Volume 56 — Arkansas Reports

<p>Appeal from Clark Circuit Court.</p>

1. It wjs error to give instruction No. 4, and refuse No. 5. One murderously assaulted is not obliged to retreat, but may pursue his adversary and slay him, if it appears reasonably necessary to secure himself from danger. Hawk. P. C., ch. 10, sec. 24; 1 Bish. Cr. L., (7th ed.), secs. 850, 870; 17 S. W. Rep., 450; 1 Fast, P. C. 271; 1 Lawson’s Cr. Def., p. 30 and note ; ib., p. 231; 32 la. 36; Stofer’s case, 15 Oh. St. ; 15 Ga. 117; 52 Ark. 47. 2.

This is an appeal from a judgment of death pronounced against the appellant by the Pulaski circuit court at its October term, 1891. He was charged with the murder of W. L. Copeland, a policeman of the city of Little Rock, who was in the act of arresting- him when he was killed. Appellant was at the time a convict in the state penitentiary, but was allowed to go outside of the prison walls at certain times as a special privilege in recognition of his good behavior.

The Citizens’ Street Railway Company, a corporation running several lines of street cars upon the streets of the city of' Little Rock, and especially upon Main street in said city, on April 26, 1890, filed its bill in equity against the city of Little Rock and others, and averred, among other things, that the city was a municipal corporation under the laws of Arkansas ; that the defendants, Leigh, Koers and Keith, were the board of commissioners of Improvement District No.…

White Circuit Court. F. P. Laws, a real estate broker, sued G. B. Greet*, alleging that the latter employed him to negotiate a sale of 10,422 acres of land, and that the contract of employment was that if plaintiff should sell the land at $2-50 per acre, defendant would allow him 25 cents per acre and a commission of 5 per cent, on the remainder ; that plaintiff negotiated the sale for the agreed price, and that defendant had refused to pay more than $1,250.

Crutcher brought suit against Watson to • compel specific performance of a written contract to convey, among other lands, the north half of the southeast quarter of section three in township six north, range three west, less twenty-five acres off the south side thereof.

Taylor was plaintiff in a judgment in the circuit court of Franklin county against P. R. Cravens & Co., upon which execution was issued on February 26, 1890, and on same day placed in the hands of J. D. Hawkins, sheriff of Crawford county.

John O’Brien brought suit against Mrs. Dentler to enforce a mortgage to secure payment of purchase money of land, and to enforce a vendor’s lien on personal property. She answered and filed a cross complaint, alleging that while plaintiff sold, her the land, the title came to her'from one John F. O’Brien, a minor, who might avoid the deed upon arriving at majority ; and therefore she prayed that the sale be rescinded and the mortgage cancelled.

Davis recovered judgment against the St. Demis, Iron Mountain & Southern Railway Company for $1000 damages for an unlawful ejection from its train. Defendant company has appealed. The facts sufficiently appear in the opinion. 1. The verdict is not sustained by the evidence and is contrary to law. 2. The third instruction for plaintiff should not have been given.

<p>1. Attorney — When not entitled to fee for collection.</p> <p>Where ati attorney agrees to collect a claim, pay the costs and accept for his compensation one-half of the amount collected, he is not entitled to half of an amount collected by the client if the latter notified him of the opportunity to make the collection and he declined to resort to it because of the expense involved.</p> <p>2. Practice on appeal — Dismissal.</p> <p>Under the act of April 14, 1891 (p. 280), which authorizes the Supreme Court, on reversing a cause, to remand or dismiss the cause and enter such judgment as it may deem just, where plaintiff’s evidence affirmatively establishes that there is no right of recovery in his behalf, the court will reverse a judgment at law in his favor and enter judgment for defendant.</p>

Dan-ville District. George E. Kimball brought suit in 1890 to foreclose a mortgage executed in 1880 by T. J. Choate and W. D. Scott, on the south half of section 2 in township 6 north, range 22 west; also one engine and boiler, one Straub mill, one saw mill complete, and all pipes, belts, pulleys and all other attachments to make the above machinery in complete running order.

Mrs. Caroline McDonald brought suit against C. B. Humphries and wife, Buey A. Humphries, and the American Beg'ion of Honor, a mutual life insurance society, upon a benefit certificate for $2000, issued on the life of Joseph McDonald, one-half for the benefit of plaintiff, his wife, and one-half for the benefit°of defendant, Buey A. Humphries, sister of plaintiff. The complaint alleged that deceased held originally a benefit certificate for the sum of $2000 payable to herself.

D. Reeve sued School District No. 7 of Pulaski county, before a justice of the peace, upon several school warrants. Judgment was for plaintiff, and an appeal was taken to the circuit court. The warrants were similar to the following : No. 10, $40.00. District School Fund, District No. 7. Wampoo, Ark., Sept. 22, 1888.

This was an action instituted by John M. Rudy against James R. Austin and Mamie B. Austin, to quiet his title to two certain town lots in Van Burén, and for other purposes.

Certiorari cannot be used as a substitute for appeal. It is not a writ of right, but one of discretion. 44 Ark. 509 ; 28 id. 87; 43 id. 33 ; 39 id. 399. Errors or irregularities can be cured only by appeal. 30 Ark. 148; 35 id. 99.

<p>1. Unacknowledged, mortgage not a lien.</p> <p>A purchaser of property subject to all valid liens acquires title superior to the lien of a prior recorded but unacknowledged mortgage.</p> <p>2. Second mortgage not a discharge of first.</p> <p>Taking a second and unacknowledged mortgage is not a satisfaction of a prior mortgage duly acknowledged and recorded unless such was shown to have been the intention of the parties.</p>

Ayers brought suit against Goodrum and another to quiet his title to certain land claimed by him under deed from the heirs of James Timms. Defendants’ answer set up title by tax sales ; denied that the heirs of Timms had title when plaintiff purchased ; and pleaded the statute of limitation of seven years adverse possession and that neither plaintiff nor his grantor has been possessed of the land within two years before commencement of suit.

The sale and delivery to appellant were sufficient to vest the title in him as against a subsequent purchaser. 8 Ark. 213; 19 id. 567; 1 Benj. Sales, p. 12, sec. 6. Retention of possession by vendor is not conclusive proof of fraud. 54 Ark. 307. Where there is a contract for future delivery or at a given place, the title does not pass until such delivery. Benj. on Sales, sec. 325; 113 Mass. 391-4; 101 111. 138.

1. The words were not actionable j>er se, and there is no-allegation or proof of special damages. Odgers on Libel and Slander, 60; Towns, on SI. and Lib. sec. 165. In the connection in which the words were used they amounted to nothing more than an abusive epithet. As illustrating the doctrine, see 1 Viner’s Abr. 417; ib. 426 ; ib. 443-447,491, 502,503, 506; 7 Taunt. 205; 1 Cr. Jac. 65 ; 4 Rng. L. and Rq.

The court erred in compelling the defendants to take the affirmative and make out their case first, and in admitting the satisfied note in evidence. Plaintiff should have been required to show that the collateral notes had not been collected. The burden was on him. Plaintiff is estopped by his laches. 75 Am. Dec. 115, and note ; 88 N. Y. 339. Under the plea of payment, the burden was on defendants. 32 Ark. 593 ; 16 id. 651 ; Hempstead, 184.

When appellant made default in the payment of the note sued on, the land reverted to the State, and her contract of purchase was rescinded, and her cash payment remains the property of the State as a penalty to cover all damages occasioned by her default. Mansf. Digest, secs. 6283, 6284, 6290. 18 Ark. 269 ; 101 Mass. 479 ; 99 id. 305 ; Sugden on Vendors (14th ed.) p. 39 ; 9 A. & F. 508 ; 36 E. C. F. 181; F. R. 10 C. P. 538.

