Volume 50 — Arkansas Reports

R. H. Powell, Judge. STATEMENT. The defendant was indicted for selling intoxicating liquors without a license.

J. B. Wood, Judge. 1. Appellant was not the agent of the Lederers in the sale of the liquor; he did not solicit the orders, he merely forwarded them for the accommodation of Carmichael, and requested the whiskey to be lor-warded in his case. The sale occurred at Donaldson, where the liquor was delivered .to the carrier. J{3 Ark. $58; 128 Mass. 171.

J. M. PittmaN, Judge. 1. The testimony of the witness mentioned in the motion for a continuance should have been admitted to be true. The statutes on the subject apply only to civil cases. 2. The language used should have been set out in the indictment. Wharton Cr. PI. and Pr. 8th Ed., sec. 220; 18-N. W. Pep., 435. 3. The conduct of Willie was the moving cause, and the law does not require a son to submit quietly without, reply to the abuse of his father. 1.

C. E. Mitchell, Judge. I. The two crimes of murder and carrying a pistol are not of the same generic class. The elements of the-one do not enter into the other. One is a felony, the other a statutory misdemeanor. A conviction or-aequital of one could not be successfully pleaded as a bar to the other. 38 Ark. 550; 42 Id. 270. If they are not the same offense, then there are not two indictments pending for the same crime or matter.

H. P. Stuart, Judge. I. Appellee having violated its contract by sending second class rails of an inferior quality instead of-first class rails as ordered, appellant had the right to retain them-and pay only what they were worth-in the market. 21 Fed. Rep.. 162-3; 5 Atl. Rep., 192; 4 N. W. Rep., 295; 18 Id., 274; 30 Id,, 295; 99 N. 7., 514; 101 Id.. 616; 31 Fans.. 92; 33 Id., 491; lb., 626. See also 52 N. 7, 416; S. C., 11 Am, Rep., 719; Benj. on Sales, (4th Am.

APPEALS from Chicot Circuit Court. Jno. M. Bradley, Judge. STATEMENT. The appellant filed a petition in the probate court of Chicot county for an assignment of dower, and while it was pending, the defendants thereto also made application to the same court to grant her request,.and upon their prayer a judgment for such assignment was entered and commissioners to make the same were appointed.

S. A. BtRnb, Judge. 1. The money, of the wife not having been scheduled,, or entrusted to the husband as agent, or kept separate* became the husband’s. Const. 1868, art. 12, seo. 6; 80 Ark, 79; lb., 124. By permitting the husband, to ¡use- and control her property, as his. own, and obtain credit on the faith of it, the wife lost her right as against her husband’s creditors. 2 Perry Trusts, see. 678; Sohouler on-. Pom. Pel., seo. 119 (3d Ed). 2.

J. B. Wood, Judge. Under our criminal proceedure, no one under indictment can be tried at the term of court at which the indictment is found, unless the accused is in custody or on bail at the time the indictment is found; or unless the accused consents to the trial, or waives his rights by going to trial without objection. Mansf. Dig. secs. 2185,2186-7.

J. M. PlTTM-AN, Judge. ■ 1. The indictment fails to allege in wbat’‘district the road ■was, its terminal points, or in what part of the county it is. It attempts to charge two offenses in one count, obstructing and procuring obstructions put in it. It fails to charge-that the obstructions-were a nuisance,-or annoyance to-the public» 29 Ark., 58; 13 Id., 405. 2.

H. B. Stuart, Judge. I. Under the Code, it is no longer necessary to sue an administrator separately from one jointly liable with the intestate. 2. The instruction of the court was misleading.

<p>APPEAL from Cleveland Circuit Court.</p> <p>W. D. Johnson, Special Judge.</p> <p>1. The evidence offered by plaintiff was competent t-> establish the boundaries of the land. A survey was imt necessary by the county surveyor or as contemplated by Ch. 37, Mansf. Digest. See 1 Ark. 448.</p> <p>Title and constructive possession are sufficient to maintain trespass. 1 Arles, sup : 44 Ark. 74; 14 Id. 486.</p> <p>The master is liable for the trespass of his servants, not only when they are directed by him, but also when the fcojx-of his employment is such that he has been left at liberty 1<> do the injury, while pursuing his employment. He is li.dd--for the wrongful acts he suffers his servant to do. Cooley on Torts, 534-5-8-9.</p> <p>It was the duty of defendant to have had the land surveyed before cutting the timber. Act March 6th, 1885.</p> <p>Reviews the instructions given and refused) and contends that the court erred in declaring the law.</p> <p>1. The close in trespass may be identified by the testimony of any competent witness, who is familiar with the boundaries. Greenl. Ev Yol. 2, p. 68, 8th Ed. Survey by county surveyor not necessary. 1 Ark. 448.</p> <p>2. Constructive possession under claim of title, sufficient to maintain trespass. 2 Greenl. Ev. par. 614, 8th Ed.; 1 Ghitty PI. 188, 195 ; 2 Gamp. 464; 6 East, 33 ; 1 Mend. 466 ; 8 Johns. 432; 11 Johns. 285 ; 8 Cow. 115 ; 15 Peck. 121; 10 N. H. 379 ; 2 Swan. (Term). 167; 21 Penn. St. 515.</p> <p>3. The master is liable for trespass of his servants in the usual course of employment, whether he directed it or not. It is sufficient if he suffers it. 3 Greenl. Ev. par. 621.</p> <p>4. As to liability for cutting or removing timber, see Mansf. Dig. 6459, 1568, 1569, 1661, 6461.</p> <p>5. The mere fact that a trespass was not intentionally committed is not a defense. The defendant should . have known the boundaries of the land; it was his duty to ascertain them before cutting timber.</p> <p>The can-e was fairly submitted to the jury on the proof, and they found that defendant had committed no trespass. This was a question of fact.</p> <p>The instiuctions taken altogether, were not misleading.</p>

