Volume 48 — Arkansas Reports

Hon. J. A. Williams, Judge. “A purchase by a father in the name of a child is re- • garded, prima facie, as an advancement and not as a resulting trust for the father.” , James v. James et ah, fl Ark., 301. “ .But this presumption may be rebutted by antecedent or contemporaneous declaration, or circumstances tending to prove that it was the intention of the purchaser that the grantee should hold as a trustee and not beneficially for himself.” Milner v. Freeman, Iff) Ark., 62.

Hon. John A. Williams, Judge. We submit that a court of chancery has no legal or constitutional power to summarily assess damages, upon the dissolution of an injunction in a case like this. The statute seems to limit the power of the courts to special cases, and unless this falls within the purview of the power conferred by the statute, we contend that the court had no jurisdiction.

Hon. J. B. Wood, Judge. Contends that it is not an offense in this state to keep open a door on Sunday, used in common by a saloon and restaurant during the week as an entrance to both places, but on Sunday for the purpose of a restaurant only. This case does not fall within the rule in Seelig v. State, ]$ Ark., 96.

Hon. R. H. Powell, Judge. The cause was not properly revived against appellant, nor was she served with notice or a copy of the order of revivor as required by secs. 5237-8~9-l¡,0-5-6 of Mansfield’s Digest; 39 Ark., 126; 10 Ark, 251¡,;-27 ib., 126, 298; 35 ib., 180. The court in reviving the cause complied with sections 5236-7-8, Mansfield’s Digest. The death was suggested and the revivor was against the appellant, naming her capacity.

Hon. J. B. Wood, Circuit Judge. On the 10th day of April, 1886, two bills were returned against the appellee: No. 404, charging him with selling liquor to Nick Gray, a minor, on the 15th of January, 1886 ; No. 377 charged him with selling to the same party on the 15th of February, 1886, and to this charge he pleaded guilty, and when No. 404 was subsequently called for tidal he interposed a plea of former conviction, relying upon the plea of guilty in 377.

Hon. J. M. Bradley, Judge. No question is raised upon this appeal as to the sufficiency of the indictment; but the only question before the court is, “Did the circuit court err in overruling the state’s demurrer to the defendant’s plea of former jeopardy, and in dismissing the indictment, and in discharging the appellee from further prosecution?” There can be no rule of law better established than that, “until an indicted person has pleaded, he is not in jeopardy, though a…

Hon. John M. Bradley, Judge. The appellee was indicted under sec. 1835, Mans Dig., for gaming. A demurrer to the indictment was sustained. The indictment followed the statute in charging the game to have been one of “ hazard or skill.” It is supposed that the use of the disjunctive “or” was the objection to the indictment. Sec. 3107, Mans.

Hon. J. B. Wood, Judge. The indictment does not state who sold the liquor to the minor, which it is submitted it should have done, as no man, whose servant or agent might sell to a minor without his knowledge, could make his defense unless this fact is stated. We are well aware that this court has decided that a partner is liable for such a sale by his co-partner though he was absent at the time of the sale and had no knowledge of it. 38 Ark., 61¡.l; 36 ib., 666.

Hon. J. B. Wood, Judge. The indictment is uncertain.. It charges that the defendant kept a “ grocery or dram-shop.” The words have not the same meaning. The word “ grocery ” is not mentioned in see. 1856, Mansf. Dig.; nor is it an offense to permit gaming in a grocery. The court should have given all of section 1856 in its charge to the jury.

