Volume 54 — Arkansas Reports

C. D. Wood, Judge. Appellant had the right to contest the suit, whether it be called a scire facias to revive or a petition to reinstate a lost judgment, and to question its existence, regularity and validity. The statutory remedy is only declaratory of the common law remedy on a lost record or judgment. 98 N. C., 284; ib., 173; 2 Cold. (Tenn.), 318; 3 id., 267; 45 Ala., 204; 101 111., 411; 91 N. C., 231.

Rufus D. Hearn, Judge. Appeal from a conviction of murder in the second degree. Error is assigned in the court’s refusal to instruct the jury as to the crime of voluntary manslaughter. I. The court erred in refusing to give any instructions-whatever as to manslaughter, thus compelling the jury to-find defendant guilty of murder or to acquit. Nor did the court define what manslaughter was. Mansf. Dig., sec. 1532 32 Ark., 539. 2.

M. T. Sanders, Judge. Attachment by Goodbar & Co. against John T. Box. White interpleaded for and retained the property, claiming under a deed of trust, in the nature of a mortgage, from Box. The court trying the case found that the parties intended to make an absolute appropriation of the property for the benefit of creditors, and held the conveyance void. The attachment was sustained, and judgment rendered against the interpleader on his bond for the amount due plaintiff.

M. T. Sanders, Judge. Action by Maggie Thompson, a minor, against her stepfather, William King, and his children, Rorriey and Ida King, for an accounting of her share in the rents and profits accruing from her mother’s homestead estate in certain land of which she died seized jointly with another.

John A. Williams, Judge. B. Lowenstein & Bro. sued H. F. Lennox upon a note, and ■caused an attachment to be levied upon certain property of the defendant in the hands of P. McCadden & Co., who retained it upon giving a bond conditioned that they would perform the judgment or have the property forthcoming. They also interpleaded for the property, but subsequently asked leave to dismiss the interpiea without prejudice, which was granted.

John A. Williams, Judge. Plaintiff, F. M. Quertermous, instituted suit against Sarah Frazier in the court of a justice of the peace upon a note for $100, signed by her, which recited that it was given as-part payment for rent of the land therein described. He asked the enforcement of his landlord’s lien upon the crop-raised on the land. Upon the death of defendant the cause was revived in the name of her administrator, Marshall Hatfield.

<p>APPEAL from Greene Circuit Court, in Chancery.</p> <p>J. E. Riddick, Judge.</p> <p>Marriage is a status, and not a contract merely; a status in which the public have a vital interest; and a divorce will not be granted upon the testimony of a party, or the admissions in an answer, or the declarations of a defendant proven, as this contravenes the whole policy pf the law. 34 Ark., 37; 13 S. W. Rep., 246.</p>

Joseph W. Martin, Judge. Murrell sued the Pacific Express Company for negligent delay in the transportation of some fruit trees. He alleged that, by reason of the carrier’s unreasonable delay, he forfeited certain contracts for their sale, to his damage in the sum of $282; and that, in waiting for the trees, he incurred expenses amounting to $21.50. Defendant denied the negligence and the damages.

George S. Cunningham, Judge. Mrs. Sarah E. Tankers ley, an elderly lady, was a passenger on a train on the Little Rock and Fort Smith Railroad. She complains that when the train arrived at her station, it stopped, but not long enough to enable her to alight in safety; that while she was in the act of alighting, the train was carelessly and negligently started with a jerk, throwing her ujion the platform and seriously injuring her.

W. H. Arnold, Special Judge. 1. A bill of sale, absolute on its face, cannot, in an action of law, be shown, by parol evidence, to have been intended as a mortgage. Jones on Mortgages, Vol. I, p. 282, 3d ed.; 36 Me., 562; 38 Ala., 89; 13 Mass., 443; 5 Minn., 178 ; 10 Mo., 483; 62 id., 202; 8 Kans., 380; 8 Conn., 117; 38 Ala., 125 ; 71 Me., 567; 5 Litt. (Ky.), 74. 2. The appellee did not become the owner of the mare by reason of the trade for the horse. 12 S. W„ 330.

Carroll D. Wood, Judge. 1. This claim was a subsisting demand against the intestate at the time of his death, and should have been presented to the administrator in Arkansas within two years, and, not having been so presented, it was barred. 14 Ark., 246; 15 id., 412; 18 id., 334; 39 id., 577; 15 id., 41 ; 20 id., 84; 113 U. S., 449; Mansf. Dig., sec. 98, sec. 5 ; 18 Ark., 118. The statute runs against non-residents. 6 Ark., 14; 16 id.y 694. 2.

<p>Justice of the feace—Trial fee.</p> <p>A justice of the peace is entitled to a trial fee where a defendant makes default upon an open, unverified account.</p>

G. S. Cunningham, Judge. The proof shows that the Corbin Banking Company, Ocobock and Hall & Carter were all the agents of the New England Mortgage Security Company, and that the banking company and security company were jointly interested in placing the loans. Ocobock is the same person who figures in the Nebraska cases cited below. 13 Neb., 553, 556; 11 Neb., 488; 13 id., 151-7; 14 ¿¿.,91; 15 id., 335.

Rufus D. Hearn, Judge. 1. The assignment was ultra vires. Field on Corp., sec. 53, note 3 ; 21 Pa. St., 22; 38 N. W. Rep., 43 ; 9 Fed. Rep., 640; 3 Pac. Rep., 911. A corporation can do no acts except as provided in its charter. 1 N. E. Rep., 138 ; 13 Pet., 519; 21 Ark., 302. 2. If it had the power, the assignment was a fraud on creditors, as having been made in the interest of its stockholders. Burrill on Ass.

J. W. Butler, Judge. Appellant cannot recover as administrator of his wife in Illinois. Letters could not be granted him here (Mansf. Dig., sec. 14), and sec. 4937 must be construed with sec. 14.

J. E. Riddick, Judge. 1. The facts show a homestead with all its rights on the northeast quarter of the section. 22 Ark., 400; Ch. 68, secs. 29, 30, Gould’s Dig. The homestead could not be sold. 47 Ark., 445. 2. As to the limitation by alleged laches, no rule can be laid down; each case is governed by its own peculiar facts. 37 Ark., 159.

John Fletcher, Special Chancellor. Jasper Copeland died in 1882, leaving his two children, Mrs. Canfield and Monroe Copeland, his- sole distributees. Upon final settlement of the administration of his estate, the share of Monroe Copeland was $1265.37 m money. His whereabouts being unknown, the probate court placed the money in the hands of a master, to be held subject to its orders.

J. E. Riddick, Judge. There is no contention that notice was given appellant, or that it attempted to waive the condition prohibiting further insurance without its consent. The only contention is that the appellant waived the condition in the policy.

D. W. Carroll, Chancellor. T. J. Dick, a merchant at Carlisle, Ark., made an assignment for the benefit of his creditors, preferring, among others, Mrs. E. E. Heffner. She thereupon brought suit, alleg ing that fact and that creditors would suffer great loss if the property was sold by the assignee. She prayed for the appointment of a receiver to sell the property under the directions of the court. A receiver was appointed.

John A. Williams, Judge. Suit by Thomas S. James, administrator of Thomas S. James, deceased, against C. M. Neel and the Pine Bluff, Monroe and New Orleans Railway Company, to foreclose a vendor’s lien upon land. James sold to Neel block 40, comprising four lots, consecutively numbered, in Old Town addition to the city of Pine Bluff. The sale was upon credit; the deed reserved a vendor’s lien.

