeding jury 5.87 meals. The county court refused to pay it. Claimant applied for mandamus to compel payment, setting up allowance by circuit judge and refusal of county court, and that county scrip was worth twenty-five cents on the dollar and that meals were worth fifty cents in currency, and that the account was made aócordingly.

Hon. J. L. Hendrick, Special Judge. We insist that appellees never had a lien on the property. The. suit they brought for appellant was not for the recovery of property, but simply to have title of appellant declared and quieted. We insist that the statute gives a lien only in cases for recovery, and that the suit appellees brought was not of that nature. See Garner v. Garner, 1 Lea. {Term.), p. 29; Chapline v. Holmes, 27 Ark., p. ‡10.

Hon. W. M. Harrison, Special Judge. The law of this case was settled on the former appeal, jp Ark., 527. This case is within the ruling of this court in L. R., M. R. & T. Ry. v. Harper & Wilson, ‡‡ Ark., 20p. The court there reversed the judgment against the appellant, on the ground that there was no evidence tending to prove negligence on its part.

Hon. M. T. Sanders, Circuit Judge. 1. The indictment does not negative an order in writing from the parent or guardian. 33 Ark., 324; 33 Id-., 403. In constrüing a statute effect must be given to every word, and none are to be treated .as surplusage, etc. 33 Cal., 336; 14 Md., 184; 11 Ark., 44; 22 Pick., 331. 2. The appellant was not present when the sale was made, nor did he consent to it in any manner, but it was against his positive instructions and orders.

Hon. B. D. Granger, Special Judge. Appellees having acknowledged in writing that the notes were given to secure purchase money are estopped from denying it. 2 Parsons Cont., 6 ed.,pp. 786 to 794 and notes; 31 Ark., 728; 30 Id., 177. The mortgage having been executed while W. M. Ragland held the title bond, and before the execution of the deed to him and wife, bound whatever interest he had, and no subsequent act could affect this security.

Hon. F. T.. Vaughan, Circuit Judge. 1. No sufficient transcript of the Tennessee judgment was filed ; the pretended transcript of the judgment was fatally defective. 2. The suit is barred by the statute of limitations of ten * years. The complaint was filed in time but it does not appear that a summons was issued until after the ten years had expired; nor was a copy of the judgment filed until after ten years. 3. The nonsuit in Colorado was a bar to any subsequent action. 4.

Hon. J. B. Wood, Circuit Judge. This prosecution is instituted under Secs. 6‡10, 6317 and 1839, Mansf. Dig. 1. There is no offense proved in the agreed statement.

Hon. F. T. Vaughan, Circuit Judge. 1. The warning order is indefinite — it is based upon the constable’s return, which is contradictory and in the alternative, and not a sufficient basis for an attachment or warning order. See sub. sec. 6, sec. 4725, Gantt’s Dig., Waples Att., p. 270-1, and authorities. A warning order that is vague and indefinite is void. It supplies the place of a summons. See 6 Lea., Tenn., 521; Waples Att., 268-70 and notes; 40 Ark., 7ig. 2.

Hon. C. E. Mitchel, Circuit Judge. In Byardv. Holmes, 34 N. J. L., 296, Mr. Justice Woodhull, in speaking of an action like this, said: “The action being grounded on fraud in the defendant, concurring with damage to the plaintiff resulting from that fraud, to maintain it the plaintiff must allege, with reasonable certainty, and be prepared to prove, at least three things: 1. That the defendant made some representation to the plaintiff meaning that he should act upon it. 2.

Hon. J. B. Wood, Circuit Judge. This action was barred by limitation. Gantt's Dig., sec. 4121.- When the statute once begins to run, it continues to •run over all intervening disabilities. Abbott’s Nat. Dig., secs. 165-166, p. 22J, and cases cited. The act makes no reservation in favor of non-regidents, and 'the court can make none, if Ark., ipp. . The account was barred. Mansf. Dig., sec. 4478.

Hon. F. T. Vaughan, Circuit Judge. i. Admissions to be admissible in evidence must have been ■voluntarily made; if not, they are inadmissible. Such as are made under threats or fear, or by reason of promises made, are wholly inadmissible. 28 Ark., 121; 3 Cush., 603; fg Ala., g; ‡2 N. Y, 200; gj Mass., 577; ‡6 Mo., 366. The burden of proving that the confessions were voluntarily made is upon the state. 22 Ark., 336.