<p>APPEAL from Yell Circuit Court.</p> <p>Hon. G. S. Cunningham, Circuit Judge.</p> <p>1. The justice’s judgment was a valid and legal one under the laws of Tennessee, and is conclusive between the parties, and when properly proved and sued on in this state, it is conclusive as to the merits, and the plea of nil debit was not good. 11 Ark., 157; 12 ib., 756; 13 ib., 185; 22 ib., 387; 85 ib., 331; 11 ib., 75; 13 ib., 231; 18 Wall., 157; 7 Grouch, 631; 13 Peters, 169; 5 Wend,., 118; 7 ib., 185; 9 N. W. Pep., 132; 3 Am. Law Reg., N. S., 501; 1 ib., 8 and 9; 12 ib., 15; 2 Chitty PI. {11 Am. Ed.), 21¡8; Ghitty on Gont. {9 Am. Ed.), 690, and notes; 8 Yerg., 112,186; 2 Head., 571; 1 Hersh., 586; 1 Sea., 567; 7 ib., 321.</p> <p>Judgments of justices’ and courts of record are both within the meaning of the constitution of the United States, and the strictness with which the proceedings of inferior courts are scrutinized applies only to the question , of jurisdiction, and when that is established, the maxim, ‘■'■omnia praesumuntur,” etc., applies. Rest on Eoidence {1 Am Ed.), 636, and notes; 27 Pa. St., 179; 3 Wend., 268; 10 Ohio St., 31; 5 ib., 516; 10 Ark., 598; 13 ib., 33; Freeman on Judg., sec 577.</p> <p>2. It was incompetent for appellee to show by oral testimony that he was not properly served with process, and this testimony should have been excluded. 1 Ark., 150; 11 ib., 371 ■ ib., 818; 10 ib., 113.</p> <p>In an action on a judgment rendered by a court of record in another state, the defendant, notwithstanding the record shows a return of the sheriff, that he was personally served with process, may show to the contrary, that he was not served, and that the court never acquired jurisdiction of his person. 19 Wall., 58; 18 ib., 157; 1 Greenl. Ev., 13th Ed., sec. 540, note, etc.; 6 Wend., 448 ; 9 Mass., 468; 8 Am. Dec., 36. A judgment even by a court of record against a defendant not served, and who never appeared, is void. 15 Johns., 181; 9 Mass., 168; 80 Am. Dec., 36.</p> <p>In regard to that provision of the constitution, that “full faith,” etc., Mr. Greenleaf says that “judgments of justices of the peace are not within the meaning of the constitution and statutory provisions.” 1 Greenl. Ev., 13th Ed., sec. 505, notes 5 and 6.</p> <p>Courts of justices being left unprovided for by the constitution .or laws of the United States, their judgments stand upon the footing of foreign judgments, being no more than prima facie evidence of debt, and may be defeated by plea of nil debit. 8 Pick., 4.4.8; 43 Ark., 809; 80 Am. Dec., 179; 4 N. H., 450; 6 N. U., 567; 5 Ohio, 545; 1 Greenl. Ev., 13th Ed., sec. 547.</p> <p>Nil debet is a proper plea to an action founded on a judgment recovered before a justice of the peace of another state. 1 Chitty PI. (9 Am. Ed.), *p. 485, and note; 8 Pick., 448; ®3 Wend., 375; 3 J. J. Marsh, 600.</p> <p>Justices’ courts are not courts of record, and their jurisdiction must be affirmatively shown. 83 Wend., 374', 19 Johns., 33.</p>

<p>APPEAL from Sebastian Circuit Court, Greenwood District.</p> <p>Hon. G. S. Cunningham, Judge.</p> <p>The appellee was charged with malicious mischief in destroying a telephone line. Tr., 4&5- A demurrer to it was sustained. Tr., 6. At the time the offense was committed the statute making such lines the subject of the offense charged was not passed. But the malicious destruction of any class of property completes the offense at the common law. In the case of Loomis v. Edgerton, 19 Wend., ¡¡.19, it is said that a frequent reference to statute authority for this crime by no means showed that the common law did not already reach it. See, also, People v. Smith, 5 Cowen, 258. In this case the object destroyed was of such a nature — being inanimate — that the appellee could have had no malice against it, but the wanton destruction charged supplies the place of express malice against the stockholders of the company and it was not necessary to charge express malice against them when the act set forth was equivalent to it. It is unlike the cases where stock are concerned in breaking fences. No special statute having provided for the punishment of destroying a telephone line, section 567, Mansfield’s Digest, becomes operative.</p>

Hon. L B. Wood, Judge. The verdict of the jury was contrary to the law and the evidence. 1. The evidence should establish the fact that a disorderly house was kept. 2. That the defendant had control of the rooms in which the disorder occurred. 3. That the defendant knowingly. permitted the conduct constituting a disorderly house.

Hou. J. M. Pittman, Judge. The appellees were indicted for incest, they being first cousins, and the indictment was overruled on demurrer. It was drawn in strict conformity with secs. 1578 and 1¡JÓ9^, '''Mans. Dig. The former section declared that persons within the prohibited degree of matrimony who should commit adultery or fornication should be guilty of incest; the latter declares marriages between first cousins to be absolutely void.

<p>Fraud : Purchase without intent to pay.</p> <p>Though an agent purchases goods for his principal under a false representation of his existing indebtedness, yet if the principal be at the time solvent and able to pay for them, and has no intent not to pay for them, there is no fraud in the purchase, and the vendor has no right to rescind the sale and reclaim the goods.</p>

Hon. F. T. Vaughan, Judge. STATEMENT. Stark recovered judgment against, Wilson before a justice-of the peace, and Wilson asked and was granted an appeal to the circuit court, and filed his affidavit and bond for appeal, but the affidavit was not signed by him, nor was there any jurat of the justice to it.. The papers and transcript from the justice’s docket were not filed in the circuit court within the time required by the statute.

Hon. M. T. Sanders, Judge. The appellee was indicted under section 1648, Mansfield’s Digest. The indictment fulfills every requirement of the said statute, but a demurrer to it was sustained because no ofiense was charged, and because the money was not sufficiently described. The statute above cited certainly makes the acts charged an ofiense, and the statute is accurately followed by the indictment.

PETITION for Quo Waranto. Offices are created for the benefit of the people, and not for the advantage of the incumbent. No one can have any-vested right to an office. {SO Ark., 566.) The intention of the constitution is to fix the term of office, and not that of any particular officer.

Hon. John A. Williams, Judge. The court had no jurisdiction to try the case. The transcript from Arkansas county had no seal on it, and attaching the seal in Lincoln county did not cure the defect. 36 Ark., 237. The court erred in refusing to quash the indictment. The indictment for forgery under sec. 1726 charging forging of school warrants. Afterwards a second indictment for the same matter was returned under sec. 6253.