G. S. CuiNNINGHAM, Judge. STATEMENT. This was an action of ejectment to recover a tract of land' containing forty acres, the title to which the plaintiff-claimed to have acquired by adverse possession.

H. B. Stewaet, Judge. All trusts of land must be made manifest and proved by writing signed by the party declaring the trust, except such as arise by implication of law. Mansf. Dig., sees. 3382-3; 42 Ark., 503.

F. T. VaughaN, Judge. This suit is for the penalty prescribed by Aots 1885, p. •178. A failure to transmit under certain circumstances amounts to a refusal under the statute; a failure to deliver is a failure to transmit. 84 Ind. 176; 41 Arh. 79 ; Bowviev Law Die. p. 527. Refusal is a neglect after demand. 4 Cush. 178. See also 6 Cray 224; 9 Mete. (Mass.') 432; 8 Cow. 88; 9 Wheat (U. 8.) 325.

<p>1. MUNICIPAL Corporations : Power to compensate recorder.</p> <p>The council of an incorporated town has an implied power under the statute, [Mansf. Dig* sec. 764] to remunerate the services of its recorder. But such power is subject to the limitation imposed by Sec. 926 Mansf. Dig. which provides that “the emoluments of no officer whose election or appointment is provided for by this act shall be increased or diminished during the term for which he shall have been elected or appointed,”</p> <p>2. Same : Increasing or diminishing official salaries: Depeal of ordnance.</p> <p>Where the recorder of an incorporated town, was elected on the 3d day of April, 1883, h e was entitled to the compensation allowed for his services by an ordinance then in force and not to the higher compensation fixed by an ordinance passed on the 6th day of April, 1883. Under Sec. 926 Mansf. Dig. the ordinance of the latter date, was inoperative until the end of the term for which the recorder had been chosen, after which, on being re-elected, he .was entitled to the salary it provided and his right thereto could not be affected by a repeal of that ordinance. t</p> <p>S. Same : Decovei'y of salary wrongfully paid to recorder.</p> <p>Money wrongfully paid to the' recorder of an incorporated town, by order of the council of which he was a member, under an ordinance increasing his salary contrary to a provision of Sec. 926 Mansf. Dig. may be recovered back, although the payment was not made under any misapprehension of facts.</p>

C. E. Mitchel, Judge. 1. The ballots were inadmissible to impeach the official returns. Opportunity had been offered for tampering with them, by leaving them in’ an exposed place. McOrary on Elections, secs. 277-8, 278 a, 555. 2. Evidence to show by the- electors, that no such ballots had ever been cast by them was admissible. McOrary on Elections, secs. 386, 388, 555. 3.

M. T. Sanders, Judge, STATEMENT. The defendant-, J. J. Ward, doing business as a druggist, in Searcy, under the firm name of J. J. Ward & Bro., to secure a debt of $762,76 which he owed the Collins Bros. Drug Company of St. Louis, Mo., executed a mortgage on his stock and fixtures for $1,100 which was recorded on the 1st of March, 1886.

<p>County Treasurer.: Action against sureties of: Settlement made by administrator* A county treasurer at the time of his death was indebted to the county for fuúds belonging to U, which he had received as treasurer. His administrator made a settle-ment of his accounts with the county court, as provided for by the statute (Mansf¿ Dig, sec% 1200,) and- suit was brought against the sureties in his official bond, to recover the amount of his indebtedness as thus ascertained. The sureties resisted a recovery on the ground that they were not parties to the proceeding in the county court and objected to the record of the settlement made there as being incompetent, evidence. Held: That although the settlement was made without notice to tho-sureties, it was competent evidence of the amount of their liability, as it was part of* their undertaking,'in view of the existing law, that in case of. the death of thei* principal, his administrator might settle his accounts.</p>

APPEAL frbm Jackson Circuit Court. B,. H. Powell, Judge. This was an actiou of ejectment brought to recover three tracts of land and the mesne profits thereof. A judgment in favor of the plaintiff for all the lands described in his complaint, was reversed on a former appeal. See4^Ar/c., 376. The case having been remanded, the plaintiff, by leave of the court below, discontinued his action as to two of the tracts.

