Volume 49 — Arkansas Reports

J. M. Bradley, Judge. The judgment was not final until the motion for a new trial was disposed of. No appeal could be taken during the pendency of the motion.

J. A. Williams, Judge. The court erred in excluding evidence that the parties'who signed the petitioners’ names by mark had authority so to do. Sec. 4524 Mansf. Dig.; 38 Ark., 278; Mans. Dig., sec. 6344. The petitioners in presenting their petition to the court adopted the signatures.

J. M. Bradley, Judge. 1. The act (.Mansf. Digest, secs. 4125-6) providing for levying attachments from justices’ courts on land was held constitutional in Rush v. Visart, 42 Ark. 2. Even if appellant’s remedy was at Jaw, it was error to dismiss the bill; but the cause should have been transferred to the proper docket. Mansf.

R. B. Rutherford, Judge. The county seat was never removed from Greenwood at all (27 Ark., 217), and the acts and proceedings of the commissioners in locating the county seat on the block, and in securing the deed from the plaintiff, was done under a mistake as to their authority — under a mistake of fact as to whether the county seat was removed by the said election. Plaintiff never received one cent of consideration for the property, legal or equitable.

J. A. Williams, Judge. At a sale of lands for non-payment of taxes due thereon for the year 1883, made by the Collector of Desha county,, on the 28th day of April, 1884, appellant, James Murphy, purchased certain lands, for which he paid $11.50, and upon paying the further sum of 25 cents collector’s fee, he received a certificate of purchase, particularly describing the several tracts of land so purchased, and specifying the amount of taxes, penalty and costs severally due…

L. A. Byrne, Judge. The raising of a negotiable instrument, without the consent of the maker, avoids it even in the hands of an innocent holder for value. 2 Daniel Neg. Instr. (j ed.), secs, 1337, 1373; 13 Pick., 163; 100 Mass., 37g; 2 Taunt., 328; 38 Ark., 127; 30 id., 3go; 8 Ark., 378; g id., 122.

J. M. Pittman, Judge. Mayors of towns have power and authority to take affidavits. Mansf. Dig., secs. 797, 2gif, 2gri. Section 797 gives mayors all the powers and jurisdiction that justices of the peace have, which include the taking of affidavits. Section 797 simply defines the powers conferred upon corporation courts. This construction is in accordance with article 7, section 43, Constitution.

M. T. Sanders, Judge. The complaint alleges that in 1857 the plaintiff, T. J. Rogers, instituted suit in the White Circuit Court against Mary J. Watkins, formerly Mary J. Walker, and her then husband, Thomas Watkins, for a debt due from her to Rogers for $358.10, before her marriage to Watkins, and recovered judgment against them, which was appealed to the Supreme Court, and was there reversed and remanded; that, pending said appeal, the said Mary J. died intestate, and…

L. A. Byrne, Judge. There is no lien on partnership property under an execution against an individual partner, until a levy has been had. Mans/. Dig., sec. 3018 et seq. See, also, ‡ Bush., 3‡0 ; 3 id., 100; ‡6 Ark., ‡3 ; p Otto., up ; ‡2 Ark., ‡30; Freeman on Ex., sec. 123 ; Jennings v. Mc-Ilvoy, ‡2 Ark., 236. An execution is a lien on personal property from the time it reaches the officer’s hands. Mansf. Dig., sec. 2ppi; 28 Ark., 33 ; 23 id., 268; 18 id., ‡1‡; 7 id., fpo.

M. T. Sanders, Judge. Defendant from the proof is guilty of neither of the charges in the indictment. The indictment is based on section 1926 Mansfield’s Digest. The prosecution is based on the 'idea that Crocker, being the owner of the house, and illegal sales of whisky having been made therein, Crocker is guilty, although such sales were made by another, who was in possession of (he house by contract, and had a right to its use and occupancy..

H. B. Stuart, Judge. The vendee of property where the title is reserved in the vendor until payment is made, can confer no title even on an innocent purchaser. McIntosh v. Hill, 43 Ark., 363 ; Andrews v. Cox, 42 Ark., 433, 480-1; McRae v. Merrifield, 48 Ark., 160, 23 Am. Dec., 604, and note; 23 Am. Rep., 438; 42 id., 104, and note ; 44 id., 213. 1.

J. M. Pittman, Judge. 1. The sale of personal property, by the Sheriff, when the property is not present, is void. Freeman on Ex., sec. 2go and note 4; 29 Ark:, 270; 31 Id., 648; Rorer on Jud. Sales, 2d ed., sec. 1283; 13 III., 38; 3 Murphy, 470; g Am. Dec., 613 and note; Freeman on Jud. Sales, sec. 31. 2. The sale being void, is not cured by confirmation. Confirmation Only cures irregularities. Freeman Void Jud.

