Volume 59 — Arkansas Reports

<p>Appeal from Crawford Circuit Court.</p> <p>Hugh F. Thomason, Judge.</p> <p>The abstract of appellant states that this action is founded on a penal bond for $1500, executed by Maria J. Lichlyter, Richard J. Miller and two others, defendants, and by certain others not sued, to the plaintiff, Joseph J. Savage, and to one George P. Gross, bearing- date September 14, 1870, and subject to a condition there under-written, reciting that the defendants and other parties to said instrument as heirs of George F. Miller, deceased, had on that day bargained and sold unto Savage & Gross a certain lot of land for a consideration named. The condition further recited that Richard J. Miller and certain others, who were not named as defendants, were minor heirs of George Eh Miller, deceased, and, by reason of their minority, were incapable of selling to the said Gross & Savage their interest in said lot of land, and that if the said minor heirs of the said George E). Miller shall, when they have attained to full age, and upon demand therefor, make or cause to be made to Gross & Savage proper deeds of conveyance by which they shall convey to the said Gross & Savage all their rights, titles and interests, respectively, in and to said lot of land, then the said obligation to be void; otherwise to remain in full force.</p> <p>The object of the suit is the recovery of damages from the defendants in consequence of their failure to carry out the requirements of the under-written conditioñ of the bond;</p> <p>Defendants answered that the bond was not their deed, because they signed it on condition that Hugh Morrow and wife, whose names appear in the body of the bond, should sign it, and that Morrow and wife never signed the bond. As a further defense, defendants pleaded a want of consideration.</p> <p>Defendant Richard J. Miller filed a separate answer, alleging that, at the time of making said writing obligatory, on the 14th of September, 1870, he was an infant.</p> <p>The evidence is not set out in appellant’s abstract. On the trial of the cause, the court refused to give the following instruction asked by plaintiff, viz.:</p> <p>“That if it appears from the evidence that, on the 14th day of September, 1870, when the defendant, Richard J. Miller, with his co-defendants signed said bond or writing obligatory, upon which this suit is founded, he was an infant of seventeen years of age, unless it also appears that, upon attaining to full age, he, within apt time, disaffirmed said contract, it is now too late to dis-affirm by the plea of infancy, or otherwise.”</p> <p>There was a verdict and judgment for the defendants. Plaintiff has appealed.</p> <p>1. The appearing before the proper officer, and acknowledging in due form the bond to be their act and deed, was a ratification of the contract, and estops defendants from denying the execution of the bond, as well as its legal effect. 109 U. S. 573; 1 Devlin on Deeds, secs. 500, 531 and notes ; 1 Am. & Rng. Rnc. Law, p. 160, note 2; 38 Ark. 377; 41 id. 421.</p> <p>2. The covenants in the bond, as also in the deed, are real covenants, and run with the land. 4 Kent, Com. pp. *473-4; 1 Ark. 320; 7 id. 132.</p> <p>3. The limitation of five years has no application. The instrument was under seal, was executed subsequent to the constitution of 1868, and the limitation is ten years. 43 Ark. 464.</p> <p>4. The contracts of infants are voidable, not void; and, if not disaffirmed in reasonable or apt time after the infant attains to full age, they become of binding force. 3 Burr. 1794; 2 Kent.* 234-5-6, and notes ; 2 H. Bl. 511; 17 Wend. 119 ; 10 Pet. 71; 6 Paige, 635 ; 5 Yerg. (Tenn.), 41; 1 Johns. Cases; 127 ; 31 Oh. St. 72 ; 49 Conn. 492; 58 Miss. 765 ; Bishop on Cont. p. 359; ib. sec. 924; 9 Wall. 617 ; 45 N. Y. 406 ; 21 Minn. 196 ; 17 Yesey, 383 ; 37 Yt. 647 ; 15 La. An. 505 ; 24 Ala. 260. The rule as to deeds is clear. The time within which an infant may disaffirm is the limitation of an action of ejectment. 31 Ark. 364 ; 34 id. 590 ; 15 Ohio, 156; 5 id. 152 ;' 8 Taunt. 39; 9 Yt. 368; 6 Conn. 404; 11 Humph. (Tenn.), 468; 24 Cal. 195; 102 U. S. 300; 24 Fed. Rep. 82; 56 Mo. 202; 10 Am. & Hng. Hnc. Law, p. 649 and authorities. By parity of reason the same rule applies to the bond. An acquiescence for eighteen years after attaining full age, and standing by and seeing valuable improvements put on the lot without dissent, is a legal ratification. 11 Serg. & Rawle, 305. There are three modes of affirming a voidable contract by an infant: 1. By express ratification. 2. By acts reasonably implying a ratification or affirmance. 3. By the omission to dis-affirm within a reasonable time. 6 Conn. 494; 9 Vt. 368 ; 9 N. H. 439 ; 20 Ark. 600. It requires overt acts to disaffirm after coming of age. 2 H. Bl. 511; 2 Johns. 279 ; id. 257 ; 13 Mass. 237 ; 1 N. H. 73 ; 17 Wend. 119 ; 59 Iowa, 679 ; 84 111. 104 ; 55 Tex. 281.</p> <p>1. The evidence supports the verdict. 31 Ark. 165 ; 13 id. 439.</p> <p>2. An infant’s executory contract must be expressly affirmed after coming of age. Bish. Cont. secs. 920, 937, 943, 934; 1 Parsons, Cont. (5th ed.), 295; 3 M. & S. 477; 1 Fox & S. 15; 3 Des. 482; 10 Am. & Png. Pnc. Paw, 645, note 1; Mansf. Dig. sec. 3384; 20 Ark. 600.</p> <p>3. Pxceptions to instructions in gross will not be sustained if any of them are good. 32 Ark. 223; 38 id. 528.</p> <p>4. The other errors are waived by failure to notice them in the motion for new trial. 38 Ark. 246 ; ib. 413.</p>

Joseph W. Martin, Judge. 1. The forfeiture to the State being legal, there could be no subsequent forfeiture or sale for taxes. 31 Ark. 245. 2. An after-acquired title by the State passed to • her grantee. Mausf. Dig. sec. 652; 33 Ark. 251; 15 id. 73. 3. In this case there were no overdue or back taxes. Freem. Judg. 125, and cases cited; 21 Ark. 145. 4.

Edgar E. Bryant, Judge. 1. If the easement existed, it was not appurtenant, but a mere right of way in gross, a mere personal privilege, which dies with the grantee, and cannot be exercised after the donor has parted with his title to the land upon which the alley is situated. Washb. Easements, etc. (4th ed.), 58, note 2; 14 D. R. An. 333, and note; 21 Am. St. Rep. 652; 9 Am. Dec. 161; 23 id. 440 ; 7 id. 188; 144 Mass. 371; 23 Oh. St. 614; 54 Me. 276 ; 80 Am.