Hon. G. S. Cunningham, Circuit Judge. Under our present constitution and laws the husband has no curtesy. Art. 9, sec. 7, Const. 1874; 13 Ark., 483; Cooley’s Blackstone, vol. 1, top p. 126 and notes; 36 Ark., 333; lb., 386; 43 Id., 28; lb., 136; lb., 160. Under the constitution of 1874 the wife may convey or devise her property as if she were a femme sole and thus defeat her husband’s curtesy, but unless she does so, the curtesy attaches on her death.

Hon. J. B. Wood, Circuit Judge. The deposition of Waller was improperly admitted. This witness was never subpoenaed. The continuance should have been granted. Appellant was entitled to be confronted with his witnesses. The Waller testimony does not come within the rule of Hurley v. State, 29 Ark., if; nor Dolan v. State, 40 Ark., 304. See 33 Ark., 339. The jurors who stated that they had formed opinions, should-have been excused.

Hon. F. T. Vaughan, Circuit Judge. The indictment is presumed to be founded upon the act of March 30, 1883, which declares: “That the buying or selling, or otherwise dealing in what is known as futures, either in cotton, grain or anything whatsoever, with a view to profit, is hereby declared to be gambling.” If this statute is to be construed to mean what it says, our position is, that it is in restraint of trade.

Hon. J. M. Pittman, Circuit Judge. The verdict in this case is so palpably against the evidence, as “ to shock one's sense of justice.” 3‡ Ark., 639. It is wholly unsupported by the evidence. It was the duty of the court to instruct the jury properly, even though no instructions had been asked by the defendant. Const., Art. 7, sec. 23; 22 Iowa, 270; 23 Id., 372; 38 Cal., 2‡3; Instructions to Juries (Sackett), p. 13, sec. p; 37 Ark., 338.

Hon. John M. Bradley, Circuit Judge. There is no evidence of fraud, and none to show that appellant did not act in good faith. The justice’s certificate was filed as required by Sec. 3894, Gantt's Dig. The certificate is evidence that the donee has complied with the law. Ib., secs. 3893, 3897. Even if the improvements are on a different tract, all the equities are in favor of appellant.

Hon. J. M. Pittman, Circuit Judge. Under Act Dec. 14, 1875, fines, etc., are to be treated as debts accruing to the county, ji Ark., 46, and are payable in the scrip of the county. Mans/. Dig., sec. 1146. The financial affairs of the western district of Carroll county are to be kept separate, and revenue of all kinds to be for the benefit of the district where it arises. Act March 12, i88j, secs. 18 and ig.

Hon. John M. Bradley, Circuit Judge. 1. The fraud vitiated the whole proceeding, even if there was a technical compliance with the letter of the statute. 2. The commission was not authorized to make a “scrip contract” with Whitehead.. Amendatory act March 21, 1881; Union Co., v. Smith, 34 Ark., 68‡; Goyne v. Ashley Co., 31 Ark., 332. 3. If the county court ordered a bridge built at one point, and the contractor built it at another, the county is' not liable. 4.

Hon. John A. Williams, Circuit Judge. As between Tomlinson and Meyer & Co., the sale was no doubt complete, but the goods not having been delivered to the buyer, but remaining in the hands of the seller, the transaction is of no effect as against an innocent third party to whom the goods were mortgaged in good faith.

Francis Circuit Court.- Hon. M. T. Sanders, Circuit Judge. The deed from Johnson’s administrator to Pool and Dawson was the only missing link in appellant’s title. This is supplied by J. H. Dawson’s testimony. The finding of the court was-contrary to the evidence.

Hon. M. T. Sanders, Circuit Judge. Appellants claim that in actions of this kind, where an attachment is issued and garnishments served on different-parties who owe defendant, that the garnishment is only incidental- to the main suit between plaintiff and defendant; and that is even so in judicial garnishment.