G. S. Cunningham, Judge. This was not a voluntary payment, but the appellant paid under duress, and under a state of circumstances which entitle him to recover. Bishop on Cont. {1838), secs. 143-5, 243; 10 How. (U. S.), 242; 1 Pars. Cont. {1883), bot. p. 443 to 446; 3 B. & C, 33; 4 D. & R., 283; g Johns., 335; id., 201; 106 Mass., 1; 40 Mich:, 363; 43 Ark., 365; 2g N. W. Rep., 418; 114 Mass., 364; 46 Ark., 358; 15 Am. Rep., 323, and notes. 1.

G. S. Cunningham, Judge. The jurisdiction of a court of equity cannot be invoked upon mere general charges of fraud without specifying in what the fraud consists. Nor can its jurisdiction be invoked to review the proceedings of a Probate Court in matters which are exclusively within its jurisdiction, except for fraud or mistake. 45 Ark., 306; JO id., 66; 33 id., 727; 34 id., 63; 39 id., 236; 40 id., 393; 42 id., 186.

W. H. Cate, Judge. The fact that the appellees were laborers or employes gave them no lien on the property. Laborers have a lien on the production of their labor only. Mansf. Dig., sec. ‡‡2$. Directors of a corporation can prefer their own debts to those of others, and the mortgage was not void because McMillion & Ebbert were directors. 27 Wall, 610; 16 id., 390; 11 id., 96; 8 Va. L.J.,393; 16 Iowa, 284; 20 Vi., 423 ; 1 Waits, 383; 60 Penn.

J. M. Bradley, Judge. We submit that from and after the ist day of January, 1861, the officers of the land department, at Little Rock, refused to act for the government of the United States, and that there were no official returns made to the general land office and treasury, at Washington, from the 31st day of December, i860, until said land office was reopened in 1866, and that said land office was closed by the general government after the 1st of January, 1861, and that…

J. M. Pittman, Judge. 1. School districts are quasi-corporations. They possess only such powers as are given by statute creating them, and their acts at any time, manner or place not prescribed, are void. Cooley Const. Lim., *pp. 192, 193, 196; 38 Ark., 434; 32 id., 131, 687; 20 id., 77; 2 id., 229; Dillon Mnn. Corp., 9, 22, 24, 4-43, 445-7- The annual school meeting on third Saturday in May is the time and place fixed by law for transacting the business of the district.

M. T. Sanders, Judge. Appellant had a right to be made a party to the suit. Mansf. Dig., sec. 4946; 33 Ark., 611; 34 id., 328; 36 id., 434; 43 id., 37‡- There is no place for a third party claiming under an independent and distinct title, to interplead in a replevin suit, after the defendant has given the statutory retaining bond, and the property taken from his possession, restored to him under section 3381 Mansf. Dig.

, L. A. Byrne, Judge. The ninth exception, that the master only allowed six per cent interest on the part of the purchase money he paid for the lands, instead of ten, was properly overruled. There was no evidence of an agreement that he should have any interest on purchase money paid. In that case he is only entitled to what the law gives in the absence of a contract. Mansf. Dig., sec. 4732. The statute does not authorize two commissioners to make partition, but all three.

D. W. Carroll, Chancellor. Sections 10 and 23 of the act of April 4, 1887, being the last act,'repeals the act of 1885, fixing the second Mondays of March and September for the courts at Toledo, and leaves no day fixed for holding courts there. This virtually dismisses all suits pending at Toledo, and discharges all persons held for felpnies committed east of the Saline river. There being no court to try him, appellant cannot be longer held for trial.

W. H. Cate, Judge. This court has recognized the right to claim exemptions by other means than schedule in 31 Ark., 632; 34 id., m. Replevin in such cases is authorized by statute. Mansf. Dig., sec. 3372, 3th subd.; see also Thomp. on Homest. and Ex., secs. 876, 884; ‘20 Amer. Dec., p. 696, note. The action is generally recognized and approved.

D. W. Carroll, Chancellor. I.- The bill filed in this case was not sufficient to authorize the appointment of a receiver by the court. It is evident that the receiver was appointed more for the benefit of the defendant corporation than for the protection or interest of the bank, or the other creditors. There is no statute authorizing such sweeping jurisdiction on the part of the Chancery Court. Mansf. Dig., secs. 52;; to 5287.

E. F. Friedeix, Special Judge. The court below erred in permitting the appellees to read to the jury the written agreement between themselves and Smith and Hunt. This was not the contract of the appellant, and the suit was not based on it. Mansf. Dig., sec. 3063. Neither could it be used before the jury unless the witness had said that he did not remember what the contract was without referring to the paper.

B. F. Askew, Judge. I. The language of the will does not create an estate tail, which under section 643 Mansfield’s Digest, gives the tenant in tail a life estate merely. It gives Pauline an estate in fee. The limiting words are in another sentence, and following that of the devise. The limitation over is void, and the grantee had the absolute power of disposal. 100 N. Y, 287; 68 Me., 34 (28 Am. Rep., 1); 77 id., 423 (32 Am. Rep., 781); 13 S. C., 440; (40 Am.