Hon. F. T. Vaughan, Judge. First — On the general proposition as to the burden of proving contributory negligence there is a conflict in the authorities, and this court has recently held that it -would follow the cases which hold that the burden is on the defendant.

Hon. A. B. Stuart, J udge. The testimony of S. P. Park was competent when taken, as it related to statements made by defendant, Nall, and was not incompetent by reason of the proviso to section 2, Schedule to Constitution 1874. See 31 Ark., 364; 35 ib., 248; 37 ib., 195.

Hon. R. B. Rutherford, Judge. The rule of recovery in this cause is what the testimony shows the use of a half interest was worth for the year 1884-5. It was error to instruct the jury that appellee could run the gin in his own way and be liable to appellant only for half the net proceeds, thus enforcing a partnership on appellant. Appellant was entitled to recover the value of his one-half interest, and the only question for the jury was, what was it worth ?

Hon. R. B. Rutherford, Judge. It is manifest the trial court wholly misconceived the nature of the action, and the issues involved.

<p>APPEAL from Perry Circuit Court.</p> <p>Hon. J. B. Wood, Judge.</p> <p>APPEAL from Washington Circuit Court.</p> <p>Hon. J. M. Pittman, Judge.</p>

Hon. O. D. Scott, Special Judge. The act authorizing county courts to call in scrip for the purposes contemplated by the order of March 8, 1873, is constitutional. 25 Ark., 261; 37 ib., 649; 33 ib., 788. Askew waived any want of compliance with the requirements of the statute in the matter of notice, etc., by presenting his scrip. 33 Ark., 744- If the appellee was not satisfied with the order rejecting his scrip, he should have appealed. 39 Ark., 485.

s Hon. John A. Williams, Judge. ' The collector is only entitled to one per cent, on licenses to sell liquors, and not five per cent. His compensation is fixed (sec. h act of March 8,1879) at one per cent., and not b’y sec. 5797, Mansfield’s Digest, which is taken from sec. 156, act of March 31, 1883.

Hon. W. H. Cate, Judge. 1. A fair interpretation of the contract shows that the title passed to Erwin & Nesbit, plaintiffs reserving only a security in the nature of a mortgage, which, not being recorded, was void as against appellants. The proof shows that plaintiff never relied on the condition reserving title, but that the delivery was unconditional, and a complete sale.

Hon. J. W. Robb, Special Judge. statement. Bratton filed his complaint in equity against Hughey, Strickland and Barnett, alleging, in substance, that he had purchased of Hughey and Strickland by parol contract, a tract of land, of which they placed him in possession and agreed to make to him a deed on demand; that he remained in possession three years, made valuable improvements on the land and then moved off to another county, leaving Hughey in possession, as his agent, to…

Eton M. T. Sanders, Judge. The consideration for the land having been paid by the estate of Travis Crow, and the deed being taken in the name of the widow of Travis Crow, a resulting trust arose in favor cf appellant as the only heir of Travis Crow, deceased. 16 Ark., 355; 48 ib., 193; Perry on Trusts, sec. 188.

Hon. E. T. Vaughan, Judge. The testimony of Drs. Martin and Oorn to show a custom at Austin, that defendants employes put tramps off the train, was clearly incompetent and calculated to preju- . dice the jury. See 4® -Pa. St., 163; 16 C. B., N. S., 659; 86 N. Y.,309; 18 N. Y, 589; 5 Hem., 589; 74 Mass., 548; Wharton on Eo., sec. 40; 1 Greenlf. on Ev.,sec. 58; ib., sec. 448; 115 Mass., 84O; 118 ib., 488-, 10 Allen, 148; 6 Gush., 398.

Hon. W. F. Slemons, Special Judge. First — The betterment act applies to pending suits. Iff Ark., 1$0; ib., 365. Second — It also applies to minors, etc.; does not rest upon contract or consent of parties. Third — The rents should not have been assessed beyond three years before the commencement of the suit. Tyler on Eject., 681, 81¡,1¡,; 1 Chitty on PI., sec. 296; 1 Wash. R. P., 3d Ed., 568; Mansf. Dig., sec. 26j6.

Hon. J. B. Wood, Judge. 1. Corporations are bound by the acts of their agents within the apparent scope of their authority. Story Agency, sec. 127. Putnam was one of the incorporators, owner of one-third of the stock, a director, secretary and business manager of the company. Plaintiffs had no notice of any limitation upon Putnam’s authority, and he will be held to have the usual scope of authority of agents of his class. See 2 L. R. Ex., 228; 82 III., 73.

Hon. E. T. Vaughan, Judge. The court erred in declaring the law. Sec. 337, Mansf. Dig. (which was sec. 41® °f Gantt’s), provides for a dissolving bond, which, when given, eliminates the attachment branch from the case aud binds the surety on the dissolving bond to “perform the judgment of the court,” whatever that may be. See Waples on Attachment and Garnishment, p. 397; 2 Metcalf (Ky.), 445 and 558 ; 4 Bush.