The petition must be signed by a majority of the adult inhabitants residing within the prescribed area regardless of county lines. The act contains no exception or qualification. It is the act of the legislature that prohibits ; the order of the county court merely puts the act in operation, and county lines form no barrier. The proceeding is a mere police regulation, and, when the order is made the power vested in the county court is exhausted.

1. The appellants, as obligees in the bond, had the right to sue without joining the parties for whose benefit the suit is prosecuted. Mansf. Dig. secs. 4933, 4936 ; 7 Ark. 149; Newman, PI. and Pr. 93-4; Bliss, Code Pl. secs. 55, 57, 58 ; 48 Ark. 355 ; 18 N. Y. 374 ; Pom.

At the commencement of this suit, plaintiff did not stand in the attitude of a judgment creditor of Bray. He had long before become the purchaser or assignee of Bray’s equity of redemption at the sale and execution, by force of which the lien of his judgment was exhausted and ceased to exist. Freeman on Judg. (3d ed.), sec. 390 ; 4 Cow. 133.

1. The indictment is defective in failing in any manner to specify what the “laboring” consisted of. Mansf. Dig. sec. 2121, par. 2. 2. The work done was a work of necessity, and clearly falls within the spirit of the exceptions contained in our statute. Mansf. Dig. secs. 1883, 1885, 1888 ; 80 Ky. 291 ; Whart. Cr. Law, sec. 1431 (6); 34 Pa. St. 398 ; 4 Cush.

1. The instruction given for appellee is erroneous and misleading. It assumed that the only condition precedent to entitle appellee to a salary of $1500 was a certain increase of sales and a certain reduction of expenses, and utterly ignored the abandonment of certain vicious habits, which was also a condition of the increase. 2.

The work was let to an independant contractor for whose negligence the appellant was not liable. 53 Ark. 503; 16 S. W. Rep. 9. The bill of exceptions does not purport to set forth all the evidence, and the presumption is that every material fact was proved. 44 Ark. 74; 54 id. 162. The instructions were correct. 54 Ark. 131.

<p>Construction of contradictory statute — To whom municipal fines payable.</p> <p>The rule is that where there is no way of reconciling conflicting clauses, of a statute and nothing indicating which the law regards as of paramount importance, force should be given to those clauses which would make the statute in harmony with other legislation on the same subject.</p> <p>Accordingly, where sec. 5860, Mansf. Dig., provides that all fines and penalties imposed by any court shall be paid into the county treasury, “provided that all fines and penalties of city courts and courts of incorporated towns, for violating city and town ordinances, not defined as offenses against the State, may be retained by the city or town ; ” and sec. 5863, ib., a part of the same statute, requires the city marshal or other collecting officer, to pay to the county treasurer all fines and penalties collected by him except “ such moneys as may be collected for violation of qity or town ordinances; ” and where other statutes on the same subject manifest the intention to confer upon th.e municipality all benefits arising from fines and penalties imposed for violations of municipal ordinances : Held, that an incorporated town is entitled to fines collected in the mayor’s court for violations of town ordinances imposing penalties for acts which were also offenses against the State.</p>

Action by the State, for the use of the Port Smith district of Sebastian county, against the city of Port Smith, to recover the amount of certain municipal fines collected and paid into the city treasury for the violation of the city ordinances, the acts punished being also offenses against the State. Judgment was rendered for the defendant, from which plaintiff appeals.

Action bjr John I. Jones, as next friend of the minor children of Mrs. F. R. Richards, deceased, against Philander Littell.

Political divisions of the State government do not sustain such relations to the State as to create between them and the State such a contract as is contemplated by the Federal and State Constitutions. See Cooley, Const. Lim. pp. 150, 337; 4 Wheat. 518; 6 How. 301 j 16 id. 369; 3 Wall. 51. These principles apply only to private corporations, and not to mere agencies of government or parts of its machinery.

Robinson owned 360 acres of land. He was living upon a tract adjoining the tracts sold. Until he made his selection, no question of homestead could arise. In order to avail himself of the homestead right, the defendant must file with the clerk a proper schedule and see that the clerk issues a supersedeas. 40 Ark. 352 ; 47 id. 400.- No schedule was necessary. The land was the homestead of Robinson.

While it is true, in part, that the sureties on an administrator’s bond are liable only for debts contracted by the intestate during his lifetime, and that debts contracted by an administrator cannot be made a charge against the estate for which the sureties would be liable, yet it has always been the custom and rule that costs of administration are paid out of the assets of the estate. These costs are legal charges to be paid out of the assets before creditors are paid.

No substantial right of the tax-payer was violated or infringed, even if the delinquent list was returned one day too early. Gantt’s Dig. secs. 5165, 5183. This was a mere irregularity cured by the statute after two years. 46 Ark. 96. The return of the delinquent list was premature, and the sale void. 35 Ark. 507; Miller’s Digest, sec. 133 ; 6 Ark. 219.

C. W. Bell, for the use of himself and Miller county, Arkansas, brought suit against the St. Louis, Arkansas & Texas Railway Co., to collect the statutory penalty for defendant’s failure to signal at a certain highway crossing. Defendant demurred because the plaintiff had no capacity to sue, and because the complaint failed to state a cause of action. The court sustained the demurrer upon the first ground.

Court in Chancery, Dan-ville District. This was a suit by the heirs at law of A. Ambleton against A. J. Dyer, the purpose of which was, among other things, to recover a tract of land known as the Mountain farm.

D. D. Cassinelli and Anna Da Pore brought suit against Charles Schattler to quiet their title to a certain tract of land situated in the Sp. | of SP. \ of Sec. 27, T. 2K, R. 12 W., described by metes and bounds, containing 7.54 acres and lying in the shape of a trapezoid, as will be seen from the accompanying' plat.

On the 18th day of March, 1880, Louis Hanauer sold to H. C. Hampson and D. L. Ferguson, partners by the style of Ferguson & Hampson, a plantation in Mississippi county, called “ Rodena,” for $22,541, of which-$9000 were paid in cash out of partnership funds, a vendor’s lien being reserved for the balance. There was no agreement that the land should be the separate property of the partners.

The assessor filed his assessment list on the 20th of June, 1883, when it should have been filed by the first Monday in June. Mans. Dig. sec. 5676. The assessment list was not returned until June 20, 1883. The law required it to be returned on or before the first Monday in June. This was a mere duty imposed on the assessor by law, the non-observance of which did not deprive the owner of any right, and he cannot complain. 46 Ark. 96. Such irregularities are cured by statute.

The decree in the Ferguson & Hampson case is void. The court never acquired jurisdiction over the minors. They were never served with legal notice, nor does the decree recite that they were, but “as appears and is shown by the return of the sheriff, etc.” A summons must be issued to the sheriff commanding him to summon the defendants therein named. Mansf. Dig. secs. 4967, 4968. The defense must be by regular guardian if there is one, or by one appointed.

■ Appeal from Miller Circuit Court in Chancery. Pendleton and two others, surviving* partners of Wickham & Pendleton, procured a decree against A. R. Spear, and Mary B. Spear, his wife, foreclosing a mortgage on a town lot in Texarkana, and a tract of land consisting of twenty-eight acres, situated in NB. k of NW. | of sec. 29, T. 15 S., R. 28 W. A commissioner was appointed with directions to sell the land, first offering the town lot and then the twenty-eight acres, after…

Suit by Muskegon Lumber Co. against C. B. Myers, State Land Commissioner, and J. J. Beavers, clerk of Grant county, to quiet plaintiff’s title to certain land. The facts sufficiently appear in the opinion. Since the passage of the act of March 25, 1891, releasing the claims of the State to these lands, there is no controversy between appellant and the State.