J. M. Pittman, Judge. The act of February 27, 1875, is in conflict with section 23, article 5, Constitution 1874. It is an attempt to extend the provisions of sections 614-15-16 Gantt’s Digest to cities and towns, without re-enacting them, but merely by referring to them. This cannot be done. 13 Mich., 497/ 4/ Ala., 9; 69 id., 4.13; Boles v. State, 63 id., —; 28 id., 466; 39 id., 37; 27 Me., 9; 27 Vt., 236; 4 La.

L. A. Byrne, Judge. Courts will not enjoin the sale of personal property, (29 Ark., 340; 35 id., 184; 33 id., 633; 14 id., 399; 20 id., 610;) although it may be exempt,, (36 Ark., 48). Appellee had an adequate remedy at law. Mansf. Dig., sec. 7012. The only remedy afforded a judgment debtor to prevent a sale of his property on execution is found in sections 3006 to jo 13 of Mansfield’s Digest.

R. D. Hearn, Special Judge. The appellee, Windham, brought his action against the appellant, the city of Arkadelphia, to recover damages for an injury to his horse and wagon sustained while driving over a defective railway crossing of a highway within the city’s corporate limits.

M. T. Sanders, Judge. 1. Appellant was entitled to a trial by jury, and the proceedings of the city court, after refusing him a jury, were coram non jndice and void, and habeas corpus was the proper proceeding. 33 Ark., 450; 27 id., 467; 45 id., 158; 63 Wis., 285.- 2. Appellant was entitled to a trial by jury. Cite Mansf. Dig., secs. 2357, 814, 7g7, 800; Acts 1885, p. g2, sec. 4; Const. 1874, sec. y, art. 2; Dill. Mini.

H. B. Stuart, Judge. The law-of this case was embodied in the four declarations asked by appellant. 30 Ark., 768, 769; ‡7 Ark., 239; 1 S. W. Rep., 200; 9 Ark., 240; Mansf. Dig., secs, mo, m3. When a person dies without money or property to pay his burial expenses, the law says it shall be the duty of the County Court to make such allowance therefor as sháll seem just. Mansf. Dig., sec. 1112.

J. B. Wood, Judge. I. On an indictment for robbery, there can be no conviction of larceny. There can be no robbery without -violence, and there can be no larceny with it. 12 Ga., 2gj. Larceny is not a degree of robbery, nor are they of the same genus, and secs. 2288-9, Mansf. Dig., do not apply. Robbery and larceny cannot be charged in the same indictment. See jj Ark., 556; j Chitty Cr. Law, 806; Comyns Rep., 447; 2 Strange, 1014. 2.

C. D. Wood, Judge 1. The orders, judgments, etc., of justices are required bylaw to be kept in a docket. Mansf. Dig., sec. 4.032. They are quasi-records, and can only be proven by the docket itself, or a certified copy. 2 Phil. Ev., ch. p, sec. 1, pp. 1‡1-2. Secondary evidence cannot be used where primary can be had. 1 Gr. Ev., secs, pip, pj2; Wharton Cr. Law, vol. 2, secs. 6pg, 661; Phillips Ev., vol. 1, pp. 19-20. 2.

<p>1. Practice in Supreme Court: When statute requires written opinions.</p> <p>Section 888 of the Code of Civil Practice, which provides that the Supreme Court “must deliver written opinions, in all cases involving a principle of law not previously settled by the court and reported,” repeals so much of the Revised Statutes (Mans†. Dig., sec. igiS) as requires every opinion to'be reduced to writing.</p> <p>2. Same: Legislative power as to written opinions.</p> <p>The Legislature has no authority, under the Constitution, to require the Supreme Court to give the reasons of its decisions in writing.</p>

<p>Municipal Corporations : Cannot make prostitute's mere presence a crime.</p> <p>A municipal corporation cannot punish, as a criminal offense, the return to the the town or city of a prostitute. The mere presence of such a person in the town limits is not a crime.</p>

R. H. Powell, Judge. Sec. 5545 Mansf. Dig., is repugnant to sec. 21, art. 2, and sec. j, art. 2, Const. Ark., and the pth amendment Const. U. S., and 2gth Clt. Magna Charla. It is not the “ law of the land,” for in its operation it is limited to a class named, and does not extend equally to all. Coke's Inst., part 2, p. ¡1; 2 Yerg., 55‡ ;■ ib., 2pg, 600; j Himiph., p.8j ; 2 Sneed., 10‡ ; 26 La., 671; 20 Cal.,pjf; 5 Sawy., 552; 7 Nev., jfp; 100 U. S., joj ; ‡ Wheat, 2‡‡.

J. B. Wood, Judge. To constitute the offense charged the sale must have been made without the written consent of the parent. Sec. 1878, Mansf. Dig. The written order in this case was a complete defence. The wording of the order shows that it contemplates the selling on more than one occasion, and is broad enough to include a sale of a pint, or any amount “in reason.” The order was only a consent to sell on the date of the writing.

