Volume 60 — Arkansas Reports

Edgar E. Bryant, Judge. 1. Sec. 31, act of congress approved May 2, 1890, extends and puts in force in the Indian Territory chap. 8 of Mansf. Digest. See Stat. U. S. 1889, 1890, pp. 94, 95. Hence Belt was entitled to claim the exemptions. 2. The claim of property as “exempt” in a deed of assignment, when in fact it is not exempt, does not invalidate the assignment. 15 Mo.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The appellant, Charles Gooch, was indicted by the grand jury of Franklin county for the crime of larceny, The indictment alleged that he stole a mare, the property of H. C. McElroy. The evidence tended to show that Gooch hired the mare from one Hollenbeck to ride to his uncle’s, who lived near Oak Bower. After leaving his uncle’s, he rode the mare to Ozark in Franklin county.

Brice B. Hudgins, Judg-e. STATEMENT BY THE COURT. The defendant, B. F. Bodenhamer, was indicted at the April term, 1894, of the Baxter circuit court for “profanity,” as follows, to-wit: “That said B. F. Bodenhamer, in the county and State aforesaid, on the 10th day of July, 1893, unlawfully did profanely swear and curse.” Defendant demurred to the indictment on five several grounds to-wit: (1.) The indictment does not substantially conform to the requirements of section 2105…

Alexander M. Dueeie, Judge. The indictment charges but one offense, embezzlement. It appears on its face that but one offense is charged, although there are three counts, which differ only in the description of the manner and means by which the offense was committed. There was no occasion for an election. 50 Ark. 313 ; 45 id. 64; 32 id. 203 ; 38 id. 555. ' 1.

Alexander M. Dueeie, Judge. 1. The verdict is not supported by the evidence. 2. The seventh instruction given for appellee is palpably error. 120 111. 403 ; 9 Ark. 92- 1. There is ample evidence to show the transaction fraudulent, even conceding that Hudgins was not a partner of Parris. It is ample to show that he had an interest in the business. 2. Instruction No. 7 is not objectionable, for there is proof tending to show that Hudgins was a partner.

Grant Green, Jr., Judge. 1. There is no proof of the ownership of the mule. The title was denied. 2. There is no evidence of negligence, but the proof is conclusive that the trainmen did all they could to avoid the accident. 36 Ark. 607; 37 id. 593; 39 id. 413; 40 id. 336 ; 41 id. 161; 48 id. 367; 52 id. 162.

Carroll D. Wood, Judge. 1. The court erred in its final instruction for the plaintiff,. and in finding there was no acceptance of the mortgage by the mortgagees before attachment issued. A delivery to one mortgagee of a mortgage made to secure a several debt to each is a sufficient delivery to all. Jones, Ch. Mortg. sec. 109; Herm. Ch. Mortg. secs. 66, 67; Boone, Mortg. sec. 238; 78 Mich. 631; 18 Conn. 261.

John M. Eeeiott, Judge. STATEMENT BY THE COURT. The questions in this case arose in an action brought by Zuleika and Thomas Douglass, in Lincoln county, against appellants, Jarrett Johnson and Henry W. Wiley.

James S. Thomas, Judge. 1. The court erred in asking the defendant, on cross-examination, if he did not forfeit his bail on a charge of felony when he left Texas. Mansf. Dig. sec. 2902; 34 Ark. 257; 51 id. 140. This error was not cured. The incompetent evidence should have been expressly withdrawn from the jury. 102 TJ. S. 457; 43 Ark. 99. 2.

John C. CoNNEREY, Special Chancellor. 1. Judgments of this court cannot be reviewed or modified by the inferior court. 33 Ark. 161; 10 id. 186. The decision of the appellate court is the law of that case in all further proceedings. 44 Ark. 383. All questions determined by the Supreme Court on appeal are res judicatae. 6 Ark. 525; 7 id. 542 ; 26 id. 17. 2. Carlton’s claim should not have been allowed. He failed to perfect his lien by suit and judgment. 25 Ark. 152.

Fdgar F. Bryant, Judge. Sec. 1655 Mansf. Dig., has not been repealed by implication. Repeals by implication are not favored. To produce such result the two acts must be upon the same subject, and there must be a plain repugnancy in their provisions. 41 Ark. 149 ; 24 id. 470. There is no repugnancy in our acts on the subject of larceny, except in the g-rade of punishment, and only to that extent does the act of February 12, 1883, repeal the law of larceny. Sec. 1655 of Mansf.