<p>1. Administration: Rights of creditors and distributees.</p> <p>The claims of creditors of an estate are paramount to those of distributees, and " the latter can assert no claims to assets which are needed to pay creditors.</p> <p>2. Same : Same.</p> <p>The probate court is the tribunal to determine who are creditors of an estate and when there is a sufficiency of assets to pay their claims without resort to a particular fund claimed by the distributees.</p> <p>3. Same : Action on administrator''s bond.</p> <p>No action can be maintained upon an administrator’s bond for a devastavit, either by creditors or distributees, until an order of the probate court, directing payment of the amount found due to the plaintiffs upon settlement there, has been violated.</p> <p>4. Res Judicata: Final judgment on imperfect pleading.</p> <p>A final judgment against the distributees of an estate, solely on account of the omission ot material allegations in their complaint against the administrator and his sureties for a devastavit, will not bar another action for the same cause if the omitted allegations are supplied.</p>

Hon. J. B. Wood, Circuit Judge. The court finds that the alleged sale under the judgment, for cash, was rendered valid by the acceptance by appellant of part of the proceeds. Mansf. Dig., sec. 3036; lb., sec. 3iji. All sales by order of court must be on credit. 23 Ark., 292. The court erred in directing the sale to be made for cash.in hand. The sale should have been on a credit of not less than three months, nor more than six. 31 Ark., 236.

Hon. W. H. Cate, Circuit Judge. Said indictment is insufficient in law. Two offenses were charged and the court should have required the State to have elected which she would try appellant for. jó Ark., p8. There was no evidence to sustain the verdict. There being no bill of exceptions, appellant must rely solely upon the motion in arrest which questions the sufficiency of the indictment. The indictment is full and meets all the requirements of Sec. 45°7> Mansf. Dig.

Hon. J. M. Pittman, Circuit Judge. The court erred in arresting the judgment. Mansf. Dig., sec. i8g4; 31 Ark., 688; 41 Id., 410. Talking and laughing and acting in an offensive manner, does not constitute an offense under the statute Mansf. Dig., sec. i8g4; Stratton v. State, 13 Ark., 688; State v. Horn, ig Id., 378.

Hon. W. H. Cate, Circuit Judge. It is immaterial whether Mrs. Hays was married before or after the adoption of the constitution of 1874, or whether she inherited the land in 1873 as alleged in the complaint.

Hon. H. B. Stuart, Circuit Judge. It was agreed that deceased was a pauper. He thus came within the purview of Sec. 1112 Manf. Dig. Held: in the case of Overseers v. McCoy, 2.Pa., ‡^2, where a non-resident pauper was hurt in Fermanah township, and removed to Milford township, that the removal was a fraud on Milford, whether so intended or not, and that there could be no recovery against Milford.- The statutes on which these decisions are based are substantially the…

Hon. John M. Bradley, Circuit Judge. No question of title to land was involved. It was simply a suit for money paid on a contract which was afterwards dis-affirmed by the vendor. Martin v. Chapman, 6 Porter (Ala.)f 3‡‡; 2 Cal., $8‡; ip Serg. & R. (Pa.), 22J; 2 Pars, on Cont.y igi; 20 Ark., ‡20. Contends that the suit involved the title or possession of land, and that the justice had no jurisdiction. Const. i8yp art. 7, sec. ‡0.

Hon. T. P. McGovern, Special Circuit Judge. The Bill of Rights, sec. 8, declares that: “No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury.” The exceptions do not touch this case. This is a criminal charge, both in form and in fact. State v. Whitlock, 41 Ark., 406; i Bishop Crim. Pro., sec. 141; Bouvicr Law Diet.; Van Meter v. People, 113 Mass., 142; Comm. v. Intoxicating Liquors, 122 Id., 8.

Hon. R. B. Rutherford, Circuit Judge. The permitting a false rating of their standing on the books of Dun & Co., calculated to give them credit, was not a fraud. There is nothing to show that the purchasers had anything to do with that,- or that the plaintiffs had ever seen or relied upon it, or that it was not true when made, or that it was made to deceive. 23 Barb., 361. 2. It is not every misrepresentation that will avoid a sale.

Hon. John A. Williams, Circuit Judge. There was no jurisdiction in the court below, neither over the subject nor the parties, and if the court did have jurisdiction there was no equity in the bill. The will was made in Tennessee, and the testator domiciled there. The estate was domiciled in Tennessee and was being administered there. No debts are shown to be due in this state, to necessitate an ancillary administration.

