Volume 53 — Arkansas Reports

M. T. Sanders, Judge. Goodbar, Love & Co. sued M. B. Woodyard & Co., a firm composed of M. B. Woodyard and James L. Worthley, upon a partnership account, and filed an affidavit alleging that the defendants had removed their property, or a material part thereof, out of the State, not leaving enough to satisfy the claims of their creditors.

urt. John A. Williams, Judge. Hester Herrington presented to defendant, the administrator of the estate of R. G. Davis, deceased, a claim for taking care of Willie Davis, a minor child, by contract, for the period of five years at $3.00 per month, amounting to $180.00, and for interest thereon at six per cent, amounting to $32.58. After disallowance by the administrator, the claim was allowed by the probate court and the defendant appealed to the circuit court.

J. B. Wood, Judge. The plaintiff Hall s.ued the St. Louis, Iron Mountain and Southei-n Railway Company, alleging that while traveling in a wagon and passing over defendant’s track at a public crossing in Saline county, Arkansas, the employes of defendant in charge of one of its engines then standing on the track at or near said crossing unnecessarily, wantonly and willfully caused the steam to escape from the engine in such manner as to frighten the mules plaintiff was…

The order for the removal of the property from the Indian Territory was made in pursuance of proper authority. Rev. St. U. S., secs. 2052, 2058. The presumption is that officials do their duty, 25 Ark., 311; 31 Ark., 609.

J. M. Pittman, Judge. Plaintiffs, citizens of B'ayctteville, Arkansas, sued the defendant, the Pacific & Great Eastern Railway Company, in substance alleging that, by fraudulently and falsely representing itself to be solvent and able to build .a railroad, by promising to establish a depot and machine shops within the corporate limits of Fayetteville, and by promising within a stated period of time to construct and equip a railroad from B'ayetteville to the Madison county…

<p>1. Chattel mortgages — Where recorded — Counties having two districts.</p> <p>Under the special act o£ March 12, 1883, creating two districts in Carroll county, a mortgage of personalty recorded in a district other than where the mortgagor resides is not a lien on such property, as against a subsequent mortgage on the same property recorded in the district where the mortgagor resides.</p> <p>2. Delivery of deed to clerk — Presumption.</p> <p>Delivery of a deed in one district of a county to the clerk without instruction vs prima facie delivery to be filed in the district where delivered.</p>

<p>APPEAL from Benton Circuit Court.</p> <p>J, M. Pittman, Judge,</p> <p>E. S. McDaniel for appellant.</p>

H. B. Stuart, Judge. Appellee filed a complaint alleging that he was the owner of valuable improvements upon certain land for which appellant had received a certificate of donation from the State Land Commissioner on or about January 1, 1880; that appellant had failed and refused to pay him double the value of said improvements; and he therefore prayed for judgment for such double value, ■ Appellee did not allege that he owned the land upon which the improvements were made.

R. D. Hearn, Judge. The offense charged in the indictment is a felony. Mansf. Dig., sec. 1567. Circuit courts have exclusive jurisdiction of felonies. Justices of the peace have no jurisdiction of felonies, except to sit as examining courts. Const., art. 7, sec. 40. The justice had no authority to “adjudge” the defendant not guilty, or to discharge him from further prosecution. 38 Ark., 550; 42 Ark., 270; 33 Iowa, 525; 55 Iowa, 531.

M. T. Sanders, Judge. Jones sued the St. Louis, Iron Mountain and Southern Railway Company for killing a colt in White county, valued at $1,000.00. Before the trial defendant moved to suppress certain parts of the depositions of witnesses who resided at Leslie, Michigan, tending to prove the value of the colt at that place. The testimony was excluded. Subsequently plaintiff showed that there was no adequate local market for such an animal at the place of killing.

J. W. Butler, Judge. The deed was never accepted by nor delivered to the railroad company, and it is not bound by its stipulations. Ewing was the agent of the appellee, and notice to him was notice to the appellee, that the company declined to accept the deed. Ewing was the agent of the railway company. The deed was delivered to Thompson, the right of way agent of appellant, and was never returned, nor was appellee ever notified that the company declined to accept.

John S. Little, Judge. 1. Isabella Shumard was never appointed guardian by any legal court, or by any clerk of any court in vacation. The law under which she claimed to act is found in ch. 81, Gould’s Dig., secs, 1, 2, 9, 10, 12, 28, etc. There could be no legal court.held on July 18, 1870, and as a probate court for the Fort Smith district, it never in law had an existence. Gould’s Dig., ch. 49, p. 316; acts 1861, p. 432-4.

J. E. Cravens, Judge. Appellant'was indicted for murder and convicted of manslaughter. He offered to testify that his wife had told him that deceased had tried to persuade her to poison him; also that she had told him of her adulterous connection with deceased. The court over his objection excluded this testimony.

George A. Grace, Special Judge. 1, The only point in this case is whether or not appellees were “the procuring cause of the sale.’’ Where negotiations are broken off in good faith, and a sale is afterwards made between the same parties, without the intervention of the broker, he is not entitled to commissions. 33 Ark., 448. “The procuring cause of the sale’’ is equivalent to “the immediate and efficient cause of the sale.’’ 54 Pa. St., 394; 61 Pa. St., 415; 63 Pa.

' C. D. Wood, Judge. Courts of equity do not reform contracts of married women. 39 Ark., 120; 17 Ohio, 185; 10 Ohio, 305; 27 ■Conn., hi; Oliphint’s Digest, 264. In case of a clear mistake, equity will reform a married woman’s deed, executed in pursuance of the provisions of the statute. The remark of Judge Smith in 39 Ark., 120, is obiter dictum. The cases cited by appellants were all cases of defective execution, because of failure to comply with the statute.

John S. Little, Judge. The St. Louis and San Francisco Railway Co., a corporation organized under the laws of Missouri and owning a continuous line of railroad from St. Louis, Mo., to Paris, Tex., running through the counties of Benton, Washington, Crawford and Sebastian in the State of Arkansas, and the Fort Smith and Van Burén Bridge Co., a corporation organized under the laws of Arkansas, brought suit against John F. Williams, collector of Sebastian county, to determine…

B. F. Askew, Judge. Appellant Beasley was surety on a bail bond for one Grant ■Capehart in Columbia circuit court upon a charge of perjury. Upon the application of1 Capehart, a change of venue to Ouachita circuit court was granted, the court directing that Capehart be held upon his present recognizance for his appearance before said court. During the trial Capehart absconded.

<p>APPEAL from White Chancery Court.</p> <p>D. W. Carroll, Chancellor.</p> <p>Appellants in 1882 purchased of appellees certain lands for which they agreed to pay $600.00, to secure which pay-men t they gave notes secured by a mortgage on the lands. Upon default in the payment of the purchase money, the trustee foreclosed the mortgage and sold the land to one of the appellees for the sum of $250.00. Within apt time appellants brought suit in equity to redeem said lands, tendering the amount bid thereon, with ten per cent interest and the cost of sale, amounting to $291.20. The court sustained a demurrer to the complaint.</p> <p>The act of March 17, 1879, provides that real property sold under mortgages or deeds of trust “may be redeemed by the mortgagor at any time within one year from the sale thereof, by payment of the amount for which said property is sold, together with ten per cent interest thereon and cost of sale.”</p> <p>1. Under the act of March 17, 1879, a mortgagor has a right to redeem lands sold under a mortgage given for the purchase money. The proviso dispenses with appraisement, when the mortgage is for purchase money. But the right to-redeem is given in all cases.</p> <p>2. The last provision of an act must control and govern the meaning, and when it is repugnant t,o the main body of the act, the proviso shall stand as it speaks the last intention, of the law-makers. Sedg. on Stat. and Const. Law, p. 62.</p> <p>3. The mortgagor had the right to redeem on paying the amount of purchase money, interest and costs. 40 Ark., 275.</p> <p>1. The provisions of the act of 1879 do not apply to sales for the purchase money. The rule of construction is that where the will of the legislature is clearly expressed, the courts should adhere to the literal expression of the statute,, without regard to consequences. 24 Ark., 487; 52 Ark., 420..</p> <p>2. But if the act does apply, before appellants can redeem, they must pay the full amount of purchase money due, with interest and costs. Jones, Mortg., sec. 1075; 14 Wall., 490; 4 Paige (N. Y.), 58; 14 Ill., 263; 6 Mich., 523.</p>

C. E. Mitchel, Judge. In October, 1887, Langsdale, a resident of Texas, brought suit against Griffith, a resident of Arkansas, in a justice’s court in Texas on an account for $106.42. A non-resident citation addressed to Griffith was issued and returned as served in Miller county, Arkansas. A writ of garnishment was issued against the St. Louis, Arkansas and Texas Railway Co., a company residing in Texas, and returned served.

R. D. Hearn, Judge. Gray & Clem, merchants, made a general assignment of all their property for the benefit of their creditors.