Green .Grant, Jr., Judge. 1. The deed to Martin is absolutely void. It vested no title, and was not an incumbrance or lien on the property. The taxes had been paid, and the forfeiture was illegal and void. When taxes are paid under one assessment, but returned delinquent and sold under another assessment, the sale is void, and the purchaser acquires no title. Mansf. Digest, sec. 5872; 32 Ark. 391; 53 id. 116 ; 56 Vt. 384. Avoid tax deed is not an incumbrance. Ib.

Edgar E. Bryant, Judge. Appeal from a conviction of obstructing a highway, a part of the Fort Smith and Waldron road. The road alleged to have been obstructed crossed the southwest corner of a forty-acre tract belonging to defendant, running in a northwesterly direction. The first question in the case was whether the road across defendant’s land was a public highway.

Grant Green, Jr., Judge. 1. The complaint was fatally defective. 1 Chitty, PI. 369-70; Newman, PI. & Pr. 279-80, 408, 435, 436, 439 et seq. 2. King, the plaintiff, was civilly dead, and could not sue. Mansf. Dig. sec. 566; 1 Bl. Com. *132; 2 id. 121; 4 id. 380. 3. The bond was to be filed only upon conditions to be complied with, and the clerk had notice of the conditions. 8 Wend. 414, cited in note 4, p. 458; 2 Am. & Eng. Enc.

John M. Eeeiott, Judge. 1. The steps required by statute to open the road were never taken. Mansf. Dig. secs. 5930-5938. 2. The evidence is not sufficient to establish a road by prescription. No adverse user is shown—the travel was permissive only. The use must be hostile and continuous. 47 Ark. 431; 50 id. 53 ; Elliott on Roads and Streets, p. 137; 110 Ind. 509; 58 Iowa, 567; 41 Wis. 490 ; 77 Pa.

David W. Carrole, Chancellor. 1. The court erred in reforming the lease. Courts of equity cannot make contracts for parties—they can only remodel them, where it is clear that the intention of the parties was different from that expressed in the writing. Courts will reform only for mistake, inadvertence or fraud. 20 Am. & Eng. Enc. Daw, p. 713 ; ib. p. 720; 54 Wis. 311; 5 Abb. (N. Y.), 246; 21 Ala. 252; 56 Iowa, 611 ; 1 Humph.

Bdgar B. Bryant, Judge. Action by the State for the use of the sixteenth section school fund against J. O. A. Sullivan. The facts .are stated in the opinion. 1. The failure of the treasurer to file his mortgage for record released the surety. 34 Ark. 80.

Will P. Reazell, Judge. 1. There is no evidence to support the verdict. 2. The evidence of Annie Logan to impeach Sam Lacy, and of Annie Logan and Rd. Moss to sustain Thomas Brimmer was not admissible. 1 Rice on Rv. p. 629, 630. The witness must be acquainted with the general reputation of the witness among his neighbors. 1 Gr. Ev. sec. 461 and notes; 15 Ark. 651; 34 id. 257, 262 ; 51 id. 140; 29 id. 137 ; 16 U. S. (Hawy. ed.), p. 479 and notes ; 23 How.

James W. Butler, Judge. 1. The court erred in refusing to suppress the affidavit of Joblin. Mansf. Dig. sec. 2916. 2. The first ground of attachment in the amended affidavit for attachment, i. e., removal of property from the State, not leaving enough therein to pay their creditors, is not sustained by the evidence. The only removal was cotton shipped to appellees to pay their debt. 8 So. Rep. 674. 3.

Fdgar F. Bryant, Judge. STATEMENT BY THE COURT. In 1878, Chas. A. Birnie, W. S. Birnie and H. C. Birnie donated to the Little Rock & Port Smith. Railway Company certain lots in the city of Port Smith upon a condition subsequent, the exact nature of which is in dispute.

Edgar E. Bryant, Judge. Action by Tucker against the St. Louis, Iron Mountain & Southern Railway Company. The facts arq stated in the opinion. Under the act of 1887 (Acts 1887, p. 96), a sub-contractor has a lien against a railroad company for labor performed. All persons who are employed under the principal contractor are sub-contractors. 2 Jones on Liens, sec. 1283. No contract with the railroad company is necessary. Ib. sec. 1339.

Grant Green, Jr., Judge. Smith Sons’ Gin & Machine Company brought this action against Mary E. Eriend, as administratrix of the estate of E. F. Friend, deceased.

<p>Appeal from Lawrence Circuit Court in Chancery, Eastern District.</p> <p>James W. Buteer, Judge.</p> <p>1. This was an. executory contract—the gift was incomplete and revocable. 1 Wait, Ac. & Def. 74; 7 Johns. (N. Y.) 26; 2 id. 52; 2 Vesey, 431; 44 Ark. 42; 107 U. S. 602; 114 Mass. 30; 43 Ark. 319; 1 id. 83; 23 N. Y. 69; 9 Oh. St. 74; 11 Ark. 250; 17 Wis. 512; 10 Ark. 211; 1 Tex. 161; 53 Pa. St. 108; 1 Dev. (N. C.) D. 309 ; 8 Am. & Eng. Enc. Law, 1314, note 6, etc; 18 S. W. Rep. 1139; 17 id. 161; 16 id. 201; 13 id. 170; 13 id. 1101.</p> <p>2. Tucker stood in a confidential relation to appellant, and used undue influence in procuring the contract. Bailey’s Onus Probandi, 319; 2 White & Tudor’s Lead. Cases in Equity, 406 and notes ; 3 Jones, Eq. (N. C.) 152 ; Kerr on Fraud and Mis. 192-3; 49 Ark. 367; 11 S. W. Rep. 239.</p> <p>1. The gift was complete and irrevocable. 50 N. W. Rep. 503 ; 43 Ark. 319; 18 S. W. 517; 6 Tex. 45; 31 id. 139; 11 So, Rep. 758; 52 N. W. Rep. 1131; 81 Ky. •425; 5 Bush, 591; Thornton on Gifts, secs. 195-6; Mechem, Agency, secs. 295-6, 304, 311; 44 Ark. 45; 2 Vesey, Sr. 431, commented .on in Thornton, Gifts, secs. '270-1, and note 4, p. 174.</p> <p>2. The evidence fails to show undue influence. 2 Wh. & Tud. L. C. in Eq. marg. p. 581, notes, top p. 1174 of Am. Ed.; ib. top p. 1194, and cases cited; 49 Ark. 367.</p>

John M. Rlliott, Judge. Action by Allie E. Jagerman, as executrix of Frank Jagerman, deceased, against the St. Rouis and Southwestern Railway Company, to recover damages for the killing- of her testator.

