Volume 52 — Arkansas Reports

T. P. McGovern, Sp. Judge. Lucy Mellon, the appellee, brought this suit in chancery against B. H. Crowley, adminstrator of Thomas J. Mellon, deceased, and the sureties on his bond. Her complaint seeks to set aside and restate the final account of Crowley as such administrator, and to recover, as dower due to her, one-half of an amount collected by him on certain notes belonging to the estate of Mellon.

John S. Little, Judge. The application formed a part of the policy and was a •warranty by the assured, and the company was not bound by any acts or statements made to or by any agent, unless ■inserted in the contract. All answers were warranted to be true. That a flue is not a chimney is clear. 30 N. V, 136; >6 W. Va., 4.23; Angelí on Ins., sec. 143.

<p>Municipal Corporations: Nuisance; Power to punish bee-keeping.</p> <p>Although bees may become a nuisance in a city, an ordinance which makes the owning, keeping, or raising them within the city limits a nuisance, whether it is. in fact so or not, is too broad and is not valid.</p>

R. H. Powell, Judge. This was an action to recover damages for the loss of goods destroyed by the burning of a car at the depot of the defendant company. The complaint alleged that on April 15, 1886, the defendant received and undertook, by its written bill of lading, to transport a car-load of furniture from St. Louis, Missouri, and to-deliver the same to the plaintiff, at Batesville, Arkansas.

C. E. Mitchel, Judge. I. There is no evidence to support the finding of the court that Richmond purchased the goods with the fraudulent intent not to pay for them. 33 Ark., 4.83 ; 47 id., 247 ; 4.5 id., 136 ; ‡8 id., 70. Before plaintiff can rescind the contract and recover in replevin, he must show this. 70 III., 73 ; 22 Wise., 392 ; 18 N. V, 299 ; 75 Penn. St., 232 ; 19 Mo., 36 ; 4.3 Conn.v 324; 4J Ark., 247 ; 48 id., 70. 2.

M. T. Sanders, Judge. 1. The State should have been required to introduce the-eye-witness to the killing, and if the State refuses the court, should call them on its own motion.

M. T. Sanders, Judge. i. Deeds are to be construed so as to render them operatiye, if possible. 6 Ark., 109. Every instrument intended (as was this) as security for a debt, although absolute on its face,, will be construed to be intended as a mortgage, and parol testimony is admissible to establish the fact. 3 Ark., 321; f id., 303 ; 13 id., 112 ; 18 id., 34; 13 id., 284.

Chas. W. Smith, Judge. The appellant was indicted for obstructing a public road at a point where its railway intersected the same by building across such road an embankment, and failing to keep the same in repair, etc. A demurrer to the indictment and a motion to dismiss it were both overruled, and on a trial the defendant company was convicted, and its fine assessed at $10. A new trial was refused, and the company appealed.

Y. H. Davidson, Special Judge. This was an action of ejectment brought by the appellee against the appellant, to recover a tract of land. The complaint alleged that the land in controversy was conveyed by the State of Arkansas to Thomas V. Taylor, by a donation deed, executed on the 12th day of February, 1857.

<p>APPEAL from Lee Circuit Court.</p> <p>Hon. M. T. Sanders, Judge.</p> <p>The defendant was indicted for selling whisky to George Hockey, a minor, without the written consent of his parent or ■guardian. On the trial below, the evidence showed that the minor had purchased whisky from the defendant for laborers on his mother’s plantation, and with money furnished by her for that purpose. He was the agent of his mother and attended to her business on the plantation, and in purchasing .supplies for her tenants and laborers. The purchase of whisky from the defendant was made by the minor under his mother’s instruction, but without her written consent or order. And there was nothing in the evidence to show that the agency of the minor was disclosed at the time of the sale, or was then known to the defendant. The court, against the defendant’s •objection, instructed the jury as follows: “1. George Hockey, if a minor, could not legally act as agent to buy whisky for the hands, except by the consent or authority in writing of his mother.” “ 2. But if it was lawful for a parent to verbally authorize a minor child to buy whisky as an agent, -a sale to such minor would be illegal, in the absence of proof that such agency was known or disclosed to the seller at the ■time of the sale.”</p> <p>The following instructions wei'e requested by the defend.ant and refused by the court: 1. “If the jury find from the evidence that the defendant sold and delivered whisky to the minor named in the indictment, and received money therefor, :but that said minor had been, and was, acting as agent for 'his mother, and that the liquor was not bought for the minor, but for his mother or her tenants on the place, this would not Be a sale to the minor.”</p> <p>2. “That before the jury can convict the defendant, they must find from the evidence that the sale was made to the minor for his own use and purpose, and if acting as the mere -agent of his mother, the defendant would not be guilty.”</p> <p>The defendant was convicted and a new trial was refused.</p> <p>The minor was acting simply as the agent of his mother and a sale to him was a sale to his principal, and no offense.</p> <p>The court correctly declared the law. 106 III., 93; 43 Ark., 363; 47 id., 333; 63 Miss., 304; 17 Hun., 391; 36 N. W. Rep., 234. Appellant was guilty, though minor purchased as agent, and especially where he failed to disclose his agency. Cases supra.</p>

Carroll D. Wood, Judge. 1. The lien of a landlord is superior to a mortgage. 23 Ark., 309 ; 33 id., 737; 33 id., 223 ; 36 id., 323; 45 id., 447. 2. Where a rent note, after being assigned as collateral security, is reassigned to the landlord, the lien revives. 39' Ark., 344; 29 id., 218; id., 443 ; 30 id., 133 ; 31 id., 142 ; ib., 230; 33 id., 80. 1. Appellees had no notice of the landlord’s lien at the time of purchase. 31 Ark., 131. 2.

Jos. W. Martin, Judge. 1. It was unnecessary to allege the annual payment of the tax and issuance of a license. The fact of a continuous exercise of the franchise for twenty years is sufficient. But if true that the license had not been regularly paid for and issued, “this would be no defense, io Ind., 313; Mansf. Dig., secs. 3223, 3226. Twenty years use of a ferry franchise establishes presumption of its legality. 36 Ala., 230. In Arkansas seven years is sufficient. 2.

John A. Williams, Judge. Watkins and wife filed their complaint against Greer, alleging that the instrument copied in the opinion created a mortgage, and praying for an account of rents and for redemption, The court below dismissed the complaint for want of equity, and the plaintiff appealed.. The instrument was a mortgage. The law regards the substance of things and not their forms or shadows, iop Pa.

R. H. Powell, Judge. The father of the appellee was entitled to a vendor’s lien •on the land in controversy in this suit, for the amount of a promissory note executed by one Stinnett. The appellee delivered the note, which was for the sum of $450, to the appellant for collection. Acting as the attorney of appellee, the appellant brought suit on the note to foreclose the lien, and obtained a decree for the sale of the land.

J. M. Pittman, Judge. This action was brought against the defendant company to .recover damages for an injury sustained by the plaintiff in falling through a hole in the defendant’s depot platform. The complaint alleged that the injury was received while the plaintiff was lawfully engaged in removing some freight from the depot, and that the defendant had negligently suffered the platform to become unsafe and had failed to repair it.

C. D. Wood, Judge. This is a suit in equity, brought by the heirs-at-law of W. A. Rotan, deceased, against his administratrix and others, to enjoin a judgment at law obtained against the administratrix by' the defendant, Springer, in the Chicot Circuit Court.

D. W. Carroll, Chancellor. This is an action brought by R. W. Worthen, as Collector, in the Pulaski Chancery Court, against Quinn 8c Gray, for the •collection of nine hundred and eighty-four dollars and thirty-eight cents, taxes on a twenty-five thousand dollar stock of goods, listed by Quinn Bros., who, at the time of the assessment were doing business in the City of Little Rock.

Little, Judge. In the absence of a statute, municipal corporations are not liable for failure to repair defects in streets and sidewalks. 21 Mick., 118 ; 122 Mass., 344.; 26 Am. Rep., 279 ; 6 Am. & Eng. Corp. Cases, 34,368 ; 43 Cal., 36 ; 32 N. J., 394 ; 6 Nev., go 4 102 Mass., 489 ; 49 Ark., 139, and cases cited.