Francis Circuit Court. M. T. Sanders, Judge. 1. The act of March 17, 1883, is unconstitutional. Art. ig, sec. g, Const. The Legislature could not create the office of State timber inspector, and second, could not impose the duties on the State Land Commissioner. 2. The act was not intended to apply to school lands. The school directors had charge of the school affairs, etc., of the State. Sec. 6213, Mansf. Dig.

M. T. Sanders, Judge. The stairway was a part of appellant’s “ premises.” Wood on Land and T., gzó-j, and sec. pi; 12 Tex. Ct. App., 6og; 7 C. & P., 26; ‡3 Ark., 336; Mansf. Dig., sec. 3002; 33 Mo., 6j; 60 Ala., 18. Section 1907 Mansfield’s Digest only gives the right to carry a weapon on “his own premises.” This means such as have an estate or interest in the realty. ‡3 Ark., 338. Clark only had an easement, or right of way, over the stairway. Wash.

G. S. Cunningham, Judge. 1. Appellant was entitled to testify in his own behalf. Acts 1885, p. 126. Sec. 285p, Mans/. Dig., only applies to civil cases, and there is no exception in the act of 1885. 2. The record does not show that defendant was arraigned,, or that he waived it. jp Ark., 180. Concedes that appellant had the right to testify in his own behalf. Whart. Cr. Ev.,par. /¡2p; 6j Barb., 6jo. There is no other error.

J. M. Pittman, Judge. Our statute defines an assault to be an unlawful attempt coupled with a present ability to commit a violent injury, etc. Mansf. Dig., sec. 1562. Present ability is necessary at common law to constitute the crime. Roscoe Cr. Ev., 2g6; Russell on Cr., loig; 2 East P. C., J12; Mich., 521; g Ala., ?g; ‡3 id., 33‡; j8 id, ‡63; 56 Am. Rep., ‡2. Our statute is clear, and was evidently enacted in view of the conflicting views as to what constituted an assault.

F. T. Vaughan, Judge.' This was an action to recover damages for personal injuries sustained by appellee in having his leg broken through the alleged negligence of the appellant.

J. B. Wood, Judge. 1. Plaintiff’s right of action accrued on June u, 1879, two years from date of sale, and unless his action was commenced within three years from that time he is barred. Section 4478, Mansf. Dig.; ib., sec. 4488. 2. No personal judgment should have been rendered against the railway company. It denied the ownership of the entire section, and there was no proof to sustain the allegation. 3.

M. T. Sanders, Judge. The court had no right to refuse to receive the verdict, if in form. It acquitted the prisoner of the higher offense. 2 Johnson Rep., 182. As to when the court may refuse to receive the verdict, and for what cause, see Whart. Cr. Law, yth ed., sec. 3198; 19 Cal., 426; 2 Ala., 145; 13 Miss., 295; 11 Iredell, 153; 3 Bisk. Cr. Pro., sec. 1004; 20 Cent. Law Journ., 149.

J. A. Williams, Judge. The ordinance is unconstitutional, as an attempt to levy a tax upon property owners, in a manner not authorized by the Constitution. See 32 Ark., 31; Monticello v. Banks, 47 id., sec. 4, art. 12, Const. 1874. This is a special tax, not ad valorem, and void. A municipal corporation has no inherent power to levy taxes ; it can levy only such as are authorized by law. Vance v. Little Rock, 30 Ark., 433.

T. P. McGovern, Special Judge. There is not the slightest proof that appellants had any notice, actual or constructive, of Mrs. Edringto.n’s rights.

C. E. Mitchel, Judge. In order to constitute an estoppel by conduct all of the following elements must actually or presumably be present: “i. There must have been a false representation or concealment of material facts. “2. The representation must have been made with knowledge of the facts. “3. The party to whom it was made must have been ignorant of the truth of the matter. “4.

M. L. Davis, Special Judge. The County Court of Pope county, at a special term on the 20th of July, 1886, upon proper petition, ordered an election to be held at the general election, September 5,… Held: and a majority of the voters of said county voted to locate the county seat ,at Russellville. The contestants appealed, and also sued out a writ of certiorari. , 1. The validity of the first election was the only question presented to the Circuit Court by the petition.

<p>APPEAL from Lee Circuit Court.</p> <p>M. T. Sanders, Judge.</p> <p>1. A payment of part of a debt, even if release was admitted, is not a satisfaction of the whole. 5 Coke, iif; jj Ark., 592.</p> <p>2. The administrator had no authority to compromise the debt, without an order of court. Mansf. Dig., sec. ff.</p>

B. F. Asicew, Judge. The ordinary rules of evidence apply in election contests. McCrary on Elec., sec. 306. The depositions of the witnesses, Boykin and Lewis, were incompetent. They testify to contents of returns, when there were none. 33 Ark., 430; 32 id., 333. Their testimony is secondary evidence. 23 N. Y., 43. The ballots are the best evidence. 28 Cal., 123. See, also, Mc-Crary on Elec., sec. 391; 19 Ohio St., 306, 319.