<p>Appeal from Garland Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>The appellee had been bathing at the bath house owned by appellant Tombler, in the city of Hot Springs, for about three weeks, depositing his watch, chain, a railroad ticket and money at the bath house office daily with appellant Clark, and receiving a metallic check from Clark, the superintendent or manager of the bath house; when one day, depositing these articles as usual with Clark, he received a check for them, which he put in a pocket in his clothes, entered the bath house, disrobed, hung his clothes on a hook in the bath room, took a bath, and went into a hall to cool off, and shortly afterwards returned to the bath room, got his clothing, and went to the bath room office, and presented a check for his property left with Clark, who handed him something corresponding to the check, which he declined to receive, it not being the property he had left with Clark. Some one else had presented his check to Clark, and received the property of the appellee, and had substituted another check for appellee’s while his clothing were hanging in the bath room. Clark says he told the appellee that he would have to be “very careful with his check and other matters.” He admitted that he knew .the appellee and his watch and chain well, and further says : “If I had looked at the party who presented the check, I would have known that he was not entitled to the package.” There were two dressing rooms to each bath tub, and there was access from one to the other and from each to the bath tub. Another man was in one of these rooms when the appellee was in his, and he knew it. There was an attendant on the bath rooms, one attendant having six rooms and three bath tubs to attend to, going from one to another. It was about ten o’clock in the morning, and many bathers were at the bath house. The appellee recovered a judgment for the value of his property, from which the appeal pending here was taken.</p> <p>No exceptions to the instructions given in this case were saved in appellant’s motion for new trial, and they were therefore abandoned. Four were asked on the part of the appellant, which were refused. They are as follows: “(1) The court instructs the jury that if they believe from the evidence that the plaintiff, after having secured a check from the manager of the bath house, went into his bath room, and took his bath in a room that was adjoining another room, and that such adjoining room was so situated that any person bathing in said room had access to the room that plaintiff was bathing in, and that plaintiff knew this, and, after taking his bath, he left his room, and went out into the hall of the bath house, and left the clothes in his bath room, they will find that said plaintiff in so acting was guilty of such negligence, and of such acts that the defendants cannot be held responsible for anything that occurred during the absence of the plaintiff from his bath room, and they will find for the defendants. (2.) The court instructs the jury that if they believe from the evidence that the plaintiff left his bath room in a nude condition, and went into the halls of the bath house, and left his clothes, with the check therein, in such a position that the same could be reached by persons bathing in adjoining room, and while out of his room he lost his check, they will find that the defendant cannot be held for this act of negligence on the part of the plaintiff ; and they will find for the defendants. (3.) The court instructs the jury that if they believe from the evidence that the plaintiff was informed, at the time he commenced bathing at the bath house, that packages would be delivered upon the return of the check given at the office, it becomes the duty of plaintiff to take care of the check, and to see that the same was not lost or stolen or mislaid ; and if, after receiving the check, the plaintiff so placed the check that the same was substituted by some designing party, and the check was presented and the package delivered thereon, they will find that the defendants are not responsible for the loss and substitution of the check. (4.) The court instructs the jury that if they believe from the evidence that the plaintiff was informed by the manager, Clark, that he must be careful while in the bath room, and that all kinds of men and characters were liable to be bathing in the bath house, and that the plaintiff bathed at the bath house three weeks, and had opportunity of seeing the parties who bathed at said bath house, he was required to exercise the necessary care and control over his clothes and their contents as a prudent person would exercise under the same or similar circumstances.”</p> <p>The negligence of the plaintiff is such that he cannot recover in this case. 19 So. Car. 24; 15 Am. & Eng. R. Cas. 414; Bish. Non-Cont. Law. 438 ; Smith on Neg. 14 ; Story on Bailments, p. 23; 23 Ark. 61 ; 5 Ind., 131; 27 id. 483 ; Am. & Eng. Ene. Law, pp. 52, 54 and notes; 141 Mass. 561. In the light of these authorities, the court erred in its charge to the jury.</p> <p>Appellants were not gratuitous bailees, and, on their own testimony, they are liable as bailees for a consideration. 52 Ark. 364; 150 Pa. St. 91; 122 N. Y. 539; 10 L. R. A. 481.</p>

Grant Green, Jr., Judge. The appellant, £ro se. 1. There was no sale to the minor. He was simply the errand boy for the adult persons, their agent. 54 Ark. 544; 120 Mass. 385; 6 So. 241; 63 Miss. 228; 2 Gray, 508 ; 58 Ala. 358. 2. The remarks of the prosecuting attorney were highly prejudicial, for which the judgment should be reversed. 54 Ark. 473. 1.