Hon. John A. Williams, Judge. 1. The last item in the schedule, “household and kitchen furniture, $70,” is not itemized, nor show in what said articles consist, or their value. Mansfield’s Digest, see. 3006; Webster’s Dictionary, “schedule.” 2. The proviso to section 1, is broad enough to cover the entire article, and applies to all persons whether single or married. Art. 9, sec. 1, Const.; Mansfi. Digest, sec. 4398; 43, Ark., 17.

Hon. H. B. Stuart, Judge. Appellant was assured that the sale was postponed, and he was thereby induced to omit raising means to meet the debt. Such sales will be set aside. 1 Mis., 3 Johns. Ghy., 891; 10 Bosw., 587. An unfair advantage was taken of appellant, and the sale was a surprise to him, and should be set aside. 1lover Jud. Sales, sec. 488.

Hon. W. H. Cate, Judge. Appellants insist that the first suit was dismissed by them under an express agreement between them and appellees that the appellee, Sue M. Grider, should execute said note, so as to bind her separate estate, her husband, W. H. Grider, being insolvent; and that, in consideration alone of the execution of this note by appellee, Sue M. Grider, were they induced to dismiss the first suit and make a reduction of $100 from their original account.

Hon. J. M. Bradley, Judge. 1. ' The justice had no jurisdiction to try the attachment branch of the case at all. (Bush v. Visart, 40 Ark., 184.) The justice having no jurisdiction, the circuit court acquired none on appeal. 2.

PETITION for Prohibition. The terms of the circuit courts are fixed by law, and it is not in the power of the judges to change them. Under Mansf. Pig., sec. 1476, the term may be continued after the time for holding the next regular term in another county in the circuit, as held in 32 Ark., 278, but as declared by sec. 1481, “No such adjourned session * * * shall interfere with any other courts to be held by the same judge.” This provision is mandatory. See Cooley Const.

Hon. D. W. Carroll, Chancellor. Anderson having failed to select a homestead by any open or public act, he died without a homestead. [Const. 1868, art. 12, sec. 2; 28 Ark., 485; 40 ib., 357: 56 ib., 5Iff.) Hence, his widow was left without a homestead. 29 Ark,., 228 ; 33 ib., 4.O4,.

Hon. H. B. Stuart, Judge. 1. All fines are payable in county scrip. Mansf. Dig., sec. 5860; US Ark., 870. The constable should have received it, if valid, and mandamus was the proper remedy. 88 Ark., 317; 33 ib., J/jO. 2. The scrip upon its face shows that it was regularly issued for the legitimate expenses of the county, and until the prima facie case thus made is rebutted by evidence, it must be treated as a valid warrant. 38 Ark., 877. 3.

Hon.'John A. Williams, Judge. The charges of fraud are all specifically denied, and the burden was on appellees-to establish them. 6 Ark., 309; 91 ib., 482; 17 ib., 151; 11 ib., 378; 18 ib., 124; %5 ib., 52. But appellees abandoned their charges of fraud. The probate court is vested with general jurisdiction and specific power to order the sale of lands for the payment of debts.

Hon. J. M. Bradley, Judge. The ordinance is a mere police regulation, and not a tax, and does not fall 'within the ruling of Peay v. Little Book, 32 Ark., 31. The ordinance is not unconstitutional; no tax was ordered levied, nor was any levied. It was simply a suit for work and labor done. The ordinance merely imposes a burden, which is called a police regulation. See 16 Pick., 504; This ordinance was passed under-see. 3228, Gantt’s Big.

Hon. J. M. Bradley, Judge. The bond was for more than simply a covenant to pay money. It comes clearly within sec. 6400, Mansf. Dig. Appellees are estopped from denying the validity of the ordinance under which their principal had enjoyed the full benefit of his contract. Helena v. lamer, 36 Ark., 582; Parsons on Gont., Vol. 2, p. 3; Bigelow on Estoppel, 327, 384, 446i 4®7; Dillon on Man. Gorp., 435, and note.

Hon. J. M. Bradley, Judge. 1. Appellees’ mortgage was void as to appellants, even with actual notice. (33 Ark., 203; 1$ ib., 11¡.1; 22 ib., 136 and it is no lien against them. ]¡,0 ib., 539. Appellants did not assume to pay appellees’ debt, but' only intended to protect themselves, by providing that they should be allowed to retain the amount of appellees’ debt, as against Baker & Oarico, in addition to what they might owe appellants.

Hon. J. M. Pittman, Judge. In the death of Jones, the subsequent guardian should have presented her claim against the estate of Jones, for allowance, and payment of the estate. 33 Ark., 658; Mansfield’s Dig., secs. 101-5; 5 Ark., 4.68. Until this was done no one was bound to pay the same, and especially not appellant, as his liability was secondary, and only bound to pay on default of his principal, when the amount should be ascertained by the probate court. 39 Ark., 145.

Hon. R. B. Rutherford, Judge. Title in the plaintiff, and conversion by defendant, are sufficient to support trespass, trover, replevin or detinue. Contends that Stewart was a tenant, and that plaintiff had only a lien on the crop, and could only enforce it specifically against the crop, and having neglected to take advantage of the only remedy given by the law, conversion will not lie.