L. A. Byi&e, Judge. 1. The effect of leaving off the seal from the writ, renders it void; when directly assailed. 47 Ark., 373; 12: Id., 421; 25 Id., 524; Const., Art. VII., seo. 49; seo. 5305 Mansf. Dig.; 6 Wall., 556 ; 2 Ark., 131 ; 6 Id., 451; 32 Id., 453; 39 Am. Deo., 418. 2. It was error to adjudge the costs of the amendment against appellant. 3.

J. B. Wood, Judge. 1. The district was illegally formed, leaving out important territory which had to be drained, and necessary ■outlets. The commissioners exceeded their powers in building more sewerage than they bad a right to build, •and the constitutional rights of appellant tvill be impaired if they are compelled to contribute to the erection •of improvements outside the district, whereby their property will be taken for public use without just compensation. Mansf.

J. W. Martin, Judge. This ease is not within the doctrine of 45 Ark., 93, which applies to cases of single sales only and not to regular ¿vendors. Reviews the acts 1879, 1881, 1883, and contends that up to Mareh 30th, 1883, no one will question the appellant’s .right to sell.

APPEAL fro.m Pulaski ^Chancery Court. D. W. Carroll, Chancellor. 1. If Bussell had had the legal title at the time of the ■execution of the Bill of Assurances the fee would not have passed to the county by virtue of it, but the effect would have been simply to convey an easement or perpetual servitude in the land for the uses and purposes therein defined. 3 Wash. Beal Property, p. 333.

R. B. Rutherford, Judge. 1. . The circuit, court has no jurisdiction. Inasmuch as there was no violation of any law of the country where the act was done, there can be no right of action here. There being no law in the Cherokee Nation making it a trespass for one to shoot another’s mule trespassing on his premises, no right of action existed.

L. A. Byrke, Judge. L The deposition of a witness which was taken while the witness was competent to testify, cannot be read in the trial of an action at law, if at the time of the trial he has become incompetent by reason of the law. The deposition of Deno Casat, taken while he was a competent witness, but offered to be read, after his conviction of an infamous crime and execution for murder, was incompetent and could not be read in evidence. 1 Wharton Er., sec. 397; Mansf.

J. M. Pittman, Judge. Art. 2, see. 10, const., 1874, guarantees to the defendant in all criminal prosecutions the right “to have compulsory process for obtaining witnesses in bis favor.” To grant an attachment for his witnesses and then force him into trial immediately, upon the admission of tbe prosecuting officer, that the witnesses, if present, would testify to tbe facts stated in the motion for continuance, is a mockery of justice.

L- A. Byrne, Judge.. 1. One having a special ownership in property, injured or •killed, has no right, under the statute of this state, to sue for the value of thé same, without making the general owner a party to the action. The asignment of the right to recover for an injury done to stock by a railroad company is not authorized by law, and where the assignment of a thing in action is not authorized by statute the assignor must be a party. Mansfield’s Digest, see. 4934.

X). W. Carroll, Chancellor. The sole defence to this suit is that Clark did know, or should have known, that the G-odbold tract should be-excepted out of the deed, because Godbold was in possession and his deed on record, and Clark was bound to-take notice. This is not the law. Bispt. Fq.; see. 218. If Adams & Roots made a mistake in selling lands-they had no title to, even if Clark knew it, this is only ground to rescind the contract, not to reform it.

J. M. PlTTMAN, Judge. 1. The land commissioner’s deed is in form a deed for- “ forfeited lands,” and contains no reference or recitals to any steps taken in the over due tax suit. The deed should show the power and authority of the commissioner to convey,. 3 Wash. Real Prop., 3d Ed., 207;’ Blackw. Tax Titles, 405-6, 4th Ed.; Bv.rrough Tax, 324-5 ; 27 Ark., 226; Rover Jud.

T. Sanders, Judge. By the terms of the partnership agreement McClintock was to give his “entire and undivided attention and time to the business.” Having failed to do so, he was not entitled to the $100 per month salary for his services. Aside from his contract, the law imposed the obligation 'upon McClintock of devoting his entire time and best attention to this business, especially when he was paid*a salary for so doing.

J. M. Bradley, Judge. STATEMENT. C. L. Dishough, a minor, was the owner of an old gin house and gin stand, with the running gear thereto attached, and a cotton press.

J. A. Williams. The only question which can arise in this case, is, did Treadwell, the original vendor, at the time Blake paid off the judgment or execution against himself and Todd, have a lien on the lands conveyed by Todd to Smith, trustee, and afterwards sold by Smith to Dowdy to satisfy the mortgage debt? If so, can Blake be subrogated to the fights of Treadwell, and enforce the lien for half the amount paid by him against the lands bought by Dowdy?

E. E. BryaNT, Special Judge. 1. That a person cannot go into equity to correct mere-errors in the settlement of administrators has always been the settled doctrine of this court. The remedy is by appeal. 8 Ark, 268; 20 Id., 527; 33 Id., 575; -34 Id., 64, 117; 36-Id.. 383; 39 Id., 256 ; 40 Id., 393; 43 Id., 171; 45 Id., 505. There must be fraud. 42 Id., 189.

D. W. Carroll, Chancellor. Prior to the time Hinson gave the order to appellants and wrote that he would still stand good on the note, there is no question, and Hinson is estopped to deny his liability to this time, or claim that appellants had negligently allowed Price to waste the mortgaged property.