Hugh F. Thomason, Judge. 1. The deed of John B. Ogden to his wife was a nullity in law ; in equity, the legal title was held to remain in the husband in trust for his wife. 15 Ark., 519; 10 Pet. 583; Devlin on Deeds, sec. 108; Schouler, Dom. Rel. sec. 192. Jane B. Ogden’s interest was merely equitable, and her children inherited a right which they could only enforce in an equitable action asking equitable relief.

Jeremiah G. Waeeace, Judge. STATEMENT BY THE COURT. The appellant, Rogers, was indicted by the grand jury of Johnson county for the crime of murder. The indictment alleged that he killed and murdered one M. D. Kernoodle in said county by shooting him with a pistol. A change of venue was taken to Yell county, and the case was there tried.

James E. Riddick, Judge. 1. The court erred in not granting the relief prayed in the cross-bill. On account of the diminution in the area of the land conveyed, and the fraudulent misrepresentations of Joyner, the contract should have been rescinded. 3 Am. & Eng. Euc. Law, 929 ; 5 Lawson’s R. & Rem. 4242; 1 .Story, Eq. Júr. 201, 212 ; 3 Wait, Ac. & Def. 436 ; 5 lb. 212 ; 5 Am. St. Rep. 289; 11 id. 350 ; 17 id. 178; 20 id. 691; 28 id. 91; 11 Ark. 58 ; 46 id. 337. 2.

Robert J. Lea, Judge. 1. The contract is illegal and void because let contrary to law. 54 Ark. 645. A contract could not be “on terms most advantageous to the county” which leaves out a stipulation to relieve the county of costs. 2. The court had no power to leave out the stipulation to pay costs. 54 Ark. 645; Acts 1881, p. 149; Acts 1883, p. 125; Acts 1893, p. 207; 52 Ark. 178; 48 id. 283. 3. Certiorari is the proper remedy. 55 Ark. 275; 52 id. 213.

Charles W. Smith, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: The appellee, Ross, who is a farmer, came to appellant, Clifton, who has a blacksmith and repair shop in the town of Camden, and consulted him about the purchase of a mill with which to grind up cotton seed. Clifton was not a dealer in mills and machines, but he repaired them, and had in his shop a catalogue of the N. O. Nelson Manufacturing Company.

Hugh E. Thomason, Judge. STATEMENT BY THE COURT. This is a suit by appellee against appellant for the value of sundry packages of liquors stolen and destroyed, while in the possession of appellant, by a mob of unknown persons.

James W. Butler, Judge. STATEMENT BY THE COURT. This is a suit by appellee against appellant company on a claim of damages to the person of plaintiff, in the sum of $5000, and was tried by a jury, and determined in the Jackson circuit court, at its spring term, 1893, resulting in verdict and judgment against appellant in the sum of $800, from which it duly appealed to this court. Abstract of the Evidence.

Grant Green, Jr., Judge. The indorsement is a substantial compliance with the statute. Mansf. Dig. sec. 4750; Acts 1893, p. 156 ; 49 Ark. 431, 433. It is not necessary that the precise language of the statute be used. 52 Ark. 164. The indorsement was not a substantial compliance with the statute. Sand. & H. Dig. secs. 5102, 5107.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The appellee, Gatling, bought of ID. Poole two promissory notes for one hundred dollars each, executed by the appellants, payable to the order of said Poole, each dated Pordyce, Ark., July 1, 1891, due respectively at six and twelve months from their date. They were indorsed by Poole, “Pay John A. Gatling.” Gatling sued appellants, and recovered a judgment before a justice of the peace upon the notes.