D. W. Carroll, Chancellor. 1. Brodie is shown to have been interested as a partner, land the preference to him was a fraud upon creditors. Moreover, Brodie’s assets were not turned over to the assignee. [46 Ark., 405. 2. The assignors withheld firm assets. 46 Ark., 405 ; |Acts of 1887, p. 194. 3. The assignment was executed for the purpose of evading the assignment laws of the State.

John S. Little, Judge. 1. The assignment is a partial one, and contains preferences and is void. 4 Ark., 303. 2. Before the assignee shall be entitled to take possession, sell, manage or control the property assigned, he shall make and file his bond and inventory. Where the assignors, cither in the assignment, or by contemporaneous agreement, delivered possession of the assigned property to the assignee, it vitiates the deed. 37 Ark., 64; 39 Ark., 68; 24 Fed.

C. PL Mitchel, Judge. Action of forcible entry. — The Hamilton brothers sold to Dismukes the land, the possession of which is in controversy. Lee leased the land from Dismukes. Afterwards, but before delivering possession to Lee, Dismukes rescinded his contract of purchase and surrendered the land to the Hamiltons who placed their agent, Roberts, in possession. By means of threats and force Lee obtained possession from Roberts.

M. T. Sanders, Judge. Shoecraft in March, 1885, sued defendant railway company for killing his stock in September, 1883. The statute provides that such suits shall be brought within twelve months after the killing occurred. Mansf. Dig., sec. 5340.

R. B. Rutherford,'Judge. Action in the name of the State, for the use of Cotton & Perry, against Atkinson and others, sureties on the official bond of H. J. Falconer, deceased, late sheriff of Sebastian county, to recover damages (1) for the neglect or failure of said sheriff to sell certain attached property seized by him under process and condemned by order of court to be sold; and (2) for the failure of such officer to safely keep such property.

M. T. Sanders, Judge. The three instruments constitute an assignment. 28 N. W. Rep., 380; 66 Wis., 227; 8 Iowa, 103; 52 Iowa, 518; 3 N. W. Rep., 524; 11 S. W. Rep., 962-964. The immediate delivery of possession without inventory and bond was sufficient to annul the deeds. Mansf. Dig., sec. 305; 37 Ark., 64; 24 Fed. Rep., 460; 24 Fed. Rep., 465. • The deeds were void because they provided for a disposition of the property in disregard of law. Mansf.

J. E. Riddick, Judge. Mollie Head had no dower interest, the property was her separate estate, and if any validity is attached to the deed of trust, it must pass her title. Deeds are most strongly construed against the grantor. The deed conveyed all the interest Mollie Head had. Si Ark., 420; 43 Ark,, 160; 43 Ark., 29. No apt words of conveyance were used to convey Mollie .Head’s separate estate. She did not join in the operative words of the grant, 42 Ark., 357; 3 Wash.

John A. Williams, Judge. The order confirming the sale made March io, 1887, had become final and passed beyond the control of the court after the lapse of the term at which it was made. 33 Ark., 454; 35 Ark., 123; 23 Ark., 601. None of the grounds mentioned in sec. 3909, Mansf. Dig., are shown. In all judicial sales the court is the vendor, and it has the right to reject or confirm the sale. 20 Ark., 652; 23 Ark., 39; 32 Ark., 391; 49 Ark., 67; Rorer, Jud.

<p>Payment of taxes — Sufficient description of land — Forfeiture under another description.</p> <p>When an assessor describes land upon the assessment books in such manner as to identify it, payment of taxes under such description renders. a subsequent forfeiture of same land for taxes of same year under another description illegal and void.</p>

C. E. MITCHEL, Judge. There was no agreement that the draft should be taken a absolute payment; it was only a conditional payment, an the worthless exchange sent by the bank was not a paymen Tiedeman on Com. Paper, sec. 379; 32 Ark., 740; 45 Ark., 313. See also Randolph, Com. Pap., sec. 1548. By , sending a draft through'the mail to the bank on which it is drawn, the sender does not constitute the bank his agent to receive the proceeds. Tiedeman on Com.

M. T. Sanders, Judge. 1. The first cause of action was based upon sec. $223, Mansf. Dig, The court ruled that only one cause of action accrued for an injury resulting in death, and the later act of 1883, giving the cause of action set out in sections 5225 and 5226, repealed the former action given by section 5223. We submit that this was error.

R. H. Powell, Judge. Williamson sued Cockrum in the court of a justice of the peace for damages for a trespass. There were no written pleadings.

J. E. Riddick, Judge. In 1882 Dunavant bought a mule from Grandison Boyd. Before delivery of possession, the mule was replevied from Boyd by Jefferson. The replevin suit was decided in favor •of Boyd. Jefferson then sued on a note given for the purchase money of the mule and obtained an order of attachment to enforce his vendor’s lien on the mule. Dunavant intervened, claiming the property under his purchase.

John S. Little, Judge. Smith & Co. sued James in replevin for three wagons. Defendant denied title in plaintiffs. The cause was submitted to the court sitting as a jury.

Francis Circuit Court. M. T. Sanders, Judge. Suit by Sallie Slaughter and others, heirs of Edwin Jones, deceased, against D. M. Wilson, trustee under a mortgage, John I. Jones, one of the heirs of Edwin Jones, and Philander Littell, execution purchaser of the distributive share of John I. Jones in the estate of Edwin Jones, to settle the right to a one-third share in a fund in' the hands of the trustee belonging to said estate and claimed by plaintiffs and by defendant,…

John S. Little, Judge, Reynolds Bros. were indebted to Deere, Mansur & Co on certain notes.

B. J. BROWN, Special Judge. If appellee voluntarily executed the deeds, without a promise that J. E. Watson would not be prosecuted,, for the urpose of securing $1,500.00, even though they did not reeive any of the money, the deed is binding, Tiedeman on eal Prop., sec. 801. The promise not to prosecute is not roven.

D. W. Carroll, Chancellor. One member of a partnership cannot obtain and retain a secret advantage over his partners. The utmost good faith is required in all their dealings. 1 Bates, Part., sec. 304; 14 Beav., 250; 1 Mac. & G., 294; 64 Pa. St., 43, 50.

G. S. Cunningham, Judge. At the spring term, 1888, of Yell circuit court, Weed, Parsons & Co., publishers at Albany, N. Y., sued Dyer & Hallum on an acceptance for $800, given in part payment for printing and binding 1000 volumes of a book for Hallum.

J. W. Martin, Judge. The judgment of the court below was contrary to the evidence. Every individual case of alleged bulldozing was entirel disproved. In nearly every township and ward where intim idation and bulldozing is alleged, contestee sought to estab lish it by some negro who is a cross between a political bum mer and a “licentious” preacher.

Carroll D. Wood, Judge. Ejectment by Smith against Hudson and Halliday to recover certain lands. The complaint alleged these facts: The lands belonged to Todd. Under a judgment against Todd, Halliday caused the lands to be sold under execution. 'They were purchased on credit by Eveline Bolivar, a married woman, who executed her bond for the payment of the purchase money, as provided by section 3056 of Mansfield’s Digest, giving Todd as her security.

J. E. Riddick, Judge. The affidavit for the warning order was upon belief only, when it should have been upon the knowledge of the affiant. Mansf. Dig., secs. 4989, 5°S5) e<;c- The judgment was void. 25 Ark., 541; Mansf. Dig,, sec. 5201; 30 Ark., 718.

John S. Little, Judge. The right of exemption being purely a gift, a debtor must comply with the statute strictly. The statute is mandatory. Mansf. Dig., sec. 3006; 49 Ark., 116. The law requires a showing under oath of all the debtor’s-property. The affidavit in this case alleges only that the land claimed is all his real estate. It is fatally defective. 49 Ark., 116; 47 Ark., 400; 42 Ark., 175; 40 Ark., 352.

George A. Grace, Special Judge. Contended: I. That the deed executed by Dell was an efficient means of executing the power contained in the mortgage, if such was the intent. 2. That the intent to execute the power may be manifested, and will be presumed, when the instrument cannot have full operation and effect otherwise than as an execution of the power. 3.

J. M. Pittman, Judge. 1. The statute of limitations never runs against a fraud, especially in a trustee. Kerr on Fraud and Mistake, p. 51; 1 Mer., 436; 9 L. J. Ch., 208. Nor is the statute always a bar in equity. 5 Pet., 485; 24 Wend., 587; 4 Corr., 717. Courts of equity consider as done what ought to be done.

C. E. Mitchel, Judge. 1. Where property has been ordered, and the party on whom the order is drawn consigns it to the party making the order, by delivery to a common carrier, in response to the order, the contract of sale is complete and the property passes to the consignee. 43 Ark., 453 ; 44 Ark., 556. 2. If the laborers had a lien, and appellee succeeded to it, it cannot be enforced in this action. 3.