M. T. Sanders, Judge. 1. Samuel Clement having no title, none descended to his heirs, and they were in' no sense co-tenants, nor was there any relation of trust between them, r Perry Trusts, sec. 13; ib., secs. 2‡, 25, 26, 27. Neither the heirs nor their ancestor had any title, and there could be no relation of co-tenancy. 2. Appellees are barred by the statute of limitations of seven years. Appellant and appellees were co-tenants by descent.

J. M. Bradley, Judge. The suit must be brought within one year. Mansf. Dig., sec. 554.0. A justice has no jurisdiction in cases where the damages exceed $100. 44 Ark., ioo. No suit having been instituted in a court having jurisdiction, within twelve months the action was barred. Wood on Lim., sec. 2gj; 24 Penn. St., 4214; 1 Serg. & R. (Penn.), 256; 25 Ark., 510.

H. B. Stewart, Judge. Three things are required in actions of tort for killing stock upon a railroad track, to constitute a good or prima facie cause of action against a railway company. 1. The stock must have been negligently killed or wounded and found dead or wounded on or near the track. Mansf. Dig., sec. 5544. 2. The killing or wounding must have been within one year. Id., sec. 534.0. 3.

F. T. Vaughan, Judge. 1. Plaintiff being a trespasser upon the defendant’s railway track, the railway company owed him no duty other than not, to wilfully or wantonly injure him after it or its servants discovered his dangerous position. He was guilty of contributory negligence, which will defeat a recovery. 23 Pa. St., 147; 11 East., 60; Ry. v. Ledbetter, 43 Ark.; 41 Ark., 34g; id., 321; 36 id., 377; id., 30-1; Beach Cont. Neg.; ig Ga., 442-7; 18 Pa. St., 2g8; 24 id., 463.

F. T. Vaughan, Judge. The court erred in declaring the law as asked for appellees, and in refusing to declare as asked by appellants. 1. To maintain title by limitation there must be actual, visible, open, notorious and continuous adverse possession under claim of title for the full period of limitation. There must be no. abandonment. See Sedg. & W. Tr. of Title to Land, secs. 725, 728, 7jf, etc.; 27 Ark., pj; 61 Tex., 171; 14 Wall., 146. 2.

IP F. Askew, Judge. A promise by the conductor to see appellee off the train not binding on the company. Wood’s Ry. Lam, vol. 1, 449; 2 Redf. 011 Rys., 298-9. Appellee was guilty of contributory negligence; for if there were no lights she should not have attempted, in her condition, to get off the train. 2 Wood Ry. Law, 1098, noj; 41 hid., 269; 26 id., 228; 51 Mo., 141; 36 Penn., 234.

W. H. Cate, Judge. Appellants were not estopped from proving that the property was theirs, by giving the forthcoming bond, under section 223, Mansf. Dig. They only bound themselves that the property, or its value, should be forthcoming and subject to the order of the court. 2 Mete., Ky., 209; 3 id.-, pp6; 3 Bush., 212; Drake on Att., 6th ed., 340, n. r; 33 Tex., 133; to Martin, p8; 16 La. Ann., 123; 30 III., pgi; 3 S. W. Rep., p. pop. The judgment is right upon the proof.

H. B. Stuart, Judge. The answer set up as a defence a verbal understanding and agreement that is contradictory of the written contract. This cannot be done. The administrator sustained the relation of’ a trustee to the estate. The sale by him was a judicial sale, and not complete until confirmation, 32 Ark., 391; 45 id., 41. To allow such an agreement to be enforced would interfere-with the due course of administration.

L. A. Byrne, Judge. The sole question in this case is, whether or not the vendor’s lien or privilege given by the Constitution and laws of the State of Arkansas is a part of the contract, or only relates to the remedy ? There could be no lien given, even though the property and purchaser both subsequently removed to Arkansas. The common law is presumed to prevail in Texas.

G. S. Cunningham, Judge. ■ i. The effect of the act, if applicable to this case, is to regulate the charges to be collected on freight shipped from distant points in other States, and transported over several connecting lines of railroads to points in this State, thus affecting commerce between the States. See 16 Am. & E. R. Cas., p. i; gi U. S., 282; 10 Wall., 565; 16 A.&E.R. Cases, 40; 6g Iowa, 481; gp U. S., 487; 26 A. & E. R. Cases, 1; 23 Cent. L. J, 5¿i- 2.

F. T. Vaughan, Judge. A sale in fraud of creditors is good between the parties, and is only void as to creditors, fj Ark., 301; 26 id., 321; 10 id., 34; 14 id., 6g; 2g Penn., 2ig. Appellee, though not a nominal party to the record in the replevin suit brought by his wife, was the real party in interest, and is concluded by the judgment in that suit. 63 Mo., ig3; 3 Strobb, 132; 24 Peck., 61; 26 Iowa, in; 31 id., 82; 6g III., 461.

R. B. Rutherford, Judge. Upon a former appeal in this case (Furstenheim v. Claflin, 4.7 Ark., 49,) it appeared that both parties to the appeal had sued out writs of attachment against the same debtor and caused them to be levied upon the same property.

