Volume 57 — Arkansas Reports

Edward S. McDaniee, Judge. Samuel E. Vaughan was indicted in the Madison circuit court as accessory before the fact to the murder of W. A. Gage, alleg-ed to have been committed by Thomas Hamilton. On March 17th, 1892, the cause was set for trial on April 18th, 1892, and on March 18th the court adjourned until April 18th.

Carroll D. Wood, Judge. Gus Blass & Co. brought replevin against H. T. Hood, as administrator of the estate of 1ST. T. Hudson, alleging that, in Hudson’s life time, they sold him certain goods and merchandise which were in his possession at the time of his death ; that the goods were never paid for, and that they were entitled to the possession thereof as against the defendant. The answer denied plaintiff’s ownership and set up defendant’s title.

Rufus D. Hearn, Judge. Ferguson sued the St. Louis, Iron Mountain & Southern Railway Company for the killing of a colt worth $55.

Joseph W. Martin, Judge. Suit was instituted February 14, 1890, by the White Sewing Machine Company, an Ohio corporation, against N. H. Gunn to recover upon a bond executed by A. I. Julian, with Gunn as surety, conditioned that Julian would pay any indebtedness to the company which might thereafter- arise out of the purchase or sale of sewing machines or otherwise, under a contract of the same date, wherein the company agreed to sell their machines to Julian at stipulated…

David W. Carrouu, Chancellor. Originally, this suit was brought in August, 1887, by the State ag'ainst a tract of land situated in St. Francis county, under an act approved March 26, 1885, and the act of March 30, 1887, supplemental thereto.

Grant Green, Jr., Judge. statement by the court. The appellant was indicted for, and convicted of, an assault with intent to kill one J. H. Fryer. A part of the evidence adduced at the trial was the testimony of J. M. Findley and G. W. Kizer. Findley testified, substantially, as follows: “I was with the defendant and Kizer, at the latter’s house, the evening after the killing.

Edgar E. Bryant, Judge. In 1885 the Attorney General, under the provisions of ch. 103 of the Acts of 1885, employed W. W. Wallis as attorney on behalf of the State to collect amounts due the sixteenth section school fund in Scott county.

Rueus D. Hearn, Judge. 1. A servant assumes the risk incident to his employment. 35 Ark. 602; 54 id. 289, 389 ; 41 id. 382 ; 92 Pa. St. 276 ; 77 Mo. 508.

Robert J. Dea, Judge. The Constitution makes it the duty of the Governoi to commission special judges. Art. 7, secs. 9,48; ib. sec. 10, art. 6. Section 3228, Mansf. Dig., fixes the fee at $15. A special judge of the Supreme Court is a State officer. 72 Am. Dec. 169 and note. There are no exceptions in the act, and the courts can make none. The sole question raised is as to the proper interpretation of the words “State officer” in the act of 1881.

Grant Green, Jr., Judge. Cross, the appellee, brought an action of replevin against Cocke & Co., the appellants, to recover the value of two mules alleged to have been taken from him and converted by the appellants.

Robert J. Lea, Judge. STATEMENT BY THE COURT. This is an action of replevin brought by the appellants, who are attorneys at law, for the possession of a mule which, it is claimed, the defendant had promised to deliver to them as a fee for professional services rendered at his instance.

Fdgar F. Bryant, Judge. 1. Appellant’s title to one-sixth is paramount to appellee’s. The Meador judgment was a lien upon the sixth interest, and the marshal’s deed related back, thus cutting off the alienation by Datham to Stryker, and by Woods Rogers to Latham. 2. Appellant was entitled to be substituted and subrogated to the interest of Stryker, and have title not only to one-sixth but to all the property in suit.

-Jeremiah G. Waeeace, Judge. W. L. Cravens brought suit and recovered judgment against the Little Rock & Fort Smith Railway Company and the Missouri Pacific Railway Company. The case is stated in the opinion. 1.