Charles W. Smith, Judge. STATEMENT BY THE COURT. The appellant, a foreign corporation, organized under the laws of the State of Louisiana, and doing business at Shreveport, in said State, through its president took a mortgage from the appellees at New Lewisville, in the State of Arkansas, to secure the payment of sixteen hundred dollars, with interest, which the appellees owed it for the purchase price of goods sold them on a credit, the debt having matured at the time the…

Edgar E. Bryant, Judge. The cardinal question in this case is, could the town of Waldron organize itself into a single school district without giving the voters of the old district who resided outside of the corporate limits, a voice in the election? The provisions of our statute governing the question are Sand. & H. Dig. secs. 7088, 7089, 7090, 7106, 7113.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. The appellant sued S. P. Teatro & Co. for a debt of over nineteen hundred dollars, and had an attachment issued and levied upon a stock of liquors, bar fixtures and furniture in the possession of Teatro & Co. Judgment for the debt and sustaining the attachment was rendered in favor of the appellant. Shannon, the appellee, filed an interplea for the fixtures and furniture.

Grant Green, Jr., Judge. The lease to Davis, and the lease back to Wilburn did not create any lien on appellant’s crop. 7 Ark. 253 ; 31 id. 597 ; 33 id. 387. Derrick was an innocent purchaser for value without notice of any lien, if there was one.

<p>Appeal from Sebastian Circuit Court in Chancery, Fort Smith District.</p> <p>Fdgar F. Bryant, Judge.</p> <p>A creditor can remit a part of his debt, so as to give a justice of the peace jurisdiction, as was done in this case. The amount claimed is the test of jurisdiction. 1 Ark. 25 ; 2 id. 449 ; 7 id. 261; 31 id. 313 ; 29 id. 384; 44 id. 100; 2 id. 149 ; 1 Fng. 533. A great majority of the courts hold that a voluntary remission of part of a claim to give jurisdiction is proper and legal. 19 Vt. 23 ; 28 id. 409; 17 Mo. 258; 30 id. 140; 14 Mo. App. 331; 20 111. 32; 24 id. 112; 76 id. 216; 35 N. W. 831 ; 2 la. 35; 1 Morris (la.), 404; 30 N. W. 683 ; 3 Denio, 319 ; 12 Johns. 435 ; 49 Ala. 407; 49 id. 307; 2 Stewart, 487; 69 Ala. 365; 8 Gray, 373; 25 N. H. 217; 1 Col. 268; 19 Wis. 195 ; 36 Ohio St. 146 ; 90 N. C. 140 ; 94 id. 43 ; 59 Tex. 687; 12 A. & F. Fnc. L., p. 428.</p> <p>The decided weight of authority is against the affirmative of the proposition contended for by appellant. 37 Pa. St. 387; 73 id. 427; 81 id. 439. This rule has always prevailed in Pennsylvania, and is sustained in many States. 1 Nott & McC. (So. Car.) 192; 3 McCord, (So. Car.) 280; 20 W. Va. 424; 77 Va. 225; 22 Gratt. 593; 67 N. C. 1; 90 id. 140; 1 S. F. 835; 30 Ga. 8; 58 id. 406; 1 Baxter, 287; 49 Miss. 306; 61 Miss. 15; 54 id. 738; 22 S. W; 824;' 1 South (N. J. L.), 231; Speuc. (N. J. L.), 265. The cases in this State do not sustain appellee’s contention. 7 Ark. 261; 1 id. 252, 258; lb. 276; 7 id. 309 ; 24 id. 177; 3 id. 496; 43 id. 111.</p>

Rueus D. Hearn, Judge. Action by Charles R. Beard against the St. Louis, Arkansas & Texas Railway Company. The facts are stated in the opinion. 1. The verdict is clearly excessive. Before one can recover for breach of contract, he must show that he was ready to do the thing contracted for, and offered to do it, but was prevented from doing it by the opposite party. 52 Ark. 117; 33 Ark. 545 ; 39 id. 280.

Edgar E. Bryant, Judge. 1. The warrants were void, because issued without ' authority of law. Greenwood was the county seat, and there was no law authorizing a county court to be held at Port Smith. 28 Ark. 202 ; Gould’s Dig. secs. 17 and 18, p. 297; Mansf. Dig. sec. 1163.

Appeal- from Crawford Circuit Court. Hugh F. Thomasson, Judge. The sale was made “with the fraudulent intent to cheat, hinder and .delay creditors,” and is void, and the attachment should have been sustained. 37 Ark. 560. All the facts show the fraudulent intent of the vendor, and in this case it is immaterial whether the vendee knew of it or not.

Carroee D. Wood, Judge. STATEMENT BY THE COURT. This suit was brought by the appellant to recover the NF. í of the NW. % of section 7, township 14 S., range 3 W., which the appellee had in possession, and claimed to own under the seven-years statute of limitations.