'Appeal from Washington Circuit Court. Proceeding by the city of Fayetteville to annex certain contiguous territory. No- notice of the time and place of hearing in the- county court was given, as required by sec. 785, Mansf. Dig., but T. M. Gunter and others, comprising a majority of the property owners, appeared and remonstratéd against the annexation. The petition was granted in the county court; on appeal to the circuit court the judgment was affirmed.

The water was not furnished to the city, but to the sewer commissioners. The sewers had not been turned over to the city. The commissioners could not claim the benefit of a contract to which they were not parties. 1 Whart. Cont. sec. 507 ; 2 id. sec. 784. Appellant agreed with the city to furnish water for flushing sewers, and has received pay for that service in the rent charged for fire hydrants.

1. An employee assumes all the risks ordinarily incident to his employment, and not those only which are necessarily incident to the employment. The second instruction was ■ error. Bish. Non-Cont. Law, sec. 675 and cases ; 135 Mass. 418; 113 id. 396; 54 Ark. 389 ; 46 id. 388. Upon the undisputed facts of this case, the risk was one which the law cast upon the plaintiff.

This case has been reversed twice. 45 Ark. 318 ; 8 S. W. Rep. 179. The same evidence was used except the evidence of Jack Weed. The same instructions were asked, objected to and given, and the same verdict was rendered. The additional facts adduced do not change the legal aspect of the case, and it should be reversed again. 13 S. W. Rep. 740 ; 11 S. W. Rep. 212. 1. Review the evidence in detail and contend that the verdict is amply supported. 2.

1. There is no proof of a contract with appellant. 2. The agency of' the husband being denied, the burden was on appellee to prove it. They have not done so. The contention that the marital relation constituted the husband the agent of the wife is in conflict with the authorities. Kelly, Coat. Mar. Women, secs. 22, 23 ; 41 Ark. 177; Jones on Liens, secs. 1263-6. 3. There is no proof of ratification by the wife. 4.

The qpmplaint in this case is as follows : The plaintiff, J. B. Brooks, a resident of Garland county, State of Arkansas, complains of the defendant, a foreign corporation, doing business under thg laws of the State of Arkansas, and alleges— That, on the 13th day of August, 1890, at Hot Springs, county and State aforesaid, defendant failed and refused to deliver to the plaintiff the following message, received by defendant’s agents in Hot Springs, to-wit: “Eden, Ill., Aug.…

This proceeding was instituted to. determine the State’s right to tax leasehold estates on the permanent United States Reservation at Hot Springs. The assessor listed for taxation for the year 1889 the leasehold interests and improvements of the owners of the New Rector and other bath houses.

1. In the first three instructions given for appellee, the court told the jury, in effect, that the law imposes upon an employer the duty of exercising reasonable care and prudence to ¿protect its. employers and to provide a reasonably safe place and maintain reasonable safeguards against accidents. They are not the law. 48 Ark. 346 ; 35 id. 602; 41 id. 382; 39' id. 17; Wood’s Master and Servant, secs. 335-372.

<p>Innocent purchaser — Prior unrecorded conveyance.</p> <p>One who purchases land in good faith and for a valuable consideration and enters into possession acquires a good title as against the unrecorded title of a prior purchaser from the same grantor.</p>

Draughon and Allen Bros. obtained judgment against Nix foreclosing a mortgage upon two tracts of land situated in the City of Texarkana, given to secure a debt of $1950. A commissioner was appointed to sell the property. After making the sale he filed his report, showing that he had complied with the order of the court and had sold each tract of land, one for $1000 and the other for $800, and that they were bid off by plaintiffs.

Frazier appeals from a conviction of rape. The evidence of the prosecuting witness was to the effect that the appellant gained possession of her person without physical force, but by means of threats of choking her if she resisted or made outcry.

This is an action by William Ryan against the St. Honis & San Francisco Railway Co., to recover the penalty prescribed by the act of April 4, 1887, for an overcharge in a passenger fare. The answer set up substantially the same defenses made in Railway Company v. Gill, in 54 Ark. 101. The evidence showed that the overcharge was made by defendant’s ticket agent, contrary to defendant’s express orders.

Action by Trimble against the St. Louis & San Francisco Railway Company. The case is stated in the opinion. 1. The clerk is entitled to 10 cents for each juror sworn. Citing secs. 3225, 3235, 4006, 4011, 'Mansf. Dig.; 4 Oh. St. 177; Suth. St. Const, secs. 237-8. 2. The clerk is entitled to 10 cents for swearing each witness to his attendance. Mansf. Dig. secs. 1042-3, 3266,' 3270, 3272; 44 Fed. Rep. 407; Am. Dig. 1890, p. 806, citing 7 Pac.

Aj>¿>eal from Sebastian Circuit Court in Chancery, - Fort Smith District.

G. R. Baucum & Co. brought suit against J. J. Cole by attachment in the Pulaski circuit court December 6, 1890, returnable at the following March term, charging the defendant with fraud in disposing of his property, and with attempting to so dispose of it. Plaintiffs garnished $510 in the hands of Wallace & Lorance in Pulaski county, and attached personal property in Lonoke county valued at more than $400.

Appeal.from Conway Circuit Court in Chancery. This was an action by the Morning Star Lodge of Knights of Honor against George M. Heard for the purchase money of a tract of land, the deed for which, as alleged in the complaint, had, in pursuance of the sale, been delivered to W. J. Stowers as an escrow, subject to the orders of Heard upon payment of the purchase money, which he agreed to pay on January 1, 1891.

Organ was convicted of a violation of the act prohibiting the exportation of fish and game from the State. It is conceded that he was master af a steamboat plying the Mississippi river between West Memphis, in Crittenden county, Arkansas, and Memphis, Tenn., and that as such master he received and transported a barrel of fish from the former to the latter place, and that the fish were taken from public waters in Crittenden county.

-Action by Josephine Ross, administratrix of her husband, George Ross, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. The facts are stated in the opinion. 1. Upon the admitted facts, Ross was guilty of negligence, which was the direct and proximate cause of his death, and for which defendant cannot be held liable. 45 Ark. 248; 46 id. 92; 49 id. 259; 36 id. 371; 47 id. 477 ; 46 id. 513; 54 id. 434. 2.

. Joyner brought suit against Harrison to quiet title to land situated in’ Little River county, claiming title under a tax deed, executed on November 24, 1879, reciting that the land was sold for the taxes of the years 1872-6, inclusive. Defendant filed an answer and cross-complaint in which he relied upon a deed to him from the State Land Commissioner, dated August 10, 1881, based upon forfeitures for non-payment of taxes for the years 1867, 1870, 1871, 1873-5.

Suit by C. M. Neel against the St. Bonis, Arkansas & Texas Railway Co. The complaint alleges two causes of action, viz: (1) That plaintiff built a railroad from Rob Roy, a station on defendant’s line of railway, distant seven miles from Pine Bluff, to Swan Bake, in Jefferson county, for the purpose of transporting freight and passengers to and from Pine Bluff.

Tennison & McMahan brought suit against G. W. Manes before a justice of the peace, and procured an attachment to be levied on some cotton. From a judgment in plaintiffs’ favor defendant appealed, and executed a bond with T. J. Martin as surety, conditioned that the surety would satisfy the judgment of the circuit court to the extent of the value of said cotton. The circuit court sustained the attachment and entered judgment against Manes for the debt and costs.

The Adler-Goldman Commission Co. obtained judgment sustaining -an attachment against one Hoffman. H. T. Simon, Gregory & Co. intervened, claiming a prior lien on the proceeds of certain property sold under the attachment. Their claim was disallowed, and they have appealed.