R. H. Powell, Judge. The Probate Court had no jurisdiction of the subject matter, or of the minors; there was no service upon either the guardian or the infants, and no defense made. The judgment was void, and should have been quashed upon certiorari. Mansf Dig., secs. 4957, 5042, 4983 ; 42 Ark., 222 ; id., 227; 40 id., 57. No summons was necessary, the guardian waiving notice; and no service on minors is required by law. The guardian is their representative. Mansf.

G. S. Cunningham, Judge. Mansfield’s Digest, Sec. 3328 provides that the County Court shall not permit any ferry to be established within one mile above or below any ferry previously established, except, at or near cities and towns where the public convenience may require it. * * * Section 3335 of the same digest is as follows: “ If any person shall keep any ferry over any navigable-stream, for which he shall charge any person any money or any other valuable thing, without…

- C. E. Mitchel, Judge. In this action, which was begun in a justice’s court upon an account for house rent, the plaintiff obtained an order of attachment on the ground that the defendant was a nonresident of this State. The St. L., I. M. & S. Ry. was summoned as garnishee, and answered that at the time the writ of garnishment was served, it was indebted to the defendant in the sum of $78.05. On appeal to the Circuit Court, the plaintiff recovered a judgment for his debt.

J. E. Cravens, Special Judge. As to the meaning of “earnings,” see Webster and Worcester Diets. The omnibus fare was not an earning within this definition ; nothing of profit, or reward, or wages was added to the the railroad receipts, except the five cents commissions. See pp U. S., ‡02. Gross earnings cannot include the profits made by a separate and distinct company, in which the railway did •not share.

<p>An appeal from an order of the County Court, prohibiting the sale of liquors under the three-mile law, cannot be taken by one who did not become, or make any effort to become, a party to the proceeding in which the order was made.</p> <p>APPEAL from Desha Circuit Court.</p> <p>John A. Williams, Judge.</p> <p>The appellants filed their petition in the Desha County Court, making the statutory allegation as to age and place of residence, and praying for an order prohibiting the sale of liquor within three miles of Bethlehem Church, in said county.</p> <p>The petition was filed January 3, 1887, and on the same day an order was made, in accordance with the prayer of the-petition. Four months afterwards, to-wit.: on April 30th,. 1887, the appellee’s intestate, B. F. Morgan, as a “ citizen and taxpayer ” filed with the Clerk, in vacation, an affidavit for an appeal from this order, and the appeal was granted.</p> <p>At the next July term of the Circuit Court, the petition came on for hearing “ in that court, and the Circuit Court found from the evidence that the petition did not contain a majority of the adult inhabitants, and therefore dismissed. the petition, adjudged the cost against the petitioner and. awarded execution.”</p> <p>Sec. 51, Art. 7 of the Constitution, is as follows:</p> <p>That in all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the Circuit Court of the county, at the instance of the party aggrieved, or on the intervention of any citizen or resident and tax-payer of such county, city or town, on the same terms and conditions on which appeals may be granted to the Circuit Court in other-cases ; and the matter pertaining to any such allowance shall, be tried in the Circuit Court de novo. In case an appeal betaken by any citizen, he shall give a bond, payable to the-proper county, conditioned to prosecute the appeal and save the county from costs on account of the same being taken.</p> <p>Morgan never made himself party to the proceedings. He was a stranger and could not appeal. 30 Ark., 338 ; id., ‡11. The judgment was not an allowance against the county. Const., Art. 7, sec. 31. The Circuit Court had therefore no-jurisdiction on appeal, and its judgment for costs was void.. 6 Atl. Rep., 910 ; Mansf. Dig., sec. 10‡2.</p> <p>No judgment for costs can be rendered in an ex parte proceeding. Bouvier, “Costs ”; 12 Ark., 60.</p>

J. M. Pittman, Judge. The conveyance which this suit seeks to avoid was executed in 1884.

J. M. Pittman, Judge. This was an action on a bond given for the payment of ■costs under section 1036, Mansfield’s Digest, which provides that “a plaintiff who is a non-resident * * * before commencing an action shall file in the Clerk’s office a bond, with sufficient surety, to be approved by the Clerk, for the payment •of all costs which may accrue in the action in the court in which it is brought, or in any other to which it may be carried, •either to the defendant or to…

D. W. Carroll, Chancellor. The constitutional provision is not intended to apply to-owners of abutting lots only. Const. Ark., Art. ip., sec. 27,-Little Rock v. Board of Improvements, ‡2 Ark., 133. The obvious intention is to fix the liability on the property to be affected or benefited. McDermott v. Matthis, 21 Ark., 6o-. A corner lot is an abutting lot on both streets and pays-double taxes even under the abutting system; that is, a tax on each street.

C. D. Wood, Judge. The children of William A. Douglass, deceased, brought this action to recover certain lands of which he held possession at the time of his death.

C. E. Mixchel, Judge. This is an action of replevin commenced before a justice of the peace where the affidavit filed to obtain an order of delivery, was made to serve also the office of a complaint.

R. D. Hearn, Judge. Turner sued Gibney & Patterson in a justice’s court upon an open account for $40, and on appeal to the Circuit Court, recovered judgment against them for $20.60, from which they have appealed. On the trial the plaintiff testified that the defendants employed him to put upon their building a tin gutter, for which they agreed to pay him the sum of $40.

R. D. Hearn, Judge. Maria Brown brought this action against the St. L., 1. M. ■& S. Ry. to recover damages for the killing of her minor son, W. C. Brown. Her complaint alleges that on the 27th day of June, 1887, the deceased was a passenger on one of the defendant’s freight trains, and that while the train was running he was assaulted and thrown from it by the defendant’s ■employes, and that he thus received wounds from which he •died a few hours later.

J. W. Butler, Judge. This was an action at law brought by the administrator of Mary Munday, on a note for $500, given to her by her husband, Daniel Munday. The latter answered, setting up that at the time the note was executed he and the payee were husband .and wife, and also that it had been satisfied by various payments; which are stated in detail.

M. T. Sanders, Judge. Willis brought an action of replevin against Reinhardt, the Sheriff of Prairie County, to recover certain personal property which the latter had seized under an order of attachment against one Meyer. Upon Reinhardt’s motion the court dismissed the action upon the ground that the property was in the custody of the law and could not, therefore, be made the subject of replevin. Willis appealed. 1.

<p>APPEAL from Madison Circuit Court.</p> <p>Henry Glitsch, Special Judge.</p> <p>This is a suit in equity against a garnishee to recover the amount of a debt which he was ordered to pay to the plaintiff in an attachment proceeding, and to obtain a decree for the sale of certain lands mortgaged to secure the garnished debt. The complaint alleges that the plaintiff’s intestate brought an action in the Benton Circuit Court against S. D. McReynolds, and sued out therein a writ of attachment, under which a debt which- the defendant Berry owed to McReynolds, was attached. That the plaintiff afterwards recovered judgment against McReynolds in said action, for a debt amounting to $1105, and that the court rendering such judgment, having found that defendant, Berry, was indebted to McReynolds in the sum of $2029, ordered said Berry to pay over to the plaintiff therefrom the sum due to the latter on said judgment. The complaint further alleges that said indebtedness of the defendant, Berry, was secured by a mortgage on certain real estate. Prayer for judgment against Berry for the amount of the plaintiff’s debt, and that the mortgaged land be sold to satisfy the same. Berry’s answer states that he paid in land and goods the whole amount due on the mortgage, and that McReynolds agreed to satisfy it. This alleged satisfaction of the garnished debt, it appears from defendant’s testimony, was made before plaintiff’s suit against McReynolds was commenced. The finding of the Chancellor was in favor of the defendant, and the plaintiff appealed.</p> <p>1. The finding of the Chancellor is against the evidence, and should be reversed.</p> <p>2. The court proceeded in the manner provided in garnishment cases. Mansf. Dig., sec. 343; 23 Ark., 470; 43 Aak. 271; 48 Ark., 34g; 3 S. W. Rep., 43g; Wade on Att., secs. 377-38g, Vol. 2; and Berry is estopped to deny his indebtedness until the judgment against him is set aside. 2 Wade Att., sec. 322; 1 Flor., 233; 46 Am. Dec., 33g and note; 2g Ark., 470.</p> <p>1. The evidence supports the finding of the court.</p> <p>2. The order of the Benton Circuit Court in the garnishment suit does not preclude Berry from setting up any defense he might or may have had to the foreclosure suit. It was not a judgment against the garnishee, arid does not determine his liability. 48 Ark., 34g; g4 U. S., the A. & P. R. R. v. Hopkins ; 13 Kan., 32; 6 id., 163; Wade Att., 348-332; secs. 220, 247-8, Code; 2g Ark., 470.</p>