Hon. J. M. Pittman, Judge. A higher security taken from the debtor himself extinguishes the original contract. But this was only a presumption of payment, and might be rebutted by evidence that the new security was absolutely void for fraud. 8 Ark.., 213; 28 ib., 66; 9 ib., 339; Chitty on Bills, Iff3; Chalmer’s Dig., 281; Iff Mich., 29; 131 Mass., Jff7; 78 Ind., 54; 4 Mo. App., 94; 68 Ind,., 254 ; 7 Wait’s Ac. and Def., 409. Conley’s remedy was on the drafts.

Hon. L. A. Byrne, Judge. Appellant’s title and right to possession of the machine was not specifically controverted, and were not in issue, and must, for the purpose of this action, be taken as true. Mansf. Dig., see. 5072. The only answer interposed in the case was non detinet. The appellee does not claim a return of the machine. He does not deny the appellant’s title, nor his right to possession. Nor does he assert title in himself.

Hon. W. H. Cate, Judge. Possession by mistake is not hostile. Possession will not of itself establish quo animo. 34 Iowa, 150. But admitting that Hanauer’s possession was- adverse, he was not in possession seven years; he abandoned the possession before the lapse of the seven years.

Hon. I). W. Carroll, Chancellor. Counsel beg leave to refer to the following cases: Goode et al., ex. parte,. 19 Ark., 410; Ruffen’s Case, 21 Grattan, 790; sees. 4884 and 4890, Mansf. Dig.; Milligan v. Children’s Home, 97 hid., 355; Rober’s case, 15 Ark.; Kittrel, ex parte, 20 Ark., 504. The writ of habeas corpus cannot be used for the purpose attempted in this cause, to settle property rights.

<p>APPEAL from Franklin Circuit Court.</p> <p>Hon. G. S. Cunningham, Judge.</p> <p>1. A mortgage of an undivided interest in a “share crop” is void. 32 Ark., 435; 34 ib., 179, 687.</p> <p>The labor act of 1883, prohibits one who labors for a portion of the crop from mortgaging it without the landowner’s consent. Mansf. Fig., sec. 4452.</p> <p>2. The justice had no jurisdiction, as the action wa| for conversion. Art. 7, sec. 40, Const. 1874; 41 Ark., 476. Appellee had no title to any particular part of the undivided cotton composing the bale. 16 Ark., '90; 34 ib., 93.</p> <p>In order to maintain an action for conversion, the plaintiff must prove property in himself and the right of possession at the time of the conversion. 44 Ark., 108.</p> <p>This could not be considered as an action for money had and received to plaintiff’s use; there was no privity of contract between the parties. '36 Ark., 575.</p> <p>It is the obvious intention of see. 4452, Mansf. Fig., that the mortgage, when not indorsed by the landlord, shall be void only as to him. It is for the protection of the landlord, and not of third persons. But this question does not properly arise here; for considerations moving from the share cropper and the appellee, the landlord assumed to take care of the mortgaged property, and to deliver it to the mortgagee. In such cases no question as to the validity of the mortgage can be raised. 47 Ark., 301.</p> <p>A mortgagee, after default especially, is the owner of the property as against everyone except the mortgagor, and can maintain an action for its conversion. 39 Ark., 575; 41 ib., 385; Jones on Gh. Mort., sec. 490.</p>

<p>Guardian amd Ward: Guardian’s office and duty as to ward’s lands. Advancement for repairs.</p> <p>A guardian is the authorized agent appointed by law to take care of the ward’s estate and manage his affairs. If the estate consists of lands it is his especial duty to collect the rents and profits, and to this end, to keep the premises in tenantable repair. He cannot build expensive permanent improvements without a previous order of the probate court; but where, without such order, he advances money to make such necessary repairs as the probate court should, upon application, direct; e. g., in substituting for worn out and useless gin machinery, such new machinery as is necessary to the profitable operation of the gin, he should be allowed credit in his account for his advancements.</p>

Hon. W. H. Cate, Judge. 1. Justices of the peace have no jurisdiction in actions to enforce the collection of a statutory penalty. Sec. 40, art. 7, Const. 1874- The statute under which appellee is seeking to recover the statutory penalty of one hundred dollars, is in the nature of a police regulation, and is imposed for the violation of a public duty, and this action does not arise on the contract to transmit, but upon the statute.

Hon. H. B. Stuart, Judge. The motion for a non-suit under secs. 102, 107, Mansf. Dig., should have been granted. Neither prior to the suit nor afterwards was the legal authenticating affidavit made. Such an affidavit is a prerequisite to a right of action which the executor cannot waive. The affidavit to the complaint does not comply with the statute. 16 Ark., 647; 25 ib., 318; 30 ib., 756; 45 ib., 299.

<p>Invants: Power of probate court to remove disability of.</p> <p>The statute which authorizes the removal of the disabilities of minors applies only to such minors as are capable of attending to their own business; and an order of the probate court removing the disabilities of a minor under the age of fourteen years is void.</p>

Hon. J. B. Wood, Judge. A cause should not be abated or dismissed for an error as to the kind of proceedings adopted, but should be transferred to the proper docket. {Mansf. Big., sec. Besides, the error was waived by failure to move to transfer. Ib., sec. 1927. The plaintiffs and their ancestors had been in undisputed possession for more than twenty years. Their possession, holding under a deed, was co-extensive with the grant. Wood on lim., sec'. 259 ; 31 Ark., 517.