Edward S. McDaniel, Judge, Action by Jones against the St. Louis & San Erancisco Railway Company to recover damages for burning a meadow.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The appellant was indicted twice, at the January term of the Bogan circuit court, for perjury.

J. M. Barker, special Judge. Action by Johnson against the St. Louis & Southwestern Railway Company. The facts are stated by the court as follows : This appeal is from a judgment for $1250 recovered by appellee for a personal injury claimed to have been received through the negligence of appellant. Appellant admits the injury, denies negligence, and charges appellee with contributory negligence. The court gave the following instructions at the request of plaintiff: “1.

Edward S. McDaniel, Judge. 1. The affidavits of jurors, under our statute, are not admissible to impeach their verdict. Thompson on Trials, secs. 117, 2557. 2. The record fails to show that the accused employed the means provided by law for ascertaining whether the juror has formed an opinion or not. 40 Ark. 515. 3. Instructions as to the higher grades of homicide did not prejudice appellant, as he was found guilty of the lower degree. 54 Ark. 4. 4.

Fdward S. McDaniel, Judge. Action by Thomason against the St. Uouis & San Francisco Railway Co. The facts are stated in the opinion. 1. Defendant admitted the ownership and the injury by the railway company. This made a frimafacie case for plaintiff, and threw the burden of proof on defendant. 39 Ark. 413; Mansf. Dig. sec. 2871; 32 id. 593; 30 id. 285-297. Having the burden of proof, defendant was entitled to open and conclude the argument. Mansf.

John M. Elliott, Judge. 1. A sale for taxes on a day not appointed by law is void. 33 Ark. 748 ; 53 id. 204. As the land was forfeited to the State for the non-payment of the taxes of 1868, it was not subject to taxation in 1874-5. 18 Ark. 44. 2. Appellee was not entitled to the value of improvements. They were made before he had color of title, and were put there by mistake. 3.

James E. Riddick, Judge. The minor could only redeem his interest in the homestead, and not the whole. 7 So. Rep. 492; Black, Tax Titles, sec. 175; Mansf. Dig. sec. 5778; Gantt’s Dig. sec. 5172; 2 Desty, Tax, p. 875; 47 Ark, 504; 53 id. 400; 42 id. 215. 1. Appellee, being the only minor child, was entitled to the entire homestead, to the exclusion of the other children. 47 Ark. 504; 53 id 400.

Rufus D. Hearn, Judge. Action by Hanegan against Fincher. The facts were as follows: In 1891 Henry M. Ward executed a mortgage to Hanegan of his crop of cotton for that year, and signed and acknowledged the same by the name of Henry N. Ward, which mortgage was at once duly recorded. Subsequently, Ward executed a second mortgage of the same crop to Fincher, and signed and acknowledged it correctiy by his name, Henry M. Ward. The second mortgage was also duly recorded.

<p>Vacating judgment for unavoidable casualty—Sickness.</p> <p>A judgment of dismissal of an action for want of prosecution should, on plaintiff’s application, be set aside after expiration of the term, under Mansf. Dig. sec. 3909, subdiv. 7, as for an unavoidable casualty, where plaintiff had a meritorious cause of action, and was an old man, feeble and unable to leave his home, and had intrusted his case to an attorney who was prevented, by the severe illness of his wife, from attending the term of court at which it was dismissed.</p>

James W. Butler. Judge. STATEMENT BY THE COURT. ' This was an action to recover the statutory penalty for failure to ring bell or sound whistle at road crossing. The complaint is as follows : “ The St. B. I. M. & S. Ry.

Carroll D. Wood, Judge. 1. The court erred in permitting the company to dismiss its suit. The suit is for the sole purpose of fixing the compensation to- be paid the owner for the right of way. The right of the company to condemn, and of the owner to compensation, cannot be contested; it is only the manner of condemning and the amount of compensation that can be contested. 43 Ark. Ill, ,120 ; Beach on Railway Raw, 776; 44 Ark. 264. 2.

Edgar E. Bryant, Judge. 1. An affidavit by one of the defendants is sufficient. Mansf. Dig. sec. 4135. 2. An appeal by one defendant takes the whole case to the higher court. Freeman on Judg. sec. 136; 10 Ark. 555. 3. It was error to dismiss the appeal, without allowing an amendment, or rule on the justice to perfect the transcript. Mansf. Dig. sec. 4142; 33 Ark. 745 ; 13 id. 293 ; 47 id. 49. 4.

Rrror to Pope Circuit Court. Jeremiah G. Wallace, Judge. 1. There is nothing before this court to decide. There is no bill of exceptions. There is what purports to be the findings of the court copied in the transcript, but it is no part of the record. 55 Ark. 353 ; 28 id. 450 ; 30 id. 585 ; 43 id. 393; 26 id. 479, 662, 536; 46 id. 21; 13 id. 316; 21 id. 398, 404; 27 id. 464 ; 21 id. 454; 17 id. 473 ; 32 id. 154; 3 id. 146. 2.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Sadie Rexroad, a minor about seven- years old, brought this action by her next friend, George W. Rex-road, against the St, Louis, Iron Mountain & Southern Railway Company, to recover damages caused by personal injuries.

Jeremiah G. Wallace, Judge. A reformation of the deed is indispensable to plaintiff’s recovery, for without it he shows no title to the land ; but he cannot reform a deed made by Wilson to Carroll as executor, in a suit where the only party defendant is a stranger to the conveyance. Wilson, or his heirs, or those claiming under him, were necessary parties. 20 A. & R. Rnc. Raw, 717; 15 id. 681; 18 Atl. Rep; 169; 31 N. H. 193; 47 Me. 507; 37 Mo. 363; 47 Ind. 211; 75 111. 473.

Grant Green, Jr., Judge. The only question involved in this case is as to the delivery. The facts proved show a complete delivery before the mother’s death. 12 Johns. 418 ; 1 Johns. Ch. 240 ; 44 Ark. 42 ; 22 S. W. Rep. 1077; 18 id. 1072; 43 Ark. 307; 5 Am. & Eng. Enc. Law, 447; 15 Wend. 445. There was no delivery. To constitute a gift causa mortis, there must be delivery in the lifetime of the donor. See 107 U. S. 602; 2 Sup. Ct. Rep. 415.