J. B. Wood, Judge. The administration having closed, the Probate Court had no authority to order a sale of the lands. It was without jurisdiction. Const. 1868, art. 12, sec. 5 ; 15 Ark., 412 ; 48 id., 360 ; but if it had authority to sell, title could not be passed by the proceedings had, which were wholly without authority and void. 40 Ark., 220; 7 Tex., 617 ; ib., 240. The pretended “relinquishment” was never confirmed by the Probate Court. 47 Ark., 413.

R. H. Powell, Judge. There is no allegation in the answer that a sale of the land was ever made to Morgan, by any person, or in any manner known to the law, or that he ever did, in fact, purchase the land. The answer was not responsive to the complaint, and did not show a prima facie title. Mansf Dig., sec. 2632. There never was a sale of the land to Morgan. The whole proceedings were wholly without authority of law. Gantfs Digest, secs¿ 556o!

<p>Pleading : Action on foreign judgment.</p> <p>In an action on a foreign judgment an answer alleging merely that the court which rendered the judgment had no jurisdiction to render it, because it was rendered upon a complaint which on its face disclosed that the plaintiff had no cause of action, shows no want of jurisdiction of the person or subject matter of the controversy, but only an error in the exercise of jurisdiction, and is therefore insufficient.</p>

M. T. Sanders, Judge. It is not the duty of a railroad to keep a lookout for stock over its whole right of way, or to bring the train under control whenever an animal is seen in proximity to the track. A railroad’s duty to guard against injuries to animals first arises when the animal first gets upon the track. 48 Ark., 370; 36 id., 607; 37 id'., 393; 39 id., 413; 40 id., 336; 41 id., 161. The evidence shows gross carelessness on the part of the engineer.

C. D. Wood, Judge. The mortgage of Earl was not a lien on the horse until he instructed the Recorder to record it. Mansf. Dig., sec. 4.750; 37 Ark-> 507; 33 3&7• An unrecorded mortgage, or one improperly recorded, is not a lien against a stranger even though he have actual knowledge. 40 Ark., 536. See, also, Jones Ch. Mort., sec. 66.

John A. Williams, Judge. The proof in this case tends to show that the executor agreed with his brother-in-law, that the latter should purchase the lands, pay for them with the executor’s money, and then ■convey them to the executor’s wife, and that this agreement was carried out. This created a trust. 46 Ark., 32; 48 id., 248.

<p>APPEAL from St. Francis Circuit Court.</p> <p>M. T. Sanders, Judge.</p> <p>1. The Allen decree did not avoid the deed to J. W. Moore, ab initio, but merely subjected the land to the payment of Allen’s debt. Wilson was not a party, but a stranger to this.</p> <p>-decree, and can claim nothing under it. The deed was void only as to those creditors who took the proper steps to enforce their rights. 38 Ark., 28; 47 id., 3og; 2 Paige, 367; Vol. 2, _N. Y. Chy., Coop, ed., notes to Corning v. White.</p> <p>2. Plaintiff is barred by limitation. Mansf. Dig., sec. 4471.</p> <p>3. Whether the purpose of Mrs. Moore was honest or -fraudulent, is not now material. If bona fide, she is bound; if •fraudulent, she cannot take the advantage of it. 11 Ark., 411, 718. The execution purchaser had no better right than she had. 31 Ark., 23Q; 30 id., 266.</p> <p>The decree set aside the deed to J. W. Moore, as void .against creditors, and was a nullity to all intents and pur•poses. The appellants’ grantors took nothing but the right to Fave the land sold to satisfy their debt; if they failed to do so, then any other creditor has the right to subject it to their ■debts.</p> <p>The deed being set aside at the suit of appellants’ grantors, they are estopped to deny appellee’s title. Reviews the authorities cited by appellants, and contends that they make against him. 38 Ark., 28; 47 id., 3og.</p>

APPEAL, from Cross Circuit Court. J. E. Riddick, Judge. Payne sued Killough & Erwin in a justice’s court, alleging -that they were indebted to him in the sum of $26.65 for money had and received for his use and benefit from Edgar, Gage & Co. On appeal to the Circuit Court the defendants filed an ..answer denying that they received any sum for the use of the plaintiff.

J. W. Butler, Judge. T. N. Baker recovered judgment against the appellee, Anderson, before a justice of the peace on the 27th day of January, 1881. On the 12th day of October, 1886, after the expiration of five years from the date of the judgment, Baker sued out an execution thereon which was levied upon the personal property in controversy in this suit.

C. E. Mitchel, Judge. This is an action on a bond given for the hire of a person convicted of a misdemeanor in the Circuit Court, and hired out by the Sheriff to the defendant, Stanley.

John S. Little, Judge. The appellants, J. D. Fort and H. W. Fort, were indicted by the grand jury of Logan County for the crime of burglary charged to have been committed on the night of February 17, 1887, by breaking and entering the court house of that county, with intent to steal certain public moneys and school funds then being in that building.

J. M. Pittman, Judge. William J. White brought an action of ejectment against his father, J. S. White, to recover a tract of land, claiming-title thereto under a conveyance executed to him in the year 1874 by E. D. Ham. The defendant interposed the statute of limitations as a bar to the action, and set up as a further defense that he paid all the purchase money for the land and that the conveyance to the plaintiff was in trust for his benefit.

J. S. Little, Judge. Charles F. Harvey is a justice of the peace for Crawford! County, and in May, 1887, George Galbraith was brought before him on a charge of felony. An examination was had, upon which it appeared that Galbraith was not guilty of the felony, but was guilty of a misdemeanor. He was thereupon held to answer the latter charge, and on a trial by a jury, was-acquitted.

B. Wood, Judge. By the will of Nathan Pumphry, he devised to his widow, the appellee, eighty acres of land, which was his homestead, or a part of it, for her natural life or during widowhood. The widow, after the death of her husband, remained on the land thus devised, and sixteen months thereafter executed, as required by law, a deed by which she released to the heirs of her husband, all her rights to said property under the will.

J. E. Riddick, Judge. The association is a mutual- benefit society, and the laws governing ordinary life insurance policies do not apply. The distinction is this: In regular insurance the party named as beneficiary takes a vested interest in the policy from date of the contract, and no one except the beneficiary can assign it.

B. F. Askew, Judge. Bazemore and Harper ■ brought an action of ejectment against Payne and Bailey to recover two tracts of land. They claimed title to one of the tracts under a conveyance executed by Bailey Baker, and to the other under a deed from J. S. McWilliams.

J. E. Riddick, Judge. No affidavit, as required by Mansf. Dig., sec. iy6, accompanied the report of sale; nor was there any sworn evidence of any kind before the court. No affidavit, as required by sec. 18 ‡, ib., nor any order of court requiring the sale twelve months thereafter was made ; nor was there any judicial action of any kind. But lands worth, as appraised, $79,000 were sacrificed at $17,000, and this was not paid.

M. T. Sanders, Judge. This was an action of ejectment brought by Edward Davie and others against J. M. Davie, for the recovery of a section of land to which they claim title as heirs at law of J. C. Davie. The defendant claims the land as devisee of Caroline M. Davie deceased, the widow of J. C. Davie, alleging in his answer that she acquired title under certain conveyances executed by the heirs.