Grant Green, Jr., Judge. “Where a.husband, just prior to his death, and in anticipation of death, gives his personalty away, for the-purpose of depriving his wife of her dower therein, she-is not bound thereby, any more than she would have been by a formal will making the same disposition of it.”' 23 Atl. 82; 14 Yt. 107; 39 Am. Dec. 211, and note on p. 118 and cases cited ; lb. 505; 35 Mich. 415 ; 8 Atl. 744; 85 Ky. 20; 2 S. W. 545; Mansf.

Robert J. Lea, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: The appellee, C. B. Goodbar, held a promissory note against Charlton Scott for the sum of $150, due on the 1st day of November, 1890, with ten per cent, interest from maturity. On the 10th day of January, 1891, Charlton Scott confessed judgment on said note before T. H. Flynn, a justice of the peace.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. Appellee, James T. Parks, was the owner of a mule which was found wounded on the right of way of the appellant railway company. He brought suit against the railway company for damages, alleging that the injury was caused by defendant in the operation of its locomotives and cars. On the trial the appellee testified, in substance, that after the injury he found the mule fifteen or twenty feet from the railway track.

<p>Guaranty — Contribution.</p> <p>Plaintiffs, defendants and others, being stockholders in a corporation, executed a bond, whereby each agreed, in proportion to the number of his shares, to contribute ratably to re-imburse plaintiffs for any liability which they might incur by reason of the corporation’s failure to pay a note which plaintiffs had indorsed. When the note fell due, the corporation was unable to pay the money. Plaintiffs and certain other stockholders contributed amounts in proportion to their stock, and the note was paid therewith. Defendants did not contribute any thing. In a suit upon the bond, held, that, as plaintiffs were not compelled, as indorsers, to pay the note, defendants were not liable to them on the bond for a proportionate contribution toward its' payment.</p>

Matthew T. Sanders, Judge. 1. A judge at chambers cannot render judgment for costs. 8 S. F. 526-528. 2. The statute (Mansf. Dig. sec. 5717) requires no one to give security for costs, and has no provision for adjuding costs against any one. The appellees were acting in behalf of the State, and the State owes no costs in litigation before her courts. 3 So. 489. 3.

Robert J. Lea, Judge. STATEMENT BY THE COURT. Held: and provides: “Whenever any stockholder shall transfer his stock in any such corporation, a certificate of such transfer shall forthwith be deposited with the county clerk as aforesaid, who shall note the time of said deposit and record it at full length in a book to be by him kept for that purpose; and no ■ transfer of stock shall…

Grant Green, Jr., Judge. The county court has original jurisdiction of all demands against the county, and the claim was properly presented to it for allowance, even though for expenses or charges for services in the circuit court. 47 Ark. 80; Const. 1874, art. 7, sec. 28; Mansf. Dig. sec. 1407. Contingent expenses of the circuit court form no exception to the rule. Mansf. Dig. sec. 1488; 47 Ark. 85 ; 22 id. 595; 34 id. 684.

James W. Buteer, Judge. 1. The bail bond, and the proceedings before the justice in connection therewith, are the basis of the action; they answer the purpose of a complaint, and, in a proceeding against sureties for forfeiture, must present a perfect cause of action. Sand. & H. Dig. sec. 2034; 35 Ark. 214; lb. '327. The jurisdiction of mayor’s courts only extends to the limits of the municipality. Sand. & H. Dig. secs. 1935, 5260.

<p>Estoppel — Recitals of bail bond.</p> <p>Tlie sureties upon a bail bond are bound by recitals therein showing that the examining court had jurisdiction of the subject-matter of the offense charged and of the person of the accused.</p>

Edgar E. Bryant, Judge. 1. The constitution provides that probate courts shall have exclusive jurisdiction in matters relative to * * estates of deceased persons, * * administrators, * * etc. Probate courts having exclusive jurisdiction, any judgment- in any other court is coram non judice and void. 8 Blatch. 420 ; 69 Mo. 153; 47 id. 285; lb. 289. 2. An administrator is not subject to garnishment. 5 Ark. 55; 8 Mass. 247 ; 7 id. 259; 24 id. 496; 51 Ark. 361, 8 Am. & Eng. Ene.

James F. Riddick, Judge. 1. The tax deed is void. The law in force at the date of the tax sale required the collector to sell the land to the highest bidder. Acts, 1871, p. 162, sec. 100. A sale for the “least quantity bid for” invalidates the sale. 13 Wall. 506 ; Black, Tax Titles, 107-126; 27 Ark. 226 ; 31 id. 314. 2. The evidence nowhere shows that the appellees were at any'time in possession of the land for a period of two years. 1.