Hon. B. F. Askew, Judge. 1. The evidence does not sustain the verdict. Appellee was the bonded officer of the defendant, and it looked to him for all moneys collected for it. The appellee alone was responsible to the company. 2. The first, second and third instructions given for plaintiff were erroneous.

Court. Hon. B. E. Askew, Judge. Quo warranto does not lie for every imaginary evil. This court cannot go beyond what is alleged in the complaint, to see if the state has suffered from misuser or nonuser of the charter.

<p>APPEAL from Clay Circuit Court.</p> <p>Hon. W. H. Cate, Judge.</p> <p>The court erred in refusing to give instructions asked by defendant. A purchaser takes the risk of the quality of an article sold, unless there be fraud or warranty, and in the sale of chattels, while there is an implied warranty of title, there is none of quality. (45 Ark., 2847) Mere representation is not warranty, the relation of buyer and seller not being a confidential one. The representations are not alleged to have been made fraudulently, and there is no-proof of even false representations. If made as alleged,, they are not actionable. False representations must not only mislead, but must have been made fraudulently and with that intent. No one can be held liable for them who-honestly believed them when made, however false they may be. He is liable if he knew them to be false, or knowing nothing about them, asserted them to be true. (38 Ark., 334-) The parties had mutual dealings for several months, and appellant rendered appellee a statement of account. No objection having been made in a reasonable-time, the appellee cannot be heard to object at this late date. 41 Ark., 502.</p> <p>It was the duty of appellee to examine the goods when he received them at once. 45 Ark., 284•</p> <p>As to the representations, see 38 Ark., 352.</p> <p>The bill of exceptions is a skeleton bill, and does not' identify the instructions, and they will not be considered a part of the record. 45 Ark., 485; 45 7h., 482.</p> <p>Upon the sale of articles by the manufacturer there is an implied warranty that they will answer the purpose for which they were made. 31 Miss., 91; 4 Kan., 476; 29 Ind.,. 142; 29 Me., 508; 34 Conn., 67; 6 Am. Dec., 115.</p> <p>It was not necessary to demand a rescission of the contract; the purchaser may keep the property and set up the false warranty by way of recoupment. 8® Ark., J¡.58.</p>

Hon. M. T. Sanders, Judge. The judgment rendered at the spring term, 1884, was full and complete, and under it a partial satisfaction has been made. The judgment at the October term was likewise a full and complete judgment, and not within the scope or authority of the circuit court to render same as a nunc fro tunc order.

Hon. J. A. Williams, Judge. ,1. The declarations of the deceased as to the manner in which he was injured were not competent. 2 Ark., M6; 97 III, 101; 24 Kans., 189. They were not admissible as part of the res gestee. 8 Wall, 397; 30 Vt, 377 47; ib.,583; 8 Conn., 263 ; 3 ib., .250 ; 41 ib., 55; 128 Mass., 422; 95 N. Y., 774• 2. The exclusion of evidence as to regulations on other railroads in regard to coupling, was error. 3.

Hon. J. B. Wood, Judge. A debtor can set up and plead any and all defenses arising before and up to the date of answer in the circuit court. A writ of attachment in the nature of a garnishment issued after a judgment and appeal has been had in a justice’s court, can be pleaded in the circuit court as a> valid defense to said action, or as much of the same as it will cover. The cause stands for trial de novo in the circuit court upon its merits. Mansf.

Hon. J. M. Bradley, Judge. The bill in this case contained all the allegations essential to constitute a good ground for relief in equity, aud the demurrer should have been overruled. The right of plaintiff's to require the defendants to account for the cotton is clear, and their bill in equity was the proper form in which to bring the action. The lien of a landlord is not affected by a sale to a purchaser with notice. 34 Ark., 691.

Hon. J. A. Williams, Judge. The affidavit was in due form. There was no testimony showing when Urie died, and the affidavit may have been made after his death. The presumption is that it was made after his death, unless there was proof to the contrary, and there was none. Secs. 10% and 103, Mans/., Dig. were complied with by appellant. All that is required, is that the affidavit be made before presentation to the administrator.

Hon. J. M. Pittman, Judge. The alleged agreement or contract having been made before the.patent issued, was void, as against public policy. Revised Stat. U. S., sec. 8863; 1 Dillon, 886. The purchase money furnished and labor done by appellee, created a resulting trust in his favor, which a court of equity will enforce, and it may be proved by parol. 88 Mo., 578; If Nev.,380; Lipscomb v. Nichols, Sup. Ct. Col., Dec., 1888.

Hon. W. H. Cate, Judge. 1. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 11 Exch.,784; 95 U. 8., 439; Cooley on Torts, p. 630. In the proof of negligence, plaintiff must first show the existence of a duty which defendant owed him, and then must show a failure to observe this duty.

Hon. J. M. Bradley, Judge. The questions in this case depend upon the constitutionality of the act of March 20, 1883, to provide for building and repairing levees in Chicot county. This act was framed on the model of the act of 1857, the constitutionality of which was sustained in 21 Ark., jf.0, and ib., 60. Section 19 of the act gives all parties a day in court to be heard, and though after payment, yet in ample time. Welty on Assessments, sec. 250, and note 8; 21 Fed.