G S. Cunningham, Judge. Reviews the denistry act, section by section, and contends The act is void, becauses it proposes to make liable to fine, etc., an act not malum in se, unless conditions are complied with, which it is, or may be impossible for one to comply with.

Francis Circuit Court. M. T. Sanders,-Judge. The note of a married woman, who joins with her husband, is void, if Ark., 2'jo; 16 id., iq6; 3Q id., 242; 2J id., 331. When enforced in equity, it must be in rem. against her property, and not against her. Ib., supra.

C. E. Mitchel, Judge. Appellee sued the railway company, and alleged that she owned certain lands lying on Red river, Arkansas, a short distance north of defendant’s railway. That defendant’s railway had been constructed through the Red river bottom in 1873, and had been carelessly and negligently constructed and maintained ever since.

J. M. Pittman, Judge. Vaughan brought an action in a justice’s court against McGannon & Sanders on the following instrument, which was. filed without written complains : “March i, 1887. “ Due G. W. Vaughan, $131.65 for cattle. “W. J. Sanders, “ P. M. McGannon.” Sanders made no defense. McGannon filed an answer, in which he alleges that the due bill was not signed by him or by any person authorized by him to sign it.

J. A. Williams, Judge. The appellees, Sayle & Co., brought an action against the appellant, Levy, upon his note for $252.83, and upon an account amounting to $257.39.

G. S. Cunningham, Judge. The calaboose was part of the realty and passed to plaintiff when he purchased from the State the land upon which it was situated. Tie deman on Real Property, secs. 2, 3 and 4.

J. W. Butler, Judge. John W. Glenn executed to Bertie Arnett, a married woman, his promissory note for $300, which she loaned to him out of her separate estate. She brought this action against him on the note, and by his answer he claims a credit for $185.53, alleging that he paid that sum to the plaintiff’s husband, and that the latter received it as his wife’s agent.

<p>APPEAL from Logan Circuit Court.</p> <p>John S. Little, Judge.</p> <p>Frauenthal brought replevin in a justice’s court against Titsworth for two bales of cotton. On appeal to the Circuit. Court the action was tried by the court, which found that in 1886 Totten Jones was a tenant upon Titsworth’s farm, and raised five bales of cotton, of which the two bales in controversy were a part. That a few days before the institution of this suit, Titsworth purchased of Jones in one transaction all of said cotton, and after deducting from the price thereof the rent due to him and the amount of a bill for supplies furnished Jones, paid to the latter the balance of $90.00 in money. That three bales of the cotton were sufficient to satisfy the rent and the bill for supplies. That the two bales sued for were of the value of $40 each, and that all the bales were at the time they were replevied “ in one lot or pile ” on defendant’s farm and in his possession. That prior to Titsworth’s purchase, all the cotton was conveyed to Frauenthal by a mortgage deed which had been filed in the Recorder’s office of the proper county, and that at the time the suit was brought the mortgage was in full force — its conditions had been broken and Frauenthal was entitled to possession under it. The court thereupon declared the law to be that Titsworth’s purchase extinguished his lien as landlord and he held the cotton as purchaser; that his title was good against Frauenthal only to the extent of said lien; and that as Titsworth had failed to show that the two bales sued for were received in satisfaction of his lien, Frauenthal was entitled to recover them. Judgment was rendered accordingly and Titsworth appealed,</p> <p>1. Landlord’s lien superior to mortgage. 37 Ark., ‡3; 31 id, 557; 36 Ark., 325.</p> <p>2. As long as the lien continued, coupled with possession, replevin would not lie without discharging the lien. Wells on Repl., secs. 100, 123, 12‡. The amount of appellant’s claim for rent and supplies should have been tendered. 36 Ark., 525; 35 id-, 223.</p> <p>3. A tender of rent does not discharge the lien. 38 Ark., 329. Nor is the lien waived by taking a mortgage. 36 id., 96,</p> <p>4. Replevin does not lie by one owner in common against another for an undivided interest. Wells on Replevin, sec, 186, et seq.; 2‡ N. Y, 396.</p> <p>Trover was the remedy, not replevin ; or perhaps an action for money had and received, over and above the amount of appellant’s claim, could have been maintained.</p> <p>The legal title to all of the five bales was in appellee. 36 Ark., 372; and appellant had no title, to any of it, and could not replevy a bale of it. Ib. A landlord has only a lien for rent and supplies, which is simply a charge on the property. 31 Ark., 397 (600). When the debt is satisfied the lien is extinguished. Ib., 601. Now, the three bales were amply sufficient to satisfy his plaim, and he could not hold under his claim of purchase against the mortgagee, even with possession. 33 Ark., 169. Titsworth’s claim being paid by the three bales, the other two were properly awarded to appellee. 3‡ Ark., 93 (102.) Substantial justice has been done, and this court should not reverse for mere matter of form or mistake in the matter of proceeding. Ib.</p>

J. B. Wood, Judge. The two houses comprised the premises, and so long as either house was occupied, the premises were not vacant. The contract was entire and the consideration in gross, and hence not apportionable. See 28 Am. Rep., 116; 77 Am. Dec., 244; 38 III., 167; 32 N. Y, 403; 3p N. Y, 387; 38 Am. Rep., ips ; 72 N. Y, 118 ; 8 Atl. Rep., 424; 34 Am. Rep., 106 ; 30 N. W. Rep., 808, 862. No proof of loss was necessary. Denial of liability waives proof of loss. 13 West.

B. F. Grace, Special Judge. / The appellant, Moore, was convicted upon an indictment •charging that he refused to work o'n a public road after having been duly warned, as the law directs. The evidence shows that the defendant was warned on Saturday to work the road •on the following Tuesday, Wednesday and Thursday and that he did not attend on either day.

J. M. Pittman, Judge. The appellants were convicted of hunting in the inclosed5 grounds of William Braithwait without his consent. The-statute [Mansf.

John S. Little, Judge. The indictment against the defendant charged that “on the-first day of May, 1889,” he unlawfully kept open his dram shop “on Sunday.” A demurrer to the indictment was overruled, and the defendant having been convicted, appealed. The.only question presented by the appeal is as to the sufficiency of the indictment.

J. B. Wood, Judge. Lowry was indicted for failing to work a public road.

J. E. Riddick, Judge. The appellant was convicted of voluntary manslaughter on an indictment for murder in the first degree. 1. The evidence is insufficient to support the verdict, especially of manslaughter, and the court erred in instructing the jury as to the law of manslaughter, ffj Ark., 436; 30 id., 506. 2. It was error to admit the evidence of Clears and New-comb to contradict the witness King. The State was bound by the answer of King. Wharf. Cr. Ev.

H. F. Thomason, Judge. Agnew was indicted and on trial for the sale of intoxicating liquors without a license. After the evidence for the State had been closed, and while a witness for the defense was being examined, the court discovered that the indorsement, “A true bill,” on the back of,the indictment had not been signed by the foreman of the grand jury.

J. M. Pittman, Judge. Russell was indicted for an assault with intent to kill.

C. E. Mitchel, Judge. This is an action of replevin brought in a justice’s court to recover a mule.

Elliott, Judge. The following indictment was returned by a grand jury into the Circuit Court of Lincoln County at a term thereof beginning on the 27th day of August, 1888, and held at the court house in Star City : “ IN THE LINCOLN CIRCUIT COURT, “August Term, 1888. “ State of Arkansas, v “J. S. Helt. “ The grand jury of Lincoln County, in the name and by the authority of the State of Arkansas, accuses J. S. Helt of the crime of carrying a weapon, committed as follows,…

J. W. Martin, Judge. King brought an action of replevin against Sessums for a mule. The defendant answered that at the request of the plaintiff he had taken charge of the mule when it was injured by a train, and had given it necessary care, and held it for a. lien of $40.

C. D. Wood, Judge. This was a proceeding begun in the Probate Court for the allotment of dower to Mrs. Caroline Hilliard in the land of her deceased husband. Commissioners were appointed to make the allotment, and their report was approved and confirmed by the court. From the order approving the report Mrs. Hilliard, appealed. In the Circuit Court she filed numerous exceptions-‘to the report, presenting questions which could only be determined by a trial de novo.