W. H. Cate, Judge, Under the facts in this case equity will hold the husband held the legal title in trust for wife, The property was purchased with the wife’s money that came from her father’s estate in Tennessee in 1872. The old rule was, that the mere fact that the wife allowed the husband to receive and keep her funds, the law presumed that he was authorized to keep them as Ms own. Abb. Tr. Ev., 173-4.

E. F. Askew, Circuit Judge. STATEMENT. Painter brought this suit against Alexander & Son to recover a sum alleged to be due for work and labor, and to-enforce a laborer’s lien on certain lumber.

M. T, Sanders, Circuit Judge. 1. No lien by execnlion could attach to a homestead under the act of 1852. Gould’s Dig., p. 504. The language is “exempt from sale or execution,” &c. 22 Arh., 400; 36 Id., 545. The wording of the act precludes the idea of an intention to permit the execution lien to attach. 2. But if appellee acquired a lien by virtue of the levy of their execution, the same was displaced by lapse of time before the death of Brandon.

B. F. Askew, Circuit Judge. I. The claim being for damages, in the nature of trespass,, was barred at the end of three years from the date of entry or building across said land. Mansf. Dig., sec., 4478, clause 2; 35 Arh., 622; 16 Id., 129; 24 Id., 371.

G. S. CuNNixgiiam, Circuit-Judge; If the first shedul'e of appellant can be sustained, and' there is no doubt of it, {hen it was unnecessary for bino to file a second schedule against, the same execution, or even an alias, there beiug no change of circumstance whatever. 37 Ark., 283. The action of the justice in issuing the supersedeas was final, and the only remedy was by appeal. 46 Arlc,f 493-7. On motion for reconsideration.

M. T. Sanders, Circuit Judge. STATEMENT. This was an action to recover a mare seized by the de-defendants under a chattel mortgage executed by the plaintiff to Tomlinson and Letson, who sold it together with the debt secured, to the defendants.

J. M. Pittman, Circuit Judge. The answer set up a good defence. It states that the debt is not due, because the bills and items of the account sued on were covered and intended to be covered in the note, which did not become due until Jan. 1st, 1887. It was necessary for plaintiffs to allege and prove that their debt was due. If the account was not due, appellees could not recover until due.

■O. E. Mitchell, Judge. 1. The circuit court has no jurisdiction to try the case. The complaint was under Gh. 51 Mansf. Dig., sec. 6466, Gh. 12, Civil Code, which superseded sec. 90, Gh. 62 Gould’s Dig.) 28 Arh., 451. The constitution of 18741 gives exclusive original jurisdiction to the county courts in matters of local concern. Art. 7, sec 28. The circuit court has jurisdiction in contest cases by appeal only. Ib., art. 7, sec. 52.

R. B. Rutherford, Judge. 1. The assignment was strictly in conformity with, law. There is no taint of constructive fraud in. the terms, and provisions of the deed, and the burden was on defendant to show actual fraud on the part of Hamilton. ■participated 'in by plaintiff, Review the evidence and contend the circumstances do not show fraud. The conversation with Childs, after the assignment was not admisiible, to affect plaintiff’s title.

Court. R. B. Rutherford, Judge. 1. The rule in this state is, that possession by the vendor of personal property is a badge of fraud which raises a presumption' which the law deems conclusive, unless explained both as to good faith of sale and as to possession.

W. H. Cate,'Judge. 1. The acknowledgement of Stewart, if defective or even a forgery, was cured'by the act of 1883. The deed, purported to be acknowledged before au officer and was recorded before the passage of the act. Mansf. Dig., sea. 683 j 44 Ark., 371; 48 Id., 423; 47 Id., 417. The acknowledgement does not convey the' land, and the legislature had the power to dispense with acknowledge-ments altogether. Supra. ■■ ' 2. Section 668 Mansf.

M. T. Sanders, Judge. STATEMENT. This was an action of replevin brought by Swantz against Pillow, the sheriff of Phillips county, to recover a mule which Pillow took from the possession of Swantz under a writ issued to him from the circuit court.

Jambs F. Read, Special Judge. 1. Under the circumstances ^detailed in this case, the confession of appellant was not admissible in evidence. It was the result of threats, entreaty, promises of leniency, and protection by officers of the law. 15 N. Y. Ot. App., 384, The smallest inducement held out to the prisoner by those in authority, excludes the confession as not voluntary. Whart. Or. Ev., note 1, p. 670 ; Ib., seos. 646, 671, 677; 22 Ark., 336. 2.

R, B. Rutherford, Circuit Judge. 1. To render a sale of goods void as to creditors and ven-dees, it must appear that not only the intent to defraud his-creditors existed in the mind of tbe vendor, but said intent was known to and participated in by the vendee, thus aiding the vendor to defraud his creditors. 9 Arle., 482; 23 Id.,. 258 ; 30 Arh., 417 ; 31 Id., 554 ; 32 Id., 255. The fraudulent intent must exist at the time of the sale.