James E). Riddick, Judge. STATEMENT BY THE COCIRT. This is an appeal from a judgment for damages awarded for breach of warranty against incumbrances in the deed of conveyance of land by the appellant and-wife to the appellee, which covenant is as follows: “To have and to hold said lands, as above conveyed, to the said Jefferson Bridgford, and to his heirs and assigns, hereby warranting and defending the title to said premises against any and all incumbrances done or suffered…

Brice B. Hudgins, Judge. 1. The judgment and executions in this case fall within none of the exceptions in sec. 3, art. 9, const. 2. Under the constitution, no judgment is a lien on the homestead. Art. 9, sec. 3. 3. Homestead laws are for the protection of the family. 42 Ark. 541; 41 id. 96; 24 id. 158; 22 id. 404. If the husband fails, neglects or refuses to claim, or absconds, the wife is entitled to the exemption. 29 111. 130; S. C. 81 Am.

Rueus D. Hearn, Judge. STATEMENT BY THE COURT. This suit was instituted by appellee, administrator of the estate of Ed. Wallace, deceased, against the appellant company, in the Miller circuit court, at its November term, 1891, and the cause was tried at the November term 1892, resulting in a verdict and judgmeat for plaintiff in the sum of $20 actual damages and $200 punitive damages against the defendant. ABSTRACT.

James W. Butter, Judge. 1. If the receipts issued by the compress company were “warehouse receipts,” then the bank was the owner of the cotton. 31 Ark. 131; 44 id. 301; Acts 1887, sec. 7, p. 86; 29 Wis. 34. They were certainly warehouse receipts. No particular form is necessary. 1 Smith’s Bead. Cases, part 2d, 1223, 8th Am. ed.; 44 Ark. 306; 2 Dil. 284; 31 Ark. 131 ; 29 Wis. 482; 19 Oh. St. 419; 62 Miss. 86; 19 A. & E. Ene. Baw, p. 1123.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. This is an appeal from a judgment of the circuit court of Hempstead county, granting a mandamus to compel the appellant to stop its fast train, known as the “Cannon Ball,” at the incorporated town of Pulton upon the line of the road in said county.

Grant Green, Jr., Judge. 1. The court erred in refusing instructions 2 and 4 asked for defendant upon the subject of partial insanity. The doctrine of partial insanity is too well established to need citation of authorities. 48 Wis. 294; Wharton’s Cr. Law, sec. 41; 11 A. &-E. Enc. Law, p. Ill and notes; 54 Ark. 588. 2.

Robert J. Lea, Judge. 1. It was error to refuse to allow witness, Bowden,, to refresh his memory by reference to the memorandum which he had, and which he proposed to use for that purpose. 1 Gr. Ev. sec. 436. 2. The court erred in allowing witness, Muse, tosíate conversations had between him and Joe N. Martin as to the value of the goods, etc., sold after the date of the sale, and the reasons for making the sale. 9 Ark-92 ; 10 id. 429; 5 id. 13.

Wide P. Feaeeee, Judge. 1. It was error to exclude what was said at the-trial, of Bud Sturdivant, Res gestae are the surrounding facts explanatory of an act or showing a motive for-acting. They are proper to be submitted to the jury. 43 Ark. 103; 29 id. 262. The crime of aggravated assault cannot be committed without the intent to inflict bodily injury, where no considerable provocation appears. Mansf. Dig. sec. 1566.

Archibald S. McKennon, Special Judge. 1. This case falls squarely within the rule of Richmond v. Miss. Mills, 52 Ark. 30, and Fecheimer v. Robertson, 53 id. 101, and later cases following them. See, •also, 49 Ned. Rep. 401. Parol testimony is admissible to assail the instruments, but not to bolster them up.

RuEus D. Hearn, Judge.' Action by R. A. Byrne, as trustee, and the Gate 'City National Bank against A. R. Ghio.

Jephtha H. Evans, Judge. 1.' The object in passing the law was to protect the election from the influence of intoxicants. The wine used in this case had no connection whatever with the ■election, and was not intended to influence it or any voter. 2- That wine is an intoxicant is not judicially known to the courts. It was not proved that it was ■fermented ; if unfermented, it was not an intoxicant. 1.

John B. McCaleb, Judge. STATEMENT BY THE COURT. The appellant sued the appellees in equity to recover damages of. them for breach of covenant in the deed of appellees’ ancestor to appellant for lands described in the complaint.

<p>Appeal from Franklin Circuit Court, Charleston District.</p> <p>Hugh F. Thomason, Judge.</p> <p>1. While the financial standing of a party to a transaction like this is material, yet one cannot be questioned as to his solvency and standing at a remote period, when the amount paid in money is so very small as in this case. It would be misleading—perhaps prejudicial.</p> <p>2. The testimony of' Bytal should have been excluded. It was immaterial, as a debtor has a right to prefer his creditors. 4 Ark. 304; 11 Wend. (N. Y.) 181; 52 Ark. 30; Burrill, Ass. (5 ed.) 215.</p> <p>3. The testimony of B. C. Bocke was irrelevant and immaterial; as it related to statements made after the sale, the plaintiff was not present, and the issue was immaterial.</p> <p>4. It was error to refuse the 4th instruction. 46 Ark. 342; 9 id. 482; 17 id. 146; 18 id. 141; 23 id. 264; 49 id. 20. A purchaser must buy with knowledge of the grantor’s fraud, and do some act with the view and aim of assisting in the consummation of the sale, to render it fraudulent. 39 Ark. 571; 49 id. 20. There is a difference between a purchaser and a purchasing creditor. 23 Ark. 264. If the money paid Bytal was less than his exemptions, creditors cannot complain. 31 Ark. 554; 43 id. 434; 52 id. 497; 52 id. 549; 54 id. 194.</p> <p>5. It was error to give the 10th and 11th instructions for appellee. 31 Ark. 554; 26 id. 20.</p> <p>1. The 4th instruction was properly refused. It invades the province of the jury ; it requires farticifation in the fraud. Either knowledge of the fraud, or facts sufficient to put the purchaser on inquiry, is sufficient. 50 Ark. 314; 23 id. 258. Hiner was not a “purchasing creditor.”</p> <p>2. As the instructions given and the rulings upon the evidence are supported by elementary rules and recent decisions, it would be idle to review them. 50 Ark. 314; 49 id. 20; 45 id. 520; 23 id. 258; 11 Fed. 556.</p>

Charees W. Smith, Judge. 1. Appellant’s writ, having come to the sheriff’s hands first, fixed a prior lien. Mansf. Dig. sec. 325. Appellee’s attorney, by pointing out the stock of goods, and prevailing on the deputy to serve its writ first, did not postpone appellant’s lien. 56 Ark. 292; 11 Johns. 110; 5 N. Y. Law (Law. ed.), p. 80; 17 Johns. 274; 8 Johns. 20; 3 Cow. 272; 8 N. Y. Law (Law. ed.), 694. 2. The evidence was not sufficient to sustain the court’s ruling. 1.