<p>Criminal Procedure: Trial for felony: Presence of defendant.</p> <p>Section 2213 Mansfield’s Digest which provides that if a defendant on trial fora, felony, escapes from custody after his trial has commenced, “or if on bail, shall absent himself during the trial, the trial * * * may progress to a verdict,”' is not unconstitutional. The guaranty of the Constitution (Art. 2, Sec. io) that the defendant shall have the right to be confronted with the witnesses-against him, does not include the right to abscond and then complain of his-own absence.</p>

M. T. Sanders, Judge. There is no unconditional promise to pay, nor any unqualfied acknowledgment that the claims were due; nor any express promise to pay them; nor are the debts identified. If there be a promise at all, it is only a conditional one, and there is no proof that the condition has been performed.

M. T. Sanders, Judge. 1. There is no redemption from a purchase under a decree in chancery. The act of March 4, 1875, page 212, is void, because it is an attempt to make a new law by reference ■only. Const., art. 3, sec. 23; 4.9 Ark., 131. 2. But if the right exists, the existence of a mere right of redemption does not prevent the levy of an attachment or execution upon the interest of the purchaser.

Ji M. Pittman, Judge. The ordinance was not void. Since the decision in 3‡ Ark., 353, power to regulate and license hotel drummers has been-granted cities by Mansfield,’s Digest, sec. 351. There was no proof that the fee was excessive or unreasonable. ‡3 Ark., 82.. The fee was reasonable compensation for keeping the record, issuing the license and municipal supervision. Ib. Twelve dollars and fifty cents was shown to be excessive and unreasonable.

J. B. Wood, Judge. 1. It was error to allow the State on cross-examination to ask the witness if he had not made certain damaging statements about the defendant in his absence,, and on cross-examination of another of defendant’s witnesses, allowed the State to prove such statements. Whart. Cr.

R. D. Hearn, Judge. This was an action of ejectment. The plaintiff claimed title to the land in controversy under a commissioner’s deed, executed pursuant to a decree of the Pulaski Chancery Court against Barkman and Candler, foreclosing the State’s lien for the purchase money. It appears that the land was sold by the Common School Commissioner and purchased by Bark-man, who gave his note for the purchase money, with Candler -as surety.

<p>1. Judgments : Vacating after close of term.</p> <p>A judgment of the Circuit Court cannot be vacated therein after the expiration of the term at which it is rendered, except upon complaint filed in accordance with the provisions of section 3909 Mansf. Dig. And where a petition to set aside a decree is presented only by way of exceptions to the report of a sale, it should be rejected.</p> <p>■jz. Judicial Sales : On credit not directed by order.</p> <p>Where land was sold on a credit of three months under a decree which fixed the term of credit at four months, it was not an abuse of the court’s discretion, to confirm the sale on being satisfied that no injury had resulted from the irregularity.</p>

John A. Williams, Judge. Bradley brought an action of replevin in a justice’s court against Crenshaw, for three bales of cotton. The judgment of the justice was in favor of the defendant and the plaintiff prayed an appeal, which was granted without any affidavit therefor having been filed.

M. T. Sanders, Judge. Thomas J. Rogers was the administrator de bonis non of the estate of Thomas G. Mays, deceased, and while acting as such presented to the Probate Court a claim against the estate-amounting to $220.99 for taxes which he had paid on property of the estate “ and for costs and expenses of administration.” The claim was allowed, and he subsequently applied to the court for an order to .sell certain lands of the estate for its payment.

<p>APPEAL from Yell Circuit Court in Chancery, Dardanelle District.</p> <p>G. S. Cunningham, Judge.</p> <p>This is an action to recover damages for a breach of the covenant contained in a deed executed by the defendant to the plaintiff’s wards, who are the minor heirs of J. H. Cowger, deceased. The complaint makes in substance the following averments:</p> <p>That on the 29th day of November, 1884, in consideration of the sum of $274.69 cash, paid by plaintiff below to appellee for said minors, the appellee executed and delivered to said minors a deed, conveying to them certain described land. That he warranted the title against all lawful claims, and that the premises were free from incumbrances, and that he had a good right to sell and convey the same. That at that time the lands were incumbered by a vendor’s lien in favor of I. C. Jones, who brought suit, in which a decree was rendered for such lien in the sum of $307, and the land was sold under this decree, and E. H. Cowger, the plaintiff below, bought it in, and the sale was confirmed and deed made to her. That Collier was notified of the pendency of this suit by her, but failed to defend. That at her own expense she defended the suit. The deed of Collier, which was duly acknowledged and recorded, and the decree in the Jones case, were exhibited with the complaint.</p> <p>The defendant’s answer puts in issue all the material allegations of the complaint, and concludes with a demurrer stating among other grounds of objection to the complaint that it fails to aver an eviction. The cause was by consent transferred to the equity docket. The decree of the court was in favor of the plaintiff for the sum of $274.69, the amount paid to the defendant for the land, with interest thereon from November 29, 1884, the date of such payment, at 6 per cent, per annum. The defendant appealed.</p> <p>1. There was no breach of the warranty. There must be an actual or constructive eviction to constitute a breach of this covenant. Teideman on Real Prop., sec. 8pp. While possession is undisturbed, there is no breach. Razvle Cov.for Title, pp. 312, 313; 11 Ark., pg; 21 id., 2pp; 23 id., 203. See, also, 21 Ark., p8p; 22 id., 284.</p> <p>2. The mere existence of paramount title is not enough (il>.), and where one knows of an incumbrance, as Mrs. Cowger did, she must be held to waive any rights arising in consequence thereof. 22 Ark., 284; 23 id., 143. See, for a full discussion of the question, 2 Wait's Act. and Def.,p. 388; also, 10 Wheaton, 44g.</p> <p>3. No interest should have been allowed from the date of the deed. 13 Johns., po. Rents are the counterpart of interest. In this case no mesne profits were recovered against Mrs. Cowger. Ib.</p> <p>4. A purchaser who has accepted a deed with no covenants but those of warranty, in the absence of'fraud, has no remedy until evicted. 40 Ark., 420.</p> <p>The covenant of warranty is, in effect, a covenant for quiet enjoyment. 3 Washb. Real Pr.,p. 4Óg,par. 18. An eviction is not necessary when constructive dispossession has taken place, ig Kans., 33g; 6 Cush., 124; 81 III., 346; 3g Cal., 360; 2 Am. Rep., 436; 1 Am. Dec., 304; 14 id., 43; 31 Ark., 3ig; 1 Aiken, 233; 1 Dev., 413; Rawle on Cov.for Title, 4th ed., 143.</p>

J. B. Wood, Judge. The appellant was indicted for unlawfully engaging in the business of selling liquors in Garland County without first paying the proper tax. A demurrer to the indictment was overruled, and the cause was removed to the Saline Circuit Court, where it was submitted for trial to the court, a jury being waived.

Carroll D. Wood, Judge. The Louisiana, Arkansas and Missouri Railroad Company having instituted proceedings under the statute [Mansf. Digest,, secs. 3464, 3466) for the condemnation of a right of way over' the lands of Reynolds, the Circuit Judge, in vacation, on the N company’s application, made an order designating a sum of' money to be deposited, subject to the court’s order, for the purpose of making compensation when the amount thereof should be assessed.

On motion to assess 10 per cent, damages against the sureties on the supersedeas bond of appellants. For the facts and original opinion in this case, see ante p. 201. Secs. 1311, 1312 Mansf.

John A. Williams, Judge. The land in controversy in this suit was sold at private sale by Shall’s administrators, for the payment of his debts, under' an order of the Probate Court. It was purchased by one Mills, and came by regular conveyances to Kelsey, who brought ejectment against Apel, the latter being in possession and claiming it under a donation deed.