, Judge. Ewan & Thomas and Wt S. McCain for appellants. The common law restrictions have been removed by-statute, and under our present laws there is no reason why a husband and wife cannot form a partnership. Mansf. Dig. sec. 4625 ; 30 Ark. 727 ; 43 id. 212 ; 122 N. Y. 308 ; 3 Biss. 405]; 51 Wis. 204 ; 1 Bindley on Part. * 124, 210 ; 9 Neb. 16 ; 49 Ark. 430 ; 52 id. 237. .

William A. and Ashton Phelps, as surviving partners of the firm of John Phelps & Co., sued A. S. Holderness upon an open account for money paid out and advanced for defendant at his instance and request.

Action by C. E. Beard against the St. Louis, Arkansas & Texas Railway Co. The pleadings and evidence are stated in the opinion. 1. The court erred in its instructions. The purchase of a press and type cannot be considered as an element of damages. There was no contract to purchase same. 2. The instructions asked by appellant state the correct rule as to the measure of damages. 53 Ark. 443 ; 33 id. 545; 5 L. R. A. 493 ; 5 Am. Rep. 177. 3. The verdict is excessive. 1.

The State brought suit for the use of Garland county against George W. Baxter, A. J. Walsh and others to cancel a lease of land belonging to the county. Upon a former appeal, State v. Baxter, 50 Ark. 447, the lease was adjudged invalid. This appeal was taken to determine the propriety of the disallowance by the court of certain improvements. The facts are stated in the opinion.

Goodbar, Dove & Co. sued W. R. & S. B. Docke, alleging that they had made a fraudulent disposition of their property, and procured writs of attachment to be issued ; also caused writs of garnishment to be served on D. C. Docke, M. F. Docke and J. G. Orme, who filed answers to the interrogatories, denying any indebtedness or the possession of any assets.

This suit grows out of the case of Stryker v. Hershey, 38 Ark. 264. In that case the court held that, in the absence of parol evidence, the two instruments therein construed imported on theirfaces a conditional sale. Upon a re-trial of the case, parol testimony was introduced to show that the instruments were intended to con- • stitute a mortgage. The trial court found that they constituted a mortgage.

Cross Appeals from Mississippi Circuit Court in Chancery. Greer & Adams brought suit in chancery to enforce a claim of $4660 against Rerguson & Hampson and Louis Hanauer, alleging that the claim arose out of professional services rendered them in defending their title to certain land. They also procured an attachment to be levied upon the land. The complaint alleged that Ferguson & Hampson had fraudulently conveyed the land to D. H. &.

The note was void for usury. Acts 1887, p. 50, 51; 4Í Ark. 331. The account is thus left to stand upon its original merits. 35 Ark. 217 ; 105 N. Y. 539 ; 12 N. D. Rep. 48; 98 1ST. C. 107; 17 S. W. Rep. 713.

<p>Appeal from Pulaski Chancery Court.</p> <p>1. The transaction is a mere loan of money, and is void for usury. 128 111. 70; 39 Pa. St. 137; 89 id. 15; 14 Lea, 677 ; 2 Col. 418; 21 Ga. 697 ; 69 Ala. 419; 19 W. Ya. 776 ; ib. 784; 28 N. B. Rep. 801; 25 Oh. St. 215; 41 Md. 418 ; 24 Conn. 147; Bndlich, Building Ass. secs. 331, 335, 356, 378, etc. ; 68 Tex. 282; 12 Rich. Bq. 124; 3 Cr. 180; 55 la. 385 ; 75 N. C. 292 ; 10 S. W. Rep. 789; 7 Neb. 173, 181; 81 N. C. 58; 3 H. & J. (Md.), 109; Tyler on Usury, 289, 290; 34 Barb. 157; 41 Ark. 339; 33 Barb. 103; 81 Va. 677.</p> <p>2. Our statute provides that where partial payments are made interest shall be calculated to the time, and the payment deducted.</p> <p>3. Fines are illegal unless authorized by statute. Endlich, secs. 96, 405 ; 7 Neb. 173 ; ib. 181.</p> <p>4. • The contract is usurious on its face ; the uncertainty as to the time the payments shall continue and the association be wound up, and .the stock reach par value, does not validate it. 12 Rich. Fq. 124; 55 la. 424 ; Fndlich, secs. 331, 335, 337, 355, 356, 378 ; 19 W. Ya. 697-8; 7 Neb. 173 ; 81 N. C. 58.</p> <p>1. Under the law there is no usury in these transactions. 10 Am. & Fng. Corp. Cases, 426 ; Pndl. B. Ass. sec. 7, p. 386 ; 14 Lea (Tenn.), 677; 46 Ga. 166; 100 111. 420 ; 114 'id. 182; 25 A. & P. Corp. Cases, 665; 13 Gray, 157; 6 Allen (Mass.), 1; 1 Allen, 100; 43 N. H. 197 ; 25 Barb. 263 ; 1 Abbott (N. Y.) App. Dec. 350 ; 22 Kas. 624; 62 Ind. 264 ; 10 Md. 397 ; 26N. J. Fq. 351; 1 McAr. (D. C.) 385 ; 63 Ga. 373 ; 2 Beas. 427 ; Fndlich, B. Ass. secs. 42, 326-7, 371; 35 Pa. St. 469 ; 10 Wright (Pa.) 495 ; 88 Pa. St. 216 ; 6 Bing. N. C. 334; 15 Fng. L. & Fq. 477; 8 id. 57; 31 Fng. Chy. (6 Hare) 87; 3 DeG. M. &. G. 1032.</p> <p>2. The contract is an entirety. When a member borrows he must keep his contract and cannot call for an account of profits until the time mentioned in the contract. Fndlich, B. A. sec. 430 ; 63 Ga. 373 ; 97 Pa. St. 523 ; 6 Allen, 1; 77 Ya. 293.</p> <p>3. The contract is not usurious on its face. It only stipulates for 9 per cent. 25 Ark. 195. Usury must be proved. 9 Pet. 378 ; 25 Ark. 260.</p> <p>4. The evidence shows that the interest does not exceed 10 per cent. 46 Ga. 166.</p>

<p>Building associations — Usury.</p> <p>There is no usury in an advancement upon its shares by a building association made in the usual form to a shareholder (Reeve-v. Ladies' Building Association, ante, p. 33S followed); nor can there be usury in any contract which expressly provides that no unlawful interest shall be paid.</p>

. Appeal from Garland Circuit Court. The appellant was convicted of an assault and battery, committed on Lena Walton. The witnesses testified as follows : D. J. Smith testified: “I heard a disturbance at Lena Walton’s, and went over there. Defendant called me and another man to assist him, and we went in and helped to arrest Lena. She held back and would not go, and we three had all we could do to bring her out of the house.

An ordinance of the City of Eureka Springs provides that it shall be unlawful for any person to keep a dram-shop or saloon within the city limits without first procuring a license therefor to be issued by the clerk of the city for a stated period, on the payment of a sum fixed by the ordinance.

School building's and grounds are exempt from general or ordinary taxation. Const, art. 16, sec. 5 ; Mansf. Dig-, sec. 5597. But this does not exempt them from local assessment. Const, art. 19, sec. 27; Cooley on 'Tax. (1st ed.), p. 147; 6 D. R. A. 156; 36 Ind. 338; 10 .Am. Rep: 36; Dillon, Mun. Corp. vol. 2, secs. 776-7. ■Churches, thoug-h exempt from g-eneral taxation, are liable to local assessment. Cooley, Tax. (1st ed.), p. ■458 ; 36 Ind. 338 ; 10 Am.

Richardson has appealed from a conviction of the offense of gaming.