J. W. Martin, Judge. The injury was the result of unavoidable accident, and the company is not liable. 37 Ark., 562; 41 Ark., 157; 37 Ark., 593; 39 Ark., 413; 36 Ark., 607. Section 5478, Mansfield’s Digest, makes railroads liable for damages for failure of the engineer to comply therewith. Sh. & Redf. on Negligence, 485 a.

J. E. Riddick, Judge. There was no evidence showing when the sale commenced, and in the absence of evidence to the contrary it will be presumed to have commenced on the proper day. Black on Tax Titles, sec. 93; 36 Wis., 308; 37 Iowa, 68. The collector had the right to adjourn the sale from day to day. Acts 1883, p. 266, sec. 129. But if the sale was made on a day not provided by law it was cured by sec. 154, Rev. Act, 1883. 62 Miss., 433. 1.

<p>APPEAL from Sebastian Circuit Court in Chancery, Fort Smith District.</p> <p>John S. Little, Judge.</p> <p>Appellant Barnes and another, citizens and tax payers of Fort Smith, sued appellees, Williams as mayor, Hamilton as clerk, and Davis as treasurer, of Fort Smith, a city of the first class, to restrain them from paying to J. C. Peel, city attorney, any compensation for his services as such'during the term for which he was elected, in excess of the amount to which he was entitled under the ordinance in force when his term began. A temporary restraining order was made at the inception of the suit, but was dissolved on final hearing.</p> <p>1. The city attorney is an officer within the meaning and intent of sec. 926, Mansfield’s Digest. Mansf. Dig., sec. 796; 33 Ga., 332; 23 Mo., 22; 8 Cal., 39; 6 Wall. (U.S.), 385; 29 Ohio St., 3431 30 Gratt., 33 and 35.</p> <p>2. The change to a city of the first class did not invalidate the ordinances in existence, but the same remain in full force and effect until repealed. 38 Kan., 368; 31 Pa. St,, SIS-</p> <p>3. The city council cannot increase the salary during the term of office of any city officer. Mansf. Dig., sec. 926; 50 Ark., 81; Endl. Int. Stat., 716, note 3; 50 N. J, Law, 43; 13 Atl. Rep., 30; 11 Cent. Rep., 567; 7 All. Rep.,> 723.</p> <p>1. The changing of a corporate charter is strictly analogous to the adoption of a new constitution by the State. The previous laws of a general nature remain in force, unless otherwise provided. The old officers go out, and are succeeded by new ones, with new powers, new emoluments and new duties, provided by the new instrument or by new laws. The new corporation selects its officers and fixes their duties and compensation. Nor has this principle been changed by Mansfield’s Digest, secs. 727, 728. Peel was elected by the new council, and his salary properly determined by it.</p> <p>2. A city attorney is not a public officer. His relation is that of attorney to ,a client — the city. Mcchem on Officers, secs. 1,2; 103 U. S., 5 ; 99 U. S., 508; 124 U. S., 303; 124 U. S., 525; 52 N. Y.,478; 11 Am. Rep., 734; 89 N. C., 133; 45 Am. Rep., 677; 21 Ohio St., 14; 8 Am. Rep., 24; 45 Ill., 397; 86 N. C., 235. A person who has work to do, but no official power is an agent or employe and not an officer. Mechem on Officers, supra.</p>

<p>1. Railway — Board of employes — Roadmaster’s authority.</p> <p>It is not incident to the operation of a railway company to board its employes; nor is it within the apparent scope of a roadmaster’s authority to bind the company to pay for the board of employes.</p> <p>2. Agent’s authority — Assent of principal.</p> <p>The authority of an agent to bind his principal in matters outside the apparent scope of his authority is not established by proof that the agent has frequently so acted, unless it be proved, or the circumstances justify the inference, that the person to be charged as principal assented to such acts.</p>

J. E. Cravens, Special Judge. 1. The court should have arrested the judgment, for, after the filing of a proper petition properly sustained for change of venue, the Yell circuit court had no further jurisdiction, for the duty of the court was plain and admitted of no discretion.

C. E. MlTCHEL, Judge. Sprott sued the New Orleans Insurance Association upon a policy of insurance. The facts appear in the opinion. The following are the instructions referred to therein.

G. S. Cunningham, Judge. The defendant had the exclusive management and control of the estate, and manipulated it to suit his own personal interests. He filed no inventory. He failed to charge himself with assets that came to his hands; he has taken double credits, and credits to which he was not entitled.

John S. Little, Judge. The justice had no jurisdiction. Nothing was filed except a note endorsed paid in full, upon which plaintiff appeared as a co-maker with defendant. Mansf. Dig., secs. 3900, 4036, 6402; Ark. Justice, sec. 254; 6 Ark., 182; 16 Ark., 371; 23 Ark., no; 6 Ark., 41; 7 Ark., 403; 9 Ark., 481; 10 Ark., 226.

J. B. Wood, Judge. 1. The license to Peyton was not a contract, but a temporary permit to do what otherwise was an offense. 61 Iowa, 672; 17 N. W. Rep., 47; 34 N. Y., 657; 5 Gray, 597; 103 Mass., 70; 35-Ark., 414, 424; 12 Tex. App., 541, 549; Burroughs, Tax., sec. 78; 2 Bouv. L. D., “License.” Appellant was personally bound by the judgment. McCullough, ex parte, 51 Ark., 159; 10 S. W. Rep., 259.

R. U. Hearn, Judge. 1. The deed in this case was granted under act of March 14, 1879 (Acts 1879, p. 70), and was matter of grace upon part of the State, and the conditions must be strictly complied with. 47 Ark., 199, 202. 2. Hamiter, being the tenant of Hawkins and in possession under him, could not attorn to appellee, or dispute Hawkins’ title. The policy of the law forbids this. 45 Ark., 177, 196; 43 Ark., 28; 33 Ark., 195, 201; 27 Ark., 50.

J. M. Pittman, Judge. Jennings brought ejectment against Carter to recover a certain tract of land, being Carter’s homestead and situated a mile and a half from Fayetteville. The testimony showed that there were three judgments against Carter, one in favor of Rudolph, another in favor of Vernon & Skillern and a third in favor of Jennings.

M. T. Sanders, Judge. Reviews the different acts concerning the hiring of convicts, and contends that under the act of 1877 the county judge could make a valid contract for the hire of convicts, and that this act has not been repealed by any of the subsequent acts. Mansf. Dig., secs. 1213, 1214, 1226, 1245, 1237, 1227 to 1230, etc.; 37 Ark., 437. Acts upon the same subject -are construed together. 5 Ark., 349; 3 Ark., 556.

J. W. Martin, Judge. Appellant perfected an appeal to this court in a case where he was plaintiff and appellee defendant. Appellee sued out a writ of certiorari to procure the original skeleton bill of exceptions. Subsequently appellant filed a petition in the court below which stated that, in the bill of exceptions-taken in said appeal, the instructions were not set forth with certainty, and prayed that it might be amended by inserting the original drafts of them.

M. T. Sanders, Judge. 1. If the subsequent changes in the constitution of the order did not control the language of the certificate, still under the designation of heirs, the widow was entitled to one-half the amount. The word heirs has á different signification when used in reference to real and personal property. When lands are in question, heirs mean those who would take at common law or by the statute of descents.

J. W. Butler, Judge. 1. The rule of practice in equity cases is that the whole evidencé will be sifted, and this court determines what the findings of the chancellor should have been, upon such evidence as was competent and proper, with due deference to the findings of the chancellor where the preponderance is nice. 43 Ark., 307; 41 Ark., 292; 44 Ark., 206; 34 Ark., 212. 2.

W. S. Eakin, Special Judge. Plaintiff Nichols brought unlawful detainer against Trible for the possession of a tract of land, relying upon a deed from Oglesby, who held a deed from defendant.

R. D. Hearn, Judge. Smith sued the Arkansas and Louisiana Railway Company in Howard circuit court. A change of venue was taken to Clark circuit court.

J. E. Riddick, Judge. Howell conveyed the fee in certain land which he owned to Pickett, but his wife did not join therein nor relinquish her dower. Subsequently Howell mortgaged the same land to secure an indebtedness to Smith, his wife relinquishing dower. Howell died. Smith sued Pickett and Mrs. Howell, stating the foregoing facts and that Pickett was in possession of the land, and asked that Mrs. Howell’s dower be assigned and sold to pay the secured indebtedness.

M. T. Sanders, Judge. 1. This suit grew out of a contract, and the amount in controversy being less than $100, the court had no jurisdiction. Const., art. 7, sec. 40; 18 A. & E. R. R. Cas., 502. 2. The contract was entire and indivisible, and the lien for freight extended to each article, and the company could not be forced to accept a portion of the freight charges and deliver a part of the goods. A tender of part was inoperative. 5 Mass., 365; 29 Iowa, 480.