•John M. Bradley, Judge. I. The appellants are innocent purchasers. Even if there was a secret trust in favor of the heirs, the mother had some interest in the land under her purchase, and as heir of her son, William P., and whatever her interest was it passed under her deeds of trust and mortgage, and the court erred in canceling them.

M. T. Sanders, Judge. A sale by an administrator, to pay the debts of the intestate, of the homestead, while it was occupied as a homestead by the minor heirs, conveys no title. The sale is void. 31 Ark, 140; 41 Id., 97; 40 Id., 74; 43 Id., 434; 45 Id., 384,- 47 Id., 445; Thomp. Homest. & Ex., secs.78, 40, 165, 170-3; Const. Ark. 1874, art. IX, sec. 10. The sale was valid. The homestead right of the widow and minor under Const. 1874 is analogous to dower.

Jno. S. Little, Judge. 1. To constitute the crime of rape, two things must be proven beyond a reasonable doubt ,• first, force, and second, actual penetration. Held: “ A rape may be committed on a female under the age of puberty, as well as one above it; and even upon one so young as not to be capable of giving consent, or of exercising any judgment'upon the matter.” The facts of this case make a clear case of rape, and not a violation of sec. 1571 of Mansf. Dig.

W. D. JohnsoN, Special Judge. The court erred in admitting parol testimony to overturn and contradict a positive record of a court of superior jurisdiction. Boyd u. Moan, 49 Ark,, 397.

It. B. Ruthjsepoed, Judge. 1. Wiley Tomlinson was a tenant in common, and his holding during his father’s life was as tenant of the father, and, subsequently, for the benefit of himself and co-heirs, and the statute' of limitations1 would not operate in his favor. 20 Arh., 547; 42 Id., 289; 48 Id., 135. 2. There was do confirmation of the sale to Robertson, as there could be no special judge by consent. 89 Arh., 254; 42 Id., 126; 45 Id., 480. • 3.

J. E. Riddick, Judge. STATEMENT. This was originally a proceeding in chancery to set aside and to declare fraudulent and void, a deed made by O. A. Hadley, governor, to E. R. Knight, for section 16, T. 10-W., R. 9 E. The court refused to take jurisdiction of the cause in equity, and it was transferred to the law docket, and, by an amended complaint, made ejectment for the recovery of the land.

Jno. S. Little, Judge. ' This was an action of replevin to recover certain personal property, the possession of which was claimed by the plaintiff under four chattel mortgages, executed by the defendant. By one of these mortgages the defendant conveyed to the plaintiff two mules and also a crop of corn and cotton.

G-EO. S. CUNNINGHAM, Judge. 1. The father is the natural guardian of his infant, and entitled to its custody. 37 Ark,,29. In a contest with a stranger the father’s right is absolute, if he is a proper person to be entrusted with it. The interest of the child alone will not govern. 2. Contracts by which a father parts with the care and custody of his child are against public policy and void, and he can reclaim it. Schouler Dom. Pel., sec. 343; 45 Am.

J. E. Riddick, Judge. 1. The conveyance was made prior to the Constitution' of 1874, and hence the husband could convey his estate by curtesy. 38 Ark., 91; 39 Id, 434. 2. The wife failed to schedule as provided by law. Mansf.L jDig., sec. 4636. 1. No title passed by the joining of the wife in the deed. She only acknowledged relinquishment of dower, and she had no dower. The conveyance as to her was-void. 43 Ark., 156; 33 IS., 432. 2.

O. E. Mitchell, Judge. The alteration of the note by inserting the words “ or hearer” was material and rendered the instrument void. •5 Ark., 378; 27 Id., 108; Dan. on Neg. Instr., vol, 2, sec.. 1375; 6 Wall, 80. The presumption is that the holder of the note made the alteration, and the burden is on him to explain it and rebut the presumption by showing it was a spoliation. 10 Mo„ 349; 13 Pick, 165 ; 46 Iowa, 221. 1.

. L. L. Mack, Special Judge. 1. There was no obligation on Cole, or those under whom he claims, to remove the lien of the original vendor. He was an entire stranger to fhe transaction.- 2. The deed to Burk was absolute, acknowledging the ■payment in fall of the purchase money, and the equitable lien, if any, was personal to the original vendor and not assignable. 14 Ark., 628; 18 Id., 142; 23 Id., 255; 25 Id., 129. 3.