Thomas F. Webber, Special Judge. 1. The jetties were built by the Texas & St. Louis Railway Co. There is no proof of their negligent construction. Appellants are not responsible for the torts of its predecessor. 44 Ark. 322; High on Receivers, sec. 396; 23 Ind. 553. . 2. There is no proof that appellants ever assumed any obligation or duty to maintain these jetties, or that they belonged to appellants, or were on their property. 3.

Edgar E. Bryant, Judge. . 1. In an action of tort, if it is shown that the fire was started by the railway company, the burden shifts, and it devolves upon the railway company to show itself free from negligence. 49 Ark. 535. The rule is different in actions ex contractu. When a bill of lading exempts loss by fire, it must be proved that the fire resulted from negligence. 39 Ark. 523; 52 Ark. 26 ; 44 id. 208.

Robert J. Lea, Judge. 'Sec. 1621, Mansf. Dig., is clearly repealed by Cr„ Code. See Mansf. Dig. secs. 2108-9. The legislature undertook to cover the whole ground, and all inconsistent statutes are repealed. 10 Ark. 590 ; 24 id. 479 27 id. 418; 30 id. 560; 31 id. 17; 33 id. 316; 41 id. 152; 47 id. 491; 48 id. 354; Endl. Int. Stat. sec. 182, note 6- and 4, also secs. 187-196, 199, note (c) and note A and C, also secs. 200-1-2-6-8, 216, and 241, etc.; Bish.

Edgar E. Bryant, Judge. 1. A summons may be served by an officer or person authorized by law to serve process. Mansf. Dig. sec. 4037. Thos. E. Ward was not “a party to the action.” Ib. 4975 and clause 3. The practice in circuit • court is followed in justices’ courts. Ib. ch. 91, sec. 4034; 37 Ark. 450; Dig. secs. 4975, 4038. An appointment by the justice was not necessary. Ib. sec. 4975.

Hugh F. Thomason, Judge. 1. Strayhorn, having confessed judgment, could Aot. appeal. 24 Ark. 599 ; 6 Cal. 666; 22 111. 456; 5 Ind. 526 ; 23 Iowa, 547; 10 id. 592; 20 La. 137 ; 6 Houst. (Del-Sup.) 343; 29 Pac. 889. 2. It was error to sustain the demurrer to the amended interplea. It raised no issue as to the title to land. Before final disposition of the proceeds, any person may interplead. Mansf. Dig. sec. 356. 1. A judgment by confession is statutory.

Edgar E. Bryant, Judge. Argue several questions not decided. Secs. 2599, 2600 and 2601 were repealed by the Constitution of 1864. Schedule, sec. 7 ; 24 Ark. 479; 26 id. 523; 19 111. 38. Osborne’s case (24 Ark. 479) is not overruled by 30 Ark. 198, or 49 id. 554. When a people meet in convention to adopt a constitution, the only limitation upon its power must be found in the inhibitions of some paramount law. Cooley, Const. Dim. (6 ed.) 45; 31 N. Y. 9.

<p>Appeal from Lee Circuit Court.</p> <p>Grant Green, Jr., Judge.</p> <p>The question in this case is settled by our decisions. •47 Ark. 555 ; 37 id. 418; 18 U. S. (5 Wh.) 96.</p>

David W. Carroll, Chancellor. 1. This suit was brought under se'c. 3731, Mansf. Dig., to restrain an illegal and unauthorized assessment. The statutes were complied with up to and including the passage of the ordinance levying a tax of one per cent, on a basis of cost of $750. Thereafter the statute was wholly disregarded, and all their acts are void. 2.

Grant Green, Jr., Judge. ■ 1. Rembert’s testimony was clearly inadmissible ; it was mere hearsay, and an expression of opinion. The object of sec. 5809, Mansf. Digest, was to prevent the forfeiture of the estate of the remainder-man or reversioner by the negligence or fraud of the life tenant in failing or refusing to pay the taxes on the land. 2. It was error to give the instruction asked by defendant, and to refuse that asked by plaintiff. 3.

James If. Robinson, Chancellor. 1. The usury is found in the provision of the deed of trust that, in default of shipping 200 bales of cotton, plaintiffs should pay $1.25 per bale for the deficit; this, in addition to the 10 per cent., makes a clear case of usury. Mansf. Dig. secs. 4733-4-5; Acts 1887, p. 50; .art. 19, sec. 13, const. 1874. 2. The report of the master shows $147.13 overcharge of interest. 1.

James B. Riddick, Judge. STATEMENT BY THE COURT. This was an action for replevin for sixty-eight gum logs. The suit was brought by appellant filing an affidavit in proper form before a justice of the peace. The case was tried, and appealed to the circuit court, and a verdict and judgment rendered there, from which this appeal is prosecuted. The appellee filed no written pleading, in either the justice or the circuit court, setting up title to the logs.

Alexander M. Dueeie, Judge. 1. The second instruction was properly refused. 2. The modifications of the first and second of defendant’s instructions complained of were made in conformity with the provision of the statute defining false pretenses.

James F. Riddick, Judge. STATEMENT BY THE COURT. At the September, 1893, term of the Craighead circuit court for the Jonesboro district, the appellant was indicted for the murder of George Black, on the night of April 1, 1893, and at the February, 1894, term, was tried and convicted of voluntary manslaughter, and his punishment fixed at two years in the penitentiary.

Carroll D. Wood, Judge. Action by Bolling against the Houston, Centra] Arkansas & Northern Railway Company. The facts are stated by the court as follows : The appellee, a boy about four years old, while riding on a hand car of appellant, had his hand crushed in the cogs by which it was operated, and for the injury recovered damages in this action in the sum of five thous- and dollars, to reverse the judgment for which the appeal in this case was taken.

David W. Carroll, Chancellor. Courts of equity have always abhorred forfeitures and refused to enforce them, and, latterly, courts of law have done likewise. When a tenant has forfeited his lease by breach of the covenant to pay rent, courts of law and equity consider the clause of re-entry as a mere security, and will interfere in the tenant’s behalf, although all the formality of a common law demand may have been complied with.

Edwin S. McDaniel, Judge. The word “purport,” used in the first indictment, imports what appears upon the face of the indictment. 32 Ark. 611; 2 Russell, Crimes, 378-382. The intent to defraud is the very essence of forgery, and the name of the particular person whom it was intended to defraud must be shown on the face of the indictment. 2 Bish. Cr. Daw, sec. 543; 15 Ohio, 717; 51 Ga. 535. The second indictment charged a different offense, and was barred.