G. S. Cunningham, Judge. Appellant had a right to intervene in this cause. Art. 7, sec. 51, Const. 1874. In this case there was an allowance of $8,000, and $1,000 ordered to be paid in advance. The county judge is a trustee. 50 Ark., 447. Any evidence which tended to show an abuse of discretion was competent. A judge’in vacation has no authority to make contracts. Appellant had no right to intervene or appeal.

J. W. Butler, Judge. Levi Hecht sued Serena Skaggs to compel her, as devisee •of her father, James Russell deceased, to make contribution as between co-sureties.

J. B. Wood, Judge. Louise Corege sued Smith on an account for $150.00, money had and received, and $10.00, the costs oí a suit wherein she was plaintiff and W. H. Hite, defendant. The facts were as follows: Smith negotiated a loan of $140.00 from Dr. A. U. Williams to W. H. Hite, evidenced by a note for that amount, bearing ten per cent interest, secured by a mortgage on realty. Before the note was delivered to Williams, Smith endorsed it.

D. W. Carroll, Chancellor; The appellants’ complaint alleged that they were residents of a sewer district in the city of Little Rock, and owners of land lying therein, and that they constituted a board of improvement for that district; that they sued in behalf of all other persons owning lands in the district; that said sewer district had been created under the laws of Arkansas for the purpose of making sewers therein; that it embraced a large number of blocks in the city of…

M. T. Sanders, Judge. Action in name of the State, on the relation of T. B. Luck, guardian, and the four minor heirs of W. M. Walkup, deceased,… Held: no more, no less. The homestead was subject to the debts enumerated in article 9. The case of Gilbert v. Neely, 35 Ark., 24, is conclusive. This decision was made under the constitution of 1868, but the provisions of the constitution of 1874 are substantially the same. The case properly transferred to equity. 38 Ark., 557.

J. W. Martin, Judge. The court erred in sustaining the demurrer to the original answer, and in striking out the second paragraph of defendant’s amended answer. It was insisted that the former action was in form ex contractu, while in this case it is ex delicto; and for that reason the former judgment could not be pleaded as res adjitdicata. Such is not the law. Under our system, forms of action are abolished (Mansf.

J. W. Butler, Judge. By the common law, if a stream was not navigable, the riparian owners took usque ad medium filum aquas.” If navigable, his title stopped at the bank at high-water mark; low-water mark was never recognized as a boundary. In navigable waters, the State owns the bank and beds of streams. Woolrych on Waters, 40-44; Angell on Tide Waters, 22-24; 9 Conn., 40; 3 Iowa 54; 6 N. Y., 522; 33 N. Y., 461; 94 U. S., 325; 3 Howard, 27, 220.

M. T. Sanders, Judge. Appeal from a judgment of the circuit court sustaining an attachment. The court found the facts as stated in the opinion and held that they justified the inference of fraud. 1. The proof did not warrant the court in sustaining the attachment. The burden was on plaintiffs to establish by a preponderance of'testimony the truth of some of the grounds of attachment sworn to by thei£ agent, Hunt. Mansf. Dig., sec. 381.

G. S. Cunningham, Judge. 1. It is not denied that appellants were not parties to the Perry county suit, nor was proven that they had any notice of said suit. No one ought to be condemned without being heard; no one is bound by a judgment to which he is not a party. 24 Wend., 56-7. 2.

H. F. Thomason, Judge. The indictment should have been quashed; it does not charge appellant with corruptly or willfully allowing the claim without the affidavit required by law. A judge of a court cannot be convicted for any erroneous or wrong decision, unless he corruptly decides a matter. 36 Ark., 268. Appellant was merely judge of a court of superior jurisdiction. Const., art. 7, sec. 28; Mansf. Dig., secs. 1407, 1412.

J. B. Wood, Judge. Section 1755 is from the acts 1874-5, P- 15°, and its object was to advise grand juries and others interested as to what misdemeanors had been tried by inferior courts. Section 5862 is part of the revenue act, and its object was to insure the collection of fines, etc., imposed by inferior courts. Secs. 215, 218, rev. act, 1883. There is no repugnancy between the two acts, and the law does not favor repeals by implication. 41 Ark., 149; 50 Ark., 133.

<p>ERROR to Drew Circuit Court.</p> <p>Carroll D. Wood, Judge.</p> <p>This was an indictment against a justice of the peace for non-feasance in office. It charged that the said Henry Lewis, in the county and State aforesaid, on or about the 1st day of August, 1889, being then and there the apportioning justice of the peace in and for the township of Bartholomew, county and State aforesaid, having been by the county court of said county of Drew, at its January term, 1889, appointed such apportioning justice of said Bartholomew township, and having been served with a written notice of such appointment by the sheriff of Drew county, as the law directs, did unlawfully fail and refuse to appoint and apportion, within thirty days after the written notice of his appointment as such apportioning justice by the county court as aforesaid, the hands on road district No. 8, in Bartholomew township, in said county, subject to the road duty and not apportioned to any other road district, and give a list of the hands so apportioned to the said Jones as road overseer, and file a copy of ■said list of hands in the clerk’s office of said county of Drew, as the law requires, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.</p> <p>The defendant demurred to the indictment because it •charged no public offense, and because, by section 5925 of Mansfield’s Digest, the county court had exclusive jurisdiction of the subject-matter.</p> <p>The court sustained the demurrer. Appellant excepted and appealed.</p> <p>The circuit court has exclusive jurisdiction of all misdemeanors, except where concurrent jurisdiction has been conferred upon justices of the peace or corporation courts. Const., art. 7, secs. 40, 43; 37 Ark., 431; 32 Ark., 241; 34 Ark., 188; 45 Ark., 387; 11 S. W. Rep., 882; Const., art. 7, secs. 11, 27.</p> <p>Section 5295 was necessarily repealed by the adoption of the constitution.</p> <p>Where a duty is imposed by statute or common law, the •official violating it is by law indictable and punishable as for a misdemeanor. 2 Swan., 57; 5 Mod., 179; 35 N. H., 232; Bish., Dir. and Forms, sec. 683; Bish., St. Cr., sec. 138.</p> <p>The duty was a ministerial one, and it was not necessary to allege that it was done “corruptly” or “willfully.” 2 Bish., Cr. Law, sec. 976; 3 Park., Cr. Rep., 173 ; 77 N. C., 506; 37 Ark., 426; 28 Ark., 207; 37 Ark., 439.</p>

J. B. Wood, Judge. Appellee was indicted for keeping a public tavern without having procured a license from the county court. The case was submitted to the court upon an agreed statement of facts: “That the defendant kept a house of entertainment within the incorporate limits of the city of Hot Springs, Garland county, Arkansas, without a license from the county court of said county therefor.

M. T. Sanders, Judge. The whole transaction was but a cover fora usurious loan, and was void in its inception, and hence always void. Appellee’s deed was a cloud upon the title which should have been removed. Const., 1874, art. 19, sec. 13; 41 Ark., 331; 47 Ark., 287. The contract was absolutely void, and available for no purpose. Tyler on Usury, 381. And it can never be rendered valid by the subsequent acts of the parties. Tyler on Usury, 385-6-7.

G. S. Cunningham, Judge. 1. There must be some evidence of negligence on the part of the company, either in providing improper materials, or in suffering materials or structures, over which it has control and which have become defective, to remain in use. 119 Mass., 412; 91 Ill., 474; 92 Ill., 139; 44 Ark., 529; 46 Ark., 555 ; 41 Ark., 382. 2.

J. E. Riddick, Judge. 1. The “iron safe clause” was a warranty, and not merely a representation, and must be strictly complied with, or the policy is void. Wood on Ins., secs. 192, 179, 190; May on Ins., 1 and 2, secs. 156, 183, 179, 157, 184. Warranties must be true, whether material or not, ubi supra. 2. The assured did not comply with said clause. He did not keep such a record of his business as the clause required.

J. E. Riddick, Judge. 1. Under the will the executors had no power to sell the lands. They were to be kept, and the income disbursed as prescribed by the will. Schouler, Ex. & Adm., secs. 212, 509; Mansf. Dig., ch. 1, sec. 14; 29 Ark., 418; Perry on Trusts, secs. 764-6-7. 2. Cannavan alone could not execute a valid deed to Hodges, and his deed passed no title.

APPEALS from Crawford Circuit. H. F. Thomason, Judge. APPEAL from Miller Circuit Court. C. E. Mitchel, Judge. I. The town had a right to pass the ordinance. Mansf. Dig., sec. 764. The general welfare clause extends to prohibiting the carrying of concealed weapons-. 84 Mo., 204. It is necessary to use general terms to confer powers not specifically enumerated. 8 S. W. Rep., 791. See also 37 Ark., 364.

C. W. Smith, Judge. Dr. Hoover sued the St. Louis, Arkansas & Texas Railway Company for surgical attendance upon and board of a passenger injured by defendant’s train, alleging that the services were rendered, and the board furnished, at the instance of defendant’s conductor and attorney. The facts appear in the opinion. 1. The party to whom the services were rendered was a trespasser, and the company owed him no duty.