Hon. M. T. Sanders, Circuit Judge. The city of Searcy never bore any relation to this railroad except that of a stockholder, and though she might, as she held a majority of the stock, authorize a sale of the road, yet it could only be through or by operation of a sale of its shares. The franchise continues under the control of the shareholders.

Hon. J. A. Williams, Circuit Judge. 1. There Was no usury in the transaction. Tillar bought the lot, and sold it to Cleveland at a profit. 2. It was error to admit parol testimony to prove that Harding sold the land to Cleveland instead of Tillar. 3. The court erred in requiring the deed to be made to Cleveland instead of the child. Mrs. Cleveland held the bond for title, and on her death the land descended to her heir. 4.

Hon. John M. Bradley, Circuit Judge. In the absence of fraud, appellee having obtained possession under her deed, and there being no eviction, she cannot controvert the title of the vendor or refuse to pay the purchase price. 16 Ark., 288; 21 Id., 585; 25 Id., 201; 58 Id., 200; 98 U. S., 56. She must rely on the covenants in her deed, even though they are worthless, or the vendor insolvent. 50 Mo., 252; Id., 511.

Hon. W. PI. Cate, Circuit Judge. If the land was in fact swamp and overflowed, and of this the evidence is conclusive, the title to the land passed to the state by virtue of the Act of 1850. 2‡ Ark., ‡‡‡; 33 Id., 833; 36 Id., 33‡. The Sawyer receipt and the Smithe,e certificate, with the evidence of the witnesses, that Stewart entered the land and was in possession at the time of his death, was sufficient even in ejectment. 33 Ark., 333.

Hon. John A. Williams, Circuit Judge. 1. There is no evidence showing the conveyance by Bolton to be fraudulent, certainly none such as required by the rules in 18 Ark., 123, 138, 141, etc. There can be no escape from the proposition that the decree in Galbreath’s suit in Tennessee has established the validity of the sale of the land by Seth W. Bolton to Mrs. Millington.

Hon. G, S. Cunningham, Circuit Judge. 'The bond was given under Section 304.2 Gcmtfs Digest, and its object was to secure the safe-keeping and return of .the. property. Drake At!., 3 ed.¿ sees. 330^331. The measure of damage on a delivery bond is the value of the property -secured by it. The property having been returned the liability of the security ceases. Th,, secs. 34.0-1 — 2. The bond is that defendant will perform the judgment of the court. Mansf ■Dign sec. 3381.

Circuit: Court in Chancery. Hon; M. T. Sanders, Circuit Judge. - i. That the prpbate. co,.ur,t had no, jurisdiction to partition lands. Constitution of 1836, art. 6, sec. go; Gould’s Digest, chap. ‡8, sec.. 2; Act of March 16, 1871; Gould’s Digest, chap. 122, sec. 1; Pomeroy’s Equity, sec. 13, et seq.; My rick v. Jacks, 33 Ark., Jpg , . * 2. That the probate court had.,no .jurisdiction to render a money judgment inter partes. .

Hon. R. B. Rutherford, Circuit Judge. All that the law requires is such vigilant watch and lookout •as the other duties ■ devolving upon the .engineer and fireman will permit. They are not required to keep a constant and uninterrupted lookout. 19 A. & E. Ry Cases, p. 480; pj Ark., S91, 598. The plaintiff was guilty of contributory negligence in permitting the horse to roam in an enclosed field. 5 Otto, ‡‡2; ioi Mass,, 455; 17 Am. Rep., 568; 555 Am.

Hon. J. B. Woods, Circuit Judge. I. As these lands were never assessed for taxes, no penalty, costs, attorneys’ or printers’ fees can be collected or enforced as against them. The decree in this case, decrees and declares that these lands - were never assessed for the year 1875.

Hon. W. H. Cate, Circuit Judge. The first cause of action alleged by plaintiff, is the failure to erect “ cow gaps on his line of fencing where the road crosses, by which neglect or failure he was prevented from •raising a crop for the year 1882, to his damage one hundred -dollars. This charge plaintiff failed absolutely to sustain by any ■proof whatever, and it was specifically denied in the answer.