1. The so-called ordinance was not passed in the manner prescribed by law. Mansf. Dig. sec. 924; 66 Iowa, 688; 59 id. ,26; 38 Kas. 573 ; 1 Dillon, Mun. Corp. (4th ed.), sec. 51. 2. The river and ferry are outside the jurisdiction •of the city. 53 Ark. 314; 25 Am. L. Rev. 599; Mansf. Dig. sec. 758; Gantt’s Dig. sec. 3241; 11 Wall. 423; 1 Dill. Mun. Corp. (4th ed.), sec. 788; 54 Ark. 509. 3. The tax was for revenue only, and not a license fee. 42 1ST. J. Law, 368; Mansf.

W. R. Moore sued George P. Murrell, a nurseryman, upon a judgment upon certain notes for a sum aggregating $1788.71, obtained against him in 1878. The defendant answered that in 1879 he turned over to plaintiff’s lawyer fruit trees worth $2100 in full settlement of the judgment.

Frunk had no interest in the land, and had no authority to charge it with a mechanic’s lien. 25 Ark. 490 ; Mansf. Dig. secs. 4406-7. It was error to give the last clause of the second instruction.

1. Upon the uncontroverted facts in proof plaintiff was not entitled to a verdict. 2. The first instruction for plaintiff is not the law. 33 Ark. 215 ; 5 Am. Dec. 730 ; 2 Martin, 269 ; 14 Wend. 209 ; Wood on Master and Serv. (2d ed.) secs. 62, 65. 3. The court erred in refusing the fifth and sixth prayers asked by defendant. Wood, M. & S. p. 123 ; 45 Iowa, 308, and cases supra; 13 N. J. Eq. 151; 2 Pars. Cont. (6th ed.) marg. p. 47; 1 Am.

<p>Burglary — Butcher's shop.</p> <p>An indictment for burglary committed in breaking and entering a “butcher’s shop” is sustained by evidence that the. house entered was used exclusively for the sale of meats, though no animals were slaughtered or dressed there.</p>

<p>Appeal from Clay Circuit Court, Western District.</p> <p>This was a suit of W. J. Roberts, as administrator, for the benefit of the estate of Daniel Roberts, who was alleged to have been killed by the negligence of defendant’s trainmen.</p> <p>Briefly, the facts were as follows : On October 4, 1888, Roberts and Lewis started from the town of Corning, going north. They were driving a two-mule team. Bor some 600 yards the public road ran sixty-five or seventy feet west of defendant’s track and parallel with, it. Then it crossed the track. After deceased and his companion had driven about 200 yards north, a north bound train, going twenty-five or thirty miles an hour, came in sight. As it approached, the team became frightened and began to run. There was evidence from which the jury might have inferred that the mules were frightened by escape of steam ; that, although the trainmen saw the team was frightened, they continued to blow their whistle and to permit the steam to escape from the time the mules took fright until the accident occurred, and that no effort was made to check the speed of the train. The driver lost all control of the mules; they ran on until they reached the crossing, when they turned and attempted to cross the track just in front of the approaching engine. The wagon crossed with slight, injury, but Roberts was jolted out on the track. As he fell upon the ground, he was instantly struck by the pilot beam of the engine, and was so badly injured that he died immediately. There was testimony that the crossing was defective; also that a wagon could have been driven over it safely at an ordinary rate of speed.</p> <p>The defendant requested the court to instruct the jury as follows : “6. If the jury find from the evidence that the engineer of defendant’s train was, at the time of the accident, on the lookout, and saw the deceased just before and as he started across the track, and immediately used every effort in his power and control to. check his train, but failed because of the nearness of his engine to the deceased, the court instructs you that there-was no negligence on the part of the defendant, and you will find for the defendant.”</p> <p>The court modified the instruction asked by adding : “Unless, you find that the accident and injury was. directly caused by the engineer negligently blowing off steam or by the negligence of defendant in not keeping-the crossing in repair.”</p> <p>The jury returned a verdict for plaintiff in the sum of $1000.</p> <p>1. Neither the frightening of the team nor the defective track was the proximate cause of the accident, but running the engine over him after the deceased fell upon the track, which could not be avoided. • 139 U. S. 237 ; 10 Wall. 176 ; 20 Pa. St. 171 ; 13 Gray, 481; 115 Mass. 304 ; 30 Iowa, 176.</p> <p>2. The railroad cannot be held responsible for sounding its whistle in accordance with law. Mansf. Dig. sec. 5478 ; 53 Ark. 203 ; 16 Atl. Rep. 235 ; 114 Mass. 351. See also 14 S. W. Rep. 1067 ; 12 id. 953 ; 46 Ark. 523 ; 69 Me. 208 ; 98 N. C. 247:</p> <p>3. The court erred in its charge to the jury, 16 S. W. Rep. 169; 49 Ark. 264.</p> <p>4. Also in refusing to declare the law as asked by defendant. 125 Mass. 91 ; ib. 93 ; 52 Tex. 587; 18 Iowa, 280, 380 ; 36 Iowa, 462.</p> <p>1. The proximate cause of the injury was the combined effect of negligently frightening the team, a deféctive crossing and negligence in running over deceased. ■ 53 Ark. 201; 9 S. W. Rep. 577. The team was frightened- by escaping steam, which is negligence. Wood, Railway Daw, sec. 324.</p> <p>2. If the defective condition of the crossing caused th.e accident, the railroad company is liable. 52 Ark. 368.</p> <p>3. The verdict is amply sustained by the evidence, and ther'e was no prejudicial error in the instructions.</p>

Upon the facts stated, a clear case of equitable jurisdiction was made, and the bill was not subject to the objection of misjoinder of parties or causes of action. Story, Eq. PI. pp. 271, 284; Pom. Eq. Jur. pp. 243 to 274; 4 Ark. 340; 11 id. 720; 20 id. 25; 2 How. U. S. 619; 17 N. Y. 592. The relief sought is purely equitable. 14 Ark. 345 ; 29 id. 612; 37 id. 286.; 30 id. 278; 44 id. 436.

1. It was error to allow North and Simpson to sit •as trial jurors. 45 Ark. 165; 40 id. 165. 2. The court erred in refusing to allow expert witnesses to remain in the court room during the trial. Rogers, Rxpert Testimony, 64; 36 Ark. ■ 117-124; 1 Wharton, Rv. sec. 492. 1. Defendant’s peremptory challenges were not ■exhausted when North and Simpson were called as jurors. 50 Ark. 498; 97 N. C. 471; 21 Neb. 436; 4 id. 75; 49 N. W Rep. 148; 9 So. Rep. 114. 2.

1. The court erred in its instructions to the jury. Mans. Dig. secs. 4944-8, 5028, 5031; 30 Ark. 399; 44 id* 486; 54 id. 525. 2. The first four instructions refused were based on 14 Ark. 315; 5 Mich. 123. A sum may be agreed on as liquidated damages. Por a failure to perform work, the amount may be fixed in the contract. 1 Suth. Dam. 471; Sedg. Dam. 489; Wood’s Mayne on Dam. 157; 14 Ark. 315; ,54 Ark. 141..

Demby & Wymer, merchants at Judsonia, Arkansas, being embarrassed, sold their stock of goods on June 4, 1889, to two of their creditors, the Gilkerson-Sloss Commission Co. and Hill & Sons, in payment of their respective claims,aggregating $1980.95. After the salewascompleted, certain other creditors of Demby & Wymer sued them, and procured attachments tobe levied upon the stock of goods.