<p>APPEAL from Arkansas Circuit Court iu Chancery.</p> <p>John A. Williams, Judge.</p> <p>1. No livery of seisin being now necessary, one may, by conveyance, grant to another the fee in lands to take effect in futuro, reserving in himself the use thereof during life. 6 Ark., 119; 2 Blaek. Corn., 166; 9 Wend., ■611; 1 Ark., 83 ; 35 Conn., 297.</p> <p>2. Excluding the clause “ and this deed shall take full effect at my death,” the instruments are simply deeds. The clause merely postponed the full enjoyment, and a present interest vested in the grantee. An instrument which conveys a present estate to be enjoyed in the future is a deed, but one which defers the vesting of the ■estate as well as its enjoyment is testamentary. 11 Johns., 337; 1 Devlin Deeds, see. 309; 30 Miss., 91/ 9 Wend., 611; 35 Conn., 297; 1 Id., 362; see also 1 Rich., 161; 5 Rich. L., 139; 50 Me., 139; 51 Id., 78; 30 Miss., '91. It was the intention of the grantor to deed the lands, and courts give such a construction to instruments as will carry the intention of the maker into effect. Supra.</p> <p>3. Evidence may be introduced to show the intention of the grantor. 28 Ga., 98; 1 Green. Ev., see. 277; 1 Mete., 378.</p> <p>4. These deeds can be construed as covenants by the grantor to stand seized to the use of the grantee. 4 Mass., 135; 22 Pick., 115; 1 Devlin Deeds, see. 24; 3 Wend., 234; 20 Johns., 87; 15 N. H., 381; 11 Johns., 387; 6 Ired. L., 128.</p> <p>5. Ilershy v. Clark, 35 Ark. has no bearing on this case ■except to sustain the right to convey lands in fee, reserving a life estate in the grantor.</p> <p>1. No estate can be created to commence in futuro', a conveyance must operate immediately or not at all, 2 Blacks., p. 165-6. This rule has not been abrogated by the substitution of delivery of the deed for livery of seisin. The fee can never be in abeyance. See 42 Ala., 365 ; 4 McCord, 12. An instrument in the form of a deed, duly signed, sealed, and delivered, if it discloses the intention of the maker that the same is not to operate until his death, is a will. 9 Rich. JEq., Ill; 20 Ga., 707; 17 Ga., 267; 13 Ala., 50; 66 Ga.. 127; lb., 317 j 65 Ala., 801; 97 P. St., 313.</p> <p>No 'present interest passed by these instruments, and nothing vested until the death of the grantor, by its terms.</p> <p>2. Parol evidence was not admissible to show what occurred at or before the time. 29 Ark., 544; 30 Id., 197.</p> <p>3. No use can result only upon a grant of a tee simple estate — it must be an actual present bargain and sale or covenant to stand seized. 2 Wash. Real Pr. 424-5.</p> <p>These instruments conveyed no estate at all until the death of "the grantor, and there was no present transfer of the legal title.</p> <p>4. An instrument which professes to convey nothing-in presentí cannot stand as a conveyance nor be upheld as a covenant. 35 Ark. 17.</p>

■John S. Little, Judge. STATEMENT. This was au action to recover a balance due on the ■purchase of certain promissory notes. The defendant bought the notes from S. M. Quinn, and the terms of sale were proposed and accepted by letters. The evidence ■tended to show that S, M. Quinn acted as the agent of Ms wife in making the sale,but that this fact was unknown to the defendant.

J. E. Riddick, Judge. 1. The decree is erroneous for the want of proper defendants, and because, after appellees had redeemed the lands in the statutory method, there was no power in the court to decree back the penalty and costs by way of set-off against future taxes. Neither the collector or clerk had any control over the money collected, for it was immediately paid over to the proper authorities, Mansf.

<p>APPEAL from Jefferson Circuit Court.</p> <p>JoHN A. Williams, Judge.</p> <p>The court erred in proceeding further in the case after the .filing of the petition for removal. It had no jurisdiction te try the issue as to citizenship of the plaintiff, or to take any further- step in the trial of the same. 117 77 S., 430; 118 Id., 279; 122 77. S„ 514.</p>

E, H. Powell, Judge. There was no adverse possession by appellee to give title-under a void tax deed by limitation of seven years. 45 Arh.y 89. His only defence was the two years’ limitation under act April 8, 1869, Sec. 138, and July 23, 1868. This act was construed in JRatcliffe v. Scruggs, 46 Ark., 104-5, to-refer alone to formal irregularities • not prejudicial to the owner.

Geo. W, NosmaN, Special'Judge. The note and judgment was payable in “dollars” only.. Under Mansfield’s Dig., Sec. 1146, this debt could have been paid in scrip in the absence of an express agreement- Evidence to prove this express agreement was admissible. Sessions v. Peay, 21 Arle., 100; Helena v. Turner, 36 Arle., 577. The Act of 1875, Mansf. Dig., See. 1146, was repealed by implication. See. 1065 and note; Act February 1, 1879.

C. E. Mitchell, Ju'dge. 1. It was error to permit the Nashville contract to go to tbe jury until some proof was offered establishing the fact that the defendant was a party to it, directly or by its agent. No such proof was offered. The stock was received and transported under the Memphis contract, -and one of the appellees rode under it on defendant’s train free, and received his stock under it, thus recognizing it.

C. E.- Mitched, Judge. 1. No county can issue interest bearing evidence of indebtedness.' * * * Art. 16, Sec. 1, Const. 1874; 86 Arh., 89. 2. Secs. 4740 and 4741, Mansf. Dig., have no application to judgments against counties. Sec. 1, Act February 27, 1879. As no suit can be brought against a county, and no effects sold, these sections contain no warrant for the allowance of interest against a county.

S. Cunningham, Judge. STATEMENT. The plaintiff and defendant entered into a written •contract by which the'plaintiff’s farm and his steam mill and cotton gin, situated on the farm, were rented to the defendant for the years 1884 and 1885' at $500 per year. At the same time the defendant' made and delivered to the plaintiff his two promissory notes for the rents so agreed to be paid — each being for-the sum of $500. The note for the rent of 1884 was paid on maturity.