Hon. John A. Williams, Circuit Judge. Every allegation of fraud, must show some injury, It must -appear that the fraud and damage sustain to each other the ■relation of cause and effect, or that the one resulted directly ■from the other. Bigelow on Fraud, 451; 5 Vroom, '296.

<p>APPEAL from Poinsett Circuit Court.</p> <p>Hon. M. T. Sanders, Circuit Judge, on exchange with Hon. W. H. Cate.</p> <p>This case, in some of its features, is like St. L., I. M. & S, fly. v. Walbrink, ante, p. 330. See our brief in that case.</p> <p>The gravamen of the complaint is the faulty construction of the road, and damage from changing the course of creeks in an unskillful manner. There was no evidence to prove this.</p> <p>The first instruction of the court was misleading. All the others, in effect, told the jury they could not find for plaintiff, unless the work was done unskillfully and improperly.</p> <p>The verdict was against the law and the evidence.</p> <p>We concede the right of appellant to enter upon appellee’s 'land, and to erect its road-bed thereon in a proper and skillful manner, and to use the right of way for that purpose; but •complain because it failed to do it, and show the unskillful manner in which it turned the several creeks on its right of way to the middle of appellee’s farm, where, through a culvert, it passed the water safely over its said right of way, where it unbridled it, and turned it loose, to scatter its deposits over forty acres of tillable land, by reason of which appellee lost his crop for the years 1882 and 1883; and that the land was thereby rendered yalueless. See 77 III.-, 134; 28 N. H., 4.38; Am. Law Reg., N. S., vol. 3, p. 323; Wash, on Ease., 333; 33 Ark., 622; 3 Am. Ry. Cases, 33.</p>

Francis Circuit Court. Hon. M. T. Sanders, Circuit Judge. That the provision requiring the plaintiff to make demand within sixty days is reasonable and will be enforced is too well settled to admit of argument. Gray on Telegraphs, Sec. pp The learned counsel for the appellee do not dispute this proposition, but say that it can have no application to an action for a statutory penalty.

Hon. J. M. Pittman, Circuit Judge. It is not a fraud on creditors for the debtor to retain exemptions allowed him by law. Bump Fr. Conv., pop, 2pp; Burrell on Assign., 28p; pi Ark., ppp; 22 Am. L. Reg., 20p. Releases may be exacted as a condition of preference, or as a condition of participation in the benefits of the assignment. Burrell Ass., 2pi; Sec. ppyp Mans/. Dig.; Bump Fr. Conv., 628; 10 Burr. Ass., 2J0.

Hon. C. E. Mitchel, Circuit Judge. Appellant, in the absence of fraud, cannot contest the title nor resist the payment of the purchase money, until he surrenders the possession obtained under the sale by Burke to him. 27 Ark., 61; 38 Id., 200; Hempst., 303; 40 Ark., 420; 23 Id., 390; 24 Id., 436. The homestead entry cannot change the result. Appellee cannot set up the defense, under Section 2296, Revised Statutes of the United States, that it is against public policy.

Hon. John M. Bradley, Circuit Judge. The court below refused or failed to obey the mandate, and permitted Barnett, the appellee, to file a new answer, which, in substance, alleges that this court, in its opinion heretofore rendered, violated the well-known doctrine of stare decisis, and that, therefore, the mandate ought not to be obeyed, when, in truth, if the mistakes made in Sheppard v. Thomas and Jones v. Doss, 26 Ark., 613, and 27 Id., 318, both decided by a divided…

Hon. M. T. Sanders, Circuit Judge. The only question in this case is the doctrine of a conditional sale, when applied to an innocent purchaser for value, who buys without notice of the conditions. . This has never been settled by this cóürt.

Hon. G. S. Cunningham, Circuit Judge. The deed is a copy of one held good in Clayton v. Johnson, jó Ark., ‡08, and we rely on that case and the authorities cited there.

Hon. G. S. Cunningham, Circuit Judge. A writ without signature or seal, while mandatory to a high; degree in language, would still evidence no great regularity for protection to the officer,' and so far fail as hot to make it obligatory upon him to serve it. It would not justify an arrest, nor would a sale under it convéy title. ' ‘ The irregularities of a writ which a sheriff must overlook are such as in case of a sale would not affect the title.