R. B. Rutherford, Judge. Appellees’ remedy, if any, was by mandamus. Hilliard on Inj., 19-20; 20 Ark., 100; 4.3 id., 62; Mansf. Dig., secs. 4369, 4574- do injury is shown to appellees or any tax payer, and a party cannot enjoin an act which does not affect his private interests. 23 Ark., 301. The School Board had no power or authority to dedicate any of this property to streets.

M. T. Sanders, Judge. I. The remedy in this case is clearly in equity. When the frauds were discovered in the settlements the County Court could not open and restate the accounts. 30 Ark., 603; Mans/. Dig., sec. 383r; Gantt's Dig., sec. 3280. The sureties could not be sued at lazo until a judicial ascertainment of the amount due from the principal. 22 Ark., 236; 33 id., 365; 42 id., 392.

<p>APPEAL from Pttlaski Circuit Court.</p> <p>F. T. Vaughan, Judge.</p> <p>The justice had jurisdiction of the subject matter of the suit, and the appellee by voluntarily appearing, consenting to the continuance, and, going to trial, waived any right she may have had under Mansfield’s Digest, sections 4048, 4064, to object, and the justice acquired jurisdiction of her person.</p>

F. T. Vaughan, Judge. The principal is bound by all the acts of the agent coming within the general scope of his auihority, unless the knowledge of a limited agency is brought home to all who deal with such agent. The powers of an agent are prima facie co-extensive with the business entrusted to his care and will not be narrowed by limitations not communicated to the person dealing with him. 13 Wallace, 222; 23 Conn., 31; 8 Wright, 2jg; 44.

J. W. Martin, Judge. The act of March 30, 1887, is of no validity, because: 1. It is a confiscation of private property. Const., art. 2, sec. 22, art. 12, sec. 6; Const. U. S., 3th Amendment, and 14th Amendment. Under the guise of regulating, the Legislature cannot reduce the compensation of railroads to a point which would virtually amount to confiscation. 116 U. S., 331; 23 Fed. Rep., 329; Cooley Const. Lim., 378; 21 Barb., 319; 2 Morawetz Corp., sec. 1073c; Black Const.

B. Stuart, Judge. 1. Plaintiffs are estopped by the acts and declarations of Mimms. Defendants purchased relying on these statements and declarations that these lands were free from all incumbrances, and that the taxes had all been paid. 3 Hill, 213; Herman on Estoppel, sec. 323; 23 How. Pr., 203; 47 Barb., 206; 1‡ Mo., 482; 16 id., 273; 37 id., 213; 39 id., 229; 44 id., 247; 37'id., 384; 14 Phila., 2; 10 Pa. St., 327; 38 Iozva, 634. 2.

R. B. Rutherford, Judge. Appellant is only liable for the overcharge on its own line, and to the point of delivery to its immediate connecting carrier. The bill of lading is the written contract, and by its terms each connecting carrier.is responsible for any loss, detriment or damage occurring while in the custody of such carrier. ‡2 Ark., ‡6$; 18 A. & E. R. Cases, 362, and note; iof U. S., 13/; 100 Mass., 26; 16 A. & E. R. Cases, 232; 3 Fed.

<p>APPEAL from Garland Circuit Court.</p> <p>Leland Leatherman, Special Judge.</p>

A. B. Williams, Judge. 1. No rule or regulation of a railroad company is binding on the public unless observed and enforced by the company. Where a regulation is notoriously violated every day so that the public is taught to act as though no such -rule existed, they have a right to presume that such a rule has been dispensed with.

M. T. Sanders, Judge. No fee for “marking corners” is allowed a County Surveyor by law, and appellee is liable under secs. 3256, 1760 et seq., Mans/. Dig. The fact that there were other fees which he might, but did not, charge, cuts no figure in the case. If he performed services other than those charged for, appellant still owes him for them, or he has waived them.

J. M. Pittman, Judge. The evidence wholly and utterly fails to sustain the verdict. The bill of exceptions does not state that it contains all the evidence adduced, and the presumption is, that the verdict is supported by the evidence. Ark. Reports, passim. The evidence in this case is wholly circumstantial, but when it is abundant in circumstances it is superior to positive evidence. Burke s Works, vol. 2, p. 624.

J. M. Pittman, Judge. 1. The court erred in excluding the testimony of John McClellan. It was certainly pertinent and competent, bearing directly on the point at issue, the mental capacity of testatrix. It was proper evidence in rebuttal. 2. Non-expert witnesses cannot give their opinion of the mental capacity of a testator. Attesting witnesses may do this, but others must confine themselves to the facts, ig Ark., 533- 3.

M.-T. Sanders, Ju,dge. 1. The assessment list of 1882 is discredited by alterations which would throw the burden of proof upon those who claimed the benefit of it to explain these charges. 30 Ark., 283; Abbott Trial Ev., 4g; id.,p. 338. An assessment book, where fraud appears, should be excluded in toto. Patton v. Coates, 41 Ark., 111; Brightly Lead Cas. on Elec., 4g3; notes to id., 301. 2.