J. S. Little, Judge. Appellants’ rejected prayers for instructions, referred to in the opinion, are as follows: 2. “They are further instructed that if they find that such warning was given by defendants, or their agents, and that plaintiff by ordinary care and diligence could have acted upon such warning and notice, and failed to do so, or attempted to act upon it in a tardy, careless or indifferent manner, then he could not claim negligence on the part of the defendants in…

J. M. Elliott, Judge. The appellant seeks to reverse a conviction of the crime -of arson. The opinion states the facts necessary to its correct understanding. Argued the case orally.

<p>1. Perjury — Indictment—Materiality.</p> <p>An indictment for perjury, which fails to show on its face that the alleged willfully false statement was material to the issue, is fatally defective. So, an assignment that defendant had, in a bastardy proceeding, falsely sworn that he could not have had intercourse with the complaining witness on a certain occasion because B. and others were present, whereas. B. was nót present, is not material, unless it is further denied that others were present.</p> <p>2. Materiality — Circumstances tending to prove the issue.</p> <p>Perjury may consist in false and corrupt testimony relating not only to the main fact in issue but also to material circumstances tending to prove the issue.</p> <p>3. Perjury — Number of witnesses.</p> <p>The old rule that two witnesses were necessary to convict of perjury has been relaxed; a conviction may be had upon any legal evidence of a nature and amount sufficient to disprove, beyond a reasonable doubt, the testimony upon which perjury is assigned.</p> <p>4. Count containing several assignments — Proof of one.</p> <p>Proof of any sufficient assignment will sustain a count of an indictment containing several assignments of perjury.</p>

J. E. Riddick, Judge. 1. The sale of a homestead during the minority of the children is an absolute nullity. 47 Ark,, 445. 2. The statute did not commence to run until the youngest child attained its majority. 47 Ark., 504; 42 Ark., 357 ; 22 Ark., 567; Wood on Lim., pp. 527-8, and note 1; Tiedeman on Real Property, sec. 715. 3. The statute could not run against Nancy J. Casey,, she being a married woman. Mansf. Dig., sec. 4471. 1.

J. W. Martin, Judge. 1. The verdict of the jury should have been in the alternative; the value of each article and the property to be returned should have been stated. 10 Ark., 504; 29 Ark.; 383 ; 37 Ark., 550. The judgment upon such a verdict was an error of the court, and no motion for a new trial on this ground was necessary. 37 Ark., 550. 2.

APPEAL' from Ashley Circuit Court. C, D. Wood, Judge. The trial court gave appellant until the third day of the Bradley circuit court to present his bill of exceptions.” The-transcript does not show when, if ever, the bill of'exceptions was filed in the Ashley circuit cpurt and became a part of the records in the case.

M. T. Sanders, Judge. By section 1436, Mansfield’s Digest, appeals are granted as a matter of right from all final orders and judgments of the county court. The rule is that when the legislature takes up the whole subject and covers the entire ground of other statutes and intended it as a substitute for the whole, the prior acts are repealed, 10 Ark., 589; 41 Ark., 149; 27 Ark.,418; 30 Ark., 560; 31 Ark., 17.

W. P. Grace, Special Judge. 1. The Cumby heirs only had a contingent remainder in ■the lands. 44 Ark., 458; 2 Blk., Com., 169; 2 Fearne on Rem., 202; 4 Kent, Com., 206. As such it was in the power of the life-tenant to defeat it by a forfeiture of the particular estate. 4 Kent, Com., 202; Tied, on Real Prop., sec. 401; Fearne on Rem., 216; 5 Wall., 288.

John A. Williams, Judge. In 1887 Robert Manlove, a minor, sued Anthony to recover land of which his father died seized in 1879, and alleged that in 1883 defendant entered into possession and still held the land under a void tax title. He filed with the complaint an affidavit of the tender of taxes, as provided by section 2649, Mansfield's Digest.

J. W. Martin, Judge. 1. The evidence is sufficient to identify defendant, or to show an attempt to commit rape. 2. To constitute rape in this State force must be used. Fraud or strategy is not sufficient. Even if appellant’s intent was to effect his purpose while Mrs. Dean was asleep, he would not be guilty of the offense charged. See 13 Ark., 373 ; 11 Ark., 409; 86 N. C., 659; 73 Iowa, 255; 74 Mo., 24; 12 Tex. App., 196; 14 Gray, 415; 30 Ala., 54; 9 S. W. Rep., 609; 11 Tex.

J. W. Butler, Judge. Appellants brought ejectment for certain land.

<p>APPEAL from Pulaski Chancery Court.</p> <p>D. W. Carroll, Chancellor.</p> <p>An infant whose land has been sold under the act to enforce the payment of overdue taxes must redeem within the time fixed by law which is two years. Sec. 11, overdue tax act, 1881; Gantt’s Dig., sec. 5297. The eleventh section is to be construed with reference to the general rule, and not to the exceptions in the statute. Endlich, Int. Stat., 37, 38; 8 Flor., 278. Section 15 provides for a deed to be issued at the end of two years, which shall convey'the title in fee simple, and shall be conclusive against the world. It is ■clear the legislature intended no exceptions. Sec. 5206, Gantt’s Dig.</p> <p>The right to redeem rests on the law in force when the forfeiture occurs, which in this case is the law in force when the sale was made, which is the forfeiture. 52 Ark., 132; $ 1 Ark., 458. The revenue act in force then allowed minors two years to redeem. Gantt’s Dig., sec. 5197- Under the present law minors have the same privilege. Mansf. Dig., •sec. 5772. The eleventh section provides that the owner may redeem within the period fixed by law for the redemption of land sold for taxes. This right has been sustained often. 41 Ark., 62; 51 Ark., 458.</p>

W. E. Atkinson, Special Judge. 1. It was error to hold that the stipulation in regard to repeating messages was contrary to public policy and void. The distinction between the liability of common carriers and other bailees is well stated in 13 Allen, 232. See also Gray on Com, by Tel., sec. 6; 48 N. Y., 132; 113 Mass., 301; Allen, Tel.

APPEALS from Cleburne Circuit Court. J. W. Martin, Judge. 1. No deed was ever made by the commissioner to the State. 2. The sale was never confirmed by the court. 3. The “overdue tax” law is unconstitutional. 4. The State acquired no interest or title by the overdue tax sale, no taxes being due; but if she did, having sold the land prior thereto, any subsequent title would inure to the benefit of her former grantee.

G. S. Cunningham, Judge. 1. The overdue tax law is unconstitutional, and the chancery court had no jurisdiction. See cases postea. 2. The complaint did not state a cause of action. There are no averments in the complaint except ownership; none to aid the deed exhibited. 3. No deed was made to the State, as contemplated by sec. 15 of the act, nor could the land be certified to the land office until the time for redemption expired.

C. E. Mitchel, Judge. Loomis was the owner and in possession of certain land which he permitted to forfeit to the State for non-payment of taxes. He applied to Hendricks to borrow two hundred and forty dollars, the amount necessary to purchase the land from the State. With his consent Hendricks bought the land from the State, taking a deed direct to himself.

C. E. Mitchel, Judge. This case was reversed upon substantially the same facts in 44 Ark., 293. 1. There is no evidence of negligence, either directly or' remotely, on the part of appellant; but the injury was shown* clearly to have been the result of carelessness and neglect on part of the appellee contributing directly to the injury.

John S. Little, Judge, Action by appellant against the single school district of Fort Smith to recover his salary as superintendent of schools. Substantially the facts, as found by the court, were as follows: Defendant’s board of directors, on May 3, 1888, elected plaintiff as such superintendent for the next ensuing year, that is, from July 1, 1888, to June 30, 1889, and fixed his salary.

John S. Little, Judge. Maury sued the school district of Fort Smith for breach of a contract of employment as teacher, alleging that he was wrongfully discharged by the board of directors before his term of employment expired. Defendant answered that plaintiff was discharged for incompetency and immorality. From a judgment in plaintiff’s favor defendant has appealed.

C. W. Smith, Judge. I. The record recites that due notice had been given. The demurrer admits all the allegations of the answer and the recitals of the order. The record reciting due notice is conclusive. Sec. 5201, Mansf. Dig.; 11 Ark., 519; 25 Ark., 60; 13 Bush, 544; 5 Otto, 748; 26 Am. Rep., 222; 49 Ark., 397. County courts are courts of superior jurisdiction. 38 Ark., 157.