Hon. J. M. Bradley, Judge. The suit is stale and is barred by limitation. On the marriage of Georgiana Trantham her husband became entitled to all her personal property, and might have sued at once. This suit was not brought for fourteen years after the confirmation of the account and making of the settlement. Courts of equity refuse to lend their aid to enforce stale demands. 1 Story Eq., sec. 589;% ib., sec. 580, and note 3; Story Eq.

Hon. F. T. Vaughan, Judge. 1. The verdict is excessive and the result of prejudice. The amount shows passion, prejudice, or an incorrect appreciation of the law applicable to the case. 2. The verdict was contrary to the law and evidence. 3. The court erred in giving the fourth instruction for plaintiff: (a.) It is abstract. (6.) It furnishes an improper measure of damages, (c.) Because it permits the jnry to fix damages without reference to the evidence.

Hon. G. S. Cunningham, Judge. The doctrine, it seems to me, is too well settled that a deed, absolute on its face, may be shown to be a mortgage to make it necessary to cite authorities. The rule is,, the fact that a deed is given as a security determines its character. Hilliard on Mort., vol. 1, pp. 49, 66; 5 Ark., 321 ; 7 ib., 505; 13 ib., 112; 15 ib., 284.; 18 ib., 49; 40 ib., 146.

Hon. B. F. Askew, Judge. The relation of landlord and tenant did not exist in this case, and that relationship must exist before the action of unlawful detainer can be brought. Johnson et al. v. West etal., 1¡.1 Ark., 585; Byrd v. Chase, 10 Ark., 608. A mortgagee or purchaser under a mortgage or deed of trust has only a right of possession, and cannot bring this action, in order to obtain possession of the premises, and that was all the right plaintiff had in this case.

Hon. D. W. Carroll, Chancellor. Rector’s deed to Celine E., his wife, is a good contract of sale, if it conveys no title. The description in the deed with her possession, is sufficiently certain to ascertain the property. She was put in possession and held the land openly, notoriously and adversely until her death, and paid the full purchase price of the latid.

Hon. D. W. Carroll, Chancellor. H. G. Bunn, Special Judge. STATEMENT. The principal defendant in this cause, Thomas J. Churchill, was elected treasurer of the state, at the general election held in October, 1874, and executed his official bond, with A. H. Garland, R. C. Newton, Gordon N. Peay, John D. Adams, S. ~W. Williams, Thomas Fletcher, Elisha. Baxter, James A. Martin, W. I).

Hon. H. B. Rutherford, Judge. The judgment is not sustained by the evidence as found by the court. The finding of the facts by the court is in the nature of a special verdict by a jury, and is conclusive of the facts. ¡85 Ark., 562; 5 ib., 588, 592. The court did not find that appellee owned or paid value for the note, and without such finding the judgment is erroneous. The burden was on appellee to show this.

Hon. G. S. Cunningham, Judge. 1. The evidence fails to show that there was any defect in the track at the time the accident occurred. 2. Testimony as to defects before or after the accident were not admissible. The testimony should have been confined to the time and place of the accident. 38 Mieh.t 541; 6 Cush., 396; 58 Barb., 869; 69 Me., 174; 89 Up. Can., Q. B., 864; 8 Or., 174; 8 Am. and Eng. By. Cases, 464; 1 Greenl.

Green Circuit Court. Hon. M. T. Sanders, Judge, on exchange. The justice had no jurisdiction to set aside a sale made by execution. ■ A justice’s court is one of, inferior and limited jurisdiction, and has no jurisdiction of matters not expressly conferred. The property purchased vested in appellant upon the bidding it off and payment of the amount bid by.him, and could not be divested by the justice in such a summary manner.

Hon. L. A. Byrne, Judge. 1. The cross-appeal should be dismissed because Rumph failed to except to the decree. Mansf. Dig., secs. 4-915, 4916, 4917, 4910, 5317, 6363, 5157, 5160, 4927. 2. The defense of usury is made out and Edwards could plead it as a full defense in this action having been brought in as defendant in equity by Rumph. 18 Ark., 369; ib., 456; 34 ib., 28; 9 Johnst., 122; 9 Am,. Dec., 283; 9 Gill, .299; 62 Am.

Hon. J. M. Bradley, Judge. 1. The contract being a verbal one, and not to be performed within a year, was within the statute of frauds, and void. . Mansf. Dig., sec. 337l,subdivis. 6; Meyer v. Roberts, 46 Ark., 80; 1 Parsons on Gont., 529; Waite’s Act• and Def., vol. 7,p. 43; 55 Mo., 97; 36 Ala., 351; 13 R. 1., 480; 26 Ga., 551; 2 Helt{N. Y.) 116; 22 III, 248. 2. The verdict is contrary to the evidence.