J. M. Pittman, Judge. Samuel D. Jones was tried on an indictment charging him with the murder of Henry W. Keltner. He was convicted of murder in the first degree and appealed. 1. Review the evidence and contend that the verdict was not sustained by it, but was contrary to it. No motive whatever was shown for the crime. 2. It was error to exclude the dying statement of deceased. 39 Ark., 223. 3.

J. W. Butler, Judge. The complainant in this action alleges that on the 31st day ■of November, 1870, Clayburn Spears and Phoebe Dodd were, by the Randolph Probate Court, appoinced administrators of the estate of John S. Dodd, deceased, and as such entered into bond, as required by law, in the penal sum of $3000 with the defendants, Oscar Drake and A. W. James, as .sureties, which bond is made part of the complaint, and was conditioned among other' things that the said Spears…

John A. Williams, Judge. Porter sued Navin before a justice of the peace for a sum due on an account, and obtained an order of attachment embracing a garnishment clause. Reed and Winchester, as trustees of the Little Rock, Mississippi and Texas Railway, were summoned as garnishees, and answered, admitting that they were indebted to the defendant in the sum of $37.25. The defendant claimed the amount of their indebtedness as exempt.

Carroll D. Wood, Judge. This is a suit to enjoin the sale under execution of the plaintiff’s curtesy in the separare estate of his deceased wife_ At the hearing below a temporary injunction, which had been granted in the cause, was dissolved, and the complaint was dismissed. The court refused to award the defendant more than $¡10 damages upon the dissolution of the injunction, and both parties have appealed.

<p>APPEAL from Desha Circuit Court.</p> <p>John A. Williams, Judge.</p> <p>This was a proceeding in chancery to enforce the collection of a levee tax assessed upon the defendant’s lands, in accordance with the provisions of an act entitled, “An act to provide for building and repairing the public levees of this State,” approved March 20th, 1879. The statute provides for the election of certain directors of levees, and assessors, and that they shall, before entering upon the discharge of their duties, take and subscribe to the oath required by section 20, article 19 of the Constitution of this State, which is the general oath of office prescribed for all State and County officers. The defendant demurred to the complaint, stating as one of his grounds of objection thereto, that it contains no averment that the directors and assessors “took and subscribed the oath of office prior to entering upon the discharge of their duties.” * * * The demurrer was overruled and on the trial the court excluded evidence offered by the defendant to show that the directors and assessors did not qualify, as required by law, The decree was for the plaintiffs, and the defendant appealed.</p> <p>X. The assessors did not take the oath prescribed by section 17 of the act March 20, 1879, Acts, p. 117. They never qualified at all as required by law, and the assessment was invalid. See 2 Greenl., 218; g N. H., 4.91; 1 Foster, 400; 13 S. & R., 208; 1 Bush., 239; 21 Ark., 381; 23 N. W. Rep., 13; 49 Wise., 291; 71 N. V, 309; 27 Am. Rep., 47; 10 Atl. Rep., 431; 3 N. W. Rep., 382; 18 Hotv., 137; 30 Me., 319; 2 Vt., 218; 12 id., 674; 13 Me., 29; 3 Greenl., 227; 4 id., 72; 20 Me., 199; 2 Mich. (Gehhs), 498.</p> <p>1. The assessors were officers de facto, and their acts cannot be attacked collaterally. 22 Ark., 339; 43 id., 243; Mansf. Dig., sec. 4389; 23 Ark.,336; 32 id., 666.</p> <p>2. This is not a proceeding against a de facto officer, but a proceeding concerning a third personl 38 Ark., 336.</p>

John S. Little, Judge. This was a proceeding under sec. 4459 Mansf. Dig., to enforce by attachment the lien of a landlord on the crop of his tenant, consisting of corn and cotton.

John S. Little, Judge. Catherine A. Wilson brought this action against John F. Williams, Sheriff of Sebastian County, to recover the value of certain property which was taken from her and her husband by the defendant’s deputy, under an order of delivery issued by a justice ofthe peace in an action ofreplevin, brought against them by Whitson and Anderson.

R. D. Hearn, Judge. Calloway presented to the County Court of Clark County for allowance, a fee bill for services rendered by him as Coroner in holding an inquest on the body of William Rooks. The County Court disallowed the claim, and the plaintiff appealed to the Circuit Court, where the cause was tried by the court sitting as a jury.

<p>APPEAL from Pulaski Circuit Court.</p> <p>J. W. Martin, Judge.</p> <p>Wear, Boogher & Co. brought this action against L. D. Gleason, to recover the value of a trunk and its contents, left, at the defendant’s hotel by John R. Boddy, the traveling salesman of the plaintiffs. The complaint alleges that the trunk was left with the defendant as inn-keeper, and that as such he agreed to hold it and deliver it to Boddy on demand; but that, he negligently and wrongfully delivered it to a third person,, by whom it was carried away, and that it was thus wholly lost, to the plaintiffs. The answer denies that the trunk was left, with the defendant as inn-keeper, or that he negligently delivered it to any one not entitled to it. The evidence shows-that Boddy was a guest at the defendant’s hotel on the 19th day of August, 1887. After paying his bill, he asked the defendant to loan him $25.00 on the security of the trunk referred to, which he stated to the defendant that he was going to leav eat the hotel. The defendant replied that he would lend the-sum requested, but-that he-wanted no security for it. Boddythen gave the defendant his due bill for $25.00, and received from him that sum. The defendant offered to give a check for-the trunk, which Boddy declined. Before leaving he gave his railroad check to the defendant, and the latter sent a porter to the railroad depot and got the trunk. Some time afterwards, a man called at the hotel, and pointing out Boddy’s trunk,., which was in the hall, said it was his, and that he wanted it. sent to the railroad baggage room to be checked. The defendant sent the trunk to the baggage room of the depot, as; requested, and it has not been heard of since. The court refused to instruct the jury that the defendant held the trunk as. an inn-keeper. The verdict was for the defendant, and a new-trial having been refused the plaintiffs, they appealed.</p> <p>1. When one becomes a guest at an inn, and upon leaving .allows his baggage to remain with the consent of the host, the latter continues to hold the baggage as an inn-keeper until it is called for, or until a reasonable time for its removal has elapsed. 4.1 Ga., 65; S. C. 5 Am. Rep., 524; g Pick., 280; 2 Daly 102; 2 Sd. Ray, 866. When property is entrusted to a bailee of any description, and is not produced upon demand, the burden is upon him to account for the loss. 11 Cush., 70; 14 Allen, 448; 7 Cow., 4g7; 10 Watts, 333; 22 La. Ann., 413.</p> <p>2. Every bailee, whether gratuitous or for hire, is bound to deliver the bailment to the bailor, or rightful owner, and it ús no excuse for him to say that he has delivered it by mistake to another. Edivards on Bailments, 2d ed., secs., gg, 162; Story Bailments, sec. 430; 4 Barb., 361; g id., 176; 4 Wend., 613; 6 Bush., 231; 20 La. Ann., 2g7; 31 Mo., .377; 33 Ala., 2og; 1 Caldtvell, 372; 23 Texas, 633; 33 Barb., 188. Even if Gleason was a mere gratuitous bailee, he was liable for gross negligence, supra.</p> <p>1. The court correctly charged the law as to inn-keeper and guest, and where the relation ceases, in the first instruction asked by defendant. Edwards on Bailment, p. 3g3; Schouler on Bailments, sec. 2g8; 60 Miss., 822; 22 Fla., p. 627; 26 Vt., 330; 2 Lea, 312.</p> <p>2. The evidence does not make out a case of gross negligence, sufficient to render a gratuitous bailee liable. Edwards Bailm., pp. 441103.</p> <p>3. Appellant was guilty of contributory negligence in not taking a check.</p>

J. E. Riddick, Judge. This is an action to recover damages for personal injuries sustained by the plaintiff in being thrown from his wagon while passing over the defendant's track at a defective road - crossing. The answer denies any negligence on defendant’s part and charges contributory negligence on the part of the plaintiff.

M. T. Sanders, Judge. The appellees, F. Gates & Co., were sued by appellants, Henderson, Echols & Co., for the value of two bales of cotton, which had been purchased by them from one Maddox, and upon which appellants claimed to have had a mortgage. On the trial appellants offered their mortgage in evidence, and appellees objecting to its introduction as evidence, the court sustained their objection and excluded it. Two defects in the mortgage were insisted on.