<p>Instruction—Error to assume facts.</p> <p>A charge, as to defendant’s testimony, that “the false, improbable and contradictory statements of the accused, if made, in explaining suspicious circumstances against him, are evidences to be considered by the jury,” is erroneous, as it assumes either that the statements of the accused were false, improbable and contradictory, or that there were suspicious circumstances against him.</p>

Charles W. Smith, Judge. 1. The ninth instruction appears to be a contradiction of the law, rendering nugatory the rule and right of impeachment. It invades the province of the jury. The tenth also invades the province of the jury, and is argumentative. The eleventh, twelfth and thirteenth are abstract, and inapplicable to the State’s theory. They tended to mislead and confuse the jury. 20 S. W. 588-590.

<p>Appeal from Pulaski Circuit Court.</p> <p>Robert J. Lea, Judge.</p> <p>1. It was error to refuse to allow defendant to prove a succession of specific acts of fornication with the prosecuting witness and others, outside of the acts specially alleged—especially after the State had introduced this issue.</p> <p>2. It was error to refuse instructions four and five, and to give the substitute on this point. Proof of specific acts showing the truth of the charge is admissible. 13 Am. & E. Enc. Raw, 502; 19 Tex. App. 14; 3 Am. Cr. Rep. 386; 2 Rea, 169; 49 Ark. 449; 54 id. 489.</p> <p>3. It is error to charge that “defendant must prove the charge, etc., * * to be true by a preponderance of the evidence.” State v. Wait, 44 Kas.; 8 Am. Cr. Rep. 482.</p> <p>4. The question asked Dr. McGee was irrelevant.</p> <p>5. The conduct of A. W. Rison was improper. Mansf. Dig. sec. 2297; 28 Ark. 531; 34 id. 632.</p> <p>6. It was error to refuse to have Pearl Jones examined by a competent physician. 46 Ark. 275-279; 33 Mich. 112; 3 Am. Cr. Rep. 386; 4 id. 563; 102 Pa. St. 408; 1 Thomps. Trials, sec. 850; lb. secs. 852-3-4-5-6, 859, 861; 20 Cent. R. J. 11.</p> <p>7. The instruction on Pearl Jones’ chastity was improper. A failure by Pearl Jones to avail herself of an opportunity to have an examination, etc., was a circumstance that the jury might consider. The court virtually charged that the presumption was “that Pearl Jones was chaste.” There is no such presumption. Bish. St. Cr. sec. 648; 1 Wis. 209; 1 Parker, C. C. 474; 102 Pa. St. 408; 27 N. W. 234. The court, having refused to order the examination, and having refused defendant’s instruction on that point, should not have instructed at all in relation to the matter. 54 Ark. 338 ; 52 id. 120; 45 id. 256 ; 24 id. 540; 14 id. 286 ; 21 id. 69 ; 23 id. 730 ; 11 A. & E. Enc. Raw, 254. In thus instructing the jury the court invaded their province. 45 Ark. 165-173 ; 49 id. 439; 55 id. 244 ; 44 id. 115 ; 2 Thomps. Trials, secs. 2297-8-9, 2300; 49 Ga. 19, 325. The court ought not to tell the jury what presumption they ought-to draw from certain evidence. 2 Thomps. Tr. secs. 2284-7-8, 2290, 2304; 48 Ga. 648; 47 id. 133, and cases supra.</p> <p>8. It was error to stop counsel from arguing upon the voluntary neglect of Pearl Jones to have a physical examination. 4 Am. Cr. Rep. 562-3; 2 Thomps. Trial, secs. 951, 989, 993, 1039, 1040.</p> <p>1. In prosecutions for slander by imputing a want of chastity wherein the accused charged her with specific acts and conduct, the defense is limited to proof of such specific acts and conduct. 17 Tex. 554; 12 id. 458; 2 Hill, (N. Y.), 248; 23 N. E. 677.</p> <p>2. At common law the truth was no justification. 2 Bish. Cr. Law, sec. 918. This is changed by statute. Mansf. Dig. sec. 1817. When the defendant does not deny the words, but justifies because they are true, he takes the burden of proof upon himself. 9 Met. 410. The rule is the same as in insanity. 26 Ark. 334 ; 43 id. 331; 40 id. 511; 55 id. 499; 50 id. 333 ; 54 id. 588.</p> <p>3. An examination could have thrown no light upon the matter. Gray’s Anatomy, pp. 977-8. Moreover, this is not a case in which “the previous chaste character” of the prosecutrix was material. The remarks of the judge were proper.</p>