<p>Larceny of horse — Variance as to sex.</p> <p>Under a statute prescribing a punishment for “stealing any horse, mare, gelding, filly, etc.,” an indictment charging the larceny of a “horse” is sustained by proof that the animal stolen was a mare.</p>

Hugh P. Thomason, Judge. Dudley Smith, a minor, by his next friend, sued the Missouri Pacific Railway Company and the Little Rock and Port Smith Railway Company, and alleged that the two defendants owned and operated in Arkansas a line of railroad of more than 75 miles in length; that, in January, 1891, said defendants demanded and received from plaintiff, as his fare over said road from Dyer to Alma, regular stations, and return, the sum of 20 cents ; that the distance…

James W. Butler, Judge. Cite Rev. St. U. S. secs. 3267, 3271, 3287, as amended, p. 433, Sup. vol. 1, 3321; Sand. & H. Dig. sec. 4851. An “original package” is that vessel, cask, barrel or keg into which the zvhiskey is first placed, when drawn from the cistern of the distillery. There can only be one original package.

James W. Buteer, Judge. STATEMENT BY THE COURT. Appellee’s complaint alleges that it is a foreign corporation, organized under the laws of Pennsylvania ; that it entered into a contract in writing with the appellant, the defendant below, by which he agreed to pay the appellee $1400 for machinery which the appellee sold and delivered to him.

Brice B. Hudgins, Judge. A single act is not sufficient, under our statute. 32 Ark. 19; 13 111. 597; 36 Ark. 86; 56 Mo. 147; 19 N. E. 330; 1 Am. & Fng. Enc. Law, 211, 212. There must be a residing together for some period of time, and habitual illicit intercourse. One night at a stranger’s house is not sufficient. No certain length of time is necessary to constitute the offense. Cohabitation means to dwell and live together as husband and wife. One day or night is sufficient.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The appellants, Henry H. Wolf & Co., recovered a judgment in the Scott circuit court against A. D. Hawkins. Hawkins filed a schedule claiming eighty acres of land, with improvements thereon, as his homestead, and the clerk of the court thereupon issued a supersedeas forbidding the sale of said land.

Fdg-ar F. Bryant, Judge. STATEMENT BY THE COURT. This suit was instituted in the Fort Smith district of the Sebastian circuit court, by appellant against appellees, on the 23d day of March, 1894 ; and, on demurrer to answer, judgment was rendered in favor of defendants, and, saving exceptions, plaintiff appealed to this court.

Appeals from Boone Circuit Court in Chancery. Brice B. Hudgins, Judge. STATEMENT BY THE COURT. The first one of these two suits was instituted in the Boone circuit court in chancery by the appellees, T. M. Gibson and wife, against the appellant, Bank of Harrison, as the assignee of one T. E. Garvin, and as such the holder of a note and mortgage executed and delivered by them to said Garvin.

<p>Appeal from Fulton Circuit Court.</p> <p>John B. McCaeeb, Judge.</p> <p>1. Wainwright and A. H. Huddleston were not legally warned. Sand. & H. Dig. sec. 6771.</p> <p>2. Harve Huddleston was legally warned; it is not necessary to warn a hand to bring tools of any kind. Ib.; see, also, 52 Ark. 270.</p>

Edward S. McDaniee, Judge. STATEMENT BY THE COURT. This is a suit by appellee to recover of appellant the sum of five hundred and sixty-eight dollars, on a certain written contract of sale, whereby appellant agreed to purchase of appellee “the apples in his orchard, consisting of about twelve hundred trees, for the sum of eleven hundred dollars.” The contract provided for barreling by the appellant, and gathering and hauling by appellee, under the directions of appellant.

Grant, Green, Jr., Judge. 1. A charge for exchange, unless used as a cover for usury, is legal, and not usury. Tyler, Usury, p. 143 y Boone, Banking, sec. 29. Appellees paid less than they would have paid had they have executed short paper,, renewing every ninety days. 2 Gratt 372; 1 Stew. (Ala.) 442 ; 6 Mass. 52 ; 3 Pet. 36. 2. The assertion in 51 Ark. 535 that reserving interest in advance on long time paper is usury is mere dictum.