<p>APPEAL from Desha Circuit Court in Chancery.</p> <p>John A. Williams, Judge.</p> <p>On July 6, 1882, a bill was filed in Desha circuit court in chancery, under "the overdue tax act” of March 12, 1881, to condemn the interest of the State by reason of any tax forfeiture, or of any other person, in and to, inter alia, the tract of land involved in this suit. Summons to the State’s auditor was issued and publication of the warning order made, as provided by the act. On June 19, 1883, a decree of condemnation was entered against the land, which was sold on September 5, 1883, to appellant; and the sale was subsequently confirmed, and deed executed to him.</p> <p>On P'ebruary 2, 1883, appellee, Alice Scott, a married woman, obtained a donation certificate, and subsequently a deed conveying the State’s interest in the land by reason of a prior tax forfeiture. In January, 1885, appellee went to appellant, and asked how much taxes he had paid on the land. She told him she wanted to redeem the land. He said the land was his, and walked off. She did not offer him any money. On September 4, 1885, she went to the clerk of the court, and paid to him the amount necessary to redeem the land.</p> <p>At the January term of the court, an order was made, directing that a writ of possession be issued placing appellant in possession of the land, which was issued and executed on April 25, 1887.</p> <p>At the July term, 1887, appellee brought suit, alleging the foregoing facts, and praying that the writ of possession be recalled and quashed, and possession restored to her.</p> <p>The court found that she had a right tov redeem and had redeemed the land, and decreed that the writ of possession be quashed, and possession restored to appellee.</p> <p>1. This was simply an action to try the title to, and for the possession of, the land; the remedy was at law, and a court of equity had no jurisdiction.</p> <p>2. The suit should have been brought in the name of the wife alone. Mansf. Dig., sec. 4950, subd. 2.</p> <p>3. Mrs. Scott was not the owner of the land, and had no right to redeem. It was decreed in the overdue tax suit, that the State, who was a party, acquired no title by the forfeiture of 1887, and hence she could convey none to appellee. Acts 1881, sec. 7, p. 67. '¿'he was a. donee pendentelite, and took subject to the final decree, and was bound thereby.</p> <p>Section 11 of the act gives the owner the sole right to redeem. Appellee was never the owner. The decree in the overdue tax suit was conclusive against her. 49 Ark.,336.</p> <p>4. In fact, there was no redemption of the land. Sec. 11, act 1881.</p> <p>1. Appellee had no remedy at law. Injunction was the proper remedy. High on Inj., ch. 1; 7 Rob., La., 442; 4 Nev., 138; 2 Minn., 61; 1 Md. ,Chy., 97; 29 Ark., 612; 39 Ark., 196; 39 N. Y., 390; 3 Head (Term.), 39; 24 Ark., 431.</p> <p>2. Appellee, being in possession under a deed long before any lien was declared, and having made valuable improvements, was the owner, and had such an interest as to entitle them to redeem. 42 Ark., 215; 39 Ark., 584.; 10 Pet., 1 to 22; Blackwell on Tax Titles, pp. 421-4 et seq.; Sec. 11, acts 1881, p. 69.</p> <p>3. She made the tender required bylaw. Blackw., Tax Tit., p. 435 ; 2 Pars, on Cont., pp. 776-7, notes b, i and j; 7 Wait, Ac. and Def., pp. 587-8, 595.</p> <p>4. Mansfield’s Digest, sec. 4951 and subdivisions were not intended to deprive the husband of his usufruct in wife’s property. He was properly a party to the suit, having an interest. 3 Wait, Ac. and Def., pp. 77-8; 32 Ark., 151; 33 Ark., 611; 33 Ark., 722.</p> <p>5. When appellee made a tender of the amount necessary to redeem, and was prevented by acts of appellant from redeeming from him, the land was ipso facto redeemed. Blackw., Tax Titles, sec., 183, p. 230; 41 Iowa, 197; 10 Pet,, 1 to 22; Blackw., Tax Titles, p. 435. Appellee redeemed from the clerk before the appellant received his deed, and this deed was absolutely unauthorized and void. Black on Tax Titles, sec. 186, p. 238; 40 Iowa, 196.</p> <p>Any one may redeem who has an interest. Black, Tax Titles, secs. 187, 189. Or who has possession, under color of title. Black, sec. 189; 55 Iowa, 237. Married women may redeem. Black, sec. 194; 13 Ohio, 298.</p> <p>6. Appellant obtained no title until confirmation, which was long after appellee’s rights attached. Rorer, Jud. Sales, p. 550 et seq.</p>

Rufus D. Hearn, Judge. Appellant filed a bill for a divorce from appellee, his wife, upon the ground of desertion. She filed an answer, denying that she deserted him without cause, and a cross-bill which alleged that he was guilty of such conduct as to render her condition intolerable. The court refused the husband’s prayer for relief, and decreed a divorce upon the wife’s cross-bill, and awarded her alimony and the custody of their three minor children. 1.

J. W. Butler, Judge. Woodberry was owner of a steamboat, the “Allen,” engaged in the carrying trade on White river. On January 1, 1886, he employed Warner as pilot at a salary of $720.00 per year, with the further agreement that, as soon as the net earnings of the boat should amount to $8,000.00, he should become the owner of one-fourth interest in it.

John S. Little, Judge. Every presumption must be indulged in favor of the constitutionality of the act. Mugler v. Kansas,-123 U. S., 661. The most that has been claimed for the commercial power of the Federal government, under the inter-state commerce clause of the constitution, was the right of introduction into the State and affording the facilities belonging to similar articles in the State with the same restrictions and burdens imposed.

C. E. Mitchel, Judge. 1. When a policy provides that the loss shall be payable ninety days after proof of loss, an action brought within that period is premature. . 2 Wood on Insurance, sec. 462. The burden is on plaintiff to show a waiver, and this the evidence ■fails to show. 2.

J. W. Martin, Judge. Appellee sued appellant for the negligent burning of his property by persons employed by appellant to clear off its right of way. The facts are stated in the opinion. The statute cited in the opinion is as follows: “Sec. 1958.

R. H. Powell, Judge. 1. The Crawfords are estopped by their acts and declarations. 10 Ark., 211; 18 Ark., 142; 24 Ark., 371; 33 Ark., 465. 2. Angia Crawford never did have any legal title. She mortgaged the land back to Tennyson at the same time she acquired title, and the legal title remained in Tennyson. 43 Ark., 504. 3. Appellee lost any rights he may have had by failure to record his mortgage. Mansf. Dig., sec. 4743! 9 Ark., x 12; 40 Ark., $36; 33 Ark., 203.

<p>Promissory note — Failure of consideration — Infringement of patent right.</p> <p>A promissory note, the sole consideration of which was /an interest in a telephone exchange company, whose business and property were valueless except as operated to infringe on the patent rights of the American Bell Telephone Co., is without consideration and void.</p>

W. P. Grace, Special Judge. Action of ejectment by Lelia Cumby and another against Abe Bolen. Defendant claimed the land under a tax title. The court held the tax forfeiture void, found that defendant had placed improvements on the land worth $443.50 and received rents worth $390.00, and rendered judgment in favor of plaintiff for the possession of the land with a lien in defendant’s favor for $53.50 for betterments. Defendant appealed.

J. E. Cravens, Judge. Roberson appealed from a conviction of voluntary manslaughter. As deputy marshal he arrested deceased without a warrant for a supposed offense not committed in his presence. Deceased resisted, a difficulty ensued, and appellant shot and killed him, as he claims, in self-defense.

J. E. Riddick, Judge. 1. There is no allegation of notice of protest and dishonor. 9 Ark., 233; 33 Ark., 33; 37 Ark., 276. Notice was necessary to fix liability. Notice is not alleged, and a default only admits the allegations of the complaint. When they are insufficient to support the judgment, it will be reversed. 41 Ark., 42. 2. No grace was allowed. Sight drafts are entitled to grace. 1 Dan., Neg. Inst., sec. 617; 33 Ark.,18.

G. S. Cunningham, Judge. 1. The maker of a negotiable note should not be charged as garnishee of the payee, unless it be affirmatively shown that before the rendition of the judgment the note had become due, and was then still the property of the payee. Dan., Neg. Inst. (3d ed.), sec. 800 a; Drake, Att. (5th ed.), sec. 582 et seq.; 31 Ark., 20. 2.

John A. Williams, Judge. 1. After the dismissal of appellee’s cross-complaint, there was left simply an action of ejectment; and there should have been a judgment for possession and for damages for waste and rents. There was nothing for the court to do, except ascertain the rental value and waste, and 'render judgment for the amount and possession. 31 Ark., 335. 2. As to the removal of the improvements. Their removal was sheer waste.

R. H. Powell, Judge. One who enters lands as the agent or tenant of another, cannot deny his title. 28 Ark., 154j 1 Greenl. Ev., sec. 207; Story, Eq. Jur., sec. 833. Ejectment may be maintained when plaintiff is legally entitled to the possession of the land. Mansf. Dig., sec. 2627; 14 Ark., 492; 41 Ark., 467. If neither party shows title, then the prior possession will prevail. 43 Mo., 556; 41 Ark., 467.