Hon. J. B. Wood, Judge. Whether this was a sale, or a consignment, it was an illegal transaction ; the contract is invalid, as contemplating a violation of a statute, and cannot be made the foundation of a right to recover. Story Agency, sec. 344; 32 Ark., 620; 25 ib., 209; Garth., 252; lM.fr S.,596; lB.fr P., 551; ib., 593; 10 Post., 540 ; 24 Vt., 486; Story Sales •of Pers. Prop., sec. 505.

Hon. H. B. Stuart, Judge. 1. The liability of a common carrier in respect to the condition of his premises, is neither greater nor less than that of any other person to another wrho, by invitation or inducement, express or implied, has come upon his premises for the purpose of transacting business; and the carrier is only bound to exercise a reasonable degree of care for the protection of its patrons.

Hon. L. A. Byrne, Judge. 1. The verdict is contrary to the evidence and the law as given. The chief allegation of negligence in the complaint was the failure to stop its train long enough to enable plaintiff to alight; and second — the absence of proper lights on the platform. These specific acts of carelessness are wholly unsustained by the evidence ; on the contrary, the reverse is proved.

Hon. E. T. Vaughan, Judge. The evidence establishes fraud beyond question. Leigh, the principal defendant, though charged in the complaint and testimony with the grossest fraud and dishonesty, did not venture to testify in his own behalf, and this is a circumstance of great weight. See 107 ü. S., 868; 118 Mass., 96; Lawson on Pr. Ev., ¶. 180. The testimony fails to show any fraud on part of appellees.

Hon. L. A. Byrne, Judge. Under the decision in this case, J¡Jf. Ark., 1¡.1¡.S, nothing could in this second trial be recovered for the value of the goods. The carrier received, carried and tendered the goods in good condition to plaintiff, or his consignees, but plaintiff refused to receive them. So plaintiff was compelled to resort to his plea of special damages to recover anything. Time was not the essence of this contract of shipment.

<p>' 1. Injunction: Against, void judgment.</p> <p>Equity will not enjoin a judgment merely because it is void. The plaintiff must show in his bill for injunction that he has no adequate remedy at law, either by appeal from the judgment, or certiorari, or by application to the court which rendered it, or in any other legal manner.</p> <p>2. Same: Damages for enjoining void judgment.</p> <p>No damages can be assessed upon the dissolution of an injunction of a void judgment. The judgment being void, no damages could be sustained by enjoining it.</p>

Hon. L. A. Byrne, Judge. Upon the passage of the act of 1879, disincorporating counties, and depriving them of the capacity to sue and be sued, the-action of the county against appellees, and the cross-action of appellees against the county, necessarily terminated, and all proceedings taken subsequently were ex parte and void. No one has a vested right to any particular decision.

Hon. J. B. Wood, Judge. The contract sued on in this cause is too clear and plain to be in the least ambiguous ; and by its terms the plaintiff is at once precluded from claiming that there was any other or outside understanding, or that the estimate or classification of work done is greater or different than that made by French.

Hon. F. T. Yaughan, Judge. The right - to redeem without actual payment of the amount due, as provided by the act of 1869, was intended to be limited to cases of forfeiture under the general revenue law, and does not apply to lands purchased by the state at judicial sale under the overdue-tax law of 1881. Secs. 5489-90, Mans/. Dig.; Rev. Act 1868, pp. 275-6; ib.T 277, 278; Acts 1881, p. 63.

Hon. M. T. Sanders, Judge. 1. In this case there was neither fraud, accident, mishap nor mistake, to bring it within the rule of 35 Ark,., 123, or lj.0 ib-, 338. 2. Plaintiff was not so aggrieved by the verdict and judgment as to entitle her to a new trial. As to all persons except the mortgagee, Counts was the legal owner and had a right to make the lease to Johnson. Jones on Mortgages, sec. 11.

Hon. M. T. Sanders, Judge. 1. The appellee was not a married man or the head of' a family, within the meaning of the constitution. His-wife did not live with him, nor had he any family dependent upon him for support. Art. 9, sec. 3, Const. 1874; Potter’s Eioar. on Stat., p. 175; 1 Kent Corn., p. 510; 84 Ark.,. 158; 87 ib., 648; 4® ib., 539; Thomp. on Homest. and Ex., secs. 873-4• 2.

Hon. H. B. Stuart, Judge. The demurrer confesses the material allegations of the complaint. Two of the settlements attacked had been confirmed by the probate court, and the time for appealing had elapsed.

Hon. C. E. Mitchel, Judge. The court erred in excluding the depositions of Mitchell and Maxwell, and the exhibits thereto. “Where the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” “On the same ground, a partnership, or…

Hon. D. W. Carroll, Chancellor. First — Lands bought with partnership funds and for partnership purposes are to be regarded as personalty under the law of descents. 8 Lindley on Part., 668; 88 Ark., 856; Parsons on Part., *p. 370 ; 7 Conn., 19; 10 Leigh, 4-88; 3 Broion Chy., 199; 7 Vesey, 453, n.; 7 Sim., 871; 15 Johns., 159; 4 Ohio St., 1; Walk. Chy., 800; 9 Lnd., 16; 811 Penn. St, 857; 13 ib., 550; 1 Sumner, 17b; ®0 Mo., 18b; 19 ib., 56; 8 Sand. Chy., 366; 6 Bush., 370.