Carroll D. Wood, Judge. Action of replevin by Niemeyer & Darragh against Hudspeth, sheriff of Drew county, and his deputy. Defendants answered that they held the property under certain writs of attachment. A demurrer to the answer was overruled. Sitting as a jury, the court found specially that the property was held by the officers under process as claimed; but also found facts from which, it is argued, it follows that the property belonged to plaintiffs.

<p>Mortgage—Description of crop.</p> <p>A mortgage of all the cotton to be raised “ on five acres of land situated on or in the south portion ” of a certain field on a farm does not include cotton grown on five acres in the north part of the field, though that is the only cotton grown in the field.</p>

John S. Little, Judge. Tenney, Martin & Anderson, lumbermen, agreed to furnish L. H. Sly material to build several houses upon contiguous lots. Under this agreement they at different times supplied him with material for the construction of seven houses. Within ninety days from the time the last of the material was furnished, they filed with the clerk their account in gross for all of the material.

Hugh F. Thomason, Judge. 1. Parol evidence should have been excluded, because it qualified and varied the terms of the written instument. 50 Ark., 393 and cases cited; 15 Ark., 9. See, also, 2 Dan. Neg. Inst., sec. 1338; 141 Mass., 587; 68 Me, 390; 6 Atl. Rep., 11. 2. An extension of time will not release sureties, unless supported by a valid consideration. 2 Dan. Neg. Inst., secs. 1315-16. The evidence showed no consideration for the extension. 3.

J. M. Pittman, Judge. John B. Gill filed a complaint against the St. Louis and San Francisco Railway Company, alleging in five separate counts that, on five several occasions, defendant, operating a railroad in the State more than seventy-five miles long, had charged him five cents per mile, being in excess of the maximum charge allowed by the statute. Defendant filed an answer in eleven paragraphs. The first paragraph denied the facts alleged.

John S. Little, Judge. Action to recover the statutory penalty for an overcharge, similar to the case of Railway Co. v. Gill, ante p. ioi, the defendant being the same in each case. Plaintiff purchased a ticket from Fort Smith to Lillie, a station eleven miles north. The transportation included passage over the bridge across the Arkansas river. He was charged seventy cents for the transportation.

<p>APPEAL from Jefferson Circuit Court in Chancery.</p> <p>John M. Elliott, Judge.</p> <p>Owens, as county judge, let the contract to repair the court house of Jefferson county to Hilliard for a certain sum, the material and work to be paid for by the contractor. Before entering upon the work Hilliard executed to Owens, as such county judge, a bond conditioned that he would deliver possession of the building, upon the completion of the work, free from any incumbrance, claim for labor or materials or judgment. Hilliard sublet the woodwork to Jones. Plaintiff McFadden furnished Jones materials which were used on the building. Hilliard refused to pay the bill. It was presented to Owens, as county judge, and he refused to pay it. Plaintiff then filed his complaint against Hilliard and Owens, as county judge, to restrain the latter from paying the balance due on the contract to Hilliard, who is alleged to be insolvent, and to enforce a lien for the amount claimed on the fund due Hilliard in the hands of Owens, as county judge. A demurrer to the complaint was sustained. Plaintiff appealed and filed a motion in this court for a temporary restraining order pending the appeal.</p> <p>I. As to appellant’s right to subrogation, see Sheldon on Subrogation, secs. 1, 11, 222; 16 Ark., 232; 18 id., 508; 31 id., 411; Wood on Ins,, title, “ Subrogation.”</p> <p>2. Appellants seek no decree or relief against the county —but merely that the amount of their claims as material-men be paid to them directly, instead of to Hilliard, who is insolvent.</p> <p>If plaintiff has a claim that can be enforced against the county, even by subrogation, then the damage would not be irreparable, and a restraining order should not be granted. Even if plaintiff is without remedy against the county and would lose his debt, still the order should not be granted, if it appears from the record that upon final hearing the decree will have to be affirmed.</p> <p>Public buildings are not subject to mechanics’ liens. Mansf. Dig., sec. 2999; 49 Ark., 97; Phillips on Mech. Liens, secs. 179—179a.</p> <p>Neither the county or county judge is liable to garnishment. ■ 31 Ark., 387; Wade on Att., secs. 422, etc. Insolvency alone will not justify an injunction. High, Inj., secs. 10-18. The doctrine of-subrogation has no application to this case. Sheldon on Sub., sec. 3.</p>

<p>ERROR to Franklin Circuit Court.</p> <p>Hugh F. Thomason, Judge.</p> <p>Appellant was not legally sentenced. The statute requires sentence to be passed immediately. Section 2307 is imperative. Bish. St. Cr.</p> <p>The court had the power to pass sentence. 52 Ark., 285 ; 45 Cal., 163; 5 Casey (lJenn.), 102; 5 Halst., 163; 2 McArthur, 512; 53 Mich., 296.</p>

Joseph W. Martin, Judge. Moses executed a chattel mortgage to Pyburne as trustee for Munroe. By some means the trustee secured possession of the property. Moses procured judgment for its recovery. On the day an execution on this judgment was expected to be served, but before the sheriff had taken possession of the property, Pyburne made the affidavit in this case and placed the writ of replevin in the hands of a constable.

Joseph W. Martin, Judge. 1. To allow the re-examination of a witness after the evidence is closed and argument begun was( unfair and an abuse of discretion by the court. 2. Where an assignor purports to convey all his assets and reserves a material part, the assignment is void, whether done intentionally or not. Wait, Fr. Conv., secs. 8, 19, 197, 322-3-4; ib., sec. 9; 22 Wall., 513:6 id., 78-9; 31 Ark., 666-9; ^ N. H., 288; Burrill on Ass., secs. 108-9. 3.

C. E. Mitchel, Judge. Action on behalf of the Southern Express Company to recover damages for the killing of a horse, occasioned by the negligence of the Texarkana Water Company in filling a trench which it had dug in a public street in the city of Texarkana, for the purpose of laying a water pipe. There was verdict and judgment for defendant. Plaintiff has appealed, and assigns errors in the court’s charge.

J. B. Wood, Judge. Anthony Wallis and others petitioned the county court for the formation of a new school district, to be composed of territory taken from four existing districts. Hudspeth and others, electors residing in one of the districts to be affected, intervened to resist the application. The court dismissed the petition upon the ground that a majority of the electors in one of the four districts had not signed the petition in favor of the new district.

John M. Elliott, Judge. The justice certainly had jurisdiction of the subject matter, and hence the only question is, did he acquire jurisdiction of the persons ? Mansf. Dig., secs. 4986-7-8, would seem to settle this. As to errors in assumption of jurisdiction, the office and scope of certiorari and the remedy by appeal, see 28 Ark., 87; 37 id., 318; 44 id., 509; 43 id., 341. This being a proceeding under a “special statute” (Mansf.

John A. Williams, Judge. Condemnation proceedings instituted by the St. Louis, Arkansas and Texas Railway Company for the assessment of damages for the right of way of its railroad previously built without license across certain land belonging to Benjamin Newgass. Upon the trial the court held : “ 1.

<p>Homestead under act of Congress_Mortgage.</p> <p>One who has become entitled to a patent, under the homestead act of Congress, may mortgage the land before the patent is issued.</p>

<p>APPEAL from Pidaski Circuit Court.</p> <p>Joseph W. Martin, Judge.</p> <p>Thompson was robbed of a gold watch. Worthen was sheriff of the county at the time. Learning where the watch was and believing it would be a valuable clue in aiding to capture the robber, he bought it for $90. The robber was never captured, and afterwards Worthen offered to deliver it to Thompson upon repayment of the above sum. At first he agreed to do so; afterwards he declined to pay it, and, upon Worthen’s refusal to deliver the watch, brought this suit. The court upon these facts rendered judgment for the plaintiff.</p> <p>X. Worthen as sheriff was entitled to the amount paid by him for the recovery of the watch, under secs. 2416-19 of Mansf. Digest. The $90 was paid for the preservation of the watch to the oivner.</p> <p>2. When appellee was informed of all the circumstances, he promised to repay the amount. This was based upon a valuable consideration, with knowledge of all the facts. 1 Pars. Cont. *p. 446; 5 Pick., 384; 71 Me., 596; 102 Mass., 60; 3 Ind., 41; 121 Mass., 529-30; 57 Iowa, 307; 3 Scott, 250.</p> <p>1. One who buys stolen property, other than money or negotiable paper, acquires no title against the owner. Mansf. Dig., secs. 2416-19, confer no right of possession.</p> <p>2. The promise to repay, if any was made, was nudum pactum. 1 Pars. Cont., p. 429.</p>

David W. Carroll, Chancellor. King mortgaged to Wooster property on which- he had ■given a prior mortgage to Cavender & Greer. The .latter, subsequently and without knowledge of Wooster’s intervening lien, released their lien and took a new mortgage thereon for the same debt. This suit was brought to restore the priority of the first mortgage. From a decree granting this Telief, defendants, Wooster & King, have appealed.

David W. Carroll, Chancellor. Suit by Mary and Julia Godsey against Hendrickson to foreclose a mortgage on land. The defense of usury was interposed. The court decreed that the lien be foreclosed. Hendrickson has appealed. The facts necessary to its understanding are stated in the opinion. The transaction was usurious and void. The reservation need not be in the form of interest. It may be included as principal, or paid as a bonus.

<p>APPEAL from Perry Circuit Court.</p> <p>James B. Wood, Judge.</p>

Joseph W. Martin, Judge. Joint action of John S. Amos and wife against the St.. Louis, Iron Mountain and Southern Railway Company, to recover damages for personal injuries.

Carroll D. Wood, Judge. DeYampert sued Barringer to enforce his landlord’s lien on certain cotton, and procured a writ of specific attachment to be issued and placed in the hands of the sheriff, the defendant Johnson. The sheriff seized the property, but subsequently released it to a claimant without requiring any bond. DeYampert procured judgment for his debt and sustaining his lien.

Hugh F. Thomason, Judge. Mandamus to compel Ramsey, treasurer of Franklin county, to pay certain county warrants under seal lawfully issued and antedating the present constitution. Defendant answered, first, that the warrants were barred by certain ■orders of the county court, dated respectively May I, and August 11, 1884, calling in county warrants for cancellation and reissue (under Mansf.

David W. Carroll, Chancellor. Suit for divorce by Mary J. Wood against Henry Wood. The complaint alleged (1) indignities to plaintiff’s person which rendered her condition intolerable, and (2) desertion without cause; and that plaintiff had been an actual resident of the State and county for two months, and that defendant had been a resident of the State for several years. Prayer for divorce from bed and board and for alimony.

Charles W. Smith, Judge. 1. The title passed at once to the trustee without any act on his part, and courts of equity never permit a trust to fail for want of a trustee. 4 Ark., 302 ; 18 id., 65 ; 11 id., 94; 15 id., 60. Replevin was the proper remedy. Hill on Trustees, p. 188; 36 Conn., 10; 5 Wait, Ac. & Def., 472; 40 Ark., 75 ; 35 id., 218. 2. While a deed of trust is like a mortgage in effect, it is not a mortgage within the provisions of sec. 4743 Mansf.

John M. Elliott, Judge. Heaslet, as administrator of Mills, brought suit against Spratlin on a due bill for $150.

Rufus D. Hearn, Judge. Stewart sued Scott upon a note and account given for merchandise and supplies aggregating about $3900. Scott pleaded a set-off for $5200 for the purchase of certain standing timber which he had sold to plaintiff, to be delivered at the stump. Some of the timber had been delivered when the suit was brought, but about half of the timber was still standing.

<p>fraudulent conveyance—Exempt property.</p> <p>A mortgage of all a debtor’s property cannot be fraudulent if it be less in value than he is entitled to hold exempt from execution.</p>

John A. Williams, Judge. Dr. J. R. Barnett brought suit against W. L. Strickland and W. W. Hughey, to recover damages for a breach of a ■covenant of warranty in a deed of land. Judgment was rendered for defendants, and plaintiff appealed. The facts are stated in the opinion. This case grew out of the decision in Hughey v. Bratton, 48 Ark., 167. The measure of recovery is the purchase money, or consideration of the deed and interest.

<p>APPEAL from Monroe Circuit Court.</p> <p>M. T. Sanders, Judge.</p>

•APPEAL from Pulaski Circuit Court. Joseph W. Martin, Judge. Action for assault and battery and false imprisonment. The court overruled a demurrer to the answer. Plaintiff rested and appealed. The substance of the answer is stated in the opinion. The council is a deliberative body, with certain well-defined legislative functions. They have the right to determine their own rules of procedure, etc. Mansf. Dig., sec. 806, 823.

Joseph W. Martin, Judge. 1. The placing of the sign was the work of an independent contractor for whose negligent acts defendant cannot'be held liable. 13 S. W. Rep., 333. 2. The sign, placed as it was, was not a nuisance per se ; and it was error to refuse defendant’s second prayer. 92 N. Y., 588; 97 N. Y., 571; 46 Barb., 561 ; 4 Exch., 244 ; 14 N. Y., 524; 1 S. & R., 219; 1 Lans., 64; 37 Barb., 207. 3.

C. E. Mitchel, Judge. Appeal from a judgment for the recovery of damages for a horse killed by the defendant company’s train.

John A. Williams, Judge. On February 19, 1887, Daniels made a contract in writing with Brodie in substance as follows : Brodie sold to Daniels a stock of general merchandise, as shown by an inventory attached, for four thousand dollars, and, for a certain rent, leased his store-house and fixtures for the term of two years. Brodie agreed “ that he will not in any manner engage in the mercantile business during said term of two years in Jefferson county.

James W. Butler, Judge. I. The stipulation requiring demand to be made within sixty days was reasonable and valid. The power to make reasonable regulations limiting their liability has been repeatedly recognized. 39 Ark., 148 ; 44 id., 208; 46 id., 236; 47 id., 97; 50 id., 397. The only limitation is that the stipulation must be reasonable. Green-hood, Pub. Policy, p. 505 ; 31 Pa. St., 448 ; 5 H. & N., 867; 21 Wall., 264; 51 Ind., 127; 54 Miss., 566; 76 Mo., 514; 62 Pa.

M. T. Sanders, Judge. The Cotton Belt Levee District No. 1 of Phillips county, instituted proceedings in equity to charge the lands of Fitzhugh and wife for levee taxes assessed against the lands, in pursuance of chapter 95 of Mansfield’s Digest. Defendants set up a counter-claim that, before the construction of the levee for which the assessment was made, they had built a private levee, of which plaintiff had taken possession without their consent and without payment.

<p>Exempt property—Schedule—Ainendment.</p> <p>A schedule of exempt property filed before a justice of the peace, which is insufficient because it does not set out all the debtor’s property nor allege that he is a resident of the State, may be amended in the circuit court on appeal.</p>

Francis Circuit Court. M. T. Sanders, Judge. Evans was indicted for selling whisky without license on the 1st day of April, 1889.

J. E. Riddick, Judge. Liston, a merchant at Osceola, Ark., conveyed his stock of goods and accounts to Tomlinson, as trustee for Toof, McGowan & Co., creditors at Memphis, Tenn., to secure a note to them for $3700, due five days after date.

<p>Attorney at law—Petition for license—Minority.</p> <p>A male citizen under the age of twenty-one years cannot be admitted to-practice law in the courts of this State, although his disability to transact business in general has been removed by an order of the circuit court*, pursuant to section 1362 of Mansfield’s Digest.</p>

John A. Williams, Judge. Supplemental complaint to vacate a sale of lands under a decree which had been reversed. The facts are stated in the opinion. I. The court erred in not holding the sale void. The sale was on a credit of twelve months, a longer time than authorized by statute. Mansf. Dig., sec. 5171; 27 Ark., 292; 31 id., 229, 236; 49 id., 21. A purchaser at his own sale is not an innocent purchaser. 34 Ark., 85 ; 33 id., 621.

<p>APPEAL from Sebastian Circuit Court, Fort Smith District.</p> <p>T. C. Humphry, Judge.</p>

M. T. Sanders, Judge. The right of appellee, under the Federal constitution, to import and sell goods cannot be practically destroyed by a requirement that he shall sell them without unpacking. One who imports liquor from another State has a right to sell same whether he has a license or not, and without reference to the package, original or not. 10 S. C. Rep. Reporter, 681; 5 How., 504; 42 Fed. Rep., 546; 12 Wheat. 419.

<p>APPEAL from Conway Circuit Court in Chancery.</p> <p>G. S. Cunningham, Judge.</p> <p>The swamp land grant of September 28, 1850, was a grant in presentí. 20 Ark., 100; ib., 337; 29 id., 56 ; iioU. S., 695 ; 121 id., 488. The railroad grant was approved February 9, 1853. Prior in tempore potior est in jure. The act of March 3, 1857, perfected the title to the selection of swamp lands which had been certified (as this land had) to the Commissioner of the General Land Office. 7 Otto, 345. The proviso in sec. 4232, Mansf. Dig., does not apply to this case. It only applies to land not approved, because of a conflict. Benedict v. Hartón, Fed. Reporter, decided by Judge Caldwell. This act, March 13, 1879, was passed to meet difficulties and “ conflicts ” that arose in regard to selections, made by the State, after the passage of the act of March 3, 1837.</p> <p>It is not disputed that the act of September 28, 1850, was a grant in presentí, but it required identification to render the title perfect. 121 U. S., 488. So the act of July 9, 1853, was a grant in presentí. The identification of these lands was fixed when the line of railroad was established ; and when so identified, the grant took effect from its date. 103 U. S., 739; 112 id., 720. The legislature of Arkansas, January 19, 185 5, granted the lands embraced in the act of Congress of February 9, 1853, to the Little Rock and Fort Smith Railway, and adopted the survey made of said road. This fixed the limits and identified the lands. At this time these lands had not been selected by the State, and there was no identification of the same as inuring to the State under the swamp land grant. When the State subsequently selected these lands and reported the same to the United States land department, there at once arose a conflict. If the land was of the character embraced in the swamp land grant, it belonged to the State; if not, to the railroad. The power to settle this conflict was vested in the United States land department. That department, by the approval of the land to the railroad, settled the conflict in favor of the railroad; and its decision is conclusive. The swampy character of the land from that time was no longer open to inquiry. 33 Ark., ■836-7; 46 id:, 23; 13 Wall., 72; 93 U. S., 169; 6 Sawyer, 79; 7 id., 48; 52 Iowa, 429. The act of March 3, 1857, could not interfere with any right acquired previously by the railroad. That act simply confirmed in the State the selections previously made, “ so far as the same remain vacant .and unappropriated.” This land had already been appropriated. See Acts 1855, PP- T49> 169; Acts 1856, p. 4-7, But the act of 1879, Mansf. Dig., secs. 4231-2, and the proviso thereto, settles all controversy and quiets the title to the purchaser. The State has always treated these lands as unconfirmed. Gantt’s Dig., secs. 3860 et seq.; Mansf. Dig., .secs. 4192 et seq. Chism’s deed recites the fact that the land “ still remains unapproved and unpatented to the State,” and he cannot be heard to dispute the recitals in his deed. 39 Fed. Rep., 70. The swamp lands claimed by the State have never been treated as confirmed until certified to the State by the general land office. 33 Ark., 836. The State should now be estopped to claim the land. 7 Sawyer, .48; 3 Pick., 224; 17 Wall., 42; 7 Cal., 528. Under Mansf. Dig., secs. 4221 and 4226-30, appellee had the preference right to purchase from the State, and Chism in his affidavit perpetrated a palpable falsehood and fraud upon appellee; and whatever title he acquired will be held by him as trustee for appellee. 24 Ark., 40; 34 id., 220. If Chism was not a pre-emptor, or had no improvement on the land, the Commissioner had no power to sell same without first advertising and offering at public sale. 24 Ark., 402 ; 39 Fed. Rep., 66.</p> <p>Dodge & Johnson filed a brief for appellee on the motion for a rehearing.</p>

John S. Little, Judge. Suit to remove cloud upon title. Turman conveyed the land to Gilbreath in 1884 as security for a loan, and took a deed of defeasance. Gilbreath in 1885 mortgaged the land to the National Bank of Western Arkansas. The bank brought suit to foreclose the lien without making Turman a party. Plaintiffs, Bell and others, purchased at the foreclosure sale.

J. G. Wallace, Judge. The court erred in third, fourth, and especially the fifth instruction, and in refusing the prayers asked by defendant. These are reversible errors. Mansf. Dig., sec. 2459. In this class of cases the intent must be proved, and is never presumed. 49 Ark., 156; 11 S. E. Rep., 620; 19 Mich., 401; IO id., 212; 13 S. W. Rep., 147; 2 Thompson on Trials, p. 1888 ; 22 Pac. Rep., 80; 34 Ark., 275 ; ib., 341.

John A. Williams, Judge. Action by C. H. Triplett, administrator of T. J. Brown, deceased, against the St. Louis, Arkansas and Texas Railway Company, to recover damages for personal injuries resulting in death. The facts are stated in the opinion. 1.

M. T. Sanders, Judge. Action of trover by the State for the use of Richard Shaul against V. M. Plarrington, sheriff, and his official bondsmen for property taken under writs of attachment in favor of the creditors of John Campbell. Shaul’s statement of the controversy is substantially as follows. He sold Campbell two mules and a wagon and harness on credit.

Joseph W. Martin, Judge. 1. The record must affirmatively show how the court acquired jurisdiction. 20 Ark., 12; 47 Ark., 120. A judgment is not evidence of anything to be inferred by argument from it. Presumption and argument cannot be resorted to; the record must speak of itself; nothing extraneous can be introduced to prove a record. 19 Ala., 430; 17 Pa. St., 412; 2 Iredell, 290; Duchess of Kingston’s Case, Smith’s Leading Cases; 93 U. S., 272. 2.

C. E. Mitcijel, Judge. It is true the general rule is that it is an implied contract that the subscription is binding only after the full capital stock has been subscribed. 6 Pick., 23 ; Cook on Liability ■of Stockholders, sec. 176; Morawetz on Pr. Corp., sec. 137.

Robert J. Lea, Judge. Proceeding to annex the unincorporated town of Argenta to the city of Little Rock. The facts are stated in the opinion. 1. Argenta is not contigtious to Little Rock. 32 La. Ann., 435 ; Smith, Synonyms, p. 273 (1889); 29 Mich.,451. Being a navigable stream, the Arkansas river, together with its bed and the banks between high and low water mark, belongs to the State. .94 U. S., 168; 117 U. S., 338; 20 Fed.

Joseph W. Martin, Judge. C. L. Vogel filed a petition in the Pulaski circuit court against the mayor, city clerk, and council of the city of Little Rock, alleging that he was a resident and taxpayer of the unincorporated village of Argenta, in said county, situated on the north side of the Arkansas river, opposite the city of Little Rock; that, on the 15th day of February, 1890, the city council of Little Rock had passed an ordinance by which it was proposed to submit to the…

<p>I. Assault •with intent to kill - Instruction.</p> <p>Where one is indicted for an assault with intent to kill the brother of a girl whom he had seduced, a reference in the court’s charge to the age and infirmity of the girl’s father or to the fact of the seduction, not limiting the jury’s consideration of the latter fact to its bearing on the animus with which the assault is made, is calculated to prejudice the jury against the defendant.</p> <p>3. Abstract instruction.</p> <p>An instruction based upon a state of facts not in evidence is erroneous.</p> <p>3. Self-defense—•Attempt to debatich a woman.</p> <p>The court charged that if the defendant went to the house of the girl’s parents for the purpose of forcibly taking her away, in order to further debauch and degrade her, and upon arriving there, with his hand upon his pistol, called to her to come and go with him, and she replied that her brother was at the window and was going to shoot, and the defendant thereupon fired at the brother with intent to kill, then the jury should convict; for in that event it would be immaterial who fired the first shot. Held, erroneous, in that it failed to state that, before the unlawful purpose with which he went there could cut off his right of self-defense, it must appear that he attempted to carry it into effect.</p>

C. E. Mitchel, Judge. i. The property conveyed in the mortgage was a pledge of guaranty to make the covenants in the deed good. The remedies on the covenants must first be resorted to as the primary source before resorting to the guaranty. Brandt on Sur. and Guar., secs. I, 21, 22 and note 6; ib., sec. 84 and notes ; Baylies on Sur. and Guar., pp. 272-3, 222-3 ; 45 Tex., 553; 35 id., 763; Wood on Lim., p. 323; Jones on Mortg., sec. 1187 ; 7 B. Mon., 336 ; 2 Head.

J. W. Butler, Judge. Attachment to enforce a landlord’s lien. The facts are fully stated in the opinion. 1. Craige’s mortgage was void for uncertainty, and should not have been admitted in evidence. 41 Ark., 70, 2. Dunn was a mere share-cropper, and had no interest he could mortgage until his part was set off to him. 32 Ark.', 436; 48 id., 264; 34 id., 687. 3. The mortgage was made without Tinsley’s consent. Mansf. Dig., sec. 4452. 4.

Francis Circuit. M. T. Sanders, Judge. A judgment was obtained by Yonge & White, plaintiffs, against D. M. Wilson, administrator of the estate of D. M. Wilson, deceased, late sheriff of St. Francis county, and James M. Davis and six other sureties upon said sheriff’s official bond. The defendants excepted and appealed to this court.

John S. Little, Judge. Trimble’s complaint was that defendant, the St. Louis and San Francisco Railway Company, operating a railroad in the State more than seventy-five miles in length, wrongfully ejected him from its train because he refused to pay for fare from Van Burén to Lillie station five cents per mile, being in excess of the maximum rate fixed by the act of April 4, 1887, regulating the rates of charges for the carriage of passengers.

'M. T. Sanders, Judge. 1. The action did not lie. 34 Am. & Eng. R. Cases, 464. The criminal liability merges the civil action. 95 U. S., 758 ; 1 Add. on Torts, secs. 45-6. To entitle the personal representative to maintain the action, there must have existed a contracted relation between deceased and the person at whose hands he suffered death. Note I to p. 133 of 5 A. & E. Enc. Law; 72 Ga., 137; 28 A. & E. R. Cases, 575. See, also, Mansf. Dig., sec. 5225.

R. H. Powell, Judge. 1. The justice of the peace had no jurisdiction. Art. 7, sec. 40, Const.; Mansf. Dig., sec. 1654; 44 Wise., 288; 22 Kans., 15 ; 32 Ark., 202; 1 Herm. on Est. and Res. Adj., pp. 107, 167. This case not only involves a matter of damages to personal property, but the object and effect of the statute is to redress and afford satisfaction for the private wrong as well as the punishment of the public offense. 2.

John M. Elliott, Judge. Appeal from a conviction of the crime of marking another’s hogs with intent to steal them. Defendant admitted that he marked the hogs “ back of the Bowles place.” A witness testified that, as respects the land back of the Bowles place, “ part is in Desha county and part in Drew.” The testimony fails to show in which county the crime was committed.

M. T, Sanders, Judge. Black and another, on the 24th of February, 1888, made application for a writ of certiorari, upon notice served upon the mayor and recorder of the town of Brinkley, The petition alleged that, on the 9th day of May, 1887, forty-three-persons presented a petition to the county court of Monroe county, praying the court to annex certain territory therein described to the town of Brinkley; that said petition prayed that territory on the north, south, east…

Joseph W. Martin, Judge. S. M. Jones & Co. sued the Sun Mutual Insurance Co. in the Pulaski circuit court on a policy of insurance for $2000, on a house and stock of goods which had been destroyed by fire at Riverside, Arkansas.

John M. Elliott, Judge. Williams & Bowie sued the Bryants and Buchanan and procured an attachment to be levied upon a brick-kiln. Haycock interpleaded for the brick. Haycock testified as follows : “About the 9th day of March, 1889, the defendants in this action came to me and asked me to furnish them money with which to make brick on a yard east of Mr. Hilliard’s in the city of Pine Bluff.

Joseph W. Martin, Judge. Action by the widow and the next of kin of J. M. Davis against the St. Louis, Iron Mountain and Southern Railway Co. The complaint alleged that deceased, a brakeman in defendant’s service, while performing his duties at Bald Knob, Ark., in uncoupling a car, was, by reason of a defective and unsafe coupling and a dangerous and unblocked frog or switch, detained on the track longer than was usual or necessary, and was run over by defendant’s cars and…

APPEA.L from Sevier Circuit Court, in chancery. Rufus D. Hearn, Judge. Draper, McElroy & Rhyne composed the mercantile firm of Draper, McElroy & Co. After Rhyne’s death, the firm béing insolvent, the surviving partners conveyed the stock of goods, in satisfaction of an individual indebtedness of McElroy, to John and Kelly Cowling who had full knowledge of the firm’s insolvency.

Charles W. Smith, Judge. James B. Lear and another brought replevin against the St. Louis, Iron Mountain and Southern Railway Company for a carload of horses and mules.

J. E. Riddick, Judge. The complaint alleges that, on December 10, 1888, appellant seduced appellee’s daughter, from which she became pregnant, causing loss of her services to appellee. The answer denied each allegation of the complaint.

Carroll D. Wood, Judge. I. The declarations of voters made after and before the election as to their qualifications were competent evidence. Story, Eq. PI, sec. 97; Pom. Eq. Jur., sec. 260; Gr. Ev., .sec. 180; 27 N. Y., 59; 23 Wis., 319; 9 Ind., 477. 2. The offer to build a school, if proved, would be unobjectionable. 49 Ark., 227. 3. The court did not err in allowing testimony as to illegal votes not specified in the notice.

M. T. Sanders, Judge. 1. The testimony is sufficient to show that T. L. Payne ■used unfair, improper and undue influence with the testator to induce him to make a will in the interest of himself. 2. The will was not properly executed. Mansf. Dig., ■sec. 6492; 10 Paige, 85; 43 Am. Dec., 644; 37 id., 251; 36 N. Y.; 18 N. E. Rep., 433. 1.

Richard H. Powell, Judge. Attachment to test the validity of an assignment for the benefit of creditors. The court held the assignment void. The assignee appeals. The opinion states the facts necessary to its understanding. The reservation of the exemptions allowed by law in the manner in which they are claimed does not render the deed void. The debtor reserves nothing that the creditors could reach, or were interested in. 31 Arid, 554; Warvelle on Vendors, p. 621, sec. 17.

Charles E. Mitchel, Judge. The court erred in admitting testimony as to the custom of plasterers in Texarkana. Evidence of a custom or usage is inadmissible to vary or control the legal effect of a written instrument, or contradict its terms. 45 Am. Rep., 51; 16 N. ¥., 392 ; 34 id., 417 ; 44 id., 495 i 51 id., 431 i 54id., 353 5 55 id., 200; Wood’s Pr. Ev., 145-7; 10 Wall., 383; 13 id., 363; Gr. Ev., sec. 295.

Charles E. Mitchel, Judge. Appeal from a judgment for the recovery of damages for a trespass committed by the employees of defendant, the St. Louis, Arkansas and Texas Railway Company, “by throwing down the fences on and around plaintiff’s farm, both on and off the right of way.” The facts are stated in the opinion. The injuries or trespasses complained of were committed by Holman & Son, sub-contractors, who were not servants of the company.

Charles E. Mitchel, Judge., A deed .of trust in the nature of a mortgage was executed 'by W. A. Jett, an insolvent merchant, for the benefit of certain of his creditors. Suit in attachment was brought to test its validity. Plaintiff has appealed from a judgment sustaining the conveyance and dismissing the attachment.

Jordan E. Cravens, Judge. Henry Cullen, a boy sixteen years old, was struck by an engine while crossing the track of the Little Rock and Fort Smith Railway Company. This suit was brought to recover damages for injuries sustained by him. He testified in substance as follows: I was at Mr. Zindorf’s shop when he started to the depot. I came right along behind him. He ran around a box-car on the side track and across the main track right in front of me.

Carroll D. Wood, Judge. In June, x881, W. W. Johnson mortgaged certain lands to Adolph Meyer to secure a note for $934 and advances. Láter, in March, 1883, he gave a deed of trust, conveying certain lands and personalty, to secure a debt to Meyer of $860, as evidenced by account] also to secure $1000 advances to be made by Meyer. The trustee was authorized to sell on thirty days’ notice.

<p>Practice—Premature suit— When objection taken.</p> <p>Upon appeal objection cannot be made for the first time that a suit to foreclose a mortgage was brought before its conditions were broken.</p>

Charles E. Mitchel, Judge. Weinstein & Kosminsky brought suit against H. F. Smith to foreclose a mortgage upon a crop. T. L. Airey & Co. intervened, claiming a landlord’s lien for advances made to Smith. From a judgment disallowing their claim, intervenors have appealed. 1. Appellants had a lien as landlord for advances to enable their tenant to make a crop. The repairs were just as necessary as any other labor connected with the farm. 51 Ark., 46.

John M. Elliott, Judge. 1. The court erred in refusing to allow plaintiff to amend his complaint. Mansf. Dig., secs. 5075 to 5084, and notes; 42 Ark., 57; 30 Ark., 396. 2.

John S. Little, Judge. Petition for mandamus to require the board of improvement of sewer district No. I of the city of Fort Smith to draw a warrant on its treasurer for the amount of a judgment against the board. The writ was granted, and the board appealed. 1. The action is improperly brought against the corporate body, and contrary to the statute so far as it affects the members of the board upon personal liability. Mansf. Dig., secs. 880, 882, etc; 17 Wall., 604. 2.

0. W. Watkins, Special Judge. 1. The damages awarded are excessive, for more than were proved. 2. A firm cannot appropriate firm assets to the payment of individual debts, to the injury of firm creditors. Bump, Fr. Conv., p. 389, and notes 2 and 3, and pp. 229-230; 24 Ark., 16., 222; 31 id., 666; ib., 314; Bigelow, Fraud, 476-478. 3. The mortgage was vicious on its face. It puts the property out of the reach of creditors for an indefinite time.

J. E. Riddick, Judge. M. M. Buck & Co. furnished to the Missouri Lumber Company rails and spikes to build a spur track from the Kansas City, Fort Scott and Memphis Railroad to a cypress brake a mile distant.

J. M. Pittman, Judge. C. R. Bruce instituted ejectment against W. J. Patton to recover the northeast quarter of the northeast quarter of section 17, in township 17 north, and range 29 west.

James B. Wood, Judge. Tatum sold certain lands to R. A. Whitmore, and, to secure payment of the four purchase notes, took a mortgage on the lands and had it recorded. The first note being un paid, he obtained a judgment on it and had an execution levied upon the lands. At the sale he publicly announced that he held a mortgage for thp balance of the purchase money, and that the purchaser would take the lands subject to his lien. J. B. Whitmore became the purchaser at the sale.

Rufus D, Hearn, Judge. Force is the gist of an action of forcible entry and detainer. Implied force is not sufficient. 38 Ark., 257; 38 id., 584. The proceedings show this to be an ordinary action of unlawful detainer, and the relation of landlord and tenant must exist or the action will fail. 31 Ark., 296 ; 33 id., 682.

Jordan'E. Cravens, Judge. Appellants sued out an attachment for the property of appellees, alleging a fraudulent disposition thereof. The attachment was dissolved. Judgment against appellants was rendered on the attachment bond for damages sustained by the wrongful issuance of the writ., The facts are stated in the opinion. 1. The court erred in refusing a change of venue. Mansf. Dig., sec. 6479; ib., sec. 5060. 2. The court erred in discharging the attachment.

John S. Little, Judge. Wall and McKinney were tenants in common of a tract of land. Wall executed to Gill a deed purporting to convey the entire tract of land, and delivered possession. Gill conveyed the land to Reutzel. McKinney brought ejectment for an undivided half interest in the land. Upon the trial of the cause the defendant relied upon the defense of estoppel, growing out of the declarations and conduct of plaintiff.

John M. Elliott, Judge. Appeal from a judgment awarding a mandamus, directed to James H. Merritt, county judge of Arkansas county, to allot its proportion of the school fund to School District No. 9 of Jefferson county, which had been detached from Arkansas county. The facts sufficiently appear in the opinion. 1. The county court of Arkansas county had no jurisdiction of the petition, School District No. 9 being in Jefferson county. Mansf.

James M. Pittman, Judge. Appeal from a judgment sustaining an attachment brought to test the validity of a deed of assignment for the benefit of creditors. It is dated August 9, 1889, purports to be the deed of George T. Lincoln and J. C. Arthur, and conveys all of their partnership property to I. R. Hall, for the benefit of their creditors, with preferences.

M. T. Sanders, Judge. When a chattel is sold with a reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed. 47 Ark., 363. The agreed statement of facts shows due demand on the vendee to perform the conditions of sale, and failure on his part. The vendor then had the right to claim a forfeiture and bring replevin. 47 Ark., 363.

Francis Johnson, Special Judge. The deed recited no authority to convey the ward’s land. Prima facie it did not pass the ward’s title. The sale was never confirmed. Incompetency in the party making the sale is a jurisdictional defect. Freeman, Void Jud. Sales, sec. 10; 10 Tex., 319; 34 Miss., 314.

David W. Carroll, Chancellor. Yost, being assignee of a bond for title to land, sought to recoup against the purchase notes executed to his assignor, Hazer, certain expenses incurred in obtaining a deed from Edwards, the vendor. There was judgment for Hazer, from which Yost appeals. The facts are stated in the opinion. 1. The assignment was but a means to an end, i. e., perfecting the former verbal contract for the sale of the land.

Hugh F. Thomason, Judge. 1. It was error to refuse to permit appellant to prove that Dain had rejected the “test” of the sound of the guns. This was a relevant circumstance as affecting both the animus and credibility of the prosecuting witness. 2. The court erred in remarking ‘‘that a man charged with crime has no right to manufacture evidence in his own-favor.” 51 Ark., 147. 3.

David W. Carroll, Chancellor. 1. The relation between appellant and Jordan was one of confidence and trust. Pom. Eq. Jur., secs. 959, I049>1088; 104 U. S., 54, 70; 39 Ark., 309; 13 Cal., 133. 2. A parent is entitled to the earnings of a minor son, especially while living with her as a member of the family. 3 Hill, 399; 38 Am. Dec., 644; 15 N. H., 486 ; 2 Mass., 113 ; 6 Conn., 547; 3 Barb., 115.

Hugh F. Thomason, Judge. 1. The first question involved in this case was decided in 13 S. W. Rep., 796. 2. The boundary line of Crawford county extends to the middle of the main channel of the Arkansas river, but as to the town of Van Burén there is no statute defining its boundaries, which must be determined from the acts of incorporation and the map and plat of said town as recorded. Acts 1850, p. 81, sec. 1; Acts 1842, p. 172; Acts 1844, p. 136; 36 Ark., 166.

Rufus D. Hearn, Judge. There was no consideration 'for the so-called second contract. Rap. & Law. Law Die., “ Consideration.” Appellee was liable, under sec. 3654, Mansf. Dig., without any contract. 1. When the fence was built, appellee became the owner of one-half of it, which he sold to appellant for what he owed appellant for building it. This was a good and valuable consideration. Mansf. Dig., sec. 1673; 31 Ark., 631; 27 id., 407; 33 id., 97. ^ 2. Sec. 3654, Mansf.

Jordan E. Cravens, Judge. The laborers’ lien law was intended to apply to agricultural laborers. Mansf. Dig., secs. 4425, 4427, 4434. 1 Jones on Liens, sec. 761. With the exception of 50 Ark., 244, when the lien was conceded by counsel, and 51 id., 317, the lien has been applied only in favor of laborers on farms and like work. See also 27 Ark., 564, for definition of a laborer. Bony, the superintendent, was not entitled to a lien. 43, Ark., 168; 81 N. C., 340; 31 Am.

E. F. Brown, Special Judge. 1. Parol contemporaneous evidence is inadmissible to vary the terms of a valid written agreement.. 24 Ark., 210; 13 id., 449; 15 id., 543; 11 Johns., 201; Smith, Cont., 94; 36 Ark., 487; 37 id., no. 2. The answer setting up a release by IT. C. Gramling does not constitute a defense. 33 Ark., 572; 2 Gr. Ev., sec. 28 ; 2 Story, Cont., 978; 5 East, 230; 4 Gill & J., 305 ; 3 N. H., 318; 26 Me., 88; 20 Conn., 559, 3.

James M. Pittman, Judge. B. F. Sikes and others brought a joint suit for damages against W. A. Miller and others. The allegations of the complaint are substantially as follows. In 1881 the St. Louis and San Francisco Railway Company constructed its railroad over a certain tract of land in Benton county, Arkansas, owned by B. F. Sikes, and estabfished a depot thereon.

James B. Wood, Judge. Prosecution for selling intoxicating liquor to a minor without the written consent or order of his parent or guardian. It was proved that the sale was made in his father’s presence and with his oral consent. Defendant was convicted and has appealed. The father being present and consenting to the sale, there-was no offense within the meaning and intent of sec. 1878,. Mansf. Dig. No written consent is necessary when the father is present. Whart. Cr.

<p>1. Judgment—Proceeding to vacate—Fraud.</p> <p>A judgment by default, procured through the representation of plaintiff’s attorney that there was a return of service of process, when in fact there had been no service and no return of service by the officer, is a judgment obtained through “ fraud practiced by the successful party,” within the meaning of the fourth subdivision of section 3909 Mansf. Dig., though the the attorney acted under a mistake.</p> <p>2. Vacating judgment—Defense.</p> <p>A judgment against a defendant obtained through the fraud of the plaintiff will not be vacated at a subsequent term “ until it is adjudged that there is a valid defense to the action in which the judgment was rendered ; ” if the defense is partial, the judgment should be modified pro tanto. (Mansf. Dig., sec. 3912.)</p>

Hugh F. Thomason, Judge. Tom L. Wallace was convicted under an indictment which charged that he sold and gave liquor to a minor without the written consent of his parent or guardian. It was proved that the minor was sent by his father in company with the defendant to the latter’s saloon to get some beer for which the father subsequently paid. An appeal was taken to test the sufficiency of the evidence to sustain a conviction.

James W. Butler, Judge. Section 547^, Mansfield’s Digest, is taken from section 34, act July 23, 1868, section 38 of which provides the manner of enforcing the penalty. The remedy provided is cumulative and not exclusive. 12 Conn., 526; 19 Tex., 158; Arch. Cr. PI. & Pr., 1, 2; 1 Russ., Cr. (3 Eng. ed.), 50; Bish. Wr. Laws, sec. 251 ; 1 Whar. Cr. L., sec. 26, note 2; Endl. Int. St., sec. 467 ; 4 T. R., 202 ; 15 L. J. N. S. Q. B., 227; 12 Conn., 526; 19 Tex., 158; 43 Fed.

MOTION to extend the time for filing a copy of the record. Barstow prayed an appeal in the circuit court of Jefferson county from a judgment of $30,000 rendered against him in favor of the Pine Bluff, Monroe and New Orleans Railroad Company and others, and, not having perfected it by filing a copy of the record in this court within ninety days thereafter, made application for an extension of time.

C. E. Mitchel, Judge. Suit against S. W. Fordyce and A. H. Swanson, receivers of the St. Louis, Arkansas and Texas Railway Company-The complaint alleged that defendants’ trainmen negligently ran a train over and killed a heifer belonging to plaintiff, valued at seventy-five' dollars. The answer denied that the heifer was worth more than ten dollars. Plaintiff testified that the heifer was worth seventy-five dollars.

Joseph W. Martin, Judge. A husband is not liable to an attorney employed by the wife to obtain a divorce for his fee, even where he obtains the divorce. 32 Ala., 227; 18 Conn.,417; 40 Conn., 596; 79 111., 254; 2 Ind., 630; 18 B. Mon., 514; 8 Cush. (Mass.), 404; 42 N. H., 478; Wright (Ohio), 120; 3 Head (Tenn.), 527; 15 Vt., 607; 3 Iowa, 97; Bish. Mar. & Div., 5th ed., vol. 2, sec. 391; Mansf. Dig., sec. 2563 ; 30 Ark., 73. 1.

J. E. Riddick, Judge. Isaac W. Burgett died intestate in 1872, possessed of a large estate, consisting of over 7000 acres of land, some of which was cultivated, and personal property appraised at over $2000. He left a widow and an infant child, the plaintiff Pearl Burgett. In 1873 his widow married Jesse Grider, who was thereafter appointed administrator of the estate and guardian of plaintiff.

Matthew T. Sanders, Judge. 1. The proof shows that Granger was the general agent of Smith & Co. in procuring loans, and that such general agency affects the mortgage company because Smith & Co. are confessedly the general agents of the mortgage company. 33 Ark., 251; 25 Am. Rep., 487; 29 id., 69; 32 Fed'.

George S. Cunningham, Judge. Suit to cancel an alleged usurious mortgage of land and a trustee’s deed executed thereunder. Thomason executed the mortgage to Charles L. Flint, as trustee for the New England Mortgage Security Company. Upon Flint’s resignation J. H. Basham was substituted as trustee. At a sale under the power in the mortgage Sherwood became purchaser of the land. May, a judgment creditor of Thomason, brought this suit. The facts are stated in the opinion.

David W. Carroll, Chancellor. 1. The judgment against the company is binding on the stockholders. Morawetz on Priv. Corp. (1st ed.), sec. 619 j Thomp. Liability Stock., sec. 329. 2. The wrecking of the company by McMurtry and his-associates, while they were directors and officers, made them iable in damages to its creditors. Mansf. Dig., sec. 984; 42 N. W. Rep., 926; 20 Fed. Rep., 181; 13 Pac. Rep., 161 7 Atl. Rep., 514. 3. Capital paid in means cash, under secs. 968-971,.

James W. Butler, Judge. 1. The common law recitals and details are not now required in indictments for perjury. 24 Ark., 594. The indictment contains the requisites laid down in the rule in the above case, the false swearing, the intent, the authority of the officer, the materiality and the facts showing the falsification. It put defendant on notice of what crime he was charged, stating with certainty time, place and circumstances.

Hugh F. Thomason, Judge. 1. It was error to refuse defendant the right to open and close. There was only one issue for the jury, the insanity of defendant. The burden was on him to establish it, and hence he was entitled to open and close. 2. Defendant was not present when certain substantive steps were taken. Mansf. Dig., secs. 2098, 2213 ; Max. Cr. Pr., 561 ; 24 Ark., 627; ib., 629; 44 id., 331 ; 45 id., 165 ; 50 id., 492. 3.

J. G. Wallace, Judge. 1. The testimony of appellant, if wilfully and corruptly false, was not material to the issue; it did not tend to prove the guilt or innocence of Davis. 2. Instruction .5 was error, and was not cured by any other instruction given. 3. There was no evidence to sustain the verdict. 4. There was a fatal variance between the indictment and proof. 2 Archb. Cr. PI. & Pr., 1723, and note. 1.

James E. Riddick, Judge. Action by the prosecuting attorney in the name of the State for the use of Craighead county against the Kansas City, Fort Scott and Memphis Railway Company to recover the statutory penalty and damages for failure to construct a. suitable crossing of a public highway. The facts are stated in the opinion. 1. There was no adverse holding by the appellee, The railroad did not claim to own the land, or attempt to prevent the public from passing.

Edgar E. Bryant, Judge. W. W. Wallis, an attorney, was indicted in Scott county for embezzlement of $1567.56 collected by him by virtue of his employment by the Attorney General, under the act approved March 31, 1885, to collect claims and notes due the school fund. Upon his application a change of venue was-taken to the circuit court of Sebastian county for the Fort Smith district.

Edgar E. Bryant, Judge. 1. It was error to admit testimony of other larcenies. I Gr. Ev., secs. 50, 52; 39 Ark., 280; 37 id., 265; 22 Cal., 477; 11 S. W. Rep., 832; ib., 927; 42 N. W. Rep., 1134; 6 So. Rep., 237; 35 N. W. Rep., 405 ; 41 id., 136. 2. The instructions refused by the court were copied from Boykin v. State, 34 Ark., and Gr. Ev., and were not covered by any part of the charge. 1.

James P. Brown, Special Judge. I. A curator could not sell the lands of his ward under .an order of the probate court. 33 Ark., 490. Under our present law, bofh the guardian and the curator must join in the deed. Mansf. Dig., sec. 3507. 2. Mrs. O’Connor was under a disability to purchase, arising from the relation she sustained at the time ot the sale. Her purchase was void. 23 Ark., 622; Mansf.

David W. Carroll, Chancellor. Suit on behalf of the Fones Brothers Hardware Company ■to enjoin Jacob Erb, county judge of Pulaski county, and C. H. Whittemore and Theo. Hartman, bridge commissioners of said county, from executing a contract with the Missouri Valley Bridge Company for the construction. of a •county bridge across the Arkansas river at Little Rock.

Edgar E. Bryant, Judge. X. The indictment does not charge that Jennie Jones was a “female.” Mansf. Dig., sec. 1568; 1 Whart. Cr. Law, 574- 2. A conviction of carnally knowing a female child under the age of puberty, cannot be sustained under this indictment. Apt words are not used. Mansf. Dig., sec. 1571 ; 50 Ind., 267 ; 1 Whart. Cr. Law, sec. 572 ; 45 Wis , 86. 3. The verdict acquits defendant of rape, but finds him guilty of a crime with which he is not charged.

<p>.1. Tax sale— Wrong day.</p> <p>Under the act of February 19, 1869, extending time for assessing and collecting taxes for 1868, where the tax book was delivered to the collector on March 20, 1869, a sale of delinquent lands on August 2 following was at a date later than the law authorized, and therefore void.</p> <p>.2. Taxes—Levy.</p> <p>A levy of county taxes in 1869 for the year 1868 was illegal (following Parr v. Matthews, 50 Ark., 390).</p> <p>3. Cancellation of tax title-—.Reimbursement of purchaser.</p> <p>In a suit to cancel a title acquired under sale for the taxes of 1868 the statute does not require of the owner payment of an illegal levy, nor of interest at a higher rate than 6 per cent, per annum.</p>