J. E. Riddick, Judge, 1. The object of sec. 1160, Digest, is plain. The design ■is to confer on the people the right of controlling their local affairs, and to establish the county seat at the point desired by a majority of the voters. This obvious purpose was defeated by the ruling of the court below. The votes against removal were so many votes in favor ■of Boydsville.

R. D. Hearn, Judge. Wolf & Bro. instituted suit by attachment against Riggan. Senter & Co. and Sidney B. Wood interpleaded, claiming the property attached under a mortgage executed to them jointly by Riggan. The court found the mortgages to the inter-pleaders to be a fraud upon the rights of the attaching creditors, and ordered that the attachments be sustained and the interplea denied. Interpleaders and defendant have appealed.

<p>In 1874 Mrs. Nancy A. Edrington, widow and sole executrix of James H. Edrington, brought suit to cancel a mortgage executed by him at a time, as she alleged, when he was incapacitated by disease from attending to business. The mortgage conveyed to J. W. Jefferson, as trustee, two plantations, known as the “Fain” and “Whitmore” places, to .secure debts due certain creditors therein named, the deed to •be void upon payment of the debt and containing a power of sale upon default. The trustee answered, denying that the mortgage was executed at a time when Edrington was inca■pacitated from attending to business. The creditors secured by the mortgage answered, likewise denying his incapacity, .and filed a 'cross-bill asking that the mortgage be foreclosed and for the appointment of a receiver to collect rents. In accordance with the prayer a receiver was appointed pendente lite to lease and collect rents from the two plantations.</p> <p>At the time of the execution of the Jefferson mortgage, there was a prior incumbrance on each of the plantations. In 1876 the holders of these liens petitioned to intervene, set up their prior claims, and prayed that the Jefferson mortgage be subordinated to their liens which they asked should be foreclosed.</p> <p>Subsequently the cause was removed to the United States court, upon the petition of the trustee and the secured creditors in the Jefferson mortgage, A decree was subsequently rendered in favor of such secured creditors. Upon appeal to the Supreme Court of the United States, the removal was held improper, and the lower court was directed to remand the cause to the State court. Pending this appeal and pursuant to the decree of the United States court, the two plantations were sold to one McComb and J. W. Jefferson, a person other than the trustee of the same name. The latter purchased McComb’s interest, and entered into possession of the two plantations which he has held continuously since that time.</p> <p>In 1880, Mrs. Edrington resigned her office as executrix, and made her final settlement which was confirmed by the probate court. John B. Driver was appointed administrator de bonis non, with the will annexed, of the J. H. Edrington estate. In January, 1885, after the cause was remanded to-the State court, Driver, as administrator, filed a supplemental complaint, asking to intervene in the cause and alleging that Jefferson, not the trustee, owed the otherwise insolvent, estate of J. H. Edrington for rents, including the sum of. $6,000.00 by him unlawfully removed from the registry of the United States court, the sum of $48,000.00, which amount he asked the court to require him to pay to petitioner to be applied to the payment of the probated debts of the estate. The probated debts of the estate, the administrator alleged,, amounted to the sum of $48,500.00, excluding the probated claims which were secured by the Jefferson mortgage.</p> <p>On January 17, 1885, Mrs. Edrington filed a cross-complaint, in which she set up the purchase by her with her own. means of the two prior incumbrances on the Whitmore and Fain places, and asked that she be subrogated to the rights of the original holders thereof; she alleged that J. W. Jefferson, not the trustee, who now owned the debts secured by the Jefferson mortgage, had collected in rents the sum of $42,000.00, and had unlawfully withdrawn from the registry of the United States court the sum of $6,000.00, sums sufficient to pay off the debts secured by the Jefferson mortgage. She asked that she be subrogated to the rights of the original holders of the first liens.</p> <p>J. W. Jefferson, not the trustee, answered the cross-complaint of Mrs. Edrington, alleging that he bought the two places in good faith under decree of the federal court; that he had entered into possession thereof, paid taxes, and made valuable improvements and repairs thereon; if his title should be found invalid, he asked judgment against the land for such improvements and repairs, for taxes paid, and that he be required to pay only three years’ rents, as provided by the betterment act of March 8, 1883. He denied that he owed the estate of J. H. Edrington the sum of $42,000.00 for rents, or that he had obtained :$6,ooo.oo from the registry of the federal court.</p> <p>Jefferson, the trustee, and Jefferson, not the trustee, also filed an answer in which they alleged that Mrs. Edrington ■paid off the prior incumbrances with money of her husband’s ■estate, and denied that she had paid them with her own means. They filed a cross-bill which alleged that Mrs. Edrington had taken certain improper credits and had withheld assets in her settlements, as executrix, with the probate court; that the estate was insolvent; and that the two plantations were inadequate to pay off the debts secured by the Jefferson mortgage. They asked that her account be surcharged and falsified.</p> <p>Mrs, Edrington and the administrator filed an answer to the cross-bill, alleging that Jefferson, not the trustee, had purchased the land under a void decree pendente lite; that one of the claims secured by the Jefferson deed of trust was due to the Washington Fire and Marine Insurance Co., a defunct corporation which had no representative authorized to collect its claim.</p> <p>Mrs. Edrington denied the charges of fraud in her accounts, and alleged that the question was concluded by her settlement with the probate court.</p> <p>Driver, the administrator, filed a petition showing that .he had purchased from the Phoenix Insurance Company, the assignee of the Washington Fire and Marine Insurance Company, the latter company’s claim against the Edrington estate, for which he asked that credit be given to the estate.</p> <p>The court dismissed the original complaint, found that Mrs. Edrington, with her own means, had paid off the prior lien on the Whitmore place, but held that she was estopped, as to the creditors claiming under the Jefferson mortgage, by the mortgage executed by her husband and herself; found that the first lien on the Fain place was paid out of funds of ■the J. H. Edrington estate; held that the claim of the Washington Insurance Company was a valid claim, and that it had’ not been assigned to the Phcenix Insurance Co.; charged J. W. Jefferson, not the trustee, with the rents, and credited him with the taxes and necessary repairs; decreed that the Jefferson mortgage be foreclosed, and that Mrs. Edrington hold the Whitmore plantation for the lien paid off by her,, subject to the Jefferson mortgage.</p> <p>The cause was referred to a master to state an account. Pending this reference, Mrs. Edrington died; and the cause was revived in the name of W. B. Edrington as her executor, November 12, 1887. The master’s report was filed and confirmed. All the parties have appealed to this court,</p> <p>1. Jefferson, the trustee, is entitled to foreclose the lien-of the trust deed for the sum of $28,754.21, with interest from March 16, 1874, at 8 per cent.</p> <p>2. Jefferson, the trustee, is entitled to an allowance of a reasonable attorney’s fee in the endeavor to execute the trust.. 2 Dan., Chy. PI. and Pr. (3ded.),pp. 1466-1468; 93 Am. Dec., 393 and notes; 36 N. J. Eq., 287; 3 Wait’s Ac. and Def., p. 149; 4 A. & E. R. R. Cas., 215,</p> <p>This is the rule whether the beneficiaries are parties or not. 93 U. S., 352; in U. S., 684; 105 U. S., 527. ‘‘A trust estate must bear the expenses of its administration.” See 4 Beav., 297; 4 Allen (Mass.), 474; 10 Wall.,. 493; 2 Perry, Trusts (2ded.), secs. 894, 910, 912.</p> <p>3. Jefferson, not the trustee, is entitled to the benefit of the betterment act of this State. He was in no sense a mortgagee in possession, but he entered in good faith, believing himself to be the owner, and he is entitled to credit for all expenditures for improvements made under such belief. Act March 8, 1883, sec. 1 et seq. He certainly entered under color of title. 