The record nowhere discloses the fact that the court, in the overdue tax suit did not have jurisdiction; such being the case, that suit cannot be inquired into for any… Held: in 103 111. 528, that a decree confirming an assessment is conclusive against all objections ; but that a decree for taxes, part of which are illegal, is void, and •can be attacked collaterally also ; where decree is' for •amount greater than tax actually due. 55 111. 249; 113 111. 256; 21-N. B. 511.

Samuel McFlynn and G. W. Hall sued S. W. Fordyce and A. H. Swanson, receivers of the St. Louis, Arkansas & Texas Railway Co., to recover the value of a lioness which escaped while being- carried on defendant’s road and was killed.

Two suits were instituted by B. F. & G. F. Johnson ágainst S. W. Fordyce and A. H. Swanson, receivers of the St. Fouis, Arkansas & Texas Railway Company. (1) In one action they sought to recover the statutory penalty for failure to deliver a car-load of flour consigned to them, upon tender of the freight charges due; (2) in the other to recover possession of the flour.

.Appeal from Clark’Circuit Court. This was a suit in replevin by I. Loeweuberg against the Arkansas & Louisiana Railway Co. to recover possession of a car load of stoves and damages for unlawful detention thereof. The facts are stated in the opinion. 1. The act of February 27, 1885, is valid as a mere police regulation. 49 Ark. 201; 12 S. W. Rep. 1002. 2.

The charge ag'ainst appellant was unlawfully selling intoxicating liquors. The proof shows and the court found that Pale Malt Tonic was not intoxicating, and defendant should have been acquitted. Citing and reviewing Cooley, Const.' Dim. p. 79; 21 N. Y. 177; Bish. St. Cr. sec.' 985; 36 Árk. 258; 39 id. 450; 50 id. 18 ; 39 id. 204; 51 id. 165.

This was a conditional sale of property, and the proper remedy was replevin. 49 Ark. 63 ; 47 Ark. 363. The answer set up no equitable defense whatever, and the cause was improperly transferred to equity. A counter-claim for damages is not a defense to an action 'of replevin. Accounts cannot be adjusted or settled in an action of replevin. Cobbey on Replevin, sec. 791.

• Appeal’ from 'Craighead Circuit. Court, Jonesboro^ District. '. • • This suit against- the St. Douis, Iron Mountain & Southern Railway Company was instituted by the administratrix of James Tippett, for the benefit of his widow and next of kin. • The complaint alleged that, on thé 25th day of February, 1889, while James Tippett was going from his house on the west, side of defendant’s track to-his place of business on the east side of said track, he was run over and killed…

<p>Executory contract — Failure of consideration — Election.</p> <p>Where a creditor agreed, in consideration of a preference by deed of trust, to surrender to the trustee notes held as collateral security for his debt, and afterwards intervened in an attachment suit to claim the benefit of such preference, he will not be deemed to have made an election to rely upon the deed of trust which was subsequently adjudged invalid, but, the contract being executory and the consideration having wholly failed, he is under no obligation to surrender such-notes.</p>

Tlie Little Rock & Memphis Railway Company lias appealed from a judgment against it in favor of George Shoecraft for the value of certain stock killed by the negligencé of its train-men. The case is sufficiently stated in the opinion. The suppressed, portions of the depositions were statements of facts and not opinions, and clearly competent. 31 A. &. E- R. Cases, 539 ; 11 Ohio St. 333. The court properly suppressed the depositions.

M. J. Clay made claim against Pulaski county in the county court, alleging that he expended the sum of $8.25 in the burial of the body of one Young, who, at the time of his death, was a pauper residing in the city of Little Rock and county of Pulaski. He admitted that no adjudication of pauperism preceded his death, but prayed that such adjudication be now made, and, after •said adjudication shall have been made, that the county pay his burial expenses.

1. A surety paying the debt of his principal has a right to contribution from his co-surety. Mansf. Dig. secs. 6403-4. 2. As the co-surety was dead, and the administration closed before appellant’s cause of action accrued, his remedy at law was inadequate, and his remedy is in chancery to subject the real estate which descended to his heirs to the payment of his demand. 15 Ark. 412 r. 14 id. 253; 39 id. 577; 18 id. 118 ; 31 id. 234; 40 Ark. 433. 3.

The appellant filed his complaint against Hilliard, and against Owen as county judge of Jefferson county, alleging, to quote from the appellant’s abstract, the following state of facts : “ Owen, as county judge of Jefferson county, entered into a written contract with Hilliard for repairing and reconstructing the court-house of said county, according to which Hilliard was, at his cost, to repair and reconstruct the building and to furnish all material used in the work, for…

1. The statute of limitation began to run upon the death of the .mortgagor and entry of the heirs. 34 Ark. 312; Buswell on Dim. note 2, sec. 311; Angelí on Dim. sec. 452. 2. While no statute bars the sovereign, yet where the State takes part in a private enterprise not strictly governmental, and becomes involved in litigation, the same limitation applies as to individuals. 45 Ark. 81; 13 Am. & Eng. Enc. Law, 711; 12 Johns. 242. 3. The claim is stale.

1. There was no conversion by the Hammett Grocer Company. It is apparent that appellee knew., or could have known, that the Hammett Warehouse Company was selling the cotton and placing the proceeds in a solvent bank to the credit of Ritchie & Fitzhugh; he did not warn Howell or the company, or demand the proceeds, but stood by without objection, and hence is estopped. Bigelow on Estoppel (2d ed.), 452 ; 2 Johns. 573; 31 Ark. 131; Jones, Liens, sec. 583; 95 111. 346. 2.

Penn as grantee of Murphy brought suit against Garvin to cancel a mortgage of land executed by Murphy to Garvin to secure a loan alleged to be usurious. Garvin answered, denying the usury. He made his answer a cross-complaint, and prayed for foreclosure of the mortgage. Penn answered the cross-complaint, insisting (1) that the mortgage was usurious and (2) that the acknowledgment of the mortgage was bad, being taken by a notary who was the agent of one or both of the parties.

Robert Atterberry and Abe Williams were indicted for larceny of three suits of clothes and other property, of the total value of $59, belonging to W. C. McBel. Both were convicted. Atterberry has appealed. The evidence is sufficiently stated in the opinion. The court instructed the jury, at the instance of the State, as follows : “2.

Suit upon an injunction bond, brought by B. C. Neal against John P. Moore and Jerry M. Taylor, his surety.

After Eddins’ discharge in bankruptcy, he by the agreement promised in writing to pay all the indebtedness of himself and brothers. 26 111. App. 182 ; 122 N. Y. 408; 2 So. Rep. 332 ; 53 Am. Dec. 493; 52 id. 779;. 67 id. 498 ; 86 N. C. 331; 53 N. Y. 521. 1. The court properly discharged the notes of the plaintiff’s brothers.

1. Under the circumstances of this case, there was no election to take under the will. Within twelve months, the widow executed a quit-claim deed to the heirs, and brought suit for dower within sixteen months. Thia brings her within the statute. S% Ark. 193; Mansf. Dig. secs. 2596-7 and 2584. 2.

The lien. of the landlord is paramount to that of a mortgagee. The cotton was delivered to the landlord in payment of rent, and lie thereby acquired the title to it, and sold it to appellant. The deed to Mrs, Perritt was not put on record— Pyle was left in possession — and appellee had no notice, actual or constructive, of the claim of Mrs. Perritt. He was therefore an innocent purchaser. 16 Ark. 543; Sugd. Vendors, vol. 3 (6th ed.), p. 329, note 1; 31 Ark. 85.

Petition for Writ of Prohibition to Pulaski Circuit Court. 1. A foreign insurance company can be sued in this State only upon liabilities growing out of its insurance contracts. Such is the intention of the legislature. Suth. Stat. Const- secs. 211, 218, 240, 241, 246, 284; 139 TJ. S. 223 ; 14 Atl. Rep. 689; 18 How. 404; 106 U. S. 350; Morawetz on Corp. sec. 980; 22 Fed.. Rep. 275 ; 29 id. 35; 44 Pa. Stat. 422 ; 50 Fed. Rep. 683; 17 N. W. Rep. 504; 16 id. 84; 30 Fed.