J. B. Wood, Judge. O. F. Smith sued Addie Finley for the possession of lot 6, of block 74, of the Hot Springs Reservation, in Garland County, and claimed title under a deed of trust made by defendant to D. Beitler, trustee, for the benefit of E. Smith, under which there was a sale of the property by R. L. Williams, Sheriff of Garland County, the trustee having refused to act, purchase by O. F. Smith, and a subsequent conveyance made by the Sheriff to him, the appellant.

M. T. Sanders, Judge. Cliff, the father of the plaintiff, Mrs. Sanders, died in 1867, leaving her his only heir. The administrator sold the land of the estate under an order of the Probate Court, and it was purchased by J. W. Humphries, who executed his note for part of the purchase money.

C. E. Mitchel, Judge. This is an action of ejectment, to recover possession of a lot: in the Town of Texarkana. The complaint is in the usual form, and alleges title in the plaintiff under conveyances from the United States government to one Thomas T. Murray, and from him to the plaintiff.

C. D. Wood, Judge. 1. Equity will not decree specific performance when the contract has been voluntarily surrendered and abandoned, especially when there are matters of estoppel, and the rights of third persons have intervened. 33 Ark., 63; 34 Ark., 34; 8 Paige, 4J3. 2. Where a husband has abandoned his wife and children, the wife becomes the agent of the husband so far as concerns-the property left in her possession. Mansf. Dig., sec. 4953. 3.

John S. Little, Judge. 1. As there is no lex loci contractus to govern this case, the parties having invoked the aid of our courts, the lex fori, the common law, should govern. See 18 How., 100; 4 id., 367; 14 Otto, 621; 116 U. S., 28; 12 Otto, 143; Vattel (Chitty’s 4th Am. ed.),sec. 107; Story Conf. Laws (3th ed.), pp. ¿¡21-2; 1 Kent Com., *pp. 243, 473, note a; 1 Sharsw. Blackst. *p. 108, note 11; 6 N. J. L., 1; 1 Dali., 374; 1 Dali., {Pa.) 64; 3 Peters, 233; 3 Oh.

M. T. Sanders, Judge. 1. Considered as an assignment it may be conceded that the instrument, under our statutes, would be void as to all creditors who did not join in the same. But as a mortgage it would not be fraudulent. 26 Iowa, 381; 8 N. H, 336; 13 id., 298; 99 Ind., 348; 21 N. Y., 131; 4 Comst., 211; 2 Keys, 123; 14 Fed.

<p>APPEAL from Arkansas Circuit Court in Chancery.</p> <p>John A. Williams, Judge.</p> <p>Botsford and Edgarton brought this suit against Boehm to remove a cloud from the title to certain lands. By their complaint they claim title to the lands by virtue of deeds from the Auditor of State, conveying them as lands held b)r the State under forfeitures for the non-payment of taxes for the year 1868, and also by a decree confirming the tax sale through which the State acquired title. The decree confirming the tax sMe was rendered in 1876 and is exhibited with the complaint. Boehm answered-, setting up title to the lands under a conveyance executed to his vendor by the State Land Commissioner, pursuant to a sale thereof by the State as swamp land's, made in 1850. He also claimed title through one Price, under a purchase made by the latter at a sale for the non-payment of taxes for the year 1876. On the trial the defendant offered to prove that “ the pretended assessment, levy of taxes, return of the delinquent list, advertisement and sale of the lands in controversy for the year 1868, were absolutely void, and that at the time of the pretended decree of confirmation of the plaintiff’s tax title, defendant and his vendor were nonresidents of the State and out of the jurisdiction of the courts thereof;” and insisted that as such he had the right to show that the tax proceedings and sale referred to were illegal. But the court refused to permit such showing, holding that such defenses were cut off by the decree of confirmation. The court gave judgment for the plaintiff, granting the relief sought by his complaint, and the defendant appealed.</p> <p>The statute [Mansf. Dig., secs. 576-583] under which the decree of confirmation relied upon by the plaintiff was obtained, provides that notice of the application for such decree shall be published “six weeks in succession in some newspaper published in this State,” and that such notice shall call “ on all persons, who can set up any right to the- lands so purchased in consequence of any informality or any irregularity or illegality connected with such sale, to show cause at, etc., * * * why the sale * * * should not be confirmed.” (Sec. 577.) Section 581 provides “that the judgment or decree * * * confirming said sale shall operate as a compíete bar against any and all persons who may hereafter claim said land in consequence of informality or illegality in the proceedings; and the title to said land shall be considered as confirmed and complete in the purchaser thereof, his heirs and assigns forever, saving, however, to infants, persons of unsound mind, imprisoned beyond seas, or out of the jurisdiction of the United States, the right to appear and contest the title to said land within one year after their disabilities may be removed.”</p>

John S. Little, Judge. This is an action to recover the value of a bull killed by the defendant’s train. At the place where the animal was killed and within two or three feet of the track, there was a house used for storing cotton-seed for an oil-mill. The seed were loaded into the cars from the house by a chute, and in loading them, a considerable quantity would fall on the ground from the seed-house to the car.

John A. Williams, Judge. James Tufts brought this action against T. B. Duncan & Co. to recover the price of a soda-water apparatus which the complaint states was made for the defendants and shipped to them according to their order.

M. T. Sanders, Judge. Adcox brought this action against the St. Louis, Iron Mountain and Southern Railway Company, to recover damages sustained by reason of the defendant’s passenger train No. 1 refusing to stop at Higginson Station in the night time, for the purpose of taking the plaintiff on after it had been properly flagged.

R. D. Hearn, Judge. The complaint in this action alleges that about the 6th day ••of March, 1887, the plaintiff, Townsend, and the defendant, Harris, entered into a partnership for the purpose of editing and publishing the “ Arkadelphia News,” a weekly newspaper— Harris being publisher and Townsend editor.

J. W. Martin, Judge. Garabaldi and Wright were partners in a stock farm, and becoming dissatisfied undertook on the 24th day of December, 1886, to settle the affairs of the partnership. Wright contends that such settlement was consummated. This is denied by Garabaldi, who, on the 3d day of P'ebruary, 1887, filed his bill in chancery against Wright for a dissolution of the partnership and a settlement between the parties.

John A. Williams, Judge. Josephine R. Jenkins brought an action against C. M. Neal to recover the sum of $960, which.the complaint alleges was collected by the defendant as the agent of the plaintiff, on a rent note executed by one Colburn. The defendant by his answer admits the collection of the sum sued for, but alleges that the plaintiff is indebted to him in a large sum of money, and that the rent note was placed in his hands as collateral security.

M. T. Sanders, Judge. Defendant was indicted for keeping a dram-shop without a license. His defense was that he only sold, as agent for the Standard Wine Company, wine manufactured by said company in quantities not less than a quart, and in sealed bottles. The proof shows that some young men came into his store and bought a quart bottle of wine. They proceeded to open the bottle and drink the wine in the store.

G. S. Cunningham, Judge. This was an action brought by William H. Marvin against his wife, Edna Marvin, for divorce, on the ground that the plaintiff consented to the marriage contract under duress.

D. W. Carroll, Chancellor. The Judsonia Mercantile Company, a private corporation doing business in White County, being insolvent, on the 27th day of September, 1887, conveyed all of its real and personal property, notes and accounts to G. W. Henson in trust for the benefit of the plaintiffs (except the Judsonia Mercantile Company, and G. W. Henson) who were creditors of said company in the sum of $5,530.87-100. .

G. S. Cunningham, Judge. In 1873 the Legislature in creating the County of Faulkner, and fixing the boundaries of Conway County, attached to the latter territory formerly lying in Perry County. The act .made no provision for the imposition of any part of the debt of Perry County upon Conway County.

R. B. Williams, Special Judge. John T. McMahon brought replevin against J. T. and J. N. Ferguson, to recover four bales of cotton which he claimed as agent of Thomas E. McMahon, under a mprtgage executed to the latter by Daniel Dixon, who sold the cotton to the defendants.