M. T. SANDERS, Judge. The proposition that Moore can enforce his lien as against Fitzpatrick’s mortgage, in a court of equity, is without force. 37 Ark., 412; Turner v. Blount, 49 Ark., 361. The false representation was that the property was free from incumbrance of any kind,and Fitzpatrick’s mortgage was an incumbrance whether recorded or not. 25 Ark., 152; 32 Id., 166; 35 Id., 365. See also 5 Parker’s Or. Rep.,. 142; 72 Me., 238; 44 Mich., 290; 78 N. C., 460; 30 Ind., 350.

J. E. Riddick, Judge. There is no distinction as to costs in felonies and misdemeanors. An election not to prosecute is not an acquittal, making the county liable for costs. 44 Arle., 31. The certificate of the circuit court under sec. 219, Revised Statutes, as to costs in criminal cases, is not binding upon the county court. 44 Arle., 467 ; 40 Arle., 329.

R. B. Rutherford, Judge. I. There is no record entry showing the appointment •of a guardian ad litem for the heirs of Kidder. Read, who acted as such, was the attorney of Potts, whose interest was adverse. Mansf. Dig., sees. 4957-8, II. No attorney ad litem was appointed to defend for the non-resident defendants. Mansf. Dig., secs. 5190, .5201. III. No personal decree could be rendered against .Black, or any one for 'whom he was trustee, 40 Barb., ■226; 29 Barb., 527.

Jno. A. Williams, Judge. Sannoner v. Jaeobson, 47. Ark, 31, is decisive of this case. The record does not show that summons was issued or attachment bond filed, and 47 Ark, 31 does not go so far as to hold summons and attachment bond not necessary. The affidavit was made by attorney, upon belief only.

<p>Attachments: Affidavit upon belief: Irregularity waived.</p> <p>An affidavit for attachment made upon belief only, although defective is not a nullity, and by a failure to object to its sufficiency in the court beiow, the defoct is vraired and cannot be made available on appeal.</p>

L. Leathermast, Special J udge. 1. The property was dedicated by gift to public purposes and was not subject to alienation by the county. 9 Am. Deo., 578; 15 Cant., L. J., 422; 11 Am. Dee., 471; 88 Ark., 467; 55 lnd%, 297; 2 Dill Mun. Gorp., 567, see. 445, (2d JSd.); 12 Pi., 15; 23 'Id., 92; 9 Conn., 61; 33 N. Y, 333; 3 Allen, 9; 95 77. S., 303; Hill Trustees, Marg., p. 463-467; lb., 471.

John S. Little, Judge. STATEMENT. ’ Cox sued Lee in a justice’s court and recovered judgment for a debt amounting to $120. On this judgment an execution issued and was levied on certain personal property, which was advertised to be sold. Pursuant to a notice served on Cox, Lee filed with the justice his schedule, claiming the property as exempt, and obtained a1 supersedeas of the execution.

.APPEAL from Johnson Circuit Court, G-. S. Cunningham, Judge. STATEMENT. Oa the 25th day of February, 1882, Emma T. Hill was-appointed administratrix of the estate of John F. Hill, deceased, by the probate court of Johnson county, and executed the bond required by law with the names of the-appellees appearing thereon as two of her sureties. In August, 1883, the administratrix resigned.

.APPEAL from Jefferson Circuit Court in Chancery. ■JOHN A. Williams, Judge. 1. The truih of the answer is confessed by the demurrer. The question then is: Does the answer contain facts sufficient to defeat appellant’s right to recover ? The streets belong to the general, rather than to tbe local public. 9 he proper officers of the commonwealth may proceed in the name of the public by injunction for relief against obstructions or encroachments. 2 Bill. Manic.

F. T. VaughaN, Judge.' 1. A railroad company owes no duty to tresspassers further than not to run them down wilfully; and its servants have a right to presume that a tresspasser-will leave the track in time to escape injury. It is not the duty of employees to keep a watch for tresspassers, their ■only duty was, after seeing him in time to prevent the injury, not to wilfully and negligently injure him, 36 Ark., 41; lb., 371; 45 Id., 249; 46 Id., 513; 47 Id., 497; 49 Id., 257.

l£. B. Butereord, Judge. Appellant was entitled to credit for taxes paid and improvements made. Mansf. Dig,, sec. 2651. His title may have been void, but the statute was passed for the protection of purchasers of void titles. See 28 Ark., 299 ; 32 Id,, 535; 41 Id., 149.

J. W. MabtiN, Judge. 1. The order for a special venire, made in the absence of defendant, was a substantive act, which in a felony case, is ground for reversal. 24 Ark., 620; 44 Id., 331; 24 Id., 628.. 2. The panel in this case consisted of 18 jurors only. Defendant was entitled to a full panel of 24, Mansf. Dig.,, secs. 4004-8 ; 14 Iowa, 220 ; 9 Pac.