1. The sheriff’s return of service is conclusive. Its truth cannot be controverted. 40 Ark. 141; 25 id. 311; 39 id. 70; 44 id. 202. 2. The motion to set aside the decree is not based upon any of the grounds in sec. 3909, Mansf. Dig.; but if it Had been, sec. 3911 requires a complaint setting forth the grounds, and a good defense. If not actually served, defendant’s remedy was to enjoin. 32 Ark. 459 ; 53 id. 11; 52 id. 80. 3.

Sageley sued the St. Louis & San Francisco Railway Company to recover damages in the sum of one hundred dollars, the value of a horse alleged to have been negligently killed by defendant’s train. The questions which arise in the case are sufficiently stated in the opinion. The jury awarded to the plaintiff the amount of damages sought. Defendant has appealed. 1.

On the 27th day of April, 1886, Mrs. Regina Nick-lase brought replevin against B. C. Morrison to recover certain logs of timber purchased by her from Mrs. Olive G. Lewis. Defendant set up title to the logs in himself. On the 30th day of April, 1886, Mrs. Lewis brought suit against Morrison to quiet her title to the land from which the logs were cut.

Circuit Court. Lemmons has appealed from a conviction of carrying a pistol as a weapon. The facts are sufficiently stated in the opinion. 1. An unmarried son living with his father and making his home there as one of the family may carry a pistol as a weapon upon the premises. He had an interest in the premises, and a right to be there, to the exclusion of the public. 45 Ark. 536. 2.

On the 7th of January, 1890, appellants filed in the-Monroe circuit court a petition, alleging therein that Robert R. Bond died on the 14th of December, 1872,. intestate, leaving appellant, Nancy J. Bond, his widow, and the other appellants, some of whom were his children, his heirs, surviving; that he owned and occupied, at the-time of his death, the northwest quarter of section twenty-seven in township one south, and range two west, in.

Watson filed Ms complaint in tfie Jackson circuit court in ckancery on the 11th of August, 1887, and stated therein that “John Harris died in 1872, leaving as his heirs Benjamin Harris, John G. Harris and BlMabeth Harris, leaving also considerable personal estate to the value of about $5000 ; that, on the same day, Frank Wishon was appointed administrator.

<p>Appeal from Logan Circuit Court.</p> <p>STATEMENT BY THE COURT.</p> <p>The Logan circuit court, at its January term, 1890, made an order for the sheriff of Logan county to employ special bailiffs during the term. Under this order O. C. Wood, sheriff, employed his chief deputy, the appellee, to act as court-room bailiff. On August 6,1890, appellee hied in the office of the clerk of the county court of Logan county his claim against the county, as follows :</p> <p>‘ ‘ Logan County,</p> <p>■“To W. C. Roady, Deputy Sheriff of Logan County, Dr.</p> <p>“ January Term, 1890.</p> <p>“ To services as guard and special bailiff, appointed by the sheriff of Logan county, O. C. Wood, from the 6th day of January, 1890, to the 1st day of February, 1890, inclusive, twenty-four days, at $3 per day; circuit judge having entered an order for sheriff to employ necessary assistance during said court. $72.00</p> <p>“W.C. Roady.”</p> <p>“ State of Arkansas, )</p> <p>Log'au County, f</p> <p>‘ ‘ I hereby certify that the foregoing account is correct and just, and that the services therefor charged were ordered by the circuit court at its January, 1890, term.</p> <p>‘ ‘ W. R. Cherry,</p> <p>“Clerk of Circuit Court.</p> <p>“H. F. Thomason,</p> <p>“ Judge, etc,”</p> <p>And duly verified by appellee, as required by section 1412, Mansfield’s Digest.</p> <p>On October 10, 1890, the Logan county court disallowed the claim, and appellee appealed to the circuit court.</p> <p>On trial de novo in the circuit court appellee testified :</p> <p>“I am the plaintiff in this action. I am a deputy sheriff of Logan county. Have been deputy sheriff constantly since November 1, 1888. I am the chief or office deputy of the sheriff of the county. O. C. Wood is the sheriff of the county. I was deputy sheriff at the January, 1890, term of this court. For that term of the court the criminal docket contained 164 cases. There were about fifteen persons in jail at that term. I was employed by the sheriff as court-room bailiff for that term of the court, and did the general 1 roustabout ’ work of a courtroom bailiff. My services were necessary to facilitate the court in its work. G. G. Dandridge was the jailor, and also waited on the grand jury. J. C. Berfy and J. G. Ashinghust were the special bailiffs who had charge of the petit juries in the Bolling and Coulter murder cases. These cases occupied the court for fifteen days. These juries were kept in charge by bailiffs Berry and Ashinghust. The county court allowed Dandridge, Berry and Ashinghust each $2 per day during the time that they served as bailiffs. While I was employed as court-room bailiff, I was acting deputy sheriff, though I don’t think that my fees for process served during that term of the court would exceed five or six dollars. I think, while I was acting- as court-room bailiff during that term of the court, I lost deputy sheriff’s fees to the amount of seventy-five or one hundred dollars. At the April, 1890, term of the Logan county court, the county court allowed me fees amounting to about sixty or seventy dollars. These were my fees in nol. j>ros. cases, and in cases where defendants were acquitted, the county being then liable for the costs. I do not know what my fees at that term of the court amounted to in cases where the parties were convicted. I also had fees in a great many cases that were continued and not disposed of at that term of the court. All of these fees were for services rendered before I was employed as court-room bailiff. I served as court-room bailiff twenty-four days. I charged S3. This I think was a reasonable charge, and the services were worth this amount. The county court refused to allow me this account.”</p> <p>The court declared the law in this case to be “ that the county is liable for said sum of $72,” and rendered judgment in favor of appellee for the amount of his claim against appellant; “and further ordered that, upon filing a copy of this judgment with the county clerk, he issue his warrant to said Roady for said sum,” to which judgment appellant at the time excepted.</p> <p>A motion for new trial was filed on the following points : (1) The court erred in declaring the law to be with the plaintiff. (2) The court erred in rendering judgment against the defendant. (3) The judgment of the court is not sustained by sufficient evidence. (4) The judgment of the court was contrary to the law. The motion for new trial being overruled, the county took her bill of exceptions, and appealed to this court.</p> <p>1. Constructive fees not allowed — no officer entitled to fees not specifically allowed bylaw. Mansf. Dig. sec. 1414. Persons who serve the public must be content with the compensation provided by the plain letter of the law. 67 Mo. 687 ; 25 Ark. 235 ; 32 id. 45 ; 47 id. 442 ; 55 id. 387.</p> <p>2. Sheriffs may appoint deputies (Mansf. Dig. sec. 6318), but there is no provision to compensate deputies, except the fees allowed sheriffs. Ib. sec. 3247; 22 Ark. 595.</p> <p>3. These services were not a part of the necessary expenses of the circuit court, which the circuit judge could certify to the county court for payment. Mansf. Dig. sec. 1410.</p> <p>The circuit court has power by proper orders to compel sheriffs to employ special bailiffs to aid the court in expediting its business, and the fees therefor become part of the necessary expenses of the circuit court, to be paid on the certificate of the circuit judge. Mansf. Dig. secs. 1376, 1431-2, 6326-7; 23 Ark. 723, 724.</p>

1. The proof shows that A. P. Sanders received the money as an attorney. 13 Ark. 644 ; 11 id. 212; 38 id. 96. 2. It follows that his homestead comes within the exceptions of art. 9, sec. 3, Const. 1874. 35 Ark. 28; Thompson on Homesteads and Ex. sec. 547. 3. No change of securities, or subsequent contract to pay in future, or with interest, could change the claim from a fund collected as an attorney to a simple debt by contract. Thomps.