<p>Appeal from Pulaski circuit court.</p> <p>David W. Carroll, Chancellor.</p> <p>1. No leave of court necessary for errors in law apparent on face of the record, -2 Am. & Eng. Enc. Law, p. 265, citing 17 Ves. 178 ; 33 Miss. 560; 4 J. J. Marsh. 500; 4 Man. (Ky.) 145. In Webster v. Diamond, 36 Ark., so far as the bill was treated as one of review, it was upon the ground of newly discovered evidence. It may be this court would not disturb the decree awarding alimony, for the chancery court had jurisdiction. 54 Ark. 172. But it had no jurisdiction to grant a divorce to either party to that suit. Mansf. Dig. secs. 2562, 4967. This error was apparent upon the face of the record, the pleadings. 13 Pet. 6-14; 5 Mason, C. C. 303; 22 Wall. 60. Consent cannot give jurisdiction. 33 Ark. 31; 11 Ad. El. 941; 7 Port. (Ala.) 37; 20 Ala. 387; 8 Cal. 77; 74 Ind. 221. The bill of review could be filed as a matter of right. Story, Eq. PI. sec. 405; 33 Ark. 161. A year’s residence was a jurisdictional fact. The amendment was not the beginning of a new suit. Mansf. Dig. sec. 5080.</p> <p>2. It was error to bar appellant’s dower. Mansf. Dig. sec. 2578. Under our statutes alimony is not given in lieu of dower. 45 Conn. 15; 61 Mo. 148; 20 Oh. St. 454 ; 59 Iowa, 699; 2 Heisk. 174. It is improper to award a gross sum as alimony. 38 Ark. 324.</p> <p>3. The mandate in 54 Ark. 172, was filed June 1, 1891; the amendment was made thereafter, and the decree June 17, 1891. Now if appellee’s contention that the filing of the amendment was the commencement of a new suit, the act of 1891, p. 2, applies, which was ignored by the court in toto.</p> <p>1. This is an attempt to set aside a decree after accepting the benefit of it and satisfying it. A bill of review is in the nature of a writ of error. 2 Am. & Eng. Enc. Daw, 262. It will not lie where plaintiff would be estopped to bring error or prosecute an appeal. 17 Ark. 55; Herman on Bst. secs. 285, 1065-9; 7 Wall. 479; 75 N. Y. 417; 25 Tex. 583; 24 Ark. 14 ;; 47 id. 319; 50 id. 203; 53 id. 514; Where a decree for divorce and alimony is granted, and the wife receives the-amount as alimony, she cannot afterwards raise the question of jurisdiction. 25 Pac. 81; 17 N. W. 28 ;. 12 Col. 434; 136 Mass. 294; 54 Iowa, 201; 60 id. 505; 69 id. 738; 66 id. 186;' 22 Ark. 332; 6 id. 169. Receiving the benefit bars the plaintiff. 80 Ky. 582 ; lb. 568. Acquiescence with knowledge of fraud bars relief. 41 Barb. 139. Non-assent, mistake or carelessness or unfaithfulness of attorneys does not abrogate the rule. 17 Ark. 56 ; 22 Wall. 60. Nor will a bill of review lie for inadequacy of alimony. The remedy is bv appeal. 18 Ark. 330-2; 1 Black. (Ind.) 360. Leave of court is necessary for new matter. 33 Ark. 173. Or for fraud and newly discovered evidence. 36 Ark. 538 ; 100 U. S. 109. The only questions opén on a bill of review (except for newly discovered evidence) are such as arise on the face of the record. 95 U. S. 99; lb. 391; 22 Wall. 60; 98 U. S. 66. One who, without mistake induced by the other party, has taken a particular position deliberately * * * must act consistently with it. Bigelow, Rst. 717; 30 Ark. 453 ; 47 id. 309 ; 32 id, 346; 96 U. S. 267; 75 N. Y. 122 ; 57 Ark. 632.</p> <p>2. The amendment was virtually the beginning of a new suit. 8 Tex. 52; 10 Tex. 106-7; 7 Pet. 214; 6 id, 61; Bennett, Lis Pendens, sec. 32; 10 Page 400; 10 B.. Mon. 88; 54 Ark. 468; 47 Ark. 25; Mansf. Dig. sec.. 5088; 40 Ark. 162.</p> <p>3. It may be true that parties cannot waive want, of jurisdiction, but they can estop themselves from denying that jurisdiction did exist by accepting the benefits_ 47 Ark. 320; 24 id. 14; 50 id. 203; 53 id. 514.</p> <p>4. Under the ruling in 53 Ark. 514, the question as to dower does not arise in this case.</p> <p>5. A divorced woman has no claim to dower. Dower is given only to widows. Coke, Litt. 32 A; 2 Blackst. Com. 130. Divorces a vinculo absolutely bar dower. 21 Ch. Div. 164; 2 .Edw. Ch. 596; 24 Wend. 196; 4 Barb. 192; 4 Comst. 95; 2 Bish. Mar. and Div. sec. 706; 2 id. sec. 1631; 4 Kent, Com. 54; 6 Ind. 231; 14 zrf. 3; 23 erf. 71; 2 Greene, (Iowa) 609; 5 Clarke, (Iowa) 241; 68 Am. Dec. 702; 23 N. J. Eq. 440; 51 N. H. 405; 111 U. S. 525; 59 Iowa, 699; 61 id. 174; 12 Wheat. 148; 27 Hun, 70; 82 id. 70; 27 N. E. 383. 4 Comst. 95 is not the law.</p> <p>It is useless to argue the dower question. Our statutes were mainly taken from New York, and their construction adopted with them. 4 Comstock, 95; 64 N. Y. 47; 124 N. Y. 599; 133 id. 540. The policy of the act of 1891 is not to deprive a divorced wife of dower, but to confer such rights at once. See 9 Me. 140 ; 55 id. 370; 56 Mich. 297; 51 N. H. 405; 5 Am. & Eng. Enc. Law, note to p. 922.</p>

John M. Nlliott, Judge. 1. The court erred in its finding of facts. There is no evidence to sustain the finding that Pinchback did not accept the devise and legacy under the will. 2. When one accepts under a will the real and personal property of a testator, he is personally bound to pay any legacy which the will directs him to pay. Having accepted the gift, his liability is not limited to or by the value of the gift. 47 Ark. 263; 79 N. Y. 143; 6 Johns.

Carrole D. Wood, Judge. I. N. NE. sec. 3 is no description at all. It must be such as would be sufficient for a surveyor to survey and locate the boundaries. 30 Ark. 657; 50 id. 484; 56 id. 172. 2. Plaintiff was not barred by the statute of limitations, under sec. 4475, Mansf. Digest. 15 Ark. 363; 32 id. 131; 46 id. 96 ; 55 id. 192. 1. The legislature may prescribe that two years adverse possession bars a tax title. 20 Ark. 508; lb. 542; 21 id. 370; 53 id. 404; Mansf.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. This is an action originally instituted in the Garland circuit court, on the 1st day of September, 1891, against the appellant Hotel Company, as defendant, by the appellee', Cora Bockart, as plaintiff, for personal injuries and damages laid at the sum of $25,000.

Grant Green, Jr., Judge. 1. An order of adoption of a child made by the probate court, when the record fails to show the residence of the child, is void when collaterally attacked. 2 Wall. 328; 18 id. 371; 51 Ark. 35 ; 54 id. 643 ; Black on Judg. sec. 279; Freem. on Judg. sec. 123; 12 Am. & Eng. Enc. Law, 276. The residence of the child was jurisdictional, under the act.

Wilbur F. Hill, Special Judge. STATEMENT BY THE COURT. The act of March 21, 1885, provides, sec. 3: “That, in order to better provide for the public welfare, safety, comfort and convenience of their inhabitants, the following enlarged and additional powers are hereby conferred upon cities of the first class, viz : First.

John B. McCaeeb, Judge. STATEMENT BY THE COURT. On the 11th of January, 1892, S. B. Guthrie made an assignment for the benefit of creditors with preferences. J. B. Baker, interpleader and appellant, was the assignee.

' James E. Riddick, Judge. The theory of our government is that the taxing officers of local districts shall be elected by the local district to be taxed, or appointed in some manner to which the district has assented ; and that such officers shall be answerable, to those directly interested, for their official acts. Under this act, the directors of the corporation are to be forever appointed by the Governor.