11 Pet., 41; 1 Meigs, 207; 3 Wash., R. P., 139 (3d ed.); 35 111., 394; 35 M., 39*5 ' Wood on Lim,, 525; 102 U. S., 461; 5 Cow., 546; 48 Ark., 184; 47 Ark., 528. To constitute color of title, it is not necessary that the deed be good; the statute was made to remedy bad titles. However groundless the supposed title, if the writing purports/ to convey, it affords color of title. Wood on Lim., p. 528; 47 Ark., 528; 18 How., 56; 20 Ark., 542; 34 Ark., 547; 62 Ala., 426; 1 Meigs, 207. Avoid deed confers color of title. 1 Meigs, 207; 34 Ark,, 534.</p> <p>Having entered under color of title, the only other question is, did he make the improvements believing himself to be the owner? See 45 Ark., 410, and 47 Ark., 528; 48 Ark., 184, as to this. Even if he was advised of the appeal, it was not notice of such an adverse claim as would deprive him of the benefit of the betterment act, because the reversal of a suit does not necessarily set aside a judicial sale. Rorer, Jud. Sales, sec. 138; 4 Dana, 20; 7 B. Mon., 57 j 12 B. Mon., 471; 11 Ark., 519; Freem. on Judg., sec. 484; 44111,374; 18 B. Mon., 230; 1 Wall., 627. He was not bound to know that the court had no jurisdiction. See also 19 Bl. C. C., 94; 2 Ala., 256; 4 Humph., 362; 27 Minn., 60.</p> <p>The act of March 8 is retrospective. 48 Ark., 103; 45 Ark., 410.</p> <p>All improvements made in good faith should be set off against rents and profits. 6 Paige, 404; 1 Story, 478; 74 N. C., 603 ; 39 Md., 281; 16 B. Mon., 421; 2 J. J. Marsh, 516; 29 Mo., 52; 10 Ark., 87; 33 Ark., 490-536; 29 Ark., 47; 13 Lea, 587; 12 Lea, 189. The only question is, were the improvements made in good faith? Constructive notice is not sufficient to prevent a bona fide holding, nor will lis pendens prevent an allowance for improvements made in good faith. 2 J. J. Marsh, 516; 2 Am. Dec., 721; 2 Dil., 566; 13 Lea, 577-589; 6 Fed. Rep., 342; 44 111., 374. The rule that improvements will be allowed in equity-independent of betterment acts is stated in 15 Am. Dec., 347; 13 Lea, 589; '30 Am. Dec., 430; 40 Am. Dec., 653.</p> <p>4. The statutory rule of partial payments should apply, and interest computed up to a period when the credits discharge the interest. All sums collected or due as rents were partial payments, and should have been credited on the interest due on the trust debt. Courts of equity are bound by the statute. Story, Eq. Jur., sec. 64; 1 Ark., 417. The legislatur nas fixed the rule, and the courts should follow it. 7 Wall., 514; 3 Mete. (Ky.), 566; 3 Cow., 86; 4 Tyng’s (Mass.), 103; 17 Mass., 417; 1 Pick., 194; 4 Hen. & M., 431; 1 Playw., 279; 4 Har. & McHen., 94; 2 Nott & McC., 39s ; Kirby’s Rep., 49; Kirby’s Rep., 326; 1 Halst., 408; 1 Dal., 124; 7 S. W. Rep., 142; 10 Yerg., 160; 1 Heisk., 576.</p> <p>5. The prior incumbrances were paid off out of the assets of the estate; if not, the executrix at the time had in her hands more money than sufficient to pay them, for which she has never accounted, and in either event they are extinguished, and Mrs. Edrington is not entitled to subrogation. Reviewing the proof, Mrs. Edrington’s settlements with the probate court show both these claims were paid, and she obtained credit for them. This is an estoppel of record against her. Herm., Estop., sec. 15. She is not in a nattitude to ask subrogation. She was not compelled to pay these debts to protect her rights, or save her own property. Sheldon on Sub., sec. 3; 66 N. Y., 363; 42 N. Y., 89; 56 Pa. St., 76. Her payment was entirely voluntary; being under no obligation to pay. She was a stranger. 1 Jones on Mortg., sec. 874; 3 Paige, Chy., x 17; 23 Am. Dec., 773; 25 Ark., 129; Bisp., Eq., secs. 27, 335.</p> <p>See also 3 Pom., Eq., sec. 1213; Schouler on Exrs., sec. 443; 76 Am. Dec., 320. She was a trustee, and all her dealings will be taken most strongly against her. 47 Ark., 539> Perry on Trusts, secs. 428, 835. To relieve one from payment of money through mistake, it must be .paid to protect an estate. 39 Ark., 539; 6 Gray, 559. The mistake in this case was only as to the solvency of the estate. While, perhaps, entitled to subrogation as against the heir, she certainly is not as against creditors. Sheldon on Sub., sec. 202; 8 B. Mon., 419.</p> <p>The record shows that Mrs. E. had assets which she failed to account for, more than sufficient to pay off these liens, and hence she is not entitled to subrogation. She joined in the deed and the covenants of warranty, and it passed not -only any estate then vested in her, but any estate legal or -equitable afterwards acquired by her. Mansf. Dig., sec. .642; 47 Ark., hi; 14 Cal., 612; 76 Am. Dec., 449; 48 ■Cal., 572; 79 Am. Dec., 187. She is estopped from setting up after acquired title. 8 Ohio, 225; 31 Am. Dec., 442; 10 Mete. (Mass.), 291; 7 Mass., 14; 7 Mass., 291; 56 Ind., 19; 4 Bibb, 436; 1 Jones on Mortg., sec. 679; 5 Ark., 693; 33 Ark., 251.</p> <p>6. The claim of the Washington Fire Ins. Co. never passed to the Phoenix. See Morawitz, Corp., sec. 163; Morawitz, Corp., secs. 181, 177; 71 N. Y., 593; 45 N. Y., 822; 56 N. Y., 553; 76 N. Y., 202. Its assets were all ■distributed before the transfer.</p> <p>1. The first liens were paid off by Mrs. E, with her own money; they are still valid, and are held in equity for reimbursement. She had these claims assigned to her and held them until her death. She is entitled to be subrogated. 23 Ark., 166; Sheldon on Stíb., sec. 202; 3 Wil. on Exrs. {6th Am. ed.), p. 1973; 2 Woerner, Am. Law of Adm., p. 1039. On payment of the debts she became subrogated to the liens -by which they were secured. 1 Jones, Mortg., sec. 874; 29 Ark., 47; 39 Ark., 531; 40 Ark., 132; 3 J. C. R., 312; 7 J- J- Marsh., 503; 3 Mon., 284; 2 Leigh, 70; 12 Gratt., 636; 12 R. I., 510; 42 Ark., 504; 16 Mass., 227.</p> <p>2. Jefferson, not the trustee, is accountable for rents during the time hé had possession. The United States court never had any jurisdiction. 111U. S.,770. Its decree was void. 29 Ark., 201. A void decree is no decree. Freeman on Ex., sec. x 17. Jefferson is chargeable with the $6,000.00 received under the void decree and rents, and should be compelled to pay these sums into court. 9 Wall., 607; 2 Jones on Mortg., sec, 1114; 36 Ark., 17. All his acts were done pendente lite, and he is bound by any orders or decrees that may be made herein. 93 U. S., 163; 11 Ark., 411. He was simply a tenant at will, holding under the receiver. 2 Jones, Mortg., sec. 1536; 8 Paige, 565; 8 Paige, 388.</p> <p>3. Jefferson, not the trustee, cannot set off any improvements as against rents and money received. One acquiring possession of lands legally in the hands of a receiver could not, without-an order of court authorizing him to improve, charge up his improvements against the rents. Even a mortgagee in possession is only entitled to those necessarily incurred to preserve the property. 2 Jones on Mortg., sec. 1127; 1 J. C. R.,385; 17N.Y., 80; 18 Ark., 34.</p> <p>The betterment act was passed for the protection of bona fide possessors, and not mere trespassers; and he is conclusively presumed to know the law. 47 Ark., 359. The claim preferred by Jefferson would be untenable even in the case of an ordinary reversal for error. Freeman on Ex., sec. 481; 29 Ark., 95 ; 29 Ark., 336. See also Wiltsie, Mortg. Forec., sec. 40; 2 Jones on Mortg., sec. 1127.</p> <p>The betterment act has not changed the rule. 46 Ark., 336. Jefferson was not a bona fide holder. 45 Ark., 419; 50 Ark., 455; Mansf. Dig., 2644.</p> <p>4. The claim of the Washington Ins. Co. cannot be allowed; for that institution has long since passed out of existence. All suits brought by it must abate. 2 Morawitz. on Corp., sec. 1031; 21 Wall., 615; 86 N. C., 492; 68-111,, 350; 31 Me., 57; 123 Mass., 32; 18 Iowa, 473; 9-Lea, 697. When the stock was assigned, the assignors no-longer had any interest. 1 Morawitz, Corp., sec. 159.</p> <p>5. Mrs. E. is not estopped by the recitals in her husband’s deed, in which she joined to relinquish dower. 1 Bish., Mar. Worn., sec. 603; 33 Ark., 640; 39 Ark., 361; 44 Ark., 161.</p> <p>6. The defendants cannot go behind the settlements of Mrs. E. for the purpose of charging her with money derived, from the crop of 1874. No appeal was ever taken from the judgment litigating this matter, and it is final. 2 Woerner, Adm., sec. 508; 31 Ark., 176. Besides it is too late now. 42 Ark., 493. Laches in making objections precludes all inquiry. 95 U. S., 160; 10 Pet., 248.</p> <p>7. As to the claim for attorney’s fees, see 1 Jones on Mortg., sec. 359; 2 Jones on Mortg., sec. 1606; 105 U. S.,. 531; 15 Ark., 100; 27 Ark., 310.</p> <p>8. Jefferson had no claim for betterments. 17 Ark., 359; 18 Ark., 52; Sedg. & W., Trial of Tit. to Land, secs. 694-5. 48 Ark., 183, has no application. Jefferson had actual notice.</p>