F. T. Vaughan, Judge. 1. We contend that, having a special right under the laws of Arkansas to construct the road which we have constructed, and of erecting said bridge, and the defendants not having shown any such, or similar right, that the defendant cannot have damages, based upon a tise to zvhich they could not have put the property, but only for being deprived of the right to devote the property to süch uses as the law allozos them to devote it to.

John A. Williams, Judge. 1. The record shows that summons was issued for the minor defendants ; that a guardian ad litem was appointed ; and the statute requires service of process before the appointment of a guardian. Gotdd’s Dig., p. 852, 219. The phrase “ et all' has the same legal effect as if the name of every defendant was set out.

R. D. Hearn, Special Judge. 1. There was no privity of contract between plaintiff and 'defendant by which she could sue for a breach thereof. She was not a party to it; she owned no interest in the land ; was not an heir or an administratrix; nor the assignee of O’Baugh. 2 Rap. & L. Law Diet., p. 1011; 27 L. J. Ex., 3; 1 Add. on Cont. secs. 33-6; 3 H & C., 637; 40 Me., 34.8; 23 Iowa, 371; p BI Mon., 470; 31 Ind., 327; 17 A. & E. Ry.

M. T. Sanders, Judge. 1. PIquity has power to reform an instrument, which by reason of mistake fails to express the intention of the parties. 13 Mo., 160; 66 Mo., 329; 10 Ver., 183; // Ohio, 223; id., f8o; 17 Ala., 337; 1 Pet., 1; 13 Ark., 129; 98 U. S., 83. 2.

M. T. Sanders, Judge. 1. The court below found that Mrs. Pillow’s debt was valid, and that she had the right to have the same included in the security of the mortgage, and satisfied out of the proceeds of sale of the land. And Sentelle not appealing, the decree will not be disturbed as to that point. 24 Ark., 30; 44 id., 23; 37 id., 403. But the court erred in postponing the payment of her debt, until Sentelle & Co. were paid in full.

R. PI. Powkll, Judge. The appellant was convicted of murder in the second de^ gree, in the Boone Circuit Court, at the July term for the year 1887. He moved for a new trial and also in arrest of judgment, and both of these motions having been overruled, he excepted and obtained an appeal from the judgment pronounced against him.

J. M. Pittman, Judge. 1. A “special” deputy sheriff is an officer not known or recognized by our laws, except in certain special cases. Mansf. Dig., secs. 2668, 2008, 2391; Bish. Cr. Pro., vol. 2, sec. 884; 103 Mass., 443; 17 III., 373; Mansf. Dig., secs. 6318-19-20. A special' deputy is in no sense a public officer. 2 Jac. & W., 468; Greenl. Ev., vol. 1, sec. 83, note 4. 2.

•J. W. Martin, Judge. On motion to tax attorney’s fees. For the facts and original opinion in this case, see ante, 325. The law allowing attorney’s fee is unconstitutional; it violates the guaranty in the Constitution of the United States and this State, that laws shall be equal and general in their operation. 65 Ala., igg; 60 Miss., 646. One fee only in the same case can be taxed. A fee was allowed appellee in the court below. 28 Ark., 566.

C. B. Moore, Sp. Chancellor. The mortgage is void. It is executed in the name of the “Furniture Works,” signed by Flowers as manager, when Flowers was the real party. 19 Ark., 602; 36 id., 466. The acknowledgment is defective and void; the word purposes ” is left out. 32 Ark., 433. But if the'mortgage be valid between the parties, it cannot prevail against the partners and the partnership ci’editors. 77 Ind., 361.

R. D. Hearn, Sp. Judge. Lane sued Cagle on his promissory note for $1000. It appeared that one Cummings had a patent coffee-pot condenser, and that he had sold certain territory to one Wagoner, and taken Wagoner’s note for $750, which he had sold to Lane. For certain reasons the trade with Wagoner had to be canceled, and this obliged Cummings to take up Wagoner’s note from Lane.

J. A. Williams, Judge. Whether appellee got the bond for title by assignment from the widow or not, o.r whether he got under a contract to procure a deed or not from Williamson, or whether he got the deed by reason of having the bond in his possession, he is a trustee, and the measure of his responsibility is the same. By interfering or intermeddling with the property of these heirs, he made himself a trustee. 2 Story Eq. Jur., 1233; 2 Pom. Eq.

J. A. Williams, Judge. Plaintiffs' had complied with the law in every respect. Mansf. Dig., secs. ppo2, etc. The lien grows out of the use of the materials furnished. 30 Ark., 35; 39 id., 29; 18 III., 323. As between the material man and the owner of the land an exact compliance is not essential. 30 Ark., 368. The petition need only allege the facts necessary to secure the lien and a description of the property. This was done. pi Ark., ‡2.