John A. Williams, Judge. Talbot brought this action against Fall, Carroll & Wilkins, on a promissory note. The answer of the defendant, Wilkins, alleges: “ That the note sued on was made without any consideration whatever, the same having been given under the circumstances and for the purposes following, to-wit: Defendant, Fall, was a justice of the peace, and defendant, Carroll, was constable.

John A. Williams, Judge. J. M. Cunningham brought this suit against Robert Williams and Caswell Bunting to recover the amount of a promissory note executed by Bunting, and to enforce a lien on 5300 pounds of seed cotton, which it is alleged defendant, Williams, converted to his own use, with knowledge of the lien.

<p>1. Promissory Notes: Failure of consideration.</p> <p>The payees of a promissory note claimed to be the owners of certain mining-claims which were to constitute the capital stock of a company they proposed to organize for mining purposes; and the note was given for shares in such stock taken by the maker. In an action on the note there was evidence tending to show that the claims were conveyed to a company formed but not legally-organized. Held : That the equitable right acquired by the defendant in such interest as the payees had in the mining claims, constituted a valuable consideration for the execution of the note, and the right to recover some amount thereon was not defeated by the failure to incorporate the mining company.</p> <p>2. Same : Same: Instructions.</p> <p>In such action, in the absence of evidence tending to show that the consideration of the note was illegal, it was error to instruct the jury that any illegality of' consideration as to one of the payees, might be pleaded against the other. And the failure to incorporate the mining company being only a partial failure of the consideration of the note, it was also error to instruct the jury that no recovery could be had upon it, if the company had not been legally organized.</p>

J. M. Pittman, Judge. Woolum appealed from the judgment of a justice of the peace, refusing to quash an execution against him. His motion to quash alleged that the judgment on which the execution issued had been paid. The response of the execution creditor denied the alleged payment, and the issue thus formed was by consent tried in the Circuit Court by a jury.

M. R. Baker, Special Judge. Freeman brought this action against Watkins and Fancher upon a promissory note executed by them for the price of a town lot, sold by Freeman as Sheriff upon a credit of three months, and purchased by Watkins. The sale was made under an order of the Circuit Court, for the satisfaction of a judgment recovered in a suit in which the lot was attached, and the attachment sustained. The judgment below was for the defendants, and the plaintiff appealed.

J. M. Pittman, Judge. Motion to retax costs, quash execution, etc. For original opinion in case, see ante, p. 266. On the affirmance of the judgment rendered against the appellant in the court below, a judgment was entered here against him, and the sureties on his supersedeas bond for io per cent, damages. The Clerk also taxed as part of the costs, in this court an attorney’s fee of $20, to be paid to the Prosecuting Attorney, and $5.57 for printing the appellee’s brief.

John A. Williams, Judge. 1. The plaintiffs had a right to seize the property in controversy notwithstanding the levy of the attachment of the interpleader. For definition of “possession,” see Abbott, L. D., in loco; x Rose. Cr. Ev., *'413; 42 Vt., 493. -An attachment does not cut off the vendor’s right to enforce his claim. Mansf.

•J. M. Pittman, Judge. I. The issuing of duplicate warrants with the word “duplicate” written across their face, was not such an acknowledgment as will take the case out of the statute. Mansf. Dig., sec. ‡‡93; 45 Ark., 408; p id., 455; 40 id., 134; 12 ib., gpg; ib., 362; 26 id., 340; 1 Peters, 331; 8 Cranch., 32; 8 Wheat, 3 op; 1 Harding {Kyi), 301; 1 Bibb {Kyi), 443.

CROSS APPEALS from Yell Circuit Court in Chancery. G. S. Cunningham, Judge. 1. The appellees should be postponed in the distribution •of the assets to the rights of appellants to the extent of the purchase money due upon the goods identified by them in the Lands of the receiver. Ch. g6, subd. i, Mansf. Dig.; Taylor v. Mississippi Mills, 47 Ark.; 2 Story Eq. Jtir., secs. I2ig, 1220-1; 10 N. W. Rep., goo; 4 Atl. Rep., igo, note; 23 Wend., 372. 2.

R. B. Rutherford, Judge. t. The appellee elected to take, and did take under the will of Aaron, and thereby lost any right she had as heir, if Pick., 303; 77 Pa. St., 160; 84. id., 402; 34 Cal., 20f; 63 III., 283. The question of election was not in issue, nor decided, in the former case. 2. The court erred as to the interest in the lands which appellee was entitled to under our statute of descents — making the calculations to verify the proposition. 3.

John A. Williams, Judge. 1. Appellee could not attack the judgment of the Desha •Circuit Court in this collateral proceeding, ig Ark., 421; 20 .id., gi. 2. The evidence fails to establish that the first deed to Jones was an escrow. 3. The cancellation of the deed from Brown to Jones did not divest the legal title. 21 Ark., 80. 4. The conveyances were clearly in fraud of creditors.

C. E. Mitchel, Judge. W. B. Crouch, administrator of the estate of Helen M. Edwards, deceased, filed his petition in the Probate Court of Miller County against W. B. Edwards, administrator de bonis non of the estate of Thomas J. Edwards, deceased, praying for an order directing said administrator de bonis non to pay over to said petitioner a balance alleged to be due on the dower of said Helen M., in the personal estate of said Thomas J., she .being his widow.

R. D. Hearn, Judge. This is a suit in equity, brought by the State for the use of Sevier County, against Henry C. Pride.

J. E. Riddick, Judge. 1. Sec. 6206 Mansf. Dig. was amended by Acts 1887, p-231, by changing the time from ten days from October 15th to ten days from the May meeting. Rodery having been notified of his election, and having accepted the office, was sworn in to succeed Baker. This May meeting is clothed with authority to count the ballots and notify any elector of his. election as director. 43 Ark., 413 ; Mansf. Dig., secs. 6224 — 6. Rodney was at least director de facto. p Am.

M. T. Sanders, Judge. 1. Prima facie, where a passenger is injured without fault of his own, there is a legal presumption of negligence, which the railway company must rebut. 3‡ Ark., 613. The testimony shows beyond question that the appellant was guilty of no negligence.

D. W. Carroll, Chancellor. This suit was brought by the St. Louis, Iron.Mountain and Southern Railway Company against R. W. Worthen, as Collector of Pulaski County, and others, to enjoin the collection of taxes levied upon the company’s railway “track” and “rolling stock” in the various counties through which its road extends.

Robert Toomer, Special Judge. Suit in equity by certain inhabitants and tax-payers of the 'Town of Russellville, against appellants, the Mayor, Aider-men and Treasurer of that place, to enjoin the payment of a certain order upon the Treasurer, and to have restitution of certain moneys paid out. A temporary restraining order was granted.

George S. Cunningham, Judge. 1. Mrs. Harris, a married woman, was entitled to her chattel exemption of $500. Sec. 2. art. g, Const., ‡6 Ark., ifg. 2. It was incumbent on appellee, who attacks the sale, as made to defraud creditors, to show that if it had not been made, the goods would have been subject to seizure and sale on execution, for if not, Harris’ creditors were not injured or defrauded.

APPEAL frpm Lee Circuit Court. M. T. Sanders, Judge. Becker, as administrator of M. Kohn, deceased, appealed from a judgment of the Probate Court, allowing a claim against the estate of his intestate in favor of Nunnally. The claim was for money alleged to have been deposited with the deceased and converted by him to his own use.

J. B. Wood, Judge. J. H. Nichols having filed in the Probate Court his claim against the estate of J. H. Law, deceased, died before it was heard and determined.

.APPEAL from St. Francis Circuit Court in Chancery. M. T. Saunders, Judge. J. J. Evans, of the firm of Collins & Evans, sold the drug store of said firm to his father, H. Evans. Feucht and others •who had obtained judgments against the firm, brought this suit to set aside the sale on the ground that it was made to defraud • creditors. J. J. and H. Evans filed separate answers, denying the alleged fraud.