Carroll D. Wood, Judge. STATEMENT BY THE COURT. Richard J. Hunt, a resident of Chicot county, died in 1888, leaving an estate consisting of land and personal property. Subsequently, the appellee, Kate H. McMurtry, presented to the probate court of said county a certain instrument in writing purporting to be the last will and testament of said Hunt, and asked that the same be probated as such. The following is a copy of said will: “--Ky. April 4, 1884.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Iv. P. Fuller brought suit in equity against A. D. Hawkins and his wife, Fannie A. Hawkins, in the Scott circuit court.

<p>1. Bigamy — Indictment.</p> <p>An indictment for bigamy, which, after the usual averments as to time and place, alleges that defendant “feloniously did marry M. K., he having at that time a living wife from whom he had not been divorced,” is sufficient, though it fails to allege the name of such living wife.,</p> <p>2. Bigamy — Evidence.</p> <p>Where the record of marriage of a man of defendant’s name to a certain woman is introduced in evidence, it is admissible to prove that defendant subsequently cohabited with the woman named, in order to identify him as the man mentioned in the record.</p> <p>3. Marriage in Indian Territory — Legality.</p> <p>A conviction of bigamy is not sustained by proof that in 1887 defendant married his first cousin,in the Indian Territory and in 1892 married another woman in this State while his first wife was living and undivorced, there being no proof that the first marriage was legal.</p>

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The defendant, John Hunter, was indicted, tried and convicted in the Franklin circuit court, Ozark district, for “selling liquor without license,” and appeals to this court. There are what purport to be two bills of exception in the case, one certified by the circuit judge and the other by bystanders. But for the purposes of this decision there is no very great difference between them.

Charles W. Smith, Judge. 1. The assignment and pretended subrogation was made in this State, and neither corporation had complied with the act of April 4, 1887, and neither was authorized to do business in this State. 54 Am. Dec. 522; 31 N. J. 531; 95 Am. Dec. 529; 96 id. 331. 2. If appellee’s right does not depend upon the contract of assignment, but upon the equitable doctrine of subrogation, then the cause should have been transferred to equity. 31 Ark. 411; 37 id. 186. 3.

John M. Ebbiott, Judge. Action by Mary K. Murphy, as executrix, against the St. Louis, Iron Mountain & Southern Railway Co. The facts are stated in the opinion. 1. Before a common carrier’s liability to a shipper, as such, begins, the goods shipped must have been first delivered to the carrier, and received into its actual care and custody, free from all control of the shipper, and not until then can a common carrier be held liable for the same, under its duties as such.