1. The jurisdiction of justices is defined by sec. 40, art. 7, Const. 1874, and the justice had jurisdiction. See 40 Ark. 124 ; 43 id. 375; Endlich, Int. St. sec. 535 ; Mansf. Dig. sec. 3061-6, 4128-33 ; Fndlich, Int. St. sec. 157; Cooley, Torts, p. 629, 650-4 (ed 1880). 2- But if the justice had no jurisdiction, the circuit court acquired none on apfeal. But the circuit court had original jurisdiction (43 Ark. 375), and proceeded under sec. 3964, Mansf. Dig.

<p>Appeal from Lafayette Circuit Court.</p> <p>Action b»y Dan C. Jackson against S. W. Bordyce and A. H. Swanson, receivers of the St. Louis, Arkansas & Texas Railway Company, to recover damages for injuries received in a railway accident. The facts are sufficiently stated in the opinion.</p> <p>1. Plaintiff’s relation to the company does not warrant a recovery. There was no special contract ; and if a passenger, he was not in the proper car, and took, the inherent risk. 47 Am. & B. R. Cases, 586 ; Beach on Cont. Neg. 55; Patterson, Ry. Ac. Law, 286 ; 1 A- & B. R. Cas. 79 ; 8 id. 396; 47 id. 492-4 ; Mansf. Dig.’sec. 5477; 34 A. & R. R. Cas. 355 ; 1 id. 234 ; Wood, Ry. Law, p. 1042.</p> <p>2. The first instruction lays down too rigid a rule as to the degree of care. Carriers are not insurers of passengers. 48 N. W. Rep. 1031; 40 A. & R. R. Cas. 703. The fourth on the measure of damages is erroneous. 36 Mo. App. 215 ; 15 A. & R. R. Cas. 265 ; 19 Mo. App. 107-112; 3 Bush (Ky.), 587; 96 111. 162-174 ; 18 A. & R. R. Cases, 47; 21 L. J. (Q. B.) 233 ; 9 Rxch. 341-356.</p> <p>3. The evidence shows due care and diligence on part of the railway to avoid an unavoidable accident.</p> <p>1. The certificates and affidavits copied in the record are not a bill of exceptions, and cannot be considered as part of the record. There is no showing that there was any disagreement between the judge and counsel; nor that matters were requested'to be saved and were refused. They are mere ex farte papers. Mansf. Dig. secs. 5160-1.</p> <p>2. Jackson was in the car furnished by defendants for express matter and messengers. He was apassenger. 15 S. W. Rep. 280; 48 Ark. 460.</p> <p>3. The instructions are copied from the language of this court. 34 Ark. 613 ; 2 Redf. Law of Railways, p. 219 ; 51 Ark. 459.</p> <p>4. After the wreck was shown, there arose á presumption of negligence. 51, Ark. 457.</p> <p>5. If a fence was necessary for the protection of passengers, then the company was guilty of negligence in not fencing their track. 30 Pa. .St. 234; 72 Am. Dec. 698 ; 46 Ark. 182.</p> <p>6. Plaintiff was on the train with the knowledge and consent of the conductor, and thus the relation of passenger and carrier is established. See 3 Head, 638 \ 74 Pa. St. 421; 66 N. Y. 313 ; 14 How. 468 ; 13 A. & E. R. Cas. 55.</p> <p>7. The damages are not excessive.</p> <p>The measure of damages is a question of law. It was the duty of the court to tell the jury what were the elements of damages, and not leave them to find what could be treated as a necessary result of the jury. 36 Mo. App. 215; 15 A. & E. R. Cas. 265; 3 Suth. Dam. 426 ; 3 Sedg. Dam. (8th ed.), 577; 3 Bush (Ky.), 587; 96 111. 162-174; 18 A. & E. R. Cas. 47; 21 D. J. (Q. B.), 233 ; 9 Exch. 341-56.</p>

Joe Rosso sued John O’Connell and H. P. Bradford, in Jefferson circuit court, and alleged that in April, 1888, he. contracted with defendants to take charge of the “Recreation Park” in Pine Bluff; that plaintiff, under the contract and agreement made between him and defendants, was to and did enter into possession of said park in April, 1888; that he was put into possession thereof under said agreement for the purpose of supplying visitors with soda water, lemonade, ice…

This was an action by W. E. Yarborough against, the St. Eouis, Iron Mountain & Southern Railway Company, to recover damages for the destruction of the plaintiff’s growing crops during an overflow of the Red River. The crops were destroyed on the 9th day of May, 1888, and the action was commenced on the 20th day of November, 1889.

Robson, Block & Co. obtained judgment in 1888 against N. A. Hough, and in 1891 procured an execution to be levied upon his undivided interest, as one of the four heirs of his mother, in certain lands which had descended from her. He filed a schedule, claiming that, being the head of a family, the land constituted his homestead. The court found that the land was exempt, and awarded a supersedeas to stay the execution.

1. The court below was evidently governed by Hamby v. Wall, 48 Ark. 135, which was the common law; but it is changed by statute. Gould’s Dig., p. 95 — “Accounts.” This was omitted from Mansfield’s Digest, though it has never been repealed. The statute is a re-enactment of the statute of Anne, and its meaning is plain. Freeman on Co-Ten. sec. 273. But in this case Brittinum had given Jones a power of attorney to collect his part of the rents. Ib. sec: 268 ; 33 Vt. 593 ; 80 Am.

Sweet & Trippe brought suit against the Desha Dumber and Planing Company. A demurrer to the complaint was sustained. Plaintiffs have appealed.

<p>APPRAR from White Circuit Court.</p> <p>The application to sell is barred. 39 Ark. 116; 67 Mo. 420; 2 Gill, 348; 23 Ark. 510; 18 Ala. 307; 14 Mtmf. 181; 41 Iowa, 255; 49 N. H. 295 ; 15 Mass. 58; 16 id. 178; 6 Johns. Ch. 387; 8 Greenl. 220 ; 16 Maine, 312; 49 Miss. 500; 4 Mich. 314-15.; Woerner, Adm. p. 38 et seq; 55 Cal. 574; 44 111. 205; 23 id. 491; 18 id. 519; 7 Wheat. 60. Our court has followed the principle of these cases, that the application must be in reasonable time, but, unlike them, it has not declared any general definite rule as to what is reasonable. 37 Ark. 155 ; 46 id. 37i3 ; 47 id. 470. The delay and laches in this case are unreasonable.</p> <p>1. Rogers was guilty of no laches in the prosecution of his suit, or in the attempt to enforce the payment of his debt.</p> <p>2. The application is not barred. 49 Ark. 248; 37 id. 159 ; 54 id. 66 ; 6 Halst. 56 ; 44 111. 203; 51 111. 308 ; Woerner, Adm. p. 1027. No limitation could run until an administrator was appointed. 51 Mo. 303 ; 33 Ark. 141; 38 id. 243.</p>

Farrell brought suit against the Plite Number Co. to enforce a mechanic’s lien upon a saw mill, and made Miller, appellant’s intestate, party to the suit because he held a mortgage on the same property. Judgment was rendered in the lower court for the plaintiff. The facts are stated in the opinion of the court. The mortgage lien of Miller is superior to the lien of Farrell. Secs. 4410-11, Mansf. Dig.; 32 Ark. 59. There is no repugnancy between these sections and sec. 4408.