Hon. I. M. Pittman, Circuit Judge. * No title can be divested from one and vested in another by a lottery, and no testimony concerning such lottery is admissible. “Ex turpi contractu non oritur actio.” Mansf. Dig., secs. 1914, I9I5> 3‡°3> 34°D 1 Taunt., 136; 17 Mass., 238; 14 Me., 4.04.; 10 Beng., 107; 17 Vt., 103; 3 Hill. (N. Y.), 27; 22 Me., 488; 3 Penn.., 432; 2 Miss., 18; 4 Humph. (Tenn.), 199.

Hon. L. A. Byrne, Circuit Judge. We respectfully refer to our abstract and brief at large herein for full statement and argument, to which we respectfully ask the attention of the court. We submit and insist that the demurrer, as to the first ground — defect of parties — was improperly sustained. Duncan, as trustee in the trust deed, properly brought the action in replevin. The judgment was in his favor as sole plaintiff and trustee.

Hon. I. M. Pittman, Circuit Judge. The agent had no authority to receive anything as payment except face value of notes in cash with accrued interest, except by consent of appellant; no such consent was given; without such consent he had no authority. 7 Cranch, Holker et al. v. Parker, ¿¡33; 13 Ark., (8 English), 6‡‡; / Daniel on Neg. Ins.; Carter v. Talbot, 10 Vt., ¿ffi. Wharton was a special and not a general agent of appellant. Story Agency, sec. ij; 21 Wend., 2j8.

Hon. G. S. Cunningham, Circuit Judge. 1. When a homestead is established near an incorporated town, and the limits of said town are subsequently extended so as to embrace it, the homestead is cut down or limited to one acre in area. 13 Wis., 233; 16 Id., 223; 54 Ga., 339; 36 Id., 96; 3 Kans., 392; Const. Ark., art. 9, sec. 3. 2. Perry, if he had the right to claim the five acre homestead, lost it by not insisting on his original schedule.

<p>I. Fees: Of sheriff in criminal cases; Construction of statute.</p> <p>The word “return” in 'Sec. 3248, Mansf. Dig., does not mean “service;” and the statute does not exempt the county, when liable for the cost in a criminal case, from payment for serving every subpoena served in the case, regardless of the number.</p>

Hon. W. H. Cate, Circuit Judge. 1. The court erred in refusing to reduce the instruction given on its own motion to writing, after having been requested so to do, before the argument commenced. The instructions to the jury “shall be reduced to writing if either party requires it.” Mansf. Dig., sec. 5131.

Hon. H. B. Morse, Judge. Contend that plaintiffs in error can prosecute the writ of error, and cite Tidds Prac., 1189. Any party, his privies, or any one prejttdiced or who might be prejudiced by the judgment, may maintain error to reverse it. 7 J. J. Marsh., 642; 4 T. B. Mon., 132; 3 Green Law, 43; 2 Sattnd., 46; 6 Wheat, 260-64; 1 Georgia, 493; 6 Mete., 194; 9 Dana, 326; Gregg v. Gregg, 33 Ark., 89.

Hon. J. A. Williams, Judge. 1. This court in Hozvell v. Rye, 33 Ark., 478, said: “Whether the deed was valid on its face, and competent to show title in plaintiff, was the question to be considered by the court in ruling upon exceptions taken to it.” 34 Ark., 337; 36 Id., 461-3; 43 Id., 21; 46 Id., 102; Mansf. Dig., sec. 4237. In the light of the foregoing authorities it is manifest that the court erred in overruling defendant’s exceptions to plaintiff’s paper title.

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

Hon. F. T. Vaughan, Judge. No statutory road was established, first, because there was no appropriation for the public use of any specified land, by defining it, valuing and paying for it. Private property cannot be taken in this high-handed manner without compensation. The instruction of the court on this point was erroneous and misleading. The securing or payment of compensation to land owners is jurisdictional. See 20 Ark., 561; jj Id., jpg.

PI on. I. M. Pittman, Judge. The -prosecuting attorney is entitled to one fee only for a conviction in each case, no matter how many defendants there maybe. Sec. 3233, Mansf. Dig.; Bouvier L. D., title “Conviction;” 1 Bishler, Law, sec. 223; 1 Blatchf, 43g; 10 Sm. an Sec. 3233, Mansf. Dig., allows a fee for each conviction, and there was a-conviction of each defendant in the case.