<p>Petition for Quo Warranto.</p> <p>STATEMENT BY THE COURT.</p> <p>On the 8th day of February, 1895, the Legislature passed an act entitled, “An act to provide for an additional circuit judge for the sixth judicial circuit, and to regulate the practice in the circuit court of Pulaski county.”</p> <p>The act, commencing with the preamble, is as follows : “Whereas, the increase of population and of judicial business in the sixth judicial circuit, of which Pulaski county, is part, is so great that the courts provided by law cannot protect the people in their constitutional right to obtain justice promptly and without delay, and in criminal prosecutions cannot afford the accused a speedy trial, as guaranteed by the constitution ; therefore, Be it enacted by the general assembly of the State of Arkansas, that—</p> <p>“Section 1. Hereafter there shall be an additional judge of the circuit court for the sixth judicial circuit.</p> <p>“Sec. 2. The circuit court of Pulaski county shall be divided into two divisions, to be known as the First and Second Divisions.</p> <p>“Sec. 3. The circuit judge now in office shall hold the court for the First Division ; the judge provided for by this act shall hold the court for the second division, and their successors shall severally do the like, and said judges shall be elected and appointed for each division separately. Where the dispatch of the business of the court shall render it expedient, either judge may hold the court of the other division.” Acts 1895, ch. 7, p. 9.</p> <p>The remaining sections provide for the method of procedure in the respective divisions, the holding of court in Perry county by either judge, payment of salary, etc. It is unnecessary, for the purposes of this decision, to set them out. On the 12th day of February, 1895, the Governor appointed Joseph W. Martin, Esq., “as judge of the circuit court for the second division of the sixth judicial district.” On the same day he received his commission from the Governor, and qualified as the law provides, and entered upon the discharge of the duties of the office.</p> <p>The State, through her Attorney General, filed an information, with the clerk of this court, and applied for a writ of quo warranto. The respondent waived the writ, entered his appearance, and filed his response, setting up his authority to hold the office, by virtue of the act above recited, and his appointment and commission by the Governor. The State demurs to the response, and the question arises on the demurrer.</p> <p>The act is unconstitutional. There can be but one judge of a circuit. “A” means one. For examples, see art. 4 ; art. 5; art. 6, sec. 1; art. 7, sec. 1; lb. secs. 13 and 21. The same language “a” is used as a Governor, á Secretary of State, etc. There can be but one incumbent in office. See Fitnam’s Trial Procedure, sec. 18, p. 21. When words admit of but one meaning, that meaning is to be accepted. The intent must be ascertained by means of the words used. Endl. Int. Stat. secs. 7, 8, 72. Words are presumed to be used in their ordinary acceptation, and that what is said is meant. Ib. secs. 23, 265. “A” judge means one judge. Webster, Diet., Ed. 1852. The bill of rights and the constitution are one instrument, and should be construed together as a whole, and if the constitution differs from the bill of rights, the former must limit and qualify the latter. Endl. Int. Stat. secs. 515, 516. All the cases we find hold that there may be as many districts or circuits as the legislature see proper, but for each district there can be only one judge, unless otherwise specially provided in the organic law. 45 N. W. 598 ; 19 id. 332; 15 So. 641; 36 Pac. 218; 34 N. E. 877; 13 S. W. 778; 21 N. E. 274 ; 20 Pac. 872; 42 N. W. 1002; 21 N.E. 244.</p> <p>In construing a constitution no word is to be rejected or disregarded which may have a material meaning or bearing on the rights of citizens, and such construction should be given as will best preserve the interests of citizens, and their private rights, giving every word its meaning. 3 Hans. 240; 34 Am. Dec. 81. The expression of one thing in a constitution is necessarily the exclusion of things not named. 4 Cal. 46; 60 Am. Dec. 582; 49 Ark. 232. Inhibitions by implication are as effective as by expression. 58 Pa. St. 338; 98 Am. Dec. 272. The cases in 75 Tex. 128, and 26 Ind. 98, do not touch the question here, as the constitutions are different. See 73 Iowa, 265, which is in point.</p> <p>It is true, the constitution is not a grant of, but a limitation upon, power, and that all powers not prohibited impliedly exist, but this rule only applies to those general subjects of legislation that affect the welfare of the people. (1) There are no negative inhibitions necessary to protect the people from legislation which infringes the affirmative declarations of the bill of rights. (2) None are' necessary to prevent the legislature from touching the machinery of government created by the constitution. In it the existence of the government inheres — it is the beginning and end of legislative power in that respect.</p> <p>The act is not in contravention of either the spirit or letter of the organic law. If the legislature has power to pass such a bill, they are the sole judges as to-whether the emergency which-makes such legislation expedient or necessary has arisen. 35 Ark. 73; 48 id. 384.. The courts have nothing to do with the policy of legislation. Black, Const. Baw, sec. 33. The preamble of the: act settles the question of the necessity for the act.</p> <p>Theoretically, a constitution is supposed to be created for all time. 6 Wheat. 387. But it is left to the legislature to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers as its wisdom and the public interests may require. 1 Wheat. 326.</p> <p>No court is authorized so to construe any clause of a constitution as to defeat its obvious intent or ends, when another construction will enforce and protect them. 16 Pet. 612. Discretion must be lodged somewhere. 6 Wheat. 226.</p> <p>In construing a constitution every part of it must-be considered. 24 Ark. 288. And no interpretation of any part is allowed that will conflict with any other of its provisions. 9 Ark. 271, 281. The bill of rights provides for sfeedy trials, and certain, prompt remedies. Secs. 10 and 13. The legislature is clothed with power to furnish the necessary tribunals to dispose promptly of cases pending. 33 N. W. 433. The bill of rights is of paramount importance, everything in it being excepted out of the general powers of the government; it being declared that it “ shall forever rémain inviolate. It provides for subjects far more important than those referred to in other parts of the constitution, and the latter should be made to bend to the former in all processes of interpretation.</p> <p>A constitution should receive a fair and liberal interpretation, so that the true objects of the grant may be promoted and the government left in the full and free exercise of all its rights, privileges, etc., which are not. excepted out of its ordinary and general powers. 9 Ark. 276. Every presumption is in favor of the constitutionality of an act. All doubts are resