Volume 55 — Arkansas Reports

1. The deed was a mortgage, and the court properly so decreed. 38 Ark., 207 ; 39 id., 377'; 40 id., 146. 2.

John A. Williams, Judge. 1. Appellants complied with their agreement. 2. No fraud is proven, and a rescission should not be had unless the parties can be placed in statu quo. 3. Appellant was certainly entitled to pay for ameliorations, expenses and taxes. 1. The contract was fraudulently procured. The inducements were not bona fide. Story, Eq. Jur., secs. 192-3; 2 Pom. Eq. Jur., secs. 873, 977. 2. The company took with notice of the trust. 2 Dev. on Deeds, sec. 738. 3.

Robert J. Lea, Judge. The words of sec. 1883, Mansf. Dig., are not wide enough to cover a Sunday theater or place of amusement. Sabbath breaking is not a common law offense. 2 Chitty, Cr. Law, 20. As the statute is in derogation of the common law, it must be strictly construed. Bish., St. Cr., secs. 216, 218. The word used is “labor,” which has a legal technical meaning, and the statute was not intended to include amusements. 5 Pa. C. C., 10; 35 Hun, 327; 16 Ind., 396; 7 So.

John M. Elliott, Judge. i. Before a claimant can recover an office by suit he must show— First—That he is eligible-to the office. 2 Pars., 537; Const., art. 7, sec. 29.; Mansf. -Dig., sec. .1790,- 1793 ; Am. Law of Elections, sec. 258; 28 Wis., 963 19 .CM.,. 180. Second—That he received a majority or plurality of the legal votes cast. The complaint does not set forth the-number of votes claimed to have been received, nor that any of the votes were legally cast.

<p>APPEAL from Chicot Circuit Court in chancery.</p> <p>Carroll D. Wood, Judge.</p> <p>Ferdinand and Louis Weis brought suit against Carrie and Adolph Meyer to restrain them from interfering with their right to use certain land fronting upon the Mississippi river for receiving and forwarding freights. On final hearing a temporary injunction previously granted plaintiffs was dissolved, and plaintiffs appealed. The facts are stated in the opinion.</p> <p>1. The landing privilege was in no way connected with the enjoyment or use of the lot, for the lot was not used.. Simply two things were embraced in the deed, but neither was dependent on the other. 9 Wall., 243.</p> <p>• 2. The appellants’ right to the easement was established by previous litigation, approving and confirming the award, .and in Weis v. Meyer, decided by this court.</p> <p>The privilege was appurtenant to the lot. It was so considered by the parties, and their acts show it. 51 Ark., 75 ; 46 id., 131. The conveyance is of the lot “ together with ” the privilege, thus making the two inseparable. Wash., Ease., sec. 29; Big., Estop., 717; 4 McCord, 96; 17 Am. Dec., 710; 3 N. H., 190; 14 Am. Dec., 346; 17 Mass., 443 ; 4 Watts, 223.</p> <p>2. The privilege being appurtenant was lost by the destruction of the land upon which it depended. 3 Kent, Com., 449; Civil Code, La., art. 779, 783; Angelí, Watercourses, sec. 247; 46 Mich., 575; 4 McCord, 96; 17 Am. Dec., 710; 41 Me., 37; 123 Mass., 567.; 51 Ark., 237; 19 Ark., 23; 26 id., 464; Goddard on Easements, pp., 321, 341; 55 Penn. St., 362; 4 H. & N., 8.</p> <p>3. The question here was not involved or settled in the previous award or decree.</p>

Matthew T. Sanders, Judge. Arthur B., Woodall, Mary E. Woodall and Willie N. Woodall, a minor, by her next friend, Arthur B. Woodall, brought ejectment against the defendant, John P. Moore, to recover possession of a certain tract-of land. The action was commenced on March 5, 1885. The complaint alleged that Arthur B. Woodall became of age on January 27, 1884, and Mary E. Woodall, July 3, 1883.

Minor Gregory brought ejectment against Liberty Bartlett, •claiming title by purchase at an overdue tax sale. On defendant’s motion the cause was transferred to the chancery •court. Defendant filed an answer which he asked to be taken as a cross-bill and in which he questioned the validity •of the overdue tax proceeding.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. Martin brought this action in the Pulaski circuit court against W. D. Holtzman and Moses Dixon, to recover the north half of the northeast quarter of the southwest quarter of section 8, in township 1 north, in range 11 west. He claimed to be the owner of the land by virtue of a deed executed to him on the 7th day of January, 1887, by the commissioner of state lands, and made the deed an exhibit ta his complaint.

J. E. Riddick, Judge. 1. Appellant is an innocent purchaser for value without notice of any fraud on the part of his vendor. 17 Am. Rep., 208-210; 1 Jones on Mortg., secs. 458-9, 710; 2 L. C. in Eq., Wh. & Tud., p.- 85—6; 63 Ala., 450; ib., 336; ib., 561 ; 63 Ind., 576; 54 la., 14; 55 Miss., 348; 1 Perry, Trusts, sec. 239; 12 Barb., 605 ; 42 Ga., 250; A. and E. Enc. Law, vol. 2, p. 444; 49 Ark., 207; Will. Eq., p. 257; 18 Pac. Rep., 926. 2.

<p>APPEAL from Phillips Circuit Court.</p> <p>Matthew T. Sanders, Judge.</p> <p>Action by H. P. Grant against F. M. Owens and two others, sureties upon a bond executed by Owens as keeper of a dram-shop. Demurrer to the complaint was sustained, and plaintiff has appealed. The allegations of the complaint are stated in the opinion.</p> <p>At common law the principal in the bond would be liable in an action of tort. The keeping of a gaming house is a nuisance per se. Wood on Nuisance, sec. 49. Anyone contributing to a nuisance is liable for all injurious consequences ■that may flow from it. Ib., sec. 821 ; 41 Fed. Rep., 650. The plaintiff was absolutely bound for the money lost to the United States, and hence the case is no wise different from what it would have been if the money had belonged to him. _3 How., 578; it id., 158; 4 Wall., 182; see 2 Keyes, 198; 25 Vt., 514; 8 Md., 337; 2 Cowp., 805 ; Mechem on Agency, .sec. 779; Whart. on Ag., secs. 20X, 412; 17 Mass., 56°; Story, Ag,, sec. 435 ; 71 Ga., 673 ; 5 Hun, 532. Appellant was the person who sustained the loss, and was the person “aggrieved.” The statute requires the bond to be conditioned that the principal will "pay to any person” the money lost, and provides that “any person aggrieved” may sue. The statute was for the benefit of the injured party, and to confine the remedy to the principal wrong-doer is unreasonable.</p> <p>The statute does not give the right to sue to any other person than the one who lost the money. Mansf. Dig., sec. 4518; Wait’s Ac. and Def., vol. 7. p. 87; Cooley, Const. Lim., 55 ; ib., 56; 7 N. Y., 9, 97; 44 Mich., 617; 70 111., 496; 72 id., 540; 2 Keyes, 198 ; 39 Fed. Rep., 101.</p>

Carroll D. Wood, Judge. On June 14, 1887, Edward Page, as surviving partner of the firm of Page & Moran, brought suit in chancery, alleging that his firm had a claim against the estate of James H. Ralph, deceased, based on his promissory note for $396.25, dated April 27, 1875, and due November 1, 1875, and bearing 8 per cent, interest from maturity, and an open account for $2.50; that the claim duly sworn to was, on January 13, 1876, presented to the administrator for…

John S. Little, Judge. J. M. Robinson & Co. sued James Swearingen, and procured an attachment to be levied upon, among other lands, a tract of 160 acres which defendant claimed as exempt. The attachment was levied on January 4, 1888. On June 26, 1888, all of defendant’s lands were ordered sold under a prior attachment against Swearingen, but the 160 acres in controversy were not offered for sale by the sheriff, because Swearingen claimed to him that it was his homestead.

<p>1. Execution—Interplea—Burden of proof.</p> <p>In a contest between an execution plaintiff and an interpleader, as to the-ownership of property seized under execution, the court may direct that the latter assume the burden of proof. (Mansf. Dig., sec. 3045.)</p> <p>2. Possession—Presumption.</p> <p>While possession of property wholly unexplained raises a presumption off ownership, no such presumption arises where the circumstances of the-possession are fully disclosed. ’</p> <p>3. Gift—Fraud.</p> <p>That a gift is binding on the donor will not preclude his creditors from attacking it for fraud.</p> <p>4. Practice—Further instructions.</p> <p>Where the jury has received all instructions necessary to aid it in reaching a conclusion, and has retired, the court may refuse to recall it in order to-give further instructions.</p> <p>5. Gift—Presumption of fraud.</p> <p>Every gift is presumptively fraudulent as to existing creditors; the burden is on the donee to show that the donor’s intentions were innocent, and) that he had abuudant means left to pay his debts.</p>

Joseph W. Martin, Judge. G. W. Bruce brought suit against the Little Rock and Fort Smith Railway Company, alleging that it charged him for transporting one car-load of brick from Morrilton to Conway, stations on its road, the sum of $28, which was unreasonable and unjust, charging 8 cents per IOO pounds, while the schedule of freight rates allowed but cents per 100 pounds to be charged for rough stone per car load, rough stone being in the same class of freight as common…

Matthew T. Sanders, Judge. In 1868 A. J. Muns sold certain land to W. N. Jolly, and executed a title bond, and placed him in possession. After Jolly’s death in 1885 Muns took possession of the land ; thereafter the administrator and heirs of Jolly brought this suit in ejectment.

James M. Pittman, Judge. On January n, 1889, the firm of J. H. Williams & Co.,„ druggists, executed to Joel Wilson and B. F. Williams a mortgage on all their stock of merchandise and accounts. to secure the latter against liability, as sureties for the former, upon two notes aggregating $1500.

John S. Little, Judge. On the 17th day of April, 1889, Josie B. Robertson filed her petition in the probate court in which she stated that she was the widow of John B. Robertson, who died on the 14th day of February, 1887, leaving one child, Ethel G. Robertson; that appellant Neal had qualified as executor of the last will of the deceased ; that in 1887 petitioner filed with the clerk of the probate court a relinquishment of her right of dower in the estate, in consideration…

James E. Riddick, Judge. Barton brought ejectment against Mary Lattourette and another, relying upon a tax title. The answer assailed the validity of the tax deed upon the ground that the assessor failed to take the oath prescribed by section 5661 of Mansfield’s’ Digest, before entering upon the duties of his office. The cause was tried before the court without a jury. The agreed statement admitted the failure of the assessor to take the oath above mentioned.

John A. Williams, Judge. 1. We accept the rule that a trustee to sell for others cannot, either directly or indirectly, purchase for his own benefit. 41 Ark., 269. But in this case there is no proof of fraud, and the only evidence is the slight presumption which might arise from the fact that three days after the sale the administratrix bought in her own right from the purchaser. See 33 Ark., 585. The sale was made fairly and honestly, and without collusion or fraud.

Richard H. Powell, Judge. Mrs. W. L. P. Ogle brought suit in replevin against J. Z. Thompson, before a justice of the peace, February 23, 1889, to recover a mule worth. $80, and obtained judgment, from which Thompson appealed to. the circuit court. .

Matthew T. Sanders, Judge. In 1887 Seth C. Cocks and Blanch D. Lyles, heirs of Philip A. Cocks, who died in 1869, brought suit against Miles A. Simmons to remove a cloud upon their title to an undivided half interest in four-fifths of four sections of land in Monroe county.

John S. Little, Judge. 1. The removal of the place of public worship was part of the consideration entering into, the contract. 2. And this contract was binding on the defendants. The facts constituted Carter the agent of the trustees and congregation. Two of the trustees had knowledge of the trade, and their knowledge was knowledge to all. Wade on Notice, secs. 682, 676. Notice to Carter, the agent, was also notice to all. Ib., 672. 3.

Rufus D. Hearn, Judge. In 1888, Stix, Krause & Co. brought suit against Chaytor & Dunn, formerly partners, and certain others, to set aside conveyances alleged to be fraudulent.

Rufus D. Hearn, Judge.' On behalf of himself and others, citizens and tax-payers •of Pike county, Bush brought suit against Adler, Goldman & Co. and W. M. Kizzia, treasurer of Pike county.

Matthew T. Sanders, Judge. Des Jardins, Miller & Roots instituted suit against S. B. ■Curtis, who was engaged in the business of a merchant, and procured an attachment to be levied upon the south part of 'lots 5 and 6, in block 13, in the town of Hazen. The attachment was sustained. Defendant moved to discharge the •attachment because the property was a part of his homestead.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. Plaintiff Charlotte Ringlehaupt, alleged in her complaint that she was the owner of a certain two-story brick house; that the property adjoining on the east belonged to the defendant, W. N. Young, and was a vacant lot; and that Young, in making excavations on this lot for the purpose of erecting a building, made them so recklessly and negligently that they caused the walls of her house to “ give way.” She further alleged that…

Charles W. Smith, Judge. Appellee brought suit against .the St. Louis, Arkansas and Texas Railway Company, known as the “ Cotton Belt Route,”' a line more than seventy-five miles in length, (1), to recover the penalty prescribed by the act of April 4,1887, for charging him more than three cents per mile for transportation; and (2), to recover damages for a forcible and unlawful expulsion from appellant’s chair car.

Charles E. Mitchel, Judge. Snider & Holmes sued Nat Martin, and alleged that, on thé 26th day of September, 1888, the sheriff of Nevada county, by virtue of an execution issued in their favor against E. E. White, offered for sale, according to law, all the interest of said White in certain lots in Prescott;, that Martin became the purchaser thereof for the sum of three hundred dollars, and executed his bond or note for such sum; that the note was due and unpaid; wherefore…

Jordan E. Cravens, Judge. Mary E. McCauley brought suit to foreclose a mortgage of land executed to her by Susannah Humphrey and her son, R. A. Humphrey, to secure their certain promissory note for $311.50 with IO per cent, interest. The defense of usury was interposed. On the hearing the court decreed that the mortgage be foreclosed. Defendants have appealed.

<p>APPEAL from Pulaski Chancery Court.</p> <p>This was a suit brought by Edward Fitzgerald and others in the Pulaski chancery court against Walker, Rumbough and McLean as commissioners of Paving District No. 3, and the Arkansas Industrial Company, to restrain collection of the taxes levied for paving West Markham street in the city of Little Rock.</p> <p>The complaint alleged that the plaintiffs were owners of real estate within the district; that the commissioners had let the contract for paving one-half mile of said street to the Arkansas Industrial Company, without advertising for bids; that the commissioners agreed to pay to the company the sum of twenty-seven thousand dollars ($27,000) in .promissory notes, signed by themselves, negotiable and payable to said company, bearing interest from their respective dates until paid, at the rate of 6 per cent, per annum ; that the company paid no attention to any of the specifications of the contract, but simply dug up the street to. a varying and unequal extent, and threw into it a quantity of loose boulders, filling the interstices with common earth and clay, and not with sand and gravel, as provided by the contract, so that when the work was barely completed, the street had already become almost impassable ; that the commissioners had accepted the work, in fraud of the rights of the taxpayers ; that the price agreed to be paid for said work ($27,000) was extravagant and wholly unreasonable, to the knowledge of the commissioners and of the company; that the county of Pulaski pays for similar work at the rate of about $4000 per mile, which is its reasonable value, and to pay $27,000 for half a mile of such inferior paving would be a fraud on the tax-payers of the district; that all work done under the contract was not worth more than $2000, and the taxes already collected before the completion of the work were sufficient to pay that.</p> <p>The complaint prayed for a cancellation of the contract and an injunction against the collection of the tax.</p> <p>An amendment to the complaint alleged that the contract was void because in contravention of the constitutional provision prohibiting municipalities from issuing interest-bearing evidences of indebtedness, and because the improvement, by the terms of the contract, would cost more than 20 per cent, of the value of the property in the district, and because the contract was modified after its execution without re-advertisement for bids.</p> <p>Defendants answered denying the allegations of the complaint. The court found that the street had been constructed substantially according to the contract, and that the contract was valid; but held that The contract to pay interest was void. From this decision both parties appealed.</p> <p>1. The contract was a fraud upon the tax-payers, because (1) the-work was not done according to the contract; (2) the contract was extravagant to such a degree as to establish fraud on the part of the commissioners, or such gross negligence as is equivalent to fraud. 2 Dill, on Mun. Corp., secs. 914-19; 121 N. Y., 105 ; 92 id., 121 ; 120 Penn. St., 374; 19 N. J. Eq., 376.</p> <p>2. The contract is entirely void because it is ultra vires. Mansf. Dig., sec, 837. The cost exceeded 20 per cent, of the value of the property in the district. This avoids the contract, and no action can be maintained upon the contract or upon a quantum meruit. 25 Ark., 267; 68 N. Y., 23; 75 id., 65 ; 77 id., 130; Dillon on Mun. Corp. (4th ed.), secs. 447-8-9, 451-7-8-9, 460-1-3, 134, I34«, 135-6, 136».</p> <p>3. The contract was let without advertisement. Sec. 870, Mansf. Dig.; Dill. Mun. Corp. (4th ed.), sec. 406; 75 N. Y., 65.</p> <p>4. The contract is tdtra vires because it stipulates that the notes shall bear interest. Art 16, sec. 1, Const.; Dillon, „Mun. Corp., sec. 21. .</p> <p>1. The questions raised by the first proposition of appellants’ counsel are purely questions of fact, and the proof must be explicit, clear and conclusive. 7 Abbott, N. C., 44-5. Review the cases cited and contend that they do not sustain appellants’ contention. Courts do not set aside contracts for inadequacy of consideration. See 119 N. Y., 559; 92 id., 121. The remedy for illegal assessments is pointed out in Mansf. Dig., sec. 839. A substantial compliance is sufficient to enable the contractor to recover. 92 Pa., m ; 121 Pa., 382; 19 N. J. Eq., 379, 385-6,</p> <p>2. Even admitting that the contract was excessive by adding in the interest, it would only be void as to the excess. 39 Ark., 335 ; 3 A. & E. Enc. Law, note 1, p. 887; 77 Ala., 248 ; 96 U. S., 341 ; 5 Abb., N. C. The intention of section 837 was that property-holders should not have their property burdened beyond 20 per cent.</p> <p>3. The letting was advertised. But the law does not require it. 15 Kan., 131; 53 N. Y., 400; 64 id., 409.</p> <p>4. Section I, article 16, constitution, does not apply to local improvement districts. But if it did, the stipulation for interest would be simply void. 96 U. S., 341.</p> <p>5. Plaintiffs are estopped by their own conduct and laches. 130 l’a., 466; 18 Mich., 588 ; 50 Ark , 130.</p> <p>6. They are estopped by the acceptance of the work by their own representatives, the commissioners. 29 N. J., 450; Mansf. Dig., sec. 870; iS Mich., 515; 6 Dakota, 353-4; 94 U. S., 98.</p> <p>7. The acceptance by the commissioners, if not conclusive, was prima facie evidence that the work was done according to contract, and was binding unless made through fraud or artifice. 1 Dill., Mun. Corp. (4th ed.), sec. 483 ; see 93 Pa., 115.</p>

Charles W. Smith, Judge. STATEMENT BY THE COURT. The Fire Association of Philadelphia and the Southwestern Commercial Company sued the St. Louis, Arkansas and Texas Railway Company, in the Columbia circuit court, for damages caused by the burning of cotton by a fire on the first day of April, 1887, at Magnolia, Arkansas.

A. M. Duffie, Judge. Pie Hathcote was convicted of carrying a pistol as a weapon. A witness, W. H. Crutchfield, testified that defendant, while engaged in carrying the mail, stopped at a postoffice on his route, and that, while sitting down waiting for the mail to be changed, a pistol dropped out of his pocket.

Robert J. Lea, Judge. In 45 Ark., 536, and 49 id., 176, it was held that only those who have an interest in the estate, or who are entitled to exercise some control over it, are within the statutory exceptions. At common law, six months’ notice is required to terminate a tenancy by the year. Gear, Land. & T., sec. 32. After notice the holding over creates a tenancy at suffer* anee, the lowest possible tenancy. Ib., sec. 40; Am. Law of Real Prop., 133.

Hugh F. Thomason, Judge. There was no gift in the meaning of the statute. 3 Wait’s Ac. & Def., p. 487. It was error to instruct the jury that the mere passing the bottle constituted an offense. The ownership of the liquor is immaterial. A criminal intent is not essential to the offense. One must know to whom he sells or gives. All persons who aid, abet or procure the sale or gift to minors are guilty, as principals. 62.

Joseph W. Martin, Judge. In January, 1889, Martin brought ejectment against Townsend and others for the possession of various tracts of land,… Held: “No exception can be taken to a deed except such as shall apply to the real merits of the case. 13 Ark., 242; 21 id., 580. 3. Section 5791 cannot be held to cure fatal defects. 2 Black., Tax Titles, sec. 950; Cooley, Tax. (2d ed.), 306; 129 Mass., 559; 20 Blatch., 341; 31 N. W., 271; 54 Md., 454; 14 111., 223 ; 74 111., 384. 4.

T. C. Humphry, Judge. 1. The penalty sought to be recovered herein cannot be recovered by indictment, because sec. 5482, Mansf. Dig., provides for a suit by the prosecuting attorney in the name of •the State, which means a civil action. 2. Section 5478 is unconstitutional. It was enacted under the constitution of 1868. Acts 1868, sec. 34. Art. ■9, sec 4, const. 1868, provides that all Jines, penalties, etc., shall go to the school fund.

Matthew T. Sanders, Judge. This was an ordinary insurance policy, and the assured had no right to change the beneficiaries unless expressly authorized by the contract, or the articles of association or bylaws of the society. Bishop on Cont., secs. 746-7; 52 Ark., 201-206; 11 N. E. Rep., 449; Bacon, Ben. Societies, 257; 34 N. W. Rep., 470 ; 31 Fed. Rep., 177. The brotherhood was purely a benevolent organization.

From appellant’s abstract it appears that R. W. Martin filed his petition, under chap. 23 of Mansf. Dig., for confirmation of a tax title to certain lots in the city of Little Rock, derived through a deed to his grantor from the land commissioner. The deed, which was executed in 1886, purported to convey all the State’s right, title, interest and •claim to the land, and recited a forfeiture for the taxes of 1882.

J. B. Wood, Judge. 1. By section 5782, Mansf. Digest, it is provided that in order to defeat a tax title certain fundamental defects must-be shown, among which is an entire omission to give notice,, etc. By section 5791 a two years’ limitation is provided,, within which irregularities or informalities must be set up.. By section 4246 land commissioner’s deeds are made evidence of title. 49 Ark., 266.

James W. Butler, Judge. STATEMENT BY THE COURT. On the 6th of June, 1889, C. J. Andrews, as administrator of the estate of N. A. Puckett, deceased, filed his petition in ■the probate court of Sharp county, alleging therein that Daniel Puckett died, in said county, in the month of February, 1887, intestate, leaving the said N. A. Puckett, his widow, surviving; that he was the owner of lands upon which he resided at the time of his death; that, no dower having been assigned to…

<p>1. Dower—Mortgaged land.</p> <p>Where a widow had joined her husband in the execution of a mortgage of his land, she is entitled to dower therein subject to the mortgage, and cannot require the administrator to apply the personal estate to relieve the land from the encumbrance.</p> <p>2. Dower in pledged chattels.</p> <p>A widow is entitled to dower in the equity of redemption of chattels which have been pledged by her husband.</p> <p>3. Assignment of dower—Parties.</p> <p>In a suit by a widow to have dower assigned in personalty, one who has a lien or charge thereon is a necessary party.</p> <p>4. Dower in personalty—Lex domicilii.</p> <p>A widow’s right of dower in personalty, wherever situated, is determined by the laws of her husband’s last domicile, and should be allotted to her as therein provided.</p> <p>5. Dower—Personalty in another State.</p> <p>The refusal of the probate court to allow to a widow out of personalty in the hands of the domiciliary administrator a sum in value equal to her dower interest in her husband’s personalty in another State is not erroneous where the value of such personalty is not shown, and such step does not appear necessary to protect her rights against prejudicial complications with foreign administrators or distributees.</p>

Charles E. Mitchel', Judge. 1. The preponderance of the evidence shows that the-goods were bought with the knowledge and consent of Moore. 2. But aside from this the proof shows that Moore ratified Alford’s acts, and he is estopped by such ratification. Moore reaped the benefits of the acts of his agent, and cannot retain them and repudiate the burdens. The third instruction should have been given. 28 Ark., 59; 47 N. Y.,. 648; 67 N. Y., 138 ; 36 id., 83; 12 Mo.

Grant Green, Jr., Judge. 1. If the evidence as to an alibi was sufficient to create-a reasonable doubt in the minds of the jury, as to whether defendant was present, it was[the[duty of the jury, to acquit, and the jury should have been so charged. 39®_Ohio-St., 215; Bish., Cr. Pro., sec. 1066; Whart., Cr. Ev., sec. 333; 46 Ark., 152. 2. The ownership of the propertyjnust be proved as alleged in the indictment. 42 Ark.,[73. 3. The court invaded the*province of the jury.

James M. Pittman, Judge. STATEMENT BY THE COURT. ■Murray sued the St. Louis & San Francisco Railway Company for damages which were occasioned by the negligence of the company in operating its trains. At the trial evidence was adduced tending to prove the following facts : On the 29th of November, 1887, plaintiff was a passenger on the defendant’s train from Delaney to St. Paul.

Hugh F. Thomason, Judge. Argued the case orally. 1. The third instruction asked for defendants should have been given. It states the law and was supported by evidence. It was his defense. Buswell on Insanity, secs. 431, 433; Lawson’s Cr. Def., p. 107; Bish., Cr. Law., vol. 1,. sec. 392, and note 7. 2. It was error to permit the opening statement of the-prosecuting attorney, and introduce Martin to prove it, and then refuse to allow defendant to disprove it by Gurley. 3.

<p>APPEAL from Monroe Circuit Court.</p> <p>Matthew T. Sanders, Judge.</p> <p>Isaac Halpern sold D. N. Brakefield a mule, taking a mortgage as security. Upon default in payment of the purchase price, Halpern brought replevin for possession of the mule. Brakefield interposed the defense of usury. There was a verdict and judgment for plaintiff. The appeal was taken to test the sufficiency of the evidence to support the verdict.</p> <p>Halpern testified that he was a merchant and was furnishing an organization among the farmers, known as the Wheelers,” under a contract, and that defendant was trading with him under said contract, by which it was agreed that he was to have a profit of io per cent, above cost and •carriage on all goods sold them for cash, and for all advances made them on time he was to have a profit of 20 per •cent, above cost and carriage ; that he sold the defendant the mule in controversy under that contract with IO per cent, interest; that he bought the mule for defendant on or about the 14th day of April, 1886, for $130, in Memphis, and paid $5 for transportation of the same on the steamboat to Clarendon ; that, a short while before he bought the mule for •defendant, he (defendant) came to him at his place of business in Clarendon and asked him to loan him money with which to buy a horse or mule, and he refused to loan defendant the money, but told him that he would send and get him a mule and charge him the same per cént. over' and above the cost and carriage of the mule to this place that he was charging the other Wheelers, which was 20 per cent., and add that per cent, profit to the actual cost of the mule to appellee, and charge it to defendant as a profit that the mule was bought for defendant and charged to him upon plaintiff’s books, and a mortgage was taken upon said mule to secure the payment of the purchase money. That the defendant has never paid for the mule, and is still indebted for the same; that the said mule was worth $25 per year for the use thereof; that he charged the defendant the same that he did all of his customers, which was-10 per cent, for- goods sold for cash and 20 per cent, for everything sold on time; this per cent, was as a profit on the cost of his goods; that he carried defendant into his office and presented him with the bill, showing the net cost of' the mule, and added 20 per cent, to that amount as profit; the reason that he did this was to satisfy defendant that he was not charging him a greater profit, and that he was not making any more off of him than he was entitled to under his contract with the Wheelers.</p> <p>Defendant testified as follows: On or about the 14th day of April, 1886, he went'to plaintiff at his store-house in the town of Clarendon and requested him to loan him some-money with which to buy a horse or mule; that he was-trading with plaintiff in 1886, on a credit, under a contract or agreement that for all moneys and goods furnished him during that year by plaintiff he should pay 20 per cent, interest per annum; that when he went to plaintiff under this-contract to get the money, plaintiff said to him that he would not give him the money, but would send and get him a horse or mule, and would charge him 20 per cent, over and' above the cost and carriage of the same as interest for his money, and take his note for the amount, with 10 per cent, interest per annum from date until paid; that plaintiff tolcl him that all he wanted was 20 per-cent, interest on his money; that plaintiff exhibited to him the bill of cost of the mule, which was $135 in Clarendon; that he went with plaintiff into the latter’s office, and plaintiff made a calculation of 20 per cent, interest upon this amount, which was $27, and added the same to the original or actual cash cost of the mule, which two amounts added together made $162f the cost of the mule to him after plaintiff had added his demand of 20 per cent, interest for his money invested in the mule; that it was expressly understood and agreed that plaintiff should charge and he should pay 20 per cent, interest upon $135, the cash invested in the mule; that plaintiff ^bought the mule for him with the intention and for the purpose of making 20 per cent, interest upon his money, and he gave his note therefor, plaintiff intending to receive and he intending to pay 20 per cent, interest upon the money invested in the mule; that the delivery of the mule, the calculation of 20 per cent, interest upon the net cost of the mule and the execution of his note for $162 were one and the same transaction.</p> <p>This was all the evidence.</p>

On December 2, 1887, Hiram Robbins purchased of Elias Ellenbogen a stock of liquors and the fixtures in a saloon in Little Rock, giving therefor his note for $1600, due one year from date, bearing 10 per cent, interest, and secured by a mortgage of certain lots in said city, which contained a power of sale, authorizing the mortgagee to sell the property •and to bid at the mortgage sale as any third person could do.

<p>u. County prisoners—Qualifications of contractor.</p> <p>It seems that the statute regulating the hiring out of county prisoners does not intend to make a previous residence in the county an indispensable qualification for becoming a county contractor, but does intend that the contractor shall keep and work the prisoners in the county where they have been convicted, except where the county court is unable to make a contract with any person in its own county.</p> <p>3. Contract for keeping prisoners—Judgment.</p> <p>Under the statute which provides that the county court may make a contract for the hire of the county prisoners with the contractor of another county, where it is unable to make a contract with any person in its own county (Mansf. Dig., sec. 1245), the recitals of the record of such court that the person with whom a contract was made is the contractor of another county have the force of a judgment in rent and cannot be questioned collaterally.</p>

James W. Butler, Judge. Lindsay recovered a judgment of damage against the St. 'Louis, Iron Mountain & Southern Railway Company for three cows and a hog, killed by the latter’s trains. The facts are stated in the opinion. 1. The venue is wanting in all three of the suits before the justice; the statements and petition failed to state in what county the animals were killed. Thus no jurisdiction was given the justice. Mansf. Dig., sec. 5540; 38 Ark., :2o6.

Francis Circuit Court in chancery. Matthew T. Sanders, Judge. H. B. & T. C. Dawson brought suit against John and Anna Parham to establish equitable titles to three several tracts of land, situated in township 5 north and range 3 east, viz.: (1) The northwest quarter of the northwest quarter of section 20; (2) the north half of the southeast quarter of ■section 19; and (3) the south half of the southwest quarter •of section 20.

Charles E. Mitchel, Judge. In January, 1889, Graham sued the St. Louis, Arkansas & Texas Railway Co., alleging that it had so' negligently erected an embankment on its road-bed as to cause a natural stream to overflow certain land wherein he held a life estate, thereby destroying his crop in 1888 and rendering the land unfit for use. He asked damages for the injury to-his crop, and to his life interest in the land.

Francis Circuit Court in Chancery. Matthew T. Sanders, Judge. The contest in this case was between execution creditors and a grantee of Mrs. Jennie C. Hickey. A plantation had been conveyed to Mrs. Hickey by her father, N. F. Cheairs, the deed reciting the payment of the purchase money.

Robert J. Lea, Judge. The Waters-Pierce Oil Company was charged with selling “three barrels of coal oil without having the oil inspected and the barrels branded, as required by law. The case was tried by the court, and the defendant was adjudged guilty, ■upon an agreed statement of facts, as follows : “ The defendant is an incorporated company, and it made •two sales of coal oil in the city of Little Rock, without having the same inspected by an inspector of this State.

James W. Butler, Judge. A homestead may include land detached from the family residence or mansion house. Mr. Thompson, in his work on Homesteads & Ex., p. 126, sec. 145, says the weight of authority is against the proposition, but we think not. Citing and reviewing 36 N. H., 158; 46 id., 43 ; 42 Vt., 27, cited in Thomp. on H. & Ex., sec. 146, pp. 126-7-8-9, and sec. 154, note 2. Missouri, North Carolina and Texas decisions hold that a homestead may embrace detached parcels.

J. E. Riddick, Judge. Brookfield sued Stotts in replevin to recover four thousand cross-ties. The land from which they were cut was wild and uncultivated, and had previously belonged to W. L. Hughes. In 1885 Lemuel McGuire obtained a decree against Hughes for the recovery of the sum of $240, which was declared a lien upon the land for its purchase money. Under the decree the commissioner sold the land to McGuire for $84.

Charles W. Smith, Judge. 1. In all actions for damages the plaintiff must have a preponderance of evidence. I Greenleaf, Ev., sec. 75 ; 2 Denio, 609; 51 Ark., 397. The preponderance is clearly with the appellant. 2. A new trial should have been granted for newly discovered evidence, original evidence, and not cumulative merely. 3. When a court of chancery takes jurisdiction for one purpose, it does for all. 1 Story, Eq. Jur., sec. 65 ; 2 Ch. Cas., 200-1.

<p>'I, Possession—Notice—Equitable title.</p> <p>Continuous possession by the equitable owner, for the period of twelve months, of land which he occupied as a homestead is sufficient to put upon notice persons dealing with the holder of the legal title.</p> <p>2. Usury—Estoppel.</p> <p>A land-owner who has agreed to hold his land as a tenant and pay rent for its use to one who holds the legal title as security only for a debt is not estopped to plead that the debt is usurious, and the security consequently void.</p> <p>.3. Usurious payments—Recovery.</p> <p>Usurious payments not shown to exceed the principal and lawful interest cannot be recovered.</p>

J. E. Riddick, Judge. Appellant was convicted of a felony. By this appeal it is •sought to test the validity of an order of the county court ■fixing the place for holding courts. The facts sufficiently appear in the opinion. 1. Defendant was entitled to a new trial on the ground of newly discovered evidence. 2. The question whether the court was held at the place provided by law is properly before this court. 20 Ark,, 78. The county court ignored the provisions of Mansf.

Matthew T. Sanders, Judge. Thomas brought this suit against Stallings, Matthews & Co., to redeem lands in their possession from a mortgage, and to obtain an accounting of rents.

Jordan E. Cravens, Judge. Gus Blass & Co. sued Mrs. A. Lee on an account and procured an attachment to be levied on a stock of goods, the affidavit alleging that she was about to sell, convey, or otherwise dispose of her property with the fraudulent intent to cheat, hinder and delay her creditors. Defendant controverted the ground of the attachment.

John S. Little, Judge, On August 11, 1884, W. B. Turman conveyed to J. C. Gilbreath, by deed and bill of sale, all of his real and personal property. On September 10 following he executed to. Gilbreath his promissory npte for $9265 due four years from date, and took from him a bond for title or defeasance, conditioned for the re-conveyance of the land upon payment of the notes.

<p>■Felony—Waiver of arraignment and plea.</p> <p>Where no prejudice appears upon the record, a conviction of a felony will1 not beset aside because the defendant was tried without arraignment or plea, if the cause was treated as at issue upon the plea of not guilty.</p>

Joseph W. Martin, Judge. Fischel filed a motion for a summary judgment against Anderson Mills as sheriff.

Jordan E. Cravens,-Judge. Jenkins sued Shinn and two others upon their note for .$230, executed to the American Desk and Stool Co. and indorsed to himself. Defendants answered that they had paid vthe note to one Dickerman, who was authorized by plaintiff to collect it.

B. B. Hudgins, Judge. John Hawkins and two others were convicted under an indictment which charged that they “ unlawfully and maliciously did sever from the freehold five watermelons of the value of twenty-five cents each, of the property of Smith Madewells.” A motion in arrest of judgment was overruled, and they appealed. The indictment is insufficient in not alleging the ownership of the freehold. It is sufficient to follow the language of the statute. Mansf.

'.Matthew T. Sanders, Judge. No bill of exceptions was necessary, as the cause was tried ¡upon an agreed statement of facts, and presented but one issue which appears on the face of the record. There being no bill of exceptions, there is nothing presented for adjudication, except whether the court had jurisdiction. 43 Ark., 391; 42 id., 488; 44 id., 411.

J. G. Wallace, Judge. 1. Contends that the instructions of the court were •erroneous. Appellant merely assigned or transferred a chose ■in action, which he had the right to do. 43 Ark., 360; 4 Lawson, Rights & Rem.; sec. 1449; Wheeler on Carriers, 227. 2. The charge ignores the fact that there was evidence that appellant gave Collier $1.60 to pay the C. O. D. charges. The State is bound by her admissions. Steph. Dig. Ev., p. 125, art. 60.

J, G. Wallace, Judge. Winn was convicted under an indictment which charged as follows: “ For that whereas one D. F. Moore then and there having a valid and existing written lease, and being entitled to the possession, of the following real estate (describing it); the said C. M. Winn, being armed with a deadly weapon, unlawfully and wilfully, by putting in fear of immediate danger to the person of him the said D. F. Moore, did keep possession of the above real estate.” The…

Carroll D. Wood, Judge. It was error to charge that if defendant was found guilty the jury must assess his punishment at not less than five years nor more than fifteen years. Value having been alleged and proved, the allegation and proof cannot be-treated as surplusage, and the court should have charged' the jury to assess the punishment under section 1627 instead of section 1629 of the Digest. This court cannot assume that no prejudice resulted.

CROSS-APPEALS from Randolph Circuit Court. James W. Butler, Judge. 1. Appellee was entitled to the land as a homestead from the date of the marriage of her mother until she was 18 years of age, then the mother or her tenant was entitled to rents until dower was assigned. 34 Ark., 63; 40 id., 393. After dower assigned appellee was entitled to two-thirds of the rents, and the widow to one-third. 2. The agreement should have been admitted.

J. E. Riddick, Judge. In January, 1884, Glasscock sold to Rosengrant the standing oak timber of prescribed dimensions on a large body of lands situated in township seventeen north and range seven east and in several other townships named. By the contract, which was reduced to writing, it was provided that the standing trees should be counted, marked and paid for in 1884. The contract contained, in substance, the following among other provisions: Eighth.

Matthew T. Sanders, Judge. R. Lee Connor, while a passenger on a train of the Texas- & St. Louis Railway Company, operated by Fordyce as receiver, was killed in an accident occasioned by negligence of the railway operatives. He was an unmarried adult, and left his father as his sole heir at law. This suit was brought, by McCants, as administrator, for the benefit of the father.

<p>APPEAL from Independence Circuit Court.</p> <p>James W. Butler, Judge.</p>

<p>ERROR to Perry Circuit Court.</p> <p>A. M. Duffie, Judge.</p> <p>1. No statutory offense was committed unless the contract was in writing. Mansf. Dig., secs. 4441, 4451. The circuit judge seems to have been misled by the amendment to sec. .4452, by Acts of 1887, p. 108.</p> <p>2. Statutes creating offenses are strictly construed. Bish., .St. Cr., sec. 220 et seq.</p> <p>3. The language of the indictment was for enticing, etc., •one under contract to labor, etc. If Johnson was a renter, tenant or share-cropper, there could be no conviction. Johnson must have been a laborer, under contract for a year. It was so alleged and must be proven. Whart., Cr. Ev., 146; 31 Ark., 49.</p> <p>4. Two distinct offenses are created by sec. 4451 ; one enticing, etc., a “laborer,” the other, a “renter.” A laborer is one hired to labor, and creates the relation of master and servant. Bouvier, “Master;” 3 Den. (N. Y.), 369; 35 Ark., 602 ; 39 id., 17; 42 id., 542; Mansf. Dig., sec. 1959;. 53 Ark., 503. From the contract of renting arises the relationship of landlord and tenant. Bouvier, “ Landlord and Tenant;” 46 Ark., 254.</p> <p>1. The labor act, Mansf. Dig., secs. ,4441 to 4452, was-amended by Acts 1887, p. 108; the period was extended from one month to one year. A statute and its amendments should be construed together. Bish., Writ. Laws, sec. 152#.. As the contract was for a year, it need not be in writing.</p> <p>2. The testimony shows Johnson to have been a “sharecropper ” or mere laborer for part of the crop. 39 Ark.,. 286; 25 id., 330; 34 id., 179; ib., 690.</p>

<p>.Instructions—Should he harmonious.</p> <p>The giving of a correct instruction upon a point in a case will not cure an error in another instruction entirely variant, where there is nothing to show the jury which instruction to adopt. Thus, where in a murder case the jury are instructed that if deceased was in the act of striking defendant in self-defense when the fatal blow was given, the jury should convict of murder either in the first or second degree, the error in excluding from the jury the right to decide whether defendant acted under an irresistible passion, which would reduce the crime to manslaughter, is not cured by a distinct instruction upon that point properly stating the law.</p>

Hugh F. Thomason, Judge. • The lands belonged to Tolbert from the date of his final receipt. 54 Ark., 148. The tax proceedings were begun after Tolbert has received his final certificate, and if the lands were not subject to taxation, this was matter of defense, which he could have successfully set up, but is not now avail.able. Acts 1881, p. 64, secs. 3, 4, 5, 18, 20; 50 Ark., 188.

John S. Little, Judge. Cohn & Harrington sued Morris, first, upon a note given for the purchase of 300 head of cattle; and second, upon an account for money expended in keeping the cattle. Defendant filed an answer containing three paragraphs : 1. He alleged that there was no consideration for the note sued on; that he had agreed with plaintiffs to purchase the cattle, but they did not comply with their contract to deliver them to him. 2.

David W. Carroll, Chancellor. Robbins brought suit against Kimball to establish a trust in favor of himself in a tract of land purchased by the latter. His contention was that Kimball and himself were partners engaged in buying and selling real estate, and that he furnished part of the consideration of the purchase under a parol agreement with Kimball that he should have a half interest in the land.

Francis Circuit Court. George Sibley, Special Judge. Cummings & McKnight, surgeons, filed a claim for $125 ■against St. Francis county for professional services, rendered at the instance of the coroner, in making a post mortem examination at an inquest. The claim being disallowed in. the county court, an appeal was taken to the circuit court.

John M. Elliott, Judge. 1. The court erred in refusing to allow King to testify whether he had any interest in the suit. Under this ruling King’s testimony went to the jury as from an interested party, and would not have the weight it otherwise would have had. 2. The first instruction for appellee was too broad and misleading, even though it was abstract law.

<p>APPEAL from Pope Circuit Court.</p> <p>Jordan E. Cravens, Judge.</p> <p>Action by L. P. Lawton against the Little Rock & Fort Smith Railway Company, a leased line of the Missouri Pa•cific Railway Company. The case is sufficiently stated in the opinion.</p> <p>I. Plaintiff was not a passenger, and the defendant owed him no other duty than that of ordinary care, after having knowledge that he came aboard to assist a passenger with the .intention cf getting off at the same station. 72 Mass., 70; 59 Mo., 34. Knowledge on the part of the officer in charge of the train that plaintiff was on the train for the purpose of assisting a passenger is absolutely necessary to place defendant under any duty to such a person. 66 N. Y., 246 ^ 59 Md., 187; IO S. E. Rep., 499; 84 Ga., I. When strangers resort to the cars for their own convenience, or for business in no way connected with the carrier, they are without legal right, and can only hold the carrier responsible for wanton or wilful injury. Thomps., Car. Pass., pp. 104-5 > 7l 111., 500; 59 Pa. St., 129; 36 Ark., 50; ¿5., 376; 41 id., 549^. 46 id., 535 ; 101 Pa. St., 258; 29 Ohio St., 367.</p> <p>Under the rule in the above cases; the company owecL plaintiff no duty other than the negative one not to injure him wilfully or intentionally.</p> <p>2. Plaintiff was guilty of contributory negligence, by his-own confession. Defendant was free from any negligence whatever, by reason of having exercised reasonable and ordinary care, even without knowing that plaintiff did not intend to become a passenger. 51 Ark., 477; 45 Ark., 26.</p> <p>3. Persons frequenting station houses and cars of a carrier are required to obey all reasonable rules and regulations established by the carrier for their own protection and safety, and a failure to do so is contributory negligence. The carrier has a right to keep all persons off its cars who are not there for the purpose of taking passage or transacting' business with the company. It was at least plaintiffs duty to notify the employees in order that they might take proper steps to avoid injuring him. 31 Ark., 31 ; 8 S. E. Rep., 529; 9 A. & E., 302.</p> <p>4. Instruction No. I was misleading, in that it assumes that the conductor knew that plaintiff boarded the train to assist a passenger, and so knowing gave permission to enter' the car. Custom cannot abrogate a regulation of the company, and instruction No. 2 was erroneous. 6 Ind., 533 ; 47-Mich., 569; 11 N. W., 153; 54 Wis., 234; 104 Ind., 13; 3." N. E. Rep., 611; 20 N. E. Rep., 776. It also assumed that the train failed to stop the usual and necessary length of' time to allow passengers to get on and off. Instruction 3 ¿gave plaintiff all the rights of a passenger and was erroneous. There was no evidence to support the fourth.</p> <p>5. Testimony as to the custom at Altus and other points as to hotel men assisting passengers on and off the train was -incompetent. 49 Ark., 359; 45 Ark., 26.</p> <p>1. It is not error to refuse instructions, if the court correctly gives the law upon all points arising in the case. 28 Ark., 8; 24 id., 264; 34 id., 649.</p> <p>2. The instructions asked by defendant were properly -refused; citing 36 Ark., 117 ; 31 id., 666; 45 id.,.251; 49 id., 263; ib., 189. Appellee was not a trespasser. If Mrs. Sadler needed assistance to board the train, and appellant’s servants failed to render it, then it was appellee’s duty and right to do so. 13 Am. & E. R. Cases, 29. On account of -'custom he was not a trespasser. 40 Ark., 321; 46 id, 189.</p>

Joseph W. Martin, Judge. 1. The county was the original debtor. The credit was given to the county in the first instance. Wood on Stat. Frauds, sec. 130. 2. Was the authority continuing? It was general, and the county is estopped by its own conduct to dispute its liability. It is for an unlimited sum. The county got the benefit of the goods and should pay for them. For examples of continuing guaranties, see Brandt on Suretyship, •secs. 130, 131, 132. 1.

Robert J. Lea, Judge. Webster Robinson was convicted of an assault with intent to kill under an indictment which charged as follows: “ The said Webster Robinson, in the county and State aforesaid, on the 17th day of April, A. D., 1891 unlawfully, feloniously, and with malice aforethought, did make an assault upon one David Bradford with a deadly weapon, to wit: a gun, by then and there shooting him, the said David Bradford, with a gun then and there loaded with gunpowder and…

J. E. Riddick, Judge. Matthews & Whittaker recovered a judgment against Rosengrant for double damages for timber alleged to have been wilfully and knowingly cut by Rosengrant from land belonging to them. Defendant appealed. The facts sufficiently appear in the opinion. Section 3868 Mansf.

Matthew T. Sanders, Judge. 1. The judgment is void for want of jurisdiction over the person of the petitioner. This was not brought for the recovery of land or any interest therein (Mansf. Dig., sec. 4994, sub-division 1), but to cancel title or remove a cloud, and is transitory, and the court must have jurisdiction of the person. 6 Cranch, 148; 18 How., 263 ; 42 Ark., 446; 4 Pet., 466; 9 Wall., 812 ; 95 U. S., 714; 6 Whart. (Pa.), 392. See also 47 Ark., 86. • 2.

A debtor can maintain his claim to exemptions out of the proceeds of a sale of his property made by the sheriff upon request of creditors under an order of attachment, pending the litigation. The title was in the debtor until condemnation. The sale was only to preserve its value pending litigation, and if the attachments were dissolved the proceeds would be paid to the debtor.

J. E. Riddick, Judge. i. Crowley is primarily liable for the Mellon judgment. [Davis was only his surety, and Crowley’s property should Ibe first subjected to sale to pay the judgment. Mrs. Mellon ^should be compelled to exhaust her remedy against Crowley before resorting to Davis’ lands. 40 Ark., 104; 10 S. E. Rep., 798 : 10 N. Y., 178 ; 94 N. Y., 98; 32 Ark., 478. A .surety is not bound to pay until the principal is unable to pay.

David W. Carroll, Chancellor. By sec. 4994 Mansf. Dig., every action for injury to real property must be brought in the county where the lands lie. The court below had no jurisdiction and properly sustained the demurrer and dismissed the bill for want of jurisdiction. 80 Cal., 308; 22 Pac. Rep., 252; Brown on Jurisdiction, secs. 32, 34; 33 Ark., 31 ; 66 Cal., 343. Our code provisions in reference to venue apply to both legal and equitable actions. 11 Abb. Pr.

<p>..Practice in Supreme Court—Advancing causes.</p> <p>A cause involving the collection of public revenue will not be advanced out of its order on the docket when it does not appear that any department of the government will be embarrassed by delay.</p> <p>[The opinion defines the practice in advancing causes upon the docket.]</p>

Matthew T. Sanders, Judge. John M. Davis, as administrator of the estate of Clarence Davis, sued the St. Louis, Iron Mountain & Southern Railway Company for damages because of the injury and death ■of Clarence, through the carelessness and negligence of the =said company.

David W. Carroll, Chancellor. R. W. Martin purchased from the land commissioner certain land forfeited to the State for non-payment of taxes, and by appropriate proceedings procured a decree confirming his title. Caldwell subsequently brought this suit to set aside the decree and annul the tax-title, upon the ground that the land was not advertised as delinquent for the year of the pretended forfeiture. The court sustained a demurrer to the complaint.

James B. Wood, Judge. The mortgage to McCarthy & Joyce was not authorized by a proper meeting of the board of directors. One of the directors was not notified. All must have notice, or the proceedings are void. 52 Ark., 511 ; 14 S. W. Rep., 1101. It is true a director cannot put a stop to the corporate business by simply leaving the jurisdiction. . If after reasonable search he cannot be found, the remaining directors may attend to the necessary affairs.

Charles E. Mitchel, Judge. Charles H. Kelton, a painter in the employ of the St. Louis, Arkansas & Texas Railway Company, brought suit to recover damages for an injury by a fall from a defective ladder.

James M. Pittman, Judge. John W. Simmons died intestate in 1886, possessed of real -and personal property. His heirs at law were six sons, F. A., Thomas, John, Sam., Irvin and Richard, and a grandson, John Beach, only child and heir at law of Sallie Beach, his daughter, who, prior to her father’s death, died intestate, leaving her husband, B. S. Beach, and child surviving.

Matthew T. Sanders, Judge. The latter part of instruction No. I is not the law. The identical words must be proven as alleged. Newman, pp. 424,674; Newell, pp. 804-5, sec. SO; *'£•» p- 808, notes 21, 22; ib., 807, note 19. Odgers on Libel and Slander, p. 435. It is wrong because it does not instruct the jury that the testimony must be given in a judicial proceeding, and that it was material to the issue. Newman, p. 315 ; Newell, p. 122, sec. 52 ; ib., 126.

Joseph W. Martin, Judge. 1. An officer cannot take life in attempting to arrest or to prevent escape after arrest, in misdemeanor cases, unless-the party resists by force, endangering the life of the officer or threatening great bodily harm. The court’s instructions on that subject were erroneous, u Ky. L., 67; 2 Lea, 720; 1 Lewin, Cr. Cases, 187 ; 3 S. W. Rep., 622; 44.

<p>1. Negligence—Fire—Remote cause.</p> <p>Where a railway company had contracted with a compress company to transport all cotton brought by its owners to the warehouse of that company, but neglected to do so until a large quantity of cotton accumulated at the warehouse and in the adjoining street and caught fire, whereby plaintiff’s cotton, situated a short distance away, was destroyed, an instruction that if the jury find that defendant had contracted to remove the compress company’s cotton, and that plaintiff’s loss was caused by its failure to do so, they should find for plaintiff, was properly refused; since defendant’s failure to comply with its contract to remove the cotton was not the juridical cause of the fire.</p> <p>2. Negligence—Independent contractor.</p> <p>A railroad company does not become liable for an injury to another's property caused by the negligence of a compress company, exercising an independent employment, in the handling of cotton, by reason merely of the fact that the railroad company had taken up the compress company’s receipts for cotton received for compression and issued bills of lading therefor to the owners of the cotton, and had agreed to pay the compress company’s charges for compression.</p> <p>3. Railway—Bill of lading—Estoppel.</p> <p>Under the act approved March 15, 1887, which prohibits carriers from issuing bills of lading except for goods actually received into their possession, and gives a right of action against the carrier to the party aggrieved, a railway company which has issued bills of lading to the owners of cotton in the hands of a compress company is not estopped as to third persons from denying that the cotton was in its possession or control.</p>

PETITION for Certiorari to Monroe Circuit Court. Grant Green, Jr., Judge. Anderson was committed to jail by a justice ot the peace, acting as coroner, under a charge of murder based upon an inquisition over the body of one Robert Read.

J. G. Wallace, Judge. 1. The indictment fails to allege that an election was held. This was material. 54 Ark., 584; 1 Arch. Cr. PI. & Pr., 291 ; 2 id., p. 290; 11 Bush (Ky.), 169 ; 57 Vt., 86; 35 Ark., 327. 2. It was no crime to steal a ballot-box in Arkansas at that time. Acts 1891, p. 51, sec. 43, made it a crime.

John M. Elliott, Judge. 1. The transaction was usurious and void. 47 Ark., 287; 53 id., 271; ib., 345 ; 41 111., 31. 2. A debtor is never estopped to plead usury. It taints and vitiates all transactions. Judgments by confession will be set aside for usury. 5 Rand., 759; 5 John., Chy., 122; 2 Johns. Cases, 258; ib., 280; 3 Johns., 139; ib., 250; 22 111., .475 ; 87 III., 84; 1 Taunt., 413 ; 4 B. & Aid., 92.

David W. Carroll, Chancellor. 1. The Rumbys are not purchasers of the lands; they had an attachment against Lewis W. Chapman, and only entitled to only take the interest he himself had. 27 Ark., 98; 31 id., 253. 2. Though none is reserved in the deed, Mrs. Chapman had a vendor’s equitable lien for the purchase money. 31 Ark., 7285 -33 id., 246; 33 id., 310. 3. It is ordinarily true that the taking of a mortgage is a waiver of the vendor’s lien, but conventio vincit legem.

John M. Elliott, Judge. Appeal from a decree dismissing a bill to foreclose a mortgage. The facts sufficiently appear in the opinion. The plaintiff alleges the loss of the notes, but that they were still due and unpaid; this was denied by defendant. Upon this state of facts the onus was'on defendant to show payment. Where loss is alleged and non-payment affirmed, the defendant when she pleads payment, must so show, or fail. 29 Ark., 74; 21 W. Va., 183; 55 Vt., 352.

Hugh F. Thomason, Judge. • Kimberling brought suit against Koch before a justice of the peace to recover damages for breach of a verbal contract, entered into about January 1, 1890, by which Koch rented a blacksmith shop and set of tools to him during the year 1890 for one-half of the receipts. After plaintiff had worked in the shop two weeks under the contract, Koch rented the shop and tools to other parties.

James E. Riddick, Judge. 1. If the deed was void for the reason that the nth of June was not the day fixed by law for making sales for nonpayment of taxes for 1882, it appeared from the face of the deed that it was void and not a cloud on plaintiff’s title. 37 Ark., 644; 67 Am. Dec., 106, note. 2. The court erred in admitting the deposition of Cobbs. Mansf. Dig., sec. 2826; 33 Ark., 833. 1. A tax sale made on a day not fixed by law is void. 2. Sec. 5782, Mansf.

B. B. Hudgins, Judge. 1. The list of grand jurors was not certified as required bylaw. Mansf. Dig., secs. 3982-3. It was a mere list of names. 34 Ark., 722. The attempt to cure this was futile, as no two of the commissioners could act in the absence of the third. Mansf. Dig., secs. 3980-1. But if they could, it was a substantive step, and could not be done in the absence of defendant. 2.

Rufus D. Hearn, Judge. 1. As the petition for dower did not include this tract, the judgment of the probate court assigning her dower was void. 2. There being no life estate intervening, the statute commenced to run from the date of the sale, and appellee is barred. 48 Ark., 230. 1. The failure to include the land in the petition.for dower did not affect the judgment. The court had jurisdiction, and its confirmation of the commissioner’s report was sufficient.

E. S. McDaniel, Judge. Appellant was found guilty of an assault with intent to kill John Hughes. Among other grounds for anew trial he alleges that he was surprised by the testimony of a witness to the effect that, on a certain occasion, he had admitted having shot at Hughes.

David W. Carroll, Chancellor. The only thing to be determined in this cause is, what is the contract between the parties ? The terms of the mortgage are “ to pay the sum * * * mentioned and all other indebtedness which may then be due * * * on or before November 1st, 1889.” This is the contract. Courts •do not make contracts for parties, but enforce such as they make.

<p>Hfomestead—Abandomnent by widow—Statute of limitation.</p> <p>Where a widow, claiming to be the sole owner of her deceased husband’s homestead, sells and conveys it in fee simple, in disregard of the rights of his minor child and sole heir, she will be hel.d to have abandoned the homestead, notwithstanding she subsequently obtains a re-conveyance of the land ; in that case the statute of limitation begins Upon the minor’s death to run in the widow’s favor against the minor’s heirs, and is not postponed until she shall again convey or sell the land.</p>

<p>APPEAL from Garland Circuit Court.</p> <p>James B. Wood, Judge.</p> <p>Hill, a real estate broker, wrote to Jebb for authority to -sell certain lots in Hot Springs belonging to the latter. In: reply Jebb authorized him, by letter dated February 5, 1887, to sell the property for $30,000, and agreed to pay him a -commission of 2 per cent., but added : “Of course the land is subject to sale at any time to others; I cannot give a refusal.”</p> <p>On the 23d of March, 1887, A. B. Gaines telegraphed from Hot Springs to Jebb at Thomasville, Ga., offering $25,000 for the lots, of which $5000 was to be paid in cash. On the same day Jebb telegraphed to Gaines that he would not take less than $26,000. On the next day Gaines telegraphed that he accepted the proposition, requesting deed to be made to him and Hogaboom. On the same day Jebb wrote to Gaines directing him to make the mortgage to secure the deferred payment. On the 25th of March Jebb telegraphed to Gaines : “ Sale confirmed. Mortgage to be ■given to secure balance of purchase money. Have written.”</p> <p>Hill says that on the morning of the 25th of March, 1887, .lie sold the lots to Johnson and Blaydes for $30,000. On the 26th he says he gave Johnson permission to consummate the trade by paying over the first payment and drawing up the necessary papers on the following Monday, which was the 28th day of March. On that day he says the trade was consummated, a cash payment of $5000 was deposited in the bank, and a written contract was drawn up. Upon this ■state of facts Hill claimed $600 for his commissions.</p> <p>The verdict was for the defendant. The appeal questions the sufficiency of the evidence to sustain the verdict.</p> <p>A real estate broker’s claim for compensation cannot be defeated by the owner’s change of mind, his refusal to consummate a sale, a change of terms, or a withdrawal of the contract of agency. See Fitch on R. Est. Ag., 17, 18; 45 111., 308; I Abb. (N. Y. App.), 189. The reservation that the land was subject to sale to others is an inherent feature of every contract of employment of a real estate broker. But where the agent is the procuring cause of the sale, he is still entitled to his commission. Am. & Eng. Enc. Law, vol. 2, 584, and cases cited.</p> <p>The authority once given at a price fixed without limitation as to time will be presumed to continue for a reasonable time. Fitch on R. E. Ag., 53. If the principal interferes and prevents sale, the agent is still entitled to his commission. 43 Cal., 306; 49 Mo., 383; 49 Ind., 275 ; 31 N. Y., 462; 62 III., 216; Fitch, R. E. Ag., 19 and 20; 2 Am. & Eng. Enc. Law. 578, 580. It was Jebb’s duty to notify Hill of his withdrawal of the lands for sale through him. 63 Iowa, 606; 62 111., 216. The agent’s authority cannot be revoked after it has been actually exercised by him, or after he has signed on behalf of the principal. 2 Camp., 389; 3 id., 127; 48 N. Y. Sup. Ct., 281.</p> <p>Jebb expressly reserved the right to make the sale himself, but if he had not done so he would have had that right nevertheless. This was a special agency, and plaintiff took subject to a revocation at any time by sale or otherwise. 34 Minn., 98; 24 N. W. Rep., 341; 21 Wis., 302; 94 Am., Dec., 514; 61 N. Y., 415; 49 id., 561; 40 N. W. Rep., 258. There was no evidence that Hill was the procuring cause of the sale, or that Hill’s advertisement led up to the purchase by Gaines. 54 Pa. St., 394; 93 Am. Dec., 718; 33. Ark., 448; S3 id., 49; 37 Ga., 295; 43 N. W. Rep., 569. See 83 N. Y., 378; 38 Am. Rep., 441; Mechem, Ag., sec.. 969; 57 Cal., 261; 63 Iowa, 606; 17 Pac. Rep., 642.</p>

Hugh F. Thomason, Judge. J. D. and H. W. Fort were indicted jointly for burglary in Logan circuit court; after change of venue was taken to the Greenwood district of Sebastian county, they severed and were each convicted.

James W. Butler, Judge. The Adler-Goldman Commission Company, a corporation, ■sued G. B. Pearson for $1200 due on an open account, and procured an attachment to be levied upon a stock of goods which was invoiced at $1542 and sold by the sheriff for .$1058.60. Hathcock interpleaded for the goods, claiming to have purchased them from Pearson. The attachment was sustained.

Hugh F. Thomason, Judge. ' ' 1. In order to take a parol contract out of the statute of frauds by part performance, the agreement must be clearly proved, must be certain and definite. 39 Ark., 424; Younge, 346; 5 Ga., 341; Waterman, Spec. Perf., sec. 265 ; 5 Wait, Ac. & Def., 778. The doctrine does not apply between co-tenants. 44 Ark., 79. , 2.

John M. Elliott, Judge. I. The court erred in reading as the law of the case sections 3501, 3512, 3514, 3517, 3532-3-4-5 of Mansf. Dig., 'because they were abstract, and had no applicability to the •case whatever, and misled the jury. 2. The court erred in giving the second, third and fourth instructions. There was no proof of any condition to the surrender of the notes, which was a complete and actual transaction, completed. August 16, 1887.

H. S. Carter, Special Judge. Brown and King were jointly indicted for the murder of J. N. Jones. They severed at the trial, and Brown was convicted of murder in the second degree. By appeal he questions the action of the court in giving certain instructions, in refusing certain other instructions, in admitting certain expert evidence and in refusing to admit evidence of uncommunicated threats made by deceased.

H. S. Carter, Special Judge. I. The testimony of Mrs. Ratliff and Frank Pyle as to •threats was admissible. 26 Am. Rep., 52; 57 Ind., 80. 2. It was error to permit Dr. Ruff to testify as to the exhuming of the body, without notice to appellant or his •counsel. Whart., Cr. Ev., .secs. 421, 423, 3. The court erred in refusing defendant’s instruction No. 1. 52 Ark., 45 ; 49 id., 543, et seq. 4. ■ The fifth paragraph of the court’s charge is error.

Matthew T. Sanders, Judge. Judgment was entered in the lower court against C. M.. Price and others, declaring a forfeiture upon a bail bond, conditioned for the appearance of one Joe Price. The judgment was hitherto affirmed in this court for want of prosecution.

Robert J. Lea, Judge. Proceedings were instituted in the county court to annex to the city of Little Rock the unincorporated town of Argenta, and certain other contiguous territory, there having been an ordinance passed to that effect and a favorable vote at the annual city election. Vogel, Vestal, Ratcliffe and certain others interested in the land proposed to be annexed were permitted to intervene and to resist the annexation.

E. S. McDaniel, Judge. At the October term, 1890, the city of Eureka Springs, presented to the county court a petition asking that certain contiguous territory be annexed to it. Among other facts, it was alleged that an election had been held on September 22, 1890, to determine the will of the people of th.e city.

E. S. McDaniel, Judge. This was a proceeding to annex the same territory involved in the associated case of Eureka Springs v. Woodruff\ ante, p. 616. More than a month prior to the annual election for city officers in 1891, the city council of Eureka Springs passed an ordinance for submission of the question of annexation of the territory to the vote of the electors.

Richard H. Powell, Judge. Hill, Fontaine & Co. sued G. W. Popplewell upon an account and procured an attachment to be levied upon his property. The attachment was dissolved, and defendant’s •damages for its wrongful suing out assessed at $200. It was adjudged that defendant owed plaintiffs $628.89, that the damages awarded defendant be credited on this sum, and that plaintiffs recover of defendant $428.89, the balance of their debt.

• Matthew T. Sanders, Judge. The Southwestern Improvement Association, a Missouri corporation, sued the White River Lumber Company, a corporation of Arkansas, to recover rents due under a contract for the lease of land situated in this State. Defendant has appealed from a judgment in plaintiff’s favor. The facts sufficiently, appear in the opinion. 1. By Acts 1887 (April 4th), all contracts of foreign corporations are absolutely void unless the act is complied with.

James E. Riddick, Judge. Action upon an account by Sahline & Co. against J. H. Liddell and eighteen others, partners by the style of the Cooperative Association of Greene county. The facts are-stated in the opinion. 1.

J. B. Wood, Judge. A party dealing with an agent whose authority is conferred by written instrument is bound to take notice of its legal effect. Wiggs was a special agent, and parties are put on inquiry as to the extent of his authority and are charged with notice of the limitations upon his powers. Wade on Notice, 295, 296; 657, 11 Gratt., 269; 66 Barb., 623; 8 Wend., 494; 29 Ark., 512; 9 Pick., 542; 3 Johns.

Matthew T. Sanders, Judge. The decree in the Tennessee case is not res adjudicata, and does not estop appellant from prosecuting this appeal. The title to lands must be determined by the courts of the State where the lands lie. 27 Ark., 486; 15 How., 244; f C. E. Green, 115; 1 Hawks, 365 ; 6 Pet., 399; Story, Conf. Laws, sec. 543; Cooley, Const. Lim., 491—2; 1 Black on Judg., 240; 38 111., 316.

<p>Conditional sale—Right of vendor—Estoppel.</p> <p>A vendor of personal property who reserves title until the purchase money is paid does not waive his right to retake the property upon default by advising a creditor of his vendee with knowledge of the reservation to take a mortgage of the property.</p>