Horj. J. M. Bradley, Judge. The homestead of a deceased debtor, under the constitution of 1868, was not entirely exempt from the payment of his debts. The exemption was to last during widowhood and “ during the minority of the children.” Subject to these temporary rights the land occupies the same position as other lands.

Hon. John A. Williams, Judge. The probate court had jurisdiction to make the order of exchange, and being approved and confirmed it is not' subject to collateral attack. If erroneous, it could only be corrected on appeal, or by direct attack for fraud. Schouler on Exrs., etc., sec. 361, 11. 2; Rorer on Jud. Sales, sec. 313; lb., p. 138; 3 Wall., 406; 3 Sawyer, 237.

Hon. John A. Williams, Judge. Whether the appellants are entitled to set off their judgment against appellee against his judgment against them, depends upon the construction of Sections 5173-74, Mansf. Dig.; and sec. 2, art. 9, Const. 1874. This was allowed in 3 Minn., 419, and 21 Barb., 424-37. It is argued that this would be in effect to deprive appellee of his constitutional exemptions. But this is not so.

Hon. W. M. Harrison, Special Circuit Judge. In this case the purchase was made in part by the grantee with the means of complainants, without their consent, and it is not necessary that the payment advanced should be an aliquot of the whole, or that there should be any intention of the parties to make the transaction a purchase in trust.

Hon. J. M. Pittman, Circuit Judge. 1. The indictment did not sufficiently declare the facts constituting the offense, or meet the requirements of the law. 2 Hale, i6g; 6 East., 2jg; Cotvp., 6J2; art. 2, sec. 10, const; 1 Ark. iji. It did not set out the facts, so that the defendant— if convicted — could plead in bar of another prosecution. 11 Ohio, 282; 1 Du Val, go, 160. 2. Sec. 1886, Mansf.

Hon. W. H. Cate, Circuit Judge. The instruction given by the court is clearly erroneous. A married woman has the right to spend her personal wages as she pleases, and if she chooses to spend them in the payment of board for her husband and son, it is her own concern, as she has a perfect right to do so. The proposition is too plain to require citation of authorities. .

Hon. I. M. Pittman, Circuit Judge. The act of 1883 (Acts 1883, p. 36,) by implication repealed Gantt's Dig., sec. 1371. It contáined new provisions, and covered the entire subject matter.

Hon. J. A. Williams, Circuit Judge. Preddy’s answer was a set-off and counter-claim, and should have been denied by Fain. Not being so denied, Preddy was entitled to a decree for the amount claimed in his answer. 27 Ark., ¿¡.go; 4.3 Ark., 427; Mansf. Dig., secs. 504-8. It was not necessary for Preddy to move for a decree. It was the duty of the court to render judgment on the counterclaim. The note was not a lien on the land.

Hon. J. M. Bradley, Circuit Judge. We hardly feel that it is necessary to file a brief in this case or do more than refer the court to the case of St. L., I. M. & S. Ry. v Freeman, 36 Aik., ‡1. The cases are in many respects parallel.

Hon. M. T. Sanders, Judge, on exchange. 1. The claim and possession by appellee under color of title, do not constitute such an adverse holding as to enable him to recover in this suit under the plea of seven-years statute ■of limtations. 20 Ark., 516; Angel on Limitations, pp. pgo-gig2 and ¿f.og-10. And hence the court erred in refusing to give the jury the second instruction asked by appellants. 2.

Hon. G. S. Cunningham, Circuit Judge. Appellant was denied a defense or hearing, which in law was a revocation of the court’s process. The answer was sufficient and in apt time. Mans/. Dig., sec. 4050; 30 Ark., 560; 37'Ark., 580. Appellee did not show himself entitled to judgment, Mansf. Dig., secs. 4046, 4068, and should have been non-suited. Ib., sec. 4065.

Hon. John A. Williams, Circuit Judge. The findings of the court are not sustained by any evidence. The legal title was in the trustee. Perry Trusts., sec. 313; 13 Ark., 33; 11 Id., Q4; 18 Id., 83; 42 Id., 304. Deeds of trust are not affected by the death of grantor. Jones on Mortgages, sec. I7g2.

