Volume 58 — Arkansas Reports

Grant Green, Jr., Judge. The word store has a well defined and understood signification, which is broader than the word shof. The words are not synonymous. See 45 Ark. 348 ; 25 Am. Rep. 646 ; 19 N. H. 135 ; 29 Ala. 651; 2 Am. Cr. Rep. 47Ó; 3 Cr. Law. Mag. 640. The legislature never made it a crime to keep open a shof, unless it was in fact a store. In common parlance “shop” and “store” mean about the same thing. See Webster, Int.

<p>Incest — Indictment.</p> <p>An indictment of a father for incest committed by adultery with his daughter is defective if it fails to allege that the father was at the time a married man.</p>

Charles W. Smith, Judge. 1. The court erred in striking out the marginal amendment to the ‘complaint. It was material, and entitled plaintiff to a lien upon complying* with secs. 4403-4 and 4418 Mansfield’s Digest. 11 Wis. 295 ; 4 Abb. Pr. (N. Y.), 432; 54 Wis. 474; 50 Mo. 306; 6 Bradw. (111.), 621; 53 Miss. 171; 33 Ark. 253 ; 12 id. 685; 9 id. 448; 32 id. 313; 49 Fed. Rep. 754; 14 id. 866; 31 Ark. 486 ; 51 id. 302.

Charees W. Smith, Judge. The judgment should have been arrested. The allegation of ownership is necessary and must be laid in the names of the joint and several owners, not in partnership name. 47 Ark. 233; 29 id. 68; 37 id. 116; 42 id. 73; 55 id. 246 ; 2 Bish. Cr.’Law, sec. 718 et seq. Under the common law, the ownership must be alleged in the names of the joint and several owners. But the tendency now is to disregard technicalities and formalities.

James F. Robinson, Chancellor. J. H. and J. A. Brown brought suit against Wm. Wright and Annie, his wife.

Rdgar R. Bryant, Judge. Before a recovery can be had for more than nominal damages an actual and substantial loss suffered must be shown. 44 Ark. 439. No loss is shown beyond the price of the telegram. There is no proof that he would have sold on the 31st of August. The general rule is that anticipated profits cannot be recovered.

Fdward S. McDaniel, Judge. Bee Boles was convicted of robbery in the Madison circuit court on change of venue from Carroll county.

T. C. Humphry, Judge. This court held in 55 Ark. 200, that the complaint, although in form an indictment, was a civil proceeding, and that the court had jurisdiction. But the complaint is defective, and no judg'ment could be rendered on it. Mansfield’s Digest, sec. 5478 ; 54 Ark. 546. No violation of law was charged. 54 Ark. 546 is not conclusive. In that case, it was an indictment. In this case a civil complaint. 55 Ark. 200.

John B. McCaeeb, Judge. STATEMENT BY THE COURT. The defendant was indicted at the Aug-ust term, 1892, of the Randolph circuit court, for the crime of obtaining money under false pretenses, from one A. %.

Alexander M. DuEEie, Judge. (Oil exchange of circuits with Judge Chas. W. Smith.) 1. The demurrer should have been sustained to the indictment because: (a.) Defendant and Neyman are accused of murder, but only one of them is charged with the acts constituting the offense, and which one is not shown. 37 Ark. 408; id. 412, 421; 38 id. 519; 1 Wharton, sec. 285; Mansfield’s Digest, sec. 2105 ; 33 Ark. 561.

Robert J. Rea, Judge. 1. The instruction given for the State was erroneous. The question of the degree of the offense was for the jury to determine. It was not accompanied by an explanation of the degrees of homicide, and was not so guarded as to allow the jury to infer an abandonment of the purpose to kill, from the circumstances of the homicide. 29 Ark. 248.

Edward S. McDaniel, Judge. Action by Jesse Bloyd against the St. Louis & San Francisco Railway Company for personal injuries caused by defendant’s negligence while plaintiff was in its employment. The facts are stated in the opinion. Munden was a vice-principal, and represented the master, and was not a fellow-servant with appellant. An injury resulting from his negligence was not a risk assumed by appellant. 24 Am.

Hugh F. Thomason, Judge. Betting on a game of base-ball is not a violation of the criminal laws of this State. Review the legislation and decisions of the State, citing' Mansf. Dig. sec. 1827, 1834, 1842 to 1847, etc.; Rev. St. ch. 44, secs. 1 and 9; 15 Ark. 71; lb. 259; 23 id. 726; 31 Ark. 462; 18 B. Mon. (Ky.), 35 ; 1 Kas. 474. The object of the statute was to suppress betting on any game of hazard or skill. Base-ball is a game of skill.

Hugh F. Thomason, Judge. 1. Fraud. The payment to Parkes on a claim, never probated, of $1000 was an express violation of law. Mansf. Dig. sec. 103. The keeping open the administration for twelve years was in line and keepingwith other fraudulent acts. 53 Ark. 232; Mansf. Dig. 206. Courts of chancery are still able to ferret out acts of fraud and relieve against them. 20 Ark. 527 ; 40 id. 407 ; 53 Ark. 232.

Grant Green, Jr., Judge. 1. The indictment is bad. It does not directly or sufficiently charge that the defendant was the agent or clerk of an incorporated company; that he made way with money without the consent of his employer; that the money “belong~ed to another -person;'’ that it “came to his possession by virtue of his employment.” 12 Ark. 608. It should have described the money. 48 Ark. 36; 51 Id. 119 ; Id. 114 ; 2 Bish. Cr. Law (9th ed), sec. 374 ; 6 Am. & Eng. Enc.

<p>Instruction — Invasion of province of jury.</p> <p>In an action against a railway company to recover a penalty for an overcharge of passenger fare, it is error to instruct the jury “ that if the plaintiff shows that the defendant has placed, at intervals along the line of its road, mile-posts showing the distances, this is, prima facie, the distance, and will be considered by the jury as sufficient evidence of the distance, until shown to be erroneous.”</p>

William S. Bakin, Special Judge. 1. Contend that the assignment was valid, and should be sustained. 2. Under the order of court, appellants had until the last day of the statutory limit within which to file the bill of exceptions. The time of presentation only was limited to the 25th of March. The case does not fall within the rule in 52 Ark. 554, and 53 id. 415. Time was given to the 25th of March to prepare and tender the bill of exceptions.

Rueus D. Hearn, Judge. Hempstead county is not liable for the items charged for. By act April 6, 1889, (Acts 1889, p. 120,) Clark county was liable not for “costs” but for all “expenses.” 4 Ark. 473; 10 id. 467. It was intended to change the rule laid down in 40 Ark. 329, and make the original county pay all “expenses,” the word costs being used in this sense. 34 Ark. 263 ; 35 id. 56 ; 27 id. 418 ; 40 id. 431.

Edward S. McDaniel, Judge. There is no usury. 33 Ark. 645 ; 35 id. 53 ; ib. 55 ; 26 id. 358. Questions of interest and usury are determined by the law of the place of payment, regardless of the situs of the property pledged as security. The mortg'age is only an incident of the debt. 3 Ark. 727 ; 2 Vern. 395; 10 Wheat. 383; 3 Green’s Chy. 128 ; 1 Hast. Chy. 17 ; 14 N. J. Eq. 56; 7 Oh. St. 388 ; 10' R. I. 393 ; 14 Am. Rep. 691-2; 1 Neb. 108; 93 Am.

Alexander M. Dueeie, Judge. 1. The court erred in its ruling on questions of evidence. Wilbert was the representative of the company, and his declarations, indicative of knowledge of the danger and unsafe condition of the boiler, should have been allowed to have been proved. 4 West. Rep. 641; 6 Am. Dec. 267 ; 1 Am. & Fng. Fnc. of Law, 419, note 2 ; 105 U. S. 263 ; 37 Ark. 47. 2.

WiEE P. FEAZEE, Judge. Under sec. 1213, Mansfield’s Digest, it was the duty of the sheriff to take defendant into custody, and, if the fine and costs were not paid immediately, to hire him out, etc. 37 Ark. 437.

<p>Appeal — Oral evidence — Review.</p> <p>Where it appears that oral testimony was taken at the hearing in chancery, and the testimony was not brought into the record, either by bill of exceptions, or by reducing it to writing and causing it to be filed as part of the evidence, it will be presumed on appeal that there was sufficient evidence to support the decree. '</p>

Charees W. Smith, Judge. Action by Nix against Fordyce & Swanson, receivers of St. Fouis, Arkansas & Texas Railway Co. The facts are stated in the opinion. 1. A claim for damages for breach of contract cannot be joined in the same complaint with one for exemplary damages growing out of abusive and insulting language used by a conductor, after the station to which plaintiff was bound was passed. Mansf. Dig. sec. 5014 ; Bliss, Code PI. sec. 125 ; 53 Barb. 238 ; 33 Ark. 316. 2.

David W. Carroll, Chancellor. 1. Wright had the right to contract or limit his homestead claim, and did so by his bill of assurances. There is no proof that his homestead, including the streets, is not far in excess of the value allowed by the Constitution of 1868. The homestead was limited by that constitution. In that respect it differs from the Constitution of 1874. See Const. 1868, art. 12, sec. 3; Const. 1874, art. 9, secs. 4, 5. 2.

Grant Green, Jr., Judge. 1. The lots belonged to a municipal corporation, and were not subject to taxation. They were “public property,” and whoever insists upon a forfeiture of such property must show by proper averment that it is of such a character as to subject it to taxation. Cooley, Taxation, 172, 173. 2.

John B. McCaeeb, Judge. STATEMENT BY THE COURT. Appellee filed his complaint before a justice of the peace, alleging that he, as constable, had levied a writ of attachment upon 2064 pounds of seed cotton, which he delivered to appellant upon contract to gin the same immediately ; that appellant neglected to gin said cotton according to agreement, and that, by reason of such failure, same was burned.

RuEus D. Hearn, Judge. Fanning v. State, 47 Ark. 442 settles this case adversely to appellee. There was but one indictment, one plea, one legal proceeding of record, one judgment, and hence but one conviction. There was but one case between the State and the defendant. The defendant' was convicted of two offenses, larceny and burgdary, and there should have been separate sentences. Mansf. Dig', sec. 2317. 47 Ark. 442 only holds that there was one conviction.

C. J. Frederick, Special Judge. STATEMENT BY THE COURT. The appellees, the widow and only son of John Slover, deceased, recovered a judgment against the appellant in the sum of $2500, damages on account of the death of said Slover caused by an injury received by him through the negligence, as the complaint alleges, of Mike Burke, the superintendant of the oil department of the appellant’s cotton seed oil mill and cotton compress, which were in two distinct and separate…

Edgar E. Bryant, Judge. 1. The parol testimony was admissible and proper to show that the justice’s judgment was void. 46 Ark. 153 ; 43 id. 232 ; 52 id. 373 ; 22 Pac. Rep. 505. 2. The rule is that an officer is protected by process in his hands, if regular on its face, when he confines himself to a levy on property in possession of the defendant in execution.

Robert J. Lea, Judge. Action by Barry against the Little Rock & Memphis Railroad Company for personal injuries. The facts are stated in the opinion. 1. The legal principles applicable to this case are of elementary simplicity. (1) The company is required to make rules reasonably adapted to secure the safety of _ its employees.

James Eb Riddick, Judg-e. STATEMENT BY THE COURT. This action against the receivers of the St. Louis, Arkansas & Texas Railway Company, was to recover for a personal injury received by the plaintiff while he was repairing a car. The receivers appeal from a judgment rendered in the plaintiff’s favor on the verdict of a jury. The court’s fifth, sixth, seventh and eighth instructions were as follows: 5.

Robert J. IvEA, Judge, on exchange of circuits with Grant Green, Jr. STATEMENT BY THE COURT. Held: and he told him to hold it. That he was looking at the engine, and had let the rope slacken, and one strand of it caug'ht on the corner of the cab, and the rope was drawn from around the brace, the block striking Mr. Torrey in the face, knocking him down.' When he saw the rope was slackened, he spoke to the' appellee once or twice,…

ChareES W. Smith, Judge. The writ of error coram nobis was properly issued. 35 Ark. 520. The court erred in submitting the cause to a jury. Mansf. Dig. sec. 2297, clause 6. The writ of error coram nobis is only a motion for a new trial after sentence and judgment, and the court should have granted a new trial, after granting the writ, without further proceedings. Motions for new trial are in the sound discretion of the court.

George C. Sheet, Judge. STATEMENT BY THE COURT. The defendant and appellant, Ben B. Carpenter, was indicted at the January term, 1892, of the Ashley circuit court, and in said court, at its following August term, was tried for the murder of H. J. Hannibal, on the following indictment (omiting the formal parts), to-wifi: “ The said Ben B. Carpenter, in the county and State aforesaid, on or about the 28th day of September, 1891, did feloniously, wilfully and with malice…

James S. Thomas, Judge. McDonnell was indicted for forgery. The indictment contained two counts, the first of which, omitting the caption and formal commencement, alleged as follows: ‘ ‘ The said Will McDonnell, on the 3rd day of February, A. D. 1891, in the county and State aforesaid, fraudulently and feloniously did forge, counterfeit and alter a certain writing on paper,, purporting to be a school warrant, which said writing on paper is in words and figures as follows,…

Robert J. Lea, Judge. The writ of ceriiorari must be issued, and the record returned with the response. 30 Ark. 152 ; lb. 532; 21 id. 264; 23 id. 107; lb. 228. This case is not parallel with the cases cited by appellant. The writ and return may be waived, where the record is presented duly certified and identified, as was done here. 23 Ark. 228.

, Rueus D. Hearn, Judge. ... 1. An order of general attachment binds the property of defendant from the day it is placed in the hands of the sheriff. 39 Ark. 97. 2. Davis’ primary motive was to put the property out of the reach of his creditors, and the deed, being absolute on its face, placéd the title in Humphrey.

James W. Butler, Judge. 1. The town of Newport had no power to make the contract; it was ultra vires and void. Secs. 749 to 782, Mansf. Dig. There is no express authority to build levees or contract for same. Municipal corporations possess no power except such as are expressly given or necessarily implied. 2 Wood, 594 ; 31 Ala. 76 ; 11 Am. & Bug. Corp. Cases, 248 ; 108 ü. S. 110; 3 Wall. 330; 13 Wis. 37; 9 Mich. 165; 33 Ark. 704; Dillon, Muh.

Jeremiah G. Waeeace, Judge. 1. Randolph’s testimony was admissible. The record of conviction shouldJiave been produced. 49 Ark. 156-8 ; 1 Gr. Rv. sec. 375. 2. It was error for the court to say to the jury “If you can’t get exactly what you want, g'et the next best thing to itV 29 N. R. 909 ; 42 Ind.-420; T26 id. 568 ; 10 N. W. 44; 14 S. W. 538. 3.

David A. Gates, Special Judge. The withholding must be of something of value to the creditors. 46 Ark. 405. The notes were valuable, and their withholding was a fraud on creditors. 46 Ark. 405 ; 53 id. 81.

<p>Habeas corpus— Validity of commitment by magistrate.</p> <p>On certiorari to review the action of the circuit court in refusing to discharge a prisoner on habeas corpus, where it appears that petitioner is held under a regular commitment by a magistrate in a cause wherein he had jurisdiction, the sufficiency of the evidence upon which the commitment was made will not be inquired into.</p>

David W. Carroba, Chancellor. Plaintiff had no other remedy than the one instituted, and was entitled to have the assets marshaled. 1 Story, Eq. Jur. secs. 637-8 et seq; Jones, Chat. Mortg. sec. 788; 40 Ark. 104; 48 id. 238. Everything Bransford had was in the house at the time the deed of trust was given, or subsequently, and was bound by the deed of trust (Jones, Chat.

<p>1. When mortgage in form not construed an assignment.</p> <p>■ A conveyance by a merchant of her entire stock of goods to a trustee, upon its face a mortgage, is not converted into an assignment for the benefit of creditors by the fact that the debt secured was payable on demand, that the grantor was unable to continue business, and that the trustee was authorized to take immediate possession.</p> <p>2. Fraud — Promise to secure creditor.</p> <p>The fact that a mortgage was executed in fulfillment of a previous oral agreement that the mortgagor would give the mortgagee security whenever requested does not, of itself, constitute a fraud, but is a fact proper to be considered on an issue of fraud.</p>

Carroll D. Wood, Judge. 1. The widow is entitled to dower, and to homestead in addition thereto; and she has a right to select her homestead, and require the commissioners to lay off dower in the balance of the lands, so as not to include the homestead. Mansf. Dig. secs. 2571, 2590 ; 47 Ark. 455; 40 id. 26, 27; 33 Yt. 651; 31 Ark. 145-9, 150; 33 id. 399; 40 id. 17; 47 id. 510; Const. Ark. art. 9, sec. 6 42 Ark. 503. The dower-and homestead rights are cumulative.

John R. Bradeey, Special Judge. 1. Mrs. Carroll’s children took a vested remainder in fee, and after their death the mother inherited from them the fee simple in the estate. Citing 1 Rearne Cont. Rem. 216 ; 2 id. 73 ; 2 Washb.

Edgar E, Bryant, Judge. Suit by Townsly-Myrick Dry Goods Company and . D. A. Wilson against E. P. Fuller, sheriff, Barton Bros., and Israel Brothers. The facts are stated by the court as follows :— The appellees petitioned the circuit court for certiorari to quash a judgment against D. A. Wilson in favor of Barton Bros., obtained in the court of Israel Brothers, a justice of the peace.

A. M. Dueeie, Judge. .STATEMENT BY THE COURT. Appellant was making, up a train at its depot in the city of Hot Gprings. On the yard of the company, near the depot, .at a street crossing, a bridge spanned the track.

John H. Woods, Special Judge. Action by Hammond, as administrator of Geo. C. Golden, deceased, against the Kansas City, Port Scott & Memphis Railway Company.

RuEus D. Hearn, Judge. Appellant was not an officer of the city. He was a physician selected by the board of health to perform certain services, and was entitled to recover for his services. 26 Pac. Rep. (Kas.) 674 ; 45 111. 397; 32 Wis. 124; 2 Brock. 103 ; 29 Oh. St. 349. See also 50 Ark. 81; 30 Yt. 285; 1 Dill. Mun. Corp. (4th ed.) sec. 230, note 3. 1. No fee was provided by law, and none can be recovered. 25 Ark. 235 ; 32 id. 45. 2.

Howard S. McDaniee, Judge. STATEMENT BY THE COURT. W. A. Gage was assassinated at his home in Madison county, September 26, 1891. He was fired upon by some one in ambush, as he was returning to his house from his horse-lot, and instantly killed. Tracks leading to and from the place of the killing were discovered. Those leading- away were made by a person in sock feet. Those leading up to where the assassin stood were made with shoes having plates or irons upon the heels.

Robert J. Lea, Judge. Action by Thomas Hackett against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries.

James S. Thomas, Judge. STATEMENT BY THE COURT. The appellant, Harriett Jones, was indicted in the Lonoke circuit court, on the 7th day of January, 1893, for the crime of being accessory to the murder in the first degree of her husband, Lafayette Jones ; the indictment being as follows, to-wit: “The grand jury of Lonoke county, in the name and by the authority of the State of Arkansas, accuse Harriett Jones of the crime of ‘ accessory before the fact ’ to murder in the first…

John B. McCalRB, Judge. Ned Mayes brought this action against the Kansas City, Port Scott & Memphis Railroad Company, to recover damages for personal injuries.

John B. McCaleb, Judge. Mandamus by Kansas City, Port Scott & Memphis Railway Company against Bassham, collector of Pulton county.

James E. Riddick, Judge. Action by J. W. Goolsby against the St. Louis, Iron Mountain & Southern Railway Company.

Robert J. Lea, Judge. The act of March 25, 1889, is not unconstitutional. If it is a legitimate exercise of the police power, there is nothing in the Constitution of the United States, or any of its amendments, to interfere. 123 U. S. 623 ; 140 ib. 545. Nor is there in the State constitution, for no State or people can part with this power by contract or otherwise. 18 A. & R. Rnc. Law, 745-6; 101 U. S. 814.

Edward S. McDaniel, Judge. 1. There was no issue made by the pleadings. The interpleaders were claimants of the goods, and filed their complaint under section 356, Mansfield’s Digest, and the court should have required plaintiff to answer, so as to make an issue of fact. Pleadings must be written. Mansfield’s Digest, secs. 4124, 5020, 5024-5. 2. Mrs. Thornton could not testify, for her husband was a party. 34 Ark. 675. 3.

Robert J. Lea, Judge. Wallace M. Harrell, as administrator of the estate of J. C. Gist, deceased, brought this action against the Little Rock & Memphis Railway Company and the Little Rock & Argenta Street Railway Company to recover damages for the negligent killing of his intestate.

Rueus D. Hearn, Judge. 1. The evidence does not support the verdict. If two theories are equal in soundness, then the doubt and presumption of innocence must prevail. Guilt must be established by sufficient evidence. Wills, Circ. Rv. 194. Appellant’s declarations in evidence satisfactorily explain all his conduct. 85 Cal. 39; 38 Mich. 125. There was a reasonable doubt of defendant’s guilt. 38 Mich. 482. Strong probabilities of guilt are not sufficient. Ib.

John M. Heeiott, Judge. Appellant brings herself within the letter of secs. 3909, 3911, Mansf. Dig. A married woman’s contract is void. 5 Ark. 668; 17 id. 190. Her acts are void. .92 111. 566; 18 Fla. 342; 11 Bush, (Ky.) 174-9; 63 111.-58; 43 Ark. 166. There is no law in Arkansas authorizing a married woman to contract generally. 43 Ark. 166; 39 id. 242 ; 35 id. 372. See cases 18 Md. 457 ; 75 111. 574; 29 W. Ya. 385; 56 Miss, 314; 18 Pa.

James E. Riddick, Judge. STATEMENT BY THE COURT. This suit was to recover the sum of $10.00, the value of what appellant designates “a venison saddle,” which was received by appellee company for transportation to St. Louis, Mo., and which appellant claims was lost through the negligence of the express company in not shipping as per contract.

Edgar E. Bryant, Judge. Action by Clark against the Little Rock & Fort Smith Railway Company.

Cross-Appeals from Pulaski Chancery Court. David W. Carroee, Chancellor. STATEMENT BY THE COURT.

Edgar E. Bryant, Judge. 1. The court erred in not giving judgment on .tlie special verdict. The two verdicts being inconsistent, the special verdict controls, and displaces the g'eneral verdict. 40 Ark. 327. 2. Appellants were clearly entitled to amend their answer. 42 Ark. 57; lb. 503. 3. The mere fact of retaining Boyd after his incompetency was discovered does not estop appellants from discharging him.

John M. Elliott, Judge. 1. During the life of the tenant by curtesy the appellants only had a remainder interest, and the statute of limitations does not run against the remainderman during' the existence of the tenancy by curtesy. 15 Am. Dec. 433 ; 33 id. 157; 39 id. 165 ; 55 N. Y. 451; 4 Johns. 390; 6 Cush. 34; 2 Cush. 269; 31 Pa. St. 94; 35 Ark. 84. 2. There can be no possession adverse to the remainderman until the death of the tenant by curtesy. 16 So.

Grant Green, Jr., Judge. Gilbert Baker bas appealed from a conviction of the crime of receiving stolen goods under an indictment containing two counts, — the first for grand larceny, the second for receiving stolen goods. Defendant moved to set aside the indictment upon the following grounds: “(1) The said indictment was not found or presented by sixteen good and lawful, fair and impartial, jurors.

Edgar E. Bryant, Judge. 1. An intervenor is not allowed to step in and defend the suit, or dispute the grounds of attachment, in lieu of the defendant. 47 Ark. 41. 2. The affidavit for attachment followed the statute. Mansf. Dig. secs. 361-2-3-4, 309; 44 Ark. 404. 3. The Clerk had authority to issue the attachment. No written order was necessary. 4 U. S. Ct. App. p. 1; Mansf. Dig. sec. 362. 1. Appellants did not bring themselves within the statute, the note not being due.

Robert J. Lea, Judge. 1. The statement, by the terms-of the application and of the polic3R was made a xvarranty, and, tinless literally true, the policy was void. 22 Wall. 47; 91 U. S. 510 ; Cook, Life Insurance, sec. 15; Bliss, Life Ins. secs. 34, 63-4-5, 126, 128, 129, 132; 13 Atl. Rep. 4; 50 N. J. Law. 287; 3 Gray, 580; 4 H. of L. Cases, 484; 2 Cromp. & M. 348; 6 C. B. (N. S.) 437; 6 Jur. (N. S.) 826; 39 Ind. 475; 1 McA. 41; 1 Cent.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. Appellant was indicted on the 22nd, arraigned on the 24th, and his trial set for the 28th of November. On the day of arraignment he made the following application to the clerk of the court to-wit: “APPLICATION TO CLERK. “In the Crawford Circuit Court, ] November Term, 1893. j H. S. Lewers —Please issue subpoena in behalf of defendant in the case of the State of Arkansas against Geo.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Appellant sued W. H. Owens on notes due and not due, aggregating $1,385.96, and attached a stock of hardware as his property. Appellee Kendall filed an interplea, claiming this property under an assignment from Owens. Upon this issue was joined.

John M. Beeiott, Judge. Altlieimer Bros, brought suits against the Western Assurance Company and the Imperial Bire Insurance Company and recovered judgment in both suits. The cases were consolidated on appeal. The facts are stated in the opinion of the court. 1. The court admitted incompetent testimony. The question to Kaufman and his answer thereto are objectionable, because the question was leading, and required a legal opinion of the witness. 1 Gr. Pv. (14 ed.) sec. 434.

Jeremiah G. Waeeace, Judge. 1. The court erred in instruction No. 1 on its own motion. 34 Ark. 443; 72 N. C. 482. It-also invades the province of the jury. Art. 7, sec. 23, const.; 49 Ark. 117; lb. 439; 52 id. 262; 39 id. 585 ; 45 id. 172. 2. It was error to give instruction No. 2.

C. J. Frederick, Special Judge. STATEMENT BY THE COURT. This suit was commenced November 9th, 1886, by complaint in equity in the Sebastian circuit court, by the appellants, the widow and administratrix of Chas. B. Johnson, and his heirs at law, to obtain a decree for contribution against Lizzie Grimes, only heir of Marshall Grimes, deceased.

Matthew T. Sanders, Judge. 1. The demurrer should have been sustained to the complaint. Secs. 3061 and 3062, Mansf. Dig., are taken from the Rev. St. ch. 60, secs. 62, 63, and there must have been loss or damage to the execution creditor before he can recover. Murfree on Off. Bonds, sec. 494. 2. The action did not survive. Ib. sec. 654. It did not survive at common law, and is not made to survive by statute. 96 N. Y. 323; 13 Sup. Ct. Rep. 232. 3.

Wiebur F. Hiee, Special Judge. 1. The State may prescribe the terms on which foreign corporations may do business within its limits. They are not citizens, in the sense of the clause of the constitution of the United States (except for the purpose of giving jurisdiction to the federal courts) securing to citizens of each State all privileges and immunities of citizens of the several States.

Edgar E. Bryant, Judge. ■ Mattie Duffer brought suit in trespass in the circuit court against Jas. G. Frizzell, constable, and B. B. Meek, his deputy. The complaint, as originally filed, contained the following (after stating the ownership and description of the premises): “That, on the 6th day of June, 1890, defendant Jas.

Edward S. McDaniel, Judge. 1. If Satterfield was wrongfully discharged he had two remedies. , (1.) He had a right to hold himself in readiness to perform his contract, wait to the end of his term, and sue for the amount due. (2.) He could treat the contract as rescinded, and sue on a quantum meruit for the time he had served. 9 Ark. 394; 39 id. 288 ; 14 Abb. Pr. (N. S.) 156 ; Wood, Master and Servant, pp. 239-40, and notes.