R. B. Rutherford, Judge. 1. The city council in its official capacity has never passed any valid ordinance or resolutiori declaring fheir intention to construct said gutters. The order of June 2d does not declare what kind of material should be used, nor the cost or depth of same. This was necessary. 43 Mo., 403; id.;333; 46 id., 577; 4 Bush., Ky., 464; 33 Cal., 44; 19 Mich., 39; Desty on Tax., 1243; Mansf.

J. B. Wood, Judge. 1. The act authorizing the allowance of attorney’s fees is in violation of the Constitution of Arkansas, and the Fifth and Fourteenth Amendments to the Constitution of the United States. It provides for a board of arbitration, and inflicts a penalty for appealing to the courts. Art. 2, sec. 13. 2. It conflicts with section 21, article 2.

J. M. Pittman, Circuit Judge. The indictment is under secs. 5825 and 5872 Mansf. Dig. It is fatally defective in' failing to aver with certainty that the collector had ever made a settlement. Criminal pleading requires each fact necessary to sustain an indictment to be averred directly and with certainty. Clary v. State, 33 Ark., 361. This is not a case where it is sufficient to -charge in the language of the statute. 38 Ark., 319.

APPEAL froth Jackson Circuit Court. R. H. Powell, Judge. 1. No action for use or occupation could be had at common law, and our statute gives such a right only to landlords. Mansf. Dig., secs. 4167, 4169. The relation of landlord and tenant must exist. 7 Ark., 306-7; 10 id., 602; 13 John., 489; 6 Johns., 49; 1. Mans., 134; 25 Ark., 168; id., 134; 2 Add. Cont., sec. 707, note 1. 2. The contract, being by parol, was void being within the statute of frauds. Mansf.

M. T. Sanders, Circuit Judge. The finding of the Chancellor that the $500 note was paid by appellee, is clearly contrary to the evidence. This court will review the findings of facts by the court, and. if clearly against evidence will reverse. Nolen v. Hardin, 43 Ark., 318. When the maker of a note is found in possession of it, the presumption is that the note is paid.

M. T. Sanders, Judge. One cannot be convicted of burglary, when it is shown conclusively that he has merely committed petit larceny, in the absence of proof showing the felonious intent. A felonious intent is an indispensable element in the crime of burglary. Whar. Cr. Law, sec. 738; Mansf. Dig., secs. 1616, 16t9; Bisk. Cr. Law, vol. 1, sec. 736; 2 id., sec. no; 16 Cal., 431; 29 Iowa, 316; Wharf. Cr.

APPEALS from Pulaski Circuit Court. J. W. Martin, Judge. 1. Section 5687 and succeeding sections Mansfield’s Digest, and acts 1887, secs. 32 and 33 amendatory thereof, are unconstitutional, in so far as they provide for the appointment by the Governor of three persons, to perform the duties prescribed. Art. 7, sec. 46, Const. 1874; Mansf. Dig., sec. 3687, et seq; Acts 1887, pp. 163, 164.

R. B. Rutherford, Judge. 1. Fire having been caused by sparks escaping from ah engine, whereby property is destroyed, the burden is on the railroad company to show want of negligence. Mansf. Dig., sec. 5537! 33 Ark., 816; 3 C. B. Rep., 229; 28 III., 9; 38 id., 393; 56'id., 30; 86 id., ‡‡‡; 33 Mo., 366; 60 id., 227; 61 id., 38; 1 Thomp. Neg., 133; 30 Am. Dec., 71, note. 2.

R. D. Hearn, Judge. In all felonious, violent, fierce or murderous attacks, the defendant may stand his ground and take the life of his assailant if necessary to prevent the commission of the felony, or protect his own person from great bodily injury, etc., and he need not retreat.

J. M. Pittman, Judge. 1. A minor can convey with his land the right to redeem from a purchaser at tax sale. The right is not personal to the minor, but passes to his vendee, jp Ark., 584; Cooley Tax., JÓ6; Burroughs Tax., 366-7, notes; Blackwell Tax Titles, 426. 2. Redemption statutes are liberally construed, and in Iowa it is held that the assignee or vendee of a minor may redeem from a tax purchaser. Stout v. Merrett, 33 Iowa, 47.

B. F. Askew, Judge. All that class of treasury warrants issued to maintain the families of Confederate soldiers, the purchase of war materials, printing war bonds, payment of the military board, etc., were absolutely void. 14th Am. Const. U. S.; 30 Ark., 198; 24 id., 286; 17 Wall., 580. Collectors were foi'bidden to receive any treasury warrants issued prior to the 23d July, 1868. Rev. Act 1883, p. 236, This act is constitutional.

John A. Williams, Judge. 1. John W. Simpson went into possession of the premises under an agreement with Henry T., by which Henry T. granted him the lands, in consideration of which John W. released the mortgage debt of $1507.88, paid other debts, and agreed to maintain and provide for Henry T. during his life. This, if only a parol agreement, is one the law will enforce. Brown Stall Frauds, 3 Sandf.