Hon. F. T. Vaughan, Circuit Judge. 1. It was error to allow plaintiff the expenses of investigating the title, before he had definitely accepted the offer, i. e., abstract of title and attorney’s fee. Woods Mayne 011 Damages, sec. 2jj, */. 1 jo. It was also error to allow him for interest lost on his uninvested money.

Hon. H. B. Stewart, Circuit Judge. The plaintiffs are entitled to recover damages for the pulling down and hauling off the houses, to their value, and equitable damages to the estate by way of loss of rents for want of buildings to house tenants in. Sedgwick & Waite’s Trial of Land Titles, sec. 668; 1 Story’s Equity, sec. 518 a. Defendant took possession of the land in February, 1870, and enjoyed and consumed the rents to January, 1884.

Hon. J. M. Bradley, Judge. The evidence of the Wards bears upon its face evidence of falsity on many material points, and the maxim “ falsus- in uno, falsus in omnibus,” is applicable. 24 Ark., 410. Atkinson’s testimony is clear, distinct, specific and minute, and is corroborated by many circumstances, while the Wards’ is general, and amounts to nothing, except that W. A. Ward bought the property for $1500 and without notice.

Hon. B. F. Askew, Circuit Judge. 1. The first query is, were these time checks negotiable paper, and if not, what were they ? 2. If negotiable paper, was it not necessary to have the assignment or indorsement thereon, and if not indorsed, then were not the payees necessary parties to the suit, for the protection of defendant? 3.

Hon. J. M. Pittman, Judge. The appellee was indicted for obstructing a public highway. A demurrer to the indictment was sustained. The indictment was drawn with sufficient particularity and charges an offense against the statute. Sec. 1865, Mansf. Dig. It was unnecessary to define the termini of the way. 2 Arch. 1763, 8 Am. ed..; 2 Bish. Crim. Pro., sec. 1051.

<p>Indictment: Perjury; Materiality of the false testimony.</p> <p>An indictment for perjury need not charge in hcec verba that the alleged false testimony was material, if it states facts from which its materiality results as a legal conclusion.</p>

L. A. Byrne, Judge. Criminal statutes are construed strictly, and the word sale has a technical legal signification. Bouvier, vol. 2., p. 492; Rapalje Law Die., vol. 2,p. 1144. Sec. 1838, Mansf. Dig., only applies to sales to minors, and there is no law against the exchange of liquor. See 43 Ark., 351; 30 Ala., 391; 12 N. H., 390; 32 Barb., 630; 3 Heisk., 555! 65 Ind., 409.

Hon. J. B. Wood, Judge. Appellee was barred by the statute of limitations under Sec. ppj8, Mansf. Dig., the last payment of these taxes being on the 10th day of April, 1876, and the suit not commenced until 8th October, 1879. If these taxes were erroneously paid as alleged, the amount paid could at best only amount to a liability against the appellant; and to recover the same back, under Section 4438, the action must be for money had and received.

Hon. J. M. Pittman, Judge. 1. The affidavit and warrant do not charge a public •offense. The charge is of practising medicine without license. 'There is no law requiring license to oractise medicine in this state. Sec. 4641, Mansf. Dig,., only requires registration, and an indictment which does not in some form allege a failure to register charges no offense. State v. Fuss ell, 43 Ark., 638. 2. The evidence fails to show that appellant practised medicine in any sense.

Hon. J. B. Wood, Judge. 1. The constitution fixes the number of jurors in criminal cases at twelve, and the number cannot be less even by agreement. Sec. 7, art. n, Bill of Rights. The defendant may waive a trial by jury, in misdemeanors, under Sec. 2184., Mansf. Dig.. ' But Sec. 2219, lb., providing for a trial by less than twelve jurors by agreement, is unconstitutional.

Hon. G. S. Cunningham, Judge. Under our statute, Mansf. Dig., sec. 1822, only a conspiracy to c'ommit “ any felony” is indictable, and that, too, where “some advance thereto” is “made without committing the felony.” An overt act is an essential incident of the offense. 2 Fed. Rep., 73‡; 2 Bish. Cr.