<p>Appeal from Hempstead Circuit Court.</p> <p>Rueus D. Hearn, Judge.</p> <p>A. J. Spann brought suit against the St. Douis, Iron Mountain & Southern Railway Company. The complaint alleged in substance that, on May 20, 1890, the .plaintiff, at Texarkana, Ark., delivered two carloads of horses and colts to defendant for transportation to Cairo, 111., thereto be delivered to the connecting carrier for transportation to Carbondale, 111. That defendant, for a consideration that was paid, received said stock, and agreed safely to carry and deliver the same at Cairo, 111.; that, disregarding its duty, it did not transport said stock in a safe and careful, manner, and failed and neglected for more than twenty-eight hours, while in transit, to permit plaintiff to unload, rest, water and feed his stock, thereby causing said stock to become ill and feverish, and to bruise and injure each other, so that ■ four animals died and all of the remaining ones were greatly injured ; that the amount that the dead animals were worth was $20 each, and the remaining sixty-five head were damaged to the exteñt of $12, all to plaintiff’s damage in the sum of $1500.</p> <p>The answer, after denying specifically each allegation of negligence and want of care, as charged in the complaint, alleged the facts to be that, on May 17,1890, at San Antonio, Texas, plaintiff shipped over the International & Great Northern Railroad two cars containing seventy head of horses and colts, consigned to himself at Carbondale, 111.; that, at the time of the shipment, plaintiff made a written contract with the International & Great Northern Railroad for the shipment of said stock from San Antonio, Texas, through to Cairo, 111., upon a through special co'ntract and upon other considerations whereby said railway, upon certain conditions, stipulations and restrictions in said contract contained, agreed to transport said stock to Cairo, 111. That the International & Great Northern Railroad hauled plaintiff’s stock to Texarkana, Ark., and there delivered them to the defendant, its connecting carrier, on May 20, 1890 ; that defendant received said stock from the International & Great Northern Railway under the terms, restrictions and limitations contained in said written contract, and thereupon safely transported them, without negligence or want of care of any kind, to Cairo, 111.; that on the route said stock were unloaded, watered and fed at all reasonable times ; that they were handled carefully, and, on arrival at Cairo, 111., were safely delivered to plaintiff in good condition, in accordance with the terms of the contract.</p> <p>For a second defense, the railway company pleaded the limitations and exemptions contained in the contract as made in clauses 2, 3 and 4.</p> <p>The second clause exempted the carrier from all liability arising from loss or injuries occasioned by the wild, unruly, weak or vicious acts of said stock in wounding each other or themselves, or by reason of heat, suffocation or other results, or being crowded in cars; and if any of said stock should be injured while in transit, it was agreed that the presumption should be that it was the fault of the plaintiff or his agents in charge, for which the carrier should in no respect be liable.</p> <p>The third clause exempted the carrier from all liability for any loss or injuries occasioned while plaintiff was unloading, watering, feeding' or reloading his stock.</p> <p>The fourth clause exempted the carrier from all liability for loss by reason of any delay from any source except negligence on the carrier’s part, said negligence to be proved by plaintiff and not to be assumed.</p> <p>For a third defense, defendant pleaded the eighth clause of the contract of shipment, that, for any loss suffered by reason of injury to said stock caused by defendant’s negligence, the measure of damage should be the actual cash value of the stock at the time and the place of shipment, in no case to exceed $100 per head; and, for injury or partial loss, the measure of damages should be in the same proportion.</p> <p>These were the issues upon which this case was tried.</p> <p>A. J. Spann, plaintiff, stated that he was a hotel keeper ; that, on May 15, 1890, he shipped seventy head of horses and colts over the International & Great Northern Railway, consigned to himself at Carbondale, 111. He traveled and was with his stock all the way through. On the 19th or 20th of May, they arrived at Texarkana, Ark., and were delivered to defendant railway as connecting carrier. At Texarkana, the stock were unloaded, watered and fed, and were in good condition on arrival there. The train left Texarkana May 20, and ran to Poplar Bluff, Mo., occupying twenty-nine and one-half hours, without the stock being unloaded, watered and fed. At Hoxie, witness wanted to stop, water and feed, but the trainmen declined, saying they would get to Poplar Bluff on time. On arrival at Poplar Bluff, there was one dead colt and one mare badly injured, in the car. Witness did not know how the injury occurred or what occasioned it. There were bruises on their bodies, but he did not know what occasioned it. After being well watered, fed and rested, they were reloaded and carried to Cairo, 111., and there delivered to the Illinois Central Railroad. No damage was done to the stock between Poplar Bluff and Cairo, 111., and witness claimed no damages by reason of anything done between these points.</p> <p>On arrival at Carbondale, the stock were gaunt, thin and badly damaged by reason of having been kept on cars so long between Texarkana and Poplar Bluff, without having been watered and fed. The weather was hot; many were down and trampled upon on arrival at Poplar Bluff ; the hair was worn off and the animals were bruised. The mares were worth $21 per head at San Antonio, and the colts $17. Witness paid $1000 for the stock on the market at San Antonio. At Carbondale, 111., if they had not been damaged, in witness’ opinion, the mares would have been worth from $40 to $50, and the colts from $12 to $15, but witness could not get the market price on account of their damaged condition, and they were not worth more than $12 to $15 per head. The stock reached carbondale on May 23, 1890, and on May 24 he served notice on the Illinois Central Railroad, claiming damages for three head of horses, dead, valued at $100; ten head crippled, damaged $150, and fifty seven head damaged $250, for failure to water and feed ; total damages claimed in his notice, $500. Witness pastured his stock at Carbondale for three or four weeks on account of their condition. During this time three or four died and three or four were so badly injured that he sold them at $2.50 per head.</p> <p>This was all the testimony on plaintiff’s behalf.</p> <p>There was testimony on behalf of defendant which tended to establish that the cattle were not damaged to the extent that plaintiff testified.</p> <p>The bill of lading which was issued to the plaintiff contained the following among other regulations for the shipment of live stock, viz : “ No station agent of this railroad has any power or authority to bind this railroad in regard to the shipment of live stock, except by written contract, in the following form : neither has such agent any power or authority to contract to have cars at his or any other station for the shipment of live stock at any given or named date or agree to furnish under any circumstances any particular class or kind of cars.” It contained provisions of which those material in this case are as follows:</p> <p>“ This Agreement, Made between the International ■& Great Northern Railroad, of the first part, and A. J. Spann, of the second part; Witnesseth, That, whereas, the International & Great Northern Railroad transports live stock as per above rules and regulations, all of which are hereby made a part of this contract by mutual agreement between the parties hereto. Now, therefore, for the considerations and the mutual covenants and conditions herein contained, the said first party will transport for the said second party the live stock described below, and the parties in charge thereof, as hereinafter provided, viz:</p> <p>“Two cars, said to contain seventy head of horses and colts, from San Antonio Station to Cairo, 111., Station, consigned to A. J. Spann, Carbondale, 111., at the rate of--per-, the same being a special rate, lower than the regular rates, or a rate mutually ag'reed upon between the parties hereto, for and in consideration of which the said second party hereby covenants and agrees as follows:</p> <p>“ Second. That said second party hereby agrees to assume, and does hereby assume, all risks of injury or loss to his stock, because of any defect in said cars, of their being wild, unruly, weak, or maiming each other or themselves, or of heat, suffocation or other results of being crowded in the cars, or of being injured or destroyed by fire on any account whatever, or for any other purpose. And if any of said stock shall sustain injury or damage while in transit, the presumption shall be that the same resulted from overloading, or from the neglect or inattention of the party of the second part, his or their employees accompanying said stock, for which the party of the first part shall in no respect be liable.</p> <p>“Third. That, at his own. risk and expense, he is to take care of, feed, water and attend to said stock while the same is being loaded, transported, unloaded and reloaded, and to load and unload and reload the same at feeding and transfer points, and wherever the same may be unloaded and reloaded for any purpose whatever, and hereby covenants and agrees to hold said first ijarty harmless on. account of any or all losses or datnag'e to his said stock while being so in his charge, and.so cared for and attended to by him or his agents or employees as aforesaid.</p> <p>“Fourth. That he, the said second party, for the consideration aforesaid, hereby assumes and releases said first party from risk of injury or loss which may be sustained by reason of any delay in the transportation of said stock, caused by overloading cars, fright of animals, or crowding one upon another, or any and all other causes, except the negligence of the said first party ; said negligence not to be assumed, but to be proved by the said party of the second part.</p> <p>* * * * *• *</p> <p>“Fig'hth. The said second party further agrees that, in case of total loss of any of his said stock, the ■actual cash value at the time and place of shipment, but in no case to exceed one hundred dollars per head, shall be taken and deemed as a full compensation therefor, and in case of injury or partial loss, the amount of damage claimed shall not exceed the same proportion.</p> <p>* * •» * * x-</p> <p>“ Twelfth. In consideration of the rates herein named, and the aforesaid covenants, the shipper hereby releases and does waive and bar any and all cause of •action for damages that has accrued to him by any written or verbal contract prior to the execution hereof.</p> <p>* * -x- x *</p> <p>“Fifteenth. The evidence that the said second party, after fully understanding and accepting all the terms, covenants and conditions of this contract, including the printed rules and regulations at its head and on the back thereof, and that they all constitute a part hereof, fully assents to each and all of the same, is his signature hereto.</p> <p>Y. W. Gesimorn,</p> <p>Agent for I. & G. N. Railroad.</p> <p>A. J. Spann, Shipper."</p> <p>The court instructed the jury upon the theory that the limitations in the bill of lading were void unless plaintiff obtained shipment of his horses at a reduced rate, as set out in the bill of lading.</p> <p>The jury returned a verdict for plaintiff for $240. Defendant has appealed, and insists that the trial court erred in its instructions and that the verdict was ■excessive.</p> <p>1. The verdict is not sustained by the evidence, but is contrary to the evidence. The case is exactly like "that in 50 Ark. 413. The rate was a special rate, lower than the reg'ular rate and mutually agreed on by the parties. Part of the stock were injured before defendant received them. 42 Ark. 435. Under the Federal statute carriers may keep stock upon cars twenty-eight hours .without unloading, feeding'* etc., but no longer. The proof shows that the stock was on the cars only twenty-seven hours and ten minutes. Rev. St. U. S. sec. 4386.</p> <p>2- The verdict is excessive.</p> <p>3. The court erred in refusing defendant’s prayers for instructions and in modifying them. 50 Ark. 413. A through bill of lading and a throug'h rate less than regular rate were a valuable consideration for the clauses, limiting liability. 110 U. S. 667, 680; 25 Md. 72; 41 Fed. Rep. 562; 54 Ark. 403; 47 Me. 590 ; 4 P. F. Smith, 82; 18 id. 277; 22 Wall. 601; 16 id. 324; 42 Yt. 568; 45 N. Y. 530; 104 Mass. 135; 49 Yt. 265; 4 Mc-Crary, 405; 19 Wis. 137; 54 N. Y. 502; 7 H. U. Cases, 213, 214; 52 111. 129; 3 Fed. Rep. 768; 13 Gray, 481; 115 Mass. 304; 49 Ark. 354; 61 Penn. St. 86; 4 Am. U. Reg*. 234. But the parties being left free to make their own contract, and having agreed that in consideration of the payment of a certain price by the one, upon stipulated terms as to responsibility, it shall be performed by the other, neither party can allege that as to him there was no contract. 48 N. Y. 506 ; 98 Mass. 230 ; 15 Minn. 270; 32 Ark. 670 ; 39 id. 149 ; ib. 359; 40 Ark. 375; 44 id. 209; 46 id. 243; 47 id. 103.</p> <p>4. After the written contract was proved, it is frima facie true, and the burden devolves on plaintiff to show that it was false. 32 Ark. 607; 39 id. 529 ; 52' id. 30 ; 46 id. 243 ;' 50 id. 412. The question of what was a reasonable time to keep stock on cars was one of' law, not of fact for the jury, and it was error to leave this question to the jury. 52 Ark. 410.</p> <p>The proof shows that there was but one rate for-shipping horses, and that plaintiff had no option. He-had to take the contract with the fifteen clauses limiting the carrier’s liability, or not ship — he had no option. The case differs materially from 50 Ark. 413. In this no freight rate was incorporated in the contract; it was blank, becatise there was but one rate, and beyond defendant’s line the agent did not know what the rate was. The testimony shows Spann paid the regular rates. There was then no consideration for the limitation clauses. 4 S. W. Rep. 689.</p> <p>2. The proof establishes negligence. Rev. St. II. S. sec. 4386; 15 S. W. Rep. 692; 12 S. R. Rep. 363. The receipts signed by Spann, may be shown to have been untrue. 15 S>. W. Rep. 692.</p> <p>3. The damages are not excessive.</p> <p>4. The burden is on a carrier to establish facts which excuse him from liability. 44 la. 424; 46 Ark. 243.</p> <p>5. If the contracts are valid, a carrier cannot stipulate for exemption from responsibility for negligence of itself or servants, etc. 46 Ark. 237.</p>

John M. Elliott, Judge. Taylor brouglit suit against the St. Eouis, Iron Mountain & Southern Railway Company, alleging that defendant negligently ran one of its trains through the streets of Pine Bluff, killing plaintiff’s mule, valued at $125, and damaging his dray to the extent of $10. The answer denied negligence on the part of defendant, and charged that plaintiff was guilty of contributory negligence.

Matthew T. Sanders, Special Judge. 1. There can be no innocent holder of paper issued by a municipal corporation without power or in violation of law. In this case the warrant was not only issued without authority, but was absolutely forged. There is no such thing in law as an innocent holder of a forged warrant. 32 Ark. 620; 131 U. S. 162; 94 id. 255; ib. 261; 10 Wall. 676; 7 id. 676; Dill. Mun. Bonds, sec. 7.

Hugh P. Thomason, Judge. H. Baer, as trustee, brought suit in replevin against Thomas Whittaker to recover possession of a mule. The facts are stated in the opinion. Judgment was recovered by defendant. Plaintiff has prosecuted an appeal, and assigns as error certain instructions given by the court.

Edgar E. Bryant, Judge. 1. The proof fails to show any deed from Walker to Drennan, or any acts of ownership over the land in controversy, except paying taxes and on two occasions the cutting- of timber. There is an utter failure to establish prior possession. 5 Am. St. Rep. 393 ; 1 S. E. Rep. 339 ; Washb. Real Pr. vol. 3, 149, (4th ed.). 2. The deed from Scott was inadmissible. Plaintiffs did not rely upon it in their pleadings. 24 Ark. 381; 10 S. E. Rep. 113. 3.

John M. Feeiott, Judge. Alien C. Lowman, as administratrix of the estate of her husband, Samuel M. bowman, brought suit against S. W. Fordyce and A. H. Swanson, receivers of the St. Fouis, Arkansas & Texas Railway Company, to recover damages sustained by her by reason of the death of her intestate. The case is stated in the opinion. 1. The instructions given for plaintiff were ambiguous and misleading — they do not declare the law.

<p>Appeal from Lincoln Circuit Court, Varner District.</p> <p>John M. Prriott, Judge.</p>

J. ID. Riddick, Judge. Action to recover $500 alleged to be the damages stipulated by the parties for the breach of a contract by which the town of Jonesboro granted to the defendants, Nilson and others, the exclusive right to build and operate a street railway in that town.

John M. Brriott, Judge. Tillar & Stanley recovered judgment against Commodore Bass, and procured an execution to be levied upon certain land belonging to him. Defendant filed a schedule with the clerk of the circuit court, claiming the land exempt as his homestead. The clerk sustained the claim and issued a supersedeas staying the execution. Plaintiffs applied to the circuit court, which sustained defendant’s right of homestead. The evidence is stated in the opinion.

Will P. Reazell, Judge. 1. No appeal lies except from a final order or judgment. Mansf. Dig. sec. 1496 ; 39 Ark. 82. Where there is no judgment there can be no appeal. 26 Ark. 59. If the judgment was written on the warrant and it was lost, the judgment should have been supplied. Mansf. Dig. •secs. 5347, 5357. 2. The circuit court obtained no jurisdiction because the transcript showed no judgment or order of the county court. 1.

M. R..Baker, Special Judge. Confirmation of an account current lias all the force and effect of a judgment, and can only be attacked for fraud, accident or mistake. 34 Ark. 63 ; 40 id. 219; ib. 393 ; 51 id. 1; 33 id. 727. ffrrors or irreg'ularities can only be corrected on appeal. 2. There is no proof of fraud, accident or mistake, and the chancery court had no jurisdiction to open the settlements.

Francis Circuit Court. Grant Grlln, Jr., Judge. The only obligation on the railroad company was to use reasonable diligence after seeing the danger. The prima facie case made by appellee was overcome by the evidence, which was uncontradicted. It is a clear case of unavoidable accident. 36 Ark. 607 ; 37 id. 592; 39 id. 413 ; 40 id. 336 ; 40 id. 161; 48 id. 366 ; 52 id. 162. This case presents only a question of fact, which was resolved in appellee’s favor by the jury.

William S. Bakin, Special Judge. Replevin by C. T. Crowell against C. H. Barliam. Defendant claimed the property by virtue of a purchase at tax sale.

David W. Carroll, Chancellor. The former suit in this case' (53 Ark. 69) was affirmed without prejudice, and within the year allowed by law they brought this suit. It is not barred, as the tender was within the year. Mansf. Dig. sec. 4497 ; 53 Ark. 96; 13 id. 269; ib. 276; 49 id.. 248 ; 29 Kans. 5; 56 Vt. 60; 16 Pick. (Mass.) 386; 13 Am. & Eng. Enc. Daw, 386 ; 80 Ala. 376. 1.

John M. Flliott, Judge. The Bluff City Lumber Co., a corporation doing business at Pine Bluff, brought suit by attachment against Goodell & Waters, of St. Louis, Mo., to recover $1000 damages for defendants’ failure to comply with a contract for the sale of a No. 5 planer, and to recover $2500 damages for loss of prospective profits occasioned by such failure.

Hugh F. Ti-iomason, Judge. 1. The court exceeded its authority in taking proof as to whether the magistrate was justified in binding appellant. The only question before the court was whether there existed any necessity to further bind him. Mansf. Dig. sec. 2405. 2. In a peace proceeding, where the defendant is discharged, there is authority of law to adjudge the costs against him. Mansf. Dig. secs. 2395, 2399, 2401, 2405, and chap. 21.

Jordan B. Cravens, Judge. 1. A landlord is one who rents land to another, and puts him in possession. The mere fact that Byers purchased the land at sheriff’s sale did not establish the relation of landlord and tenant. His remedy was eject- . ment, if any. 2 Bouv. Daw Die.; 1 Parsons, Cont. pp. 499-500 ; 1 Wash. Real Prop. pp. 565-6-7, etc. 2. The sheriff’s sale was void. Mansf. Dig. sec. 2994.

Alexander M. Duffie, Judge. 1. The facts in this case constitute a purchase, and not a payment. Fox was merely the agent of Bailey in procuring the notes from Rockafellow. A mortgage is not discharged if paid with the funds of another for the purpose of purchasing it for such person. Thomas on Mortg. sec. 337; 1 Jones on Mortg. 944. 2.

Charles W. Smith, Judge. The deed of trust was a mortgage to secure bona fide debts, and not an assignment. 52 Ark. 30 ; 53 Ark. 105 ; 54 id. 229. Taking into consideration all the facts, the three conveyances, the intent of the parties, the insolvency of the grantors etc., it is clear that the deed of trust was an assignment. 31 Ark. 429 ; 50 Ark. 314 ; 52 id. 30; ib. 48 ; 1 McCrary, 176 ; 53 id. 101; 54 id. 6 ; ib. 428 ; ib. 229 ; 129 U. S. 329; 66 Wis. 227.

Jeremiah G. Wallace, Judge. 1. An unrecorded mortgage is uot binding upon third persons, though they bave actual knowledge of its existence. 9 Ark. 112 ; 20 id. 190 ; 33 id. 203 ; 40 id. 536 ; 22 id. 136. 2- The doctrine of Us pendens applies to suits to foreclose a vendor’s lien. 16 Ark. 175 ; 29 id. 357; 31 id. 491, 3. As Brown took his mortgag-e after the complaint was filed and summons issued, he was a purchaser pendente lite. Mansf. Dig. sec. 4967 ; 31 Ark. 491; 11 Am.

Fdward S. McDaniee, Judge. Willard Virden and others filed a petition in the probate court, stating that they were heirs at law of Jonathan Pratt, and as such interested in his estate and in the assets shown by the administrator thereof to be in his hands. They prayed to be allowed to establish by proof their interest in said estate ; that the court ascertain their respective interests, and order the administrator to distribute the same upon the condition provided bylaw.

Edgar E. Bryant, Judge. Janson sued Ewing for a balance of $212.10 upon an account for twelve months’ work at the rate of $20 per month. Defendant denied that he employed plaintiff for more than six months, and filed a counter-claim against plaintiff for time lost during the period of employment. Plaintiff recovered a judgment of $216.69. Defendant has prosecuted this appeal. The errors assigned by him are stated in the opinion of the court. 1.

Wiuu. P. Fkazku, Judge. Action by J. B. and Alfred Williams, composing the firm of Williams Brothers, against James B. Pipkin and M. F. Bake, composing the firm of Pipkin & Bake. Briefly, the case is as follows : On January 9, 1890, Bake, a married man, sold and conveyed the land in controversy, which constituted his homestead, to his partner, Pipkin, and delivered possession forthwith.

David W. Carrobb, Chancellor. The evidence shows that the Arkansas Doan and Trust Co. was the agent of Kirby, the borrower, and the payment of the $20 commission did not make the loan usurious. 51 Ark. 534; ib. 548; 54 id. 573. 51 Ark. 546 settles this case. The proof shows that the company was the agent of the lender. 46 Mich. 393; 51 Ark. 534.

Robert J. Rea, Judge. On March 4, 1890, T. H. Bunch, a commission merchant at Rittle Rock, Ark., sued Potts Bros., of St. Paul, Minn., before a justice of the peace to recover for a loss caused by defendants’ failure to comply with their contract to deliver two car-loads of potatoes; and alleged his damages to be $150. He caused an attachment to be levied on the potatoes in the hands of the railway company as the property of defendants.

Robert J. Lea, Judge. 1. The evidence fails to show malice. Mansf. Dig. sec. 1519. It is true, killing with a deadly weapon usually implies malice, but if there are circumstances of justification, mitigation, or excuse, the law does not imply malice. 35 Ark. 585; 38 id. 221; 34 id. 433. The evidence only makes a case of manslaughter, and, under the rule in 19 S. W. Rep. 99, the case should be remanded with directions to sentence for manslaugditer. 2.

Alexander M. Duffie, Judge. Faisst & Co. brought suit in replevin against Waldo, to recover possession of. 25 head of work-oxen, yokes, chains, hooks etc., valued in the aggregate at about $1800. Defendant denied their ownership and right to possession of the property.

Alexander M. Dueeie, Judge. 1. The alteration to be fatal must be material. Randolph, Com. Paper, 1743 ; 5 Ark. 377; 112 U. S. 137. The court must determine whether the alteration was. material. 35 Ark. 146; 1 Pet. 552. 2. The alteration had no legal effect; it did not change the amount or legal effect of the note sued on,, and hence was immaterial.

Robert J. Lea, Judge. 1. The provisions in the application, which are made a part of the policy, are promissory warranties, upon the truth of which the validity of the policy depends. 11 Am. & Fug. Fnc. of Law, p. 290 and notes; May on Insurance, p. 160, sec. 156 ; Wood on Insurance, p. 422, etc.; Arnold on Insurance, p. 587. 2.

John M. Eudiott, Judge. On December 22, 1890, Wm. A. King and Jos. A. Goza, composing the firm of the King Manufacturing Co., broug'ht suit ag'ainst F. A. Wood to enforce a mechanic’s lien upon a gin-house and two acres of land, described as situated in Lincoln county.

John M. Feeiott, Judge. Mrs. Ada H. Sweet, as administratrix of Frank Sweet, brought suit, in the Jefferson circuit court, against the St. Louis, Iron Mountain and Southern Railway Company to recover damages to the widow and next of kin by the death of her intestate, who, while a passenger on defendant’s road, was killed by the derailment and over-turning of the caboose car on which he was riding. The answer charged contributory negligence on the part of deceased.

Jeremiah G. Wale ace, Judge. In October, 1890, Choate, as surviving partner of the firm of Cole & Choate, brought suit in the probate court against O’Neal as administrator of the estate of his deceased co-partner, to recover the sum of $776.80, being-one-half of the principal and interest due upon a note for $677.66, executed April 1, 1879, by Cole & Choate to C. M. Freed.

Alexander M. Dueeie, Judge. Parker brought an action of unlawful detainer against Geary. The complaint alleges that plaintiff is the owner of the lands sued for; that he rented the same to defendant; that defendant took possession of the lands under the contract; that rents became due and remained unpaid ; that, upon such default, plaintiff in writing demanded possession of the premises; and that defendant failed and refused to deliver up the same.

M. R. Baker, Special Judge. . There is no evidence that Ruble received more interest than he charged himself with. The confirmation of the accounts by the probate court is conclusive, except for fraud, accident or mistake. 51 Ark. 1 ; 40 id. 219'; ib. 393; 34 id. 63; 33 Ark. 727. The appellant, Ruble, shows he accounted for all money and property that came to his hands. As to the item of $10, Lex non curat de minimis. 36 Ark. 393-4.

Alexander M. Dueeie, Judge. Mary E). Maddry, as administratrix of the estate of her deceased husband, W. T. Maddry, brought suit ■against the St. Rouis, Iron Mountain & Southern Railway Company.

David W. Carroee, Chancellor. STATEMENT BY THE COURT. This is an appeal from a decree of the Pulaski chancery court, setting aside a contract made by the governor, auditor and treasurer of the State of Arkansas as a board of commissioners for the letting of public contracts, with the appellant, the Arkansas Democrat Company, for the binding of the public documents of the State for two years.

Rufus D. Hlarn, Judge. Wright brought suit against the St. Louis, Iron Mountain and Southern Railway Co. to recover damages for the killing of a horse. From a judgtnent in plaintiff’s favor awarding double damages, defendant has appealed. The awarding of double damages was erroneous. The evidence was not sufficient to make a prima facie. case. The law only requires the notice to be posted “at the nearest station-house and the nearest depot-house.”' 45 Ark. 297.

Charees W. Smith, Judge. Where a failing debtor makes an assignment purporting to convey all his property for the benefit of creditors, but intentionally withholds a valuable part, the assignment is fraudulent and void. 46 Ark. 405; 54 id. 128 ; 53 id. 86. The court erred in modifying the instructions by striking out the word “ valuable” and inserting “material.” The unintentional omission of assets by accident or oversight does not invalidate an assignment. 85 N. Y. 469.

<p>Railroad mortgage — Foreclosure—Preferences.</p> <p>Upon foreclosure of a mortgage upon the road bed and franchise of a railroad, no preference will be given to a claim for work of original construction done for the railroad after the mortgage was executed.</p>

Appeal'from Benton Circuit Court. Edward S. McDaniee, Judge. T. J. Patton brought suit against J. E. Crane to recover damages sustained by being' prevented from cutting timber on certain land.

<p>Usury — Furnishing abstract of title.</p> <p>A loan bearing- the highest legal rate of interest, secured by a mortgage of land, is not usurious because made upon condition that the borrower should, in addition, furnish an abstract of title of the land and a certificate that it is not incumbered, that he should have it inspected and valued by a competent person, and that he should pay the fee for having the mortgage recorded.</p>

Carroll D. Woot>, Judge. Margaret Tisdale and others, distributees of the estate of Mary Jane Wentz, deceased, brought suit against G*. W. & P. M. McLeod, sureties upon the bond of A. B. Wentz, administrator of the above mentioned estate.

Rufus D. Hfarn, Judge. S. C. Martin sued the Southwestern Arkansas & Indian Territory Railway Company to recover his proportionate share in a dividend alleged to have been dedared by defendant’s board of directors on March 12, 1890. The answer denied that the dividend had been legally declared. Plaintiff introduced in evidence the minutes of the meeting of defendant’s board of directors, which contained the report of the president and treasurer of defendant for 1889.

R. T. Powell, Special Judge. The St. Louis, Iron Mountain & Southern Railway Company instituted proceedings to condemn land belonging to E. B. Petty, for the purpose of constructing an additional side track north of its main track near Jennie Lind station in Sebastian county, and, after depositing with the clerk the amount designated by the circuit judge as the value of the land, took possession thereof and laid its track.

R. T. PowEGG, Special Judge. 1. No motion for a new trial was necessary, as all the facts are settled, and only a question of law remains. 43 Ark. 403 ; 40 id. 327 ; 20 Cal. 387 ; 54 Ind. 193 ; Mansf. Dig. -secs. 5142, 5177, 5178-9. 2. Plaintiff, being wrongfully discharged, was entitled to recover the contract salary, subject to be reduced •only by what he earned or might with due diligence have earned by his labor during the breach. 9 Ark. 394 ; 52 ■id. 280 ; 2 Suth.

Grant Green, Jr., Judge. Mrs. B. M. Robbins, as administratrix of the estate of J. B. Robbins, deceased, sued the St. Louis, Iron Mountain & Southern Railway Company.

James R. Riddick, Judge. Cook brought an action against the Kansas City, Rort Scott & Memphis Railroad Company to recover for injuries to his land by overflows caused by the lack of sufficient openings in defendant’s road-bed at the point where its line of railroad passes over and across Cache river and the adjacent sloughs entering into said river. Plaintiff recovered a judgment of $150, and defendant has appealed.

Hugh F. Thomason, Judge. - The county court of Logan county made an order calling in the outstanding warrants of the county for examination, cancellation and re-issuance. In pursuance of, this order, John C. Hill presented certain warrants for re-issuance. The court declined to re-issue them, upon the ground that they were barred by the statute of limitation, and ordered that they be cancelled. Upon appeal a similar judgment was rendered in the circuit court.

Grant Green, Jr. Judge. Action by Henderson & Jelks against the St. Louis, Iron Mountain & Southern Railway Company.

District. Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The appellee, Mrs. Albert Mitchell, recovered a judgment against the St. Bouis & San Francisco Railway Company for $2250, damages for injury received while a passenger on its railway, by the derailment and overturning of the car in which she was riding, at a switch on its road in the State of Kansas. The railway company appealed to this court.

John M. Lrriott, Judge. W. P. Grace and two others brought suit in equity against the Jefferson Land Company, to cancel a decree and sale of land in an overdue tax proceeding. The complaint alleged that on August 22, 1881, the county court of Jefferson county ordered suit to be brought against the forfeited lands of the county, under the overdue tax act, and appointed Jones & Prigmore attorneys to bring such suit.

<p>1. Negligence — Fall of overhead, wire.</p> <p>Proof that a telephone company’s servants let a wire fall in the street which caused plaintiff’s horse, standing near, to leap forward, thereby throwing plaintiff out of the wagon to which the horse was harnessed, makes a prima facie case of negligence which casts upon the company the burden of showing that the occurrence was unavoidable.</p> <p>2. Contributory negligence — Question for jury.</p> <p>In an action against a telephone company for damages caused by the falling of an overhead wire, whereby plaintiff’s horse was frightened, and plaintiff thrown from his wagon and injured, the question whether plaintiff was guilty of contributory negligence in leaving the horse standing in the street with a deaf mute boy on the seat of the wagon, he himself being in the rear of the wagon, is for the jury.</p>

<p>Negotiable note — Accommodation endorsement — Liability.</p> <p>One not connected with the original consideration of a note who endorses his name on the back, under that of the payee, after it has been delivered by the maker, not pursuant to an agreement entered into before the note was executed or to give the maker credit with the payee, biit at the latter’s request to enable him to discount the note, is merely an accommodation indorser, and not a maker or guarantor, and is discharged by failure to demand payment and give notice of dishonor to him.</p>

Jeremiah G. Wade ace, Judge. 1. In order to charge May as an assig'nor or indorser, demand, notice and protest should have been alleged and proved. 2 Dan. Neg. Inst. secs. 1319, 717, 719, 929, 1101, 1109 ; Story, Prom. Notes, secs*. 198, 200, 211, 235, 322, 348, 366; 37 Ark. 276; 33 id. 33. 2. But May was not liable on the note; he did not endorse it at all, but merely assigned his interest in the mortgage title. Jones, Mortg. secs. 787, 823, 824, 830, 831.

David W. Carroee, Chancellor. All property is subject to taxation unless specially exempted by law. Taxation is the rule — exemption the exception. The property does not come within the exception unless used exclusively for public charity. 42 Ark. 536. Mr. Desty, in his work on Taxation, lays down the true rule (p. 119) : “The fact that the rents and revenues * * are devoted to charitable purposes * * * will not exempt the property.

Hugh F. Thomason, Judge. Sarah F. Howell, the Citizens’ Bank of Van Burén, and the Shibley-Wood Grocery Co. sued Fry & Ford in the Crawford circuit court, and procured writs of attachment to be placed in the sheriff’s hands and to be levied, in the order named, upon a stock of goods belonging to defendants. Subsequently Brooks, Neely & Co. sued the same firm in the United States circuit court for the western district of Arkansas, and procured an attachment to be issued.

<p>Appeal from Miller Circuit- Court.</p> <p>Rupus D. Hrarn, Judge.</p> <p>Action by James Shelton against the St. Louis, Arkansas & Texas Railway Company. The facts are stated in the opinion.</p> <p>1. The suit was barred. The issuance of the alias summons was the beginning of a new suit.</p> <p>2. The only proof for plaintiff was that the stock was found dead on the dump of the railway. This is not sufficient to raise the presumption that it was killed by the railway company. 20 S. W. Rep. 413.</p> <p>1. The commencement of the suit was the filing of the original complaint and the issuance of the summons thereon, Mansf. Dig. sec. 4967 ; 27 Ark. 344; 47 id. 121.</p> <p>2. There is proof to sustain the ’ verdict. 45 Ark. 41.</p>

James E. Riddick, Judge. Alsey Catlett, a boy eleven years of ag'e, by his father as next friend, sued the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for injuries sustained by falling from a moving freight train. The accident happened near the town of Wynne. There is a heavy grade on defendant’s road, beginning at or near the town of Wynne, and extending east about one mile.

George S. Cunningham, Judge. 1. It was error to permit Cox to amend by making a new party plaintiff. 34 Ark. 144; Mansf. Dig. sec. 4933. 2. The statute of limitations commenced to run from the April term, 1883, of the probate court, and the suit was barred. 36 Ark. 221; Mansf. Dig. sec. 4934; 11 S. W. Rep. 12. 3. The order of the probate court became final after the lapse of the term. 12 Ark. 95. The subsequent order setting' it aside was void. 41 Ark. 104.

<p>Betterments — Land of the State.</p> <p>The betterment act, which in certain cases makes the value of improvements upon land a charge thereon in favor of a person in possession under color of title, does not apply to land belonging to the State ; accordingly, the value of improvements made upon land which has forfeited to the State for non-payment of taxes cannot become a charge thereon, as against a subsequent purchaser of the land from the State.</p>

' James E. Riddick, Judge. Thomas & Etchison brought suit in equity against Thomas and Plora Ellison and Mrs. Ella See to enforce a mechanic’s lien for improvements upon a lot in the town of Corning. Mrs. See filed a separate answer, alleging that the land belonged to her, and that the improvements were made without her authority, and consequently were not a charge upon her property.

Will P. Feasel, Judge. Gus Blass & Co. sued L. B. Anderson and J. S. Anderson upon an account for merchandise sold, and sued out an attachment on the ground that defendants had fraudulently disposed of their property. The attachment was levied upon a stock of goods. J. S. Anderson filed a separate answer, denying any liability to plaintiffs and asserting exclusive ownership of the goods seized under the attachment. He also controverted the grounds of attachment.

Hugh F. Thomason, Judge. 1. The county court is prohibited from allowing any officer any fee not specifically allowed such by law, and in no case can constructive fees be paid by counties. Mansf. Dig. sec. 1414. “ Specifically ” is defined “ definitely,” “particularly.” Webster’s Diet. The,fee must be allowed in direct terms. Mansf.

<p>Appeal from Dee Circuit Court in Chancery.</p> <p>Grant Green, Jr., Judge.</p> <p>I. The allegations of the complaint make a case of fraud — and certainly a case of mutual mistake — entitling appellants to relief in equity. 13 Ark. 129 ; 15 Ark. 489; 11 Sup. Ct. Rep. 972; 17 Ark. 512; 48 Ark, 535.</p> <p>2. Appellants are not cut off by sec. 4932, Mansf. Dig. They did not know of their predicament until about the close of the term, and until after judgments were rendered; and further the section should only be binding on those who have a right to defend and are required to do so under the rules of pleading. The sureties on an attachment bond have no general right to defend ; and the right to affirmative relief claimed is based on discoveries made after the judgments.</p> <p>3. Under provisions similar to subd. 4, sec. 5033, Mansf. Dig-., it is held in some States that defendant must plead all his defenses or lose the right; while in others the rule is to the contrary. 2 Black, Judg. sec. 766 ; 6 Cal. 452. But the sureties, in jurisdictions where a defendant must plead all defenses, would not be dismissed because of having made the motion to vacate. They were not defendants in the sense that they must or' could answer. The motion to vacate was on the sole ground of non est factum. Nothing else was up for consideration. Overruling a motion does not estop one from proceeding in a more formal way ; in any event does not bar him from proceeding anew on different facts. 2 Black, Judg. secs. 691-2; Freeman, Judg. secs. 325-6 and 511; 1 Pac. Rep. 572; 55 Ark. 292.</p> <p>1. Appellants should have set up all their grounds of defense and for relief, legal or equitable, in the court where the cause was tried before the term lapsed. It was too late after the term elapsed. Pom. Fqv Jur. sec. 1361, 1364, and notes; 2 Black, Judg. secs. 361, 368, 378, 387 ; High on Inj. secs. 113 — 116,165-7, and note ; Story, Bq. Jur. secs. 887-8, 894-6.</p> <p>2. A party having an opportunity to defend must make all his defenses, and what is not made is waived. 14 Ark. 217; 6 id. 317; 16 id. 114; 48 Ark. 510 ; 50 id. 458.</p> <p>3. Mansf. Dig. sec. 4932 is the law of this case.</p>

Charles W. Smith, Judge. 1. Plaintiff failed to prove that the piece of steel came from the chisel. If it came from the rail, or was caused by an awkward blow of a fellow-servant, or if the defect in the chisel was visible or known, or might have been known by ordinary care, the defendant was not liable. Railroads are only required to exercise ordinary care and prudence in furnishing reasonably safe tools. 53 Ark. 352; 44 id. 529 ; 46 id. 555 ; 39 A. & E).

Ru®us D. Hearn, Judge. Section 513, civil code, is the law governing* appeals from orders admitting' wills to probate, and is not repealed by sec. 1386, Mansf. Dig. Acts passed upon the same subject must be taken and construed together and made to stand if capable of being' reconciled. 3 Ark. 285; 4 id. 410; 40 id. 448.

Rufus D. Hrarn, Judge. Fox Lyman brought suit ag-ainst the St. Louis, Iron Mountain & Southern Railway Company. The complaint alleged that during the year 1888 the plaintiff was the tenant in possession of two plantations lying upon the banks of Red River, in Miller county, Ark., known as the Ogburn and the Glass-Chappell River plantations.

Prairie Circuit Court in Chancery, Southern District. Grant Green,* Jr., Judge. Suit by F. Gates against C. B. Kelsey and another to quiet title to land. Defendants recovered judgment ; plaintiff has appealed. The case is stated in the opinion. Gates, being the owner of the land, under a tax deed valid on its face, is constructively in possession of the lands, and after two years the appellees were barred. 32 Wis. 281; 18 id. 268; 59 id. 465 ; 18 N. W. 435 ; 32 id. 478.

Edgar E. Bryant, Judge. 1. A junior attaching creditor may intervene in the senior attachment suit and contest the validity of the attachment and its priority. Mansf. Dig. sec. 358 ; 47 Ark. 31; 53 id. 140. 2. The- court had no jurisdiction unless each separate cause of action exceeds $100, exclusive of interest. 1 Ark. 252 ; 3 id. 494; 5 id. 34; 9 id. 463; 18 id. 249 ; 24 id. 177; 35 id. 287 ; Const. 1874, art. 7, secs. 11 and 40. 3.

Charles W. Smith, Judge. On the 20th of September, 1889, the German National Bank and other creditors of C. R. Barham brought suit against Barham, C. D. Gee and M. A. Johnson.

Grant Green, Jr., Judge. 1. The finding of the court is not sustained by the evidence. 2. The assignor was not guilty of any fraudulent conduct at or before the execution of the assignment. There was no agreement that the assignor was to take possession before he filed bond and made his inventory.

Rueus D. Hearn, Judge. 1. An indorser is not a surety, and is not entitled to the remedy provided for a surety by secs. 6396-7, Mansf. Digest. See 31 Ark. 511; 53 id. 140; Rand. Com. Paper, vol. 2, secs. 896, 898; 54 Ark. 524 ; 24 id. 511. 2. Dorrian was not the owner of the notes, and could not sue out an attachment based on them. He afterwards amended, but his lien would only date from the amendment. 53 Ark. 144.

Alexander M. Dueeie, Judge. Dr. E. E. Bevens sued R. H. Hurley in a justice’s court in Garland county to recover possession of a borse and wagon. Defendant gave bond for the property in the sum of $320 and procured the cause to be transferred to the court of common pleas where judgment was rendered in his favor.

James M. Pittman, Judge. W. C. Hull sued James Johnson in ejectment to recover possession of certain town lots, claiming title by deed from W. H. Dongan, dated October 15, 1885..

James R. Riddick, Judge. The Ozark Land Company, a corporation, sued J. W. Hutchinson and others to remove, as a cloud upon its title to certain land situated in the eastern district of Clay county, certain conveyances to defendants depending upon a sale of the land for the taxes of the year 1886.-The court adjudged that the tax sale was void by reason of an unequal leyy of taxes for county purposes. The defendants have appealed.

James W. Buteer, Judge. 1. The statute does not make concealing the death of a bastard child manslaughter, but merely provides that the punishment shall be the same. Mansf. Dig. sec. 1543. No attempt is made to blend or merge the two crimes. Sec. 1544 provides that a conviction under sec. 1543. will not bar an indictment for murder. It was error to instruct the jury as to the law of manslaughter. 13 Ark. 168; 1 Bish. Cr. Daw, 250. 2.

David W. Carroee, Chancellor. Klein executed to Bliza Shilling a deed of trust upon land to secure two notes for $470. Before maturity the notes and mortgage were assigned to Martha Rumble, who afterwards broug'ht this suit ag'ainst Klein and Sherburne to foreclose the deed of trust.

Alexander M. DuEEie, Judge. This cause was decided by the Hot Spring circuit court, on appeal from the county court, on the following agreed statement of facts : “ An agreed statement of facts, on which this cause is submitted to the court, sitting,as a jury; “1.

Charles W. Smith, Judge. 1. The evidence, facts and surroundings, and the relations of the parties, all go to prove the trust deed a fraud and intended to defeat creditors. 38 Ark. 419 ; 7 Ala. 690. 2. But for this deed the property could be subjected to sale under execution, and hence it should be set aside. 31 Ark. 554 ; 23 id. 258 ; 9 Ga. 327; 4 Kent. (8th ed.), 464; 4 Yer. 405; 7 Peters, 389. 1.

<p>Appeal from Crittenden Circuit Court.</p> <p>James E. Riddick, Judge.</p> <p>1. The court erred in refusing the first and third instructions for plaintiffs ; also in its charge on its own motion. Reviewing 55 Ark. 48; 48 id. 71; 45 id. 140 and 47 id. 250, and cites 9 Gill & J. 278; 3 Ohio St. 162; 53 N. Y. 465; ib. 466; 1 Paige, 492. If a purchaser has no reasonable expectation of being able to pay for goods purchased, this is equivalent to an intention not to pay. 3 Otto, 631, E. Co-op. ed. book 23, p. 994, notes; 1 Paige, 492; 52 N. H. 301; 2 Bans. 87; 31 Oh. St. 162; 2 Abb. App. Dec. 470; 13 Minn. 109 ; 47 N. W. Rep. 347; 16 Conn. 71; 19 Mo. 36; 20 id. 546; 20 Barb. 253; 21 id. 585 ; 1 Hill, 302; 18 N. Y. 588.</p> <p>2. Appellees were not innocent purchasers. 55 Ark. 582; 50 id. 320 ; 47 id. 252 ; 9 Gray, 97 ; 7 Watts, 86 ; 6 Wall. 299.</p> <p>The case in 55 Ark. 45, is conclusive of this, both as to the law and facts.</p>

<p>Appeal from Columbia Circuit Court in Chancery.</p> <p>Charles W. Smith, Judge.</p> <p>Carter Bros. & Co. and other creditors holding judgments against W. B. McNeill brought suit in equity against McNeill and others to set aside certain alleged fraudulent transfers executed by McNeill.</p> <p>The complaint in substance alleged that plaintiffs in March and September, 1886, obtained their several judgments against McNeill for amounts named ; that nothing' has been paid on these judgments, and that they are in full force, and constitute subsisting liens on all real estate owned by McNeill; that, at the date of rendition of these judgments, McNeill was the owner of a large quantity of lands, Nut was totally insolvent; that, on April 12, 1886, McNeill permitted all of said lands to be forfeited for non-payment of taxes, and, just before the period of redemption expired, redeemed the lands and conveyed them, for the consideration of $219.55, to his. three sons and a son-in-law, who were named as defendants ; that said grantees conveyed part of said lands to a third party who had notice of plaintiffs’ liens; that the lands were worth $5000, and that the conveyances above mentioned were fraudulent.</p> <p>The prayer of the complaint was that all of these deeds be declared null and void, and that the lands be subjected to the payment of their judgments.</p> <p>All the defendants except W. B. McNeill, after demurring to the complaint for want of equity, answered in substance :</p> <p>That the judgments as alleged in the complaint are true so far as they know, and of their own knowledge they cannot deny any of the indebtedness of W. B. McNeill; that the lands mentioned in the complaint were forfeited for taxes more than two years before the appellees filed this complaint; that the lands were forfeited on the 12th day of April, "1886, and on the 12th day of April, 1888, they bought the equity of redemption from McNeill and wife, and on the same day, it being the last day that said lands could be redeemed by any one, they redeemed. They deny that said lands were forfeited for the purpose of committing any fraud on the creditors of W. B. McNeill. They state that he was perfectly insolvent, and had no money to pay taxes with. The judgment creditors neither paid the taxes on these lands, nor subjected them to their judgments, as they could have done. They say that if they had not bought the equity of redemption, and redeemed these lands when they did, they would have belonged to the State of Arkansas, as the creditors of said W. B. McNeill had never redeemed or offered to redeem the same. They deny that they perpetrated or attempted to perpetrate any fraud on the creditors of the said W. B. McNeill. They deny that they themselves, or in conjunction with the said W. B. McNeill, ever did in any way do any thing in the premises to cheat, hinder or delay the creditors of the said W. B. McNeill. They deny that the said judgment creditors have any lien on said lands or ever had any lien on the equity of redemption in said lands, after the time expired for the redemption of said lands, and, if they ever had any such lien, they neglected and failed to enforce same in any way before the expiration of same, as all the equity of redemption that ever belong-ed to said W. B. McNeill would have expired in a few hours after their purchase from said W. B. McNeill. Thej^ further state that they knew nothing- about the debts of the said W. B. McNeill, except in a general way. They knew he was insolvent and owed debts, but they knew nothing of any particular creditor, or the amount said W. B. McNeill owed. Their information about or concerning the debts was _ from general rumor.</p> <p>The court sustained a demurrer to the answer. Defendants declined to plead further, and judgment was rendered in accordance with the prayer of‘the complaint. Defendants have appealed.</p> <p>The sale of the lands to the State for taxes divested McNeill’s legal title, leaving- a mere equitable interest— the right to redeem — in him for a period of two years. This he sold appellants, which gave them the right to redeem. 39 Ark. 580 ; 42 id. 215; 49 id. 551; 15 id. 331; 1 id. 473 ; Mansf. Dig. sec. 5775. Judgments are only liens upon real estate, and not upon a mere right to redeem. Mansf. Dig. sec. 3917 ; Acts 1891, p. 92; 97 Iud. 520 2 Oregon, 43 ; 13 Ark. 74 ; 6 Ark. 269 ; Mansf. Dig. sec. 3001, subd. 6. The-lien for taxes is superior to all judgment liens. Mansf. Dig. sec. 5712; Acts 1887, p. 167, sec. 40. The land itself is sold for taxes and not the interest of the owner, and the purchaser acquires a title subject only to the right of redemption, unaffected by prior liens or encumbrances. 18 Ark. 423; Blackwell, Tax Titles, sec. 480; 93 U. S. 428 ; 18 Fla. 302; 41 Pa. St. 60; 36 Iowa, ,505; 2 Curtis (C. C. U. S.), 439; 69 Ga. 194 ; 47 Iowa, 330.</p>

Grant Green, Jr., Judge. On the 11th of October, 1890, Mrs. Laura M. Leach sued John P. Moore, the complaint alleging in substance, but with much detail, that, in the year 1868, her brother-in-law, W. Dorsey Rice, of the firm of Rice & Engel, doing business at Memphis, Tenn., was indebted to her in the sum of $7000; that, between September, 1868, and May, 1869, the firm of Rice & Engel, being' insolvent, turned over to defendant a stock of goods, of the value of $50,000, to…

Jeremiah G. Wallace, Judge. Dove brought ejectment against Bryson to recover a forty-acre tract of land.

<p>.Account — Appropriation of payments.</p> <p>A running account, although composed of items partly secured and partly not, is so far one debt that the creditor has no election as to which item he will credit with a general payment, in the absence of any appropriation by the debtor, but such payment will be applied by law to the several items of the account in the order of their priority.</p>

<p>1. Equitable relief against judgment at law.</p> <p>Fquity will not compel a party obtaining judgment in an action at law to submit to a new trial, upon the ground that the judgment was procured by fraud, accident or mistake, unless it ap'pears that a judgment materially different from that recovered, and in consonance with law and justice, might be the result of a new trial.</p> <p>2. Surprise — Negligent absence of party.</p> <p>A party against whom a judgment in an action at law has been recovered in the absence of himself and his attorney cannot resort to equity to obtain a new trial where such absence was not due to any fault of the opposing party or his counsel, but was caused by the failure of an attorney, not employed in the action, who promised but failed to apprise them of the date when the cause was set down for trial.</p>

John M. Eeeiott, Judge. 1. The demurrer to the counterclaim or setoff should have been sustained. Unliquidated damages growing out of a transaction separate and distinct from the purchase in controversy cannot be recouped. 45 Ark. 284; 42 id. 208; 120 U. S. 638-9. 2. Appellee is estopped by fraud. 2 Herm. on Estoppel, secs. 944, 995; 33 Ark. 468; 37 id. 47; 10 Allen, 437; 11 id. 351; Bigelow on Estoppel, p. 504; Tiedeman on Sales, secs. 151, 170. 1.

Hugh F. Thomason, Judge. The removal of property from the State by a debtor, not leaving sufficient to pay his debts, is a ground of attachment under our statute. His purpose is immaterial. 44 Ark. 302 ; 54 id. 58 ; 2 McCrary, 198. The broad ground taken in 40 Ark. 157, that shipping cotton beyond the State in payment of a bona fide debt does not justify an attachment, has not been abandoned in this court. 44 Ark, 302; 54 id. 58; 4 Fed. Rep. 294. See 8 So. Rep. 674.

Alexander M. Dueeie, Judge. Bard recovered judgment against Gaines and another, proprietors in part of the “Old Hale Bath House,” a public bath-house in the city of Hot Springs, for injury from a burn which he claimed to have received, througdi the negligence of defendant’s servant, while taking- a vapor bath.

Hugh F. Thomason, Judge. 1. Tke service upon the minor defendants was strictly in conformity to the code. Mansf. Dig. sec. 4983. 2. This court will disregard errors or defects which do not affect the substantial rights of parties. Mansf. Dig. sec. 5083. One copy served upon the mother, where the minors are all under her care, is a substantial compliance with the statute. Mansf. Dig. sec. 6344, etc. 3.

James W. Butler, Judge. 1. The testimony of Mrs. McDonald is vague and indefinite — and she is contradicted by all the other witnesses. 2. If there was a trust in this case, it was an express trust; it could be no other, and, being in parol, it was void under our statute of frauds, Mansf. Dig. sec. 3382; 2 Reed, Stat. Frauds, sec. 851; 4 Ark. 296 ; 45 Ark. -481; 21 id. 440; 37 id. 146; 1 Johns. Chy. 339 ; 2 Bibb, 311. 3.