<p>Appeal from Jackson Circuit Court.</p> <p>James W. ButeER, Judge.</p> <p>1. The administrator had the right to appeal. He was an interested party, and is the representative of creditors. 57 Ark. 232; 55 id. 232; 143 Mass. 234; 4 Rawle, 267; 1 Wins. (N. C.) 97; 3 Rand. (Va.) 479; 6 Mete. (Mass.) 194; 41 Ala. 274; 1 Paige, 270; 4 Johns. Ch. 199, note; 2 Woerner, Law of Adm. p. .1231; 30' Ark. 249.</p> <p>2. The assets of the estate should have been apportioned on the basis of the amount actually due the appellee, and not on the amount of their claim as probated. The better doctrine is that creditors of an estate who-hold securities must exhaust their securities, and thén share pro rata on the actual balance due. 11 S. E). 394; 20 Can. S. C. 152; 16 Mass. 308; 54 Vt. 193; 1 Bush, 327; 25 Ark. 152 ; 29 id. 74; lb. 440 ; Mansf. Dig. ■ secs. 142 to 147; 2 Woerner, Adm. sec. 411, p. 864; sec. 485, p. 1107; 2 Brown, C. C. 125; 2 Dickens, 785 ; 31 Pac. 755; 11 Paige, 265; 1 Russ. & My. 185; 2 Rose, 63 ; 13 Iowa, 515 ; R. R. 12 Bq. 570; Schouler, Ex., sec. 430; 1 Pom. Bq. Jur. sec. 410 ; 1 Story, Bq. Jur. sec. 554 ; Schouler, Ex., sec. 430; 2 Woerner, Adm., sec. 495. Sec. 102, Mansf. Dig., clearly requires that the apportionment shall be made only on the amount actually due.</p> <p>1. The appeal should be dismissed. An administrator has no right to appeal from an order of distribution. He cannot be aggrieved. Hayne, New Tr. & App., sec. 203, p. 613; Elliott, App. Pr. sec. 135; 40 Cal. 463; 49 id. 550; 58 Md. 86; 10 Md. 518; 31 Cent. R. J. 332, note.</p> <p>2. A creditor of an insolvent estate is entitled to prove and receive a dividend on the full amount of his debt, irrespective of any collateral securities he may hold. 16 Mass. 308 is no longer authority. 2 N. H. 488 ; 47 N. W. 33; 82 Mich. 607; 15 R. I. 480; 22 Ore. 406; 18 B. Mon. 114; 78 Ky. 291; 118 111. 524; 79 Pa. St. 146; 35 id. 481; 45 id. 151; 82 id. 113; 22 id. 441 ; 2 Conn. 350; 79 N. C. 244; 92 Tenn. 437. The doctrine contended for by appellant was at first sanctioned in England in 1 Russ. & M. 185, but criticised and overruled afterwards. 2 Mylne & C. 443-8 ; R. R. 3 Ch. App. Cas. 769. See, also, 24 N. E. 793; 121 N. Y. 336 ; 31 Cent. R. J. 330, and note.</p>

David W. Carroee, Chancellor. STATEMENT-BY THE COURT. The facts in this case are, in substance, as follows : The F. P. Gray Dry Goods Company, a corporation created under the laws of this State, being in failing circumstances and insolvent, by its president, acting under the authority of the board of directors, executed, on the 12th day of May, 1891, a deed of assignment to Joseph Griffith for the benefit of its creditors, by which it conveyed to him a stock of merchandise…

Rufus D. Hearn, Judge. 1. The cause of action was transitory, and could only be brought in the county where the defendant resided or was summoned. Mansf. Dig. sec. 5007; Newman, PI. & Pr. p. 39; 44 Ark. 229. The court had no jurisdiction, and the judgment was void. 2. The special appearance of defendant for the purpose of filing a motion to set aside the judgment for want of jurisdiction was not an appearance to the action or a waiver of service. 39 Ark. 347. 1.

David W. Carroll, Chancellor. 1. A judgment by confession rendered without the consent of the creditor binds no one. 47 N. W. 810; 69 Wis. 434; S. C. 34 N. W. 229; 53 Ark. 140; Mechem, Ag. secs. 84, 85, 87. A subsequent ratification would not oust appellants’ lein. 53 Ark. 140. 2. The evidence shows that the conveyance was fraudulent. 56 Ark. 73; D. R. 14 Eq.106, 118, 121; 7 Fed. 668 ; 17 N. J. Eq. 367; 50 Ark. 42; 34 N. Y. 508; 2 Col. 473 ; 2 Pom. Eq.

<p>1. Foreign insurance company—Service of process.</p> <p>Where a foreign insurance company doing business in this State has filed with the auditor a stipulation that legal process affecting the company may be served on the auditor or a designated agent, in accordance with Mansf. Dig., sec. 3834, service of process in the manner stipulated is the only method of obtaining service upon such company which will authorize a valid personal judgment against it.</p> <p>2. Pleading—Matter of abatement— Waiver.</p> <p>Under the code of practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment.</p>

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Appellee brought replevin for a mule, under the following claim of title: “This is to certify that I have this day sold my Fanny mare’s mule colt for thirty-three dollars, to be delivered on the 10th day of September, 1890, all right and in good order ; provided, I fail to pay \a certain note given by me for thirty-three dollars, dated March 14, 1890” (signed) “C. R. Atherton.” Appellee testified that, on the 10th of…

John M. Blliott, Judge. STATEMENT BY THE COURT. This action was brought in the Jefferson circuit court by the appellees, the State National Bank and other creditors of C. M. Neel, to set aside two conveyances made by said Neel—one made on the 26th day of November, 1884, conveying to his nephew, C. M. Neel, Jr., a plantation in Jefferson county known as the “Bake Dick Place” ; the other made on the 1st day of October, 1885, conveying to his sister, Mrs. A. P. Burks, his…

<p>Appeal from Saint Francis Circuit Court.</p> <p>Matthew T. Sanders, Judge.</p> <p>The house having been built over the line through mistake or ignorance of the true line, the holding was never adverse, and could never ripen into a title. 15 Ark. 306; 1 A. & E. Enc. Law, p. 248-9 and note, and p. 250, citing 7 Oh. St. 99 ; 25 zb. 115, 265 ; 63 Tex. 184; 33 Ark. 633, syllabus 1; Sedg. & Wait, Tr. Title to Land, secs. 749, 751; Angelí on Lim. 388 ; 42 Ark. 118.</p>

Fdgar F. Bryant, Judge. STATEMENT BY THE COURT. In this case the appellant, Fmily- Dillahunty, as- ' administratrix of the estate of Adolphus Dillahunty, deceased, brought suit against the Little Rock & Fort Smith Railway Co., appellee, to recover damages for breach of a covenant contained in a deed of conveyance executed by appellee to the said Adolphus Dillahunty.