J. W. Maktiu, Judge. 1. The indictment fails to allege that the person robbed' “was put in fear.” 1 Whart. Prec. Ind. & Pleas, see. 410' et seq.; 1 Whart. Or. Law, see. 857; 59 111., 233; Bisk. Dir.. & Lor ms, secs. 931-2, &e. 2. Anthony’s and Paine’s testimony should have been ex-eluded. The statements made by defendant in this connection, and his acts were induced by a belief that he was to-derive a benefit therefrom, viz: “that the robbery would be hushed up.” Whart. Gr.

JNo. S. Little, Judge. - The only issue upon the facts before thejury was whether the defendant was guilty of murder iu the first degree, or entitled to an acquittal upon the ground of self-defense. The proof on the part of the state tended to prove murder; that of the defense, justifiable homicide. There was no middle ground; no evidence upon which to base a verdict of manslaughter. 34 Arh., 376; Mansf. Dig., 1516, 1532 — 3.

J. B. Wood, Judge. Dr Williams’ opinion as to the position of the deceased, etc., was materia], as it tended to show that defendant fired the shot, and was not proper matter for opinion evidence, and its admission was error. Abbotts Tr. Ev., p. 571; 18 Tex., 498-500; 24 Cent. L. J., 105; 7 S. W. Bep., 1. The instructions'for the state are abstract and misleading. There was no evidence that the killing was done from motives of revenge or under an impulse of passion.

J. F. Read, Special Judge. I. Seo. 1768, Mansf. Dig. does not cover the ease of a rescue from a jail or prison, but applies only to the rescue of prisoners by force or personal violence. Secs. 1771, 177-3 lb. If guilty at all, appellants could only be -punished under the latter sections, as they did no more than aid and assist the-prisoners to escape. II. Stephens was an accomplice, and appellants could not be convicted upon his uncorroborated testimony.

H. Powell, Judge. 1'. The charges in the two indictments embrace the same facts, and both charge an assault, and the same assault upon Everidge. The demurrer to the plea admits this. The indictment in the robbery ease contained all the elements of an indictment for simple assault, and an acquittal thereon was an acquittal of the whole charge. Wharton Cr. PI. and Pr., 465; 13 Ark., 712. Robbery and false imprisonment are not of the same generic class of crimes.

<p>1, Indictment: For hog stealing: Allegation of value not required.</p> <p>No allegation of value is necessary in an indictment for stealing a hog, as such stealing is a statutory felony, without regard to the value of the animal. ■</p> <p>2, Same: For larceny,,: Clerical error,:</p> <p>An indictment which charges that the defendant “feloniously did steal, take and away one hog, etc.,” is not had for the omission of the word “drive” or “carry,” before the* adverb “away,”-as the intention to charge the asportation of the hog is,evident, and. the omission would, not mislead a person of common understanding. — [Mansf. Dig,,, secs. 2107,2454, 2468.]</p>

H. Powell, Judge. 1. It was error to submit the cause to a second grand1 jury, when there was an indictment then pending for the same offense. The burning of records and indictments does not put an end to the first prosecution. 40 Ark, 494; sec. 2130, Mansf, Dig., was repealed by the code. 48 Ark, 101. 2. The grand jury was not legally impanelled. See sec. 3976, Mansf. Dig., for proper manner.

- JOHN S. Little, Judge. STATEMENT. The appellant, Smith, was jointly indicted witb two •other persons, for the murder of S. B. Cautbron. The indictment charges that the offense was committed by shooting -the deceased with a gun, and the evidence shows that he was waylaid and shot on Saturday night, November 19, 1887, and that he died on the Wednesday evening following.

C. E. Mitchel, Circuit Judge. All who enter upon land pending an action of ejectment are subject to be removed by final process. 3 Sneed, 85; Qwynne on Sheriff's, 418; TO Allen. 136; 2 A. K. Marsh,. 40; -4 Ala., 592; 41 Cal., 501. A person in possession when restitution is ordered, is. presumed to hold under the defendant and to avoid dispossession must show affirmatively an' independent and paramount right. 22 Cal., 200.

J. B. Wood, Judge. APPEAL from Saline Circuit Court. STATEMENT. The appellant was convicted on an indictment which charges, that, being the keeper of a saloon, be wilfully permitted Tilford Hockersmith, a minor, to play therein at a game of pool.

W. H. Cate, Judge. STATEMENT. The appellee filed her complaint in equity against the appellant, Shirk, and Theodore B. Mills, to set aside as fraudulent, a deed made, by Mills, conveying certain lands to Shirk, and to quiet her title to the lands which she claimed as de-visee of her deceased husband, James M. Williamson.

C. D. Wood, Judge. Appellants were retained by the county to represent the county’s interest; they were successful; the services were rendered ; and the attorneys were entitled to their fee. The demand was duly verified. Sec. 1065, Mansf. Dig.) Ib., sec. 1412. All the requirements of the law were complied with. Section 5859 has no bearing on this case. It applies only to attorneys employed by the collector, and provides for his reimbursement.

J. W. Martin, Judge. Section 1669 Mansf. Dig. has no reference to a case like this. It was was intended for marauders and transient persons-wbo recklessly commit the acts referred to, and who have no interest in the premises injured. It is expressly confined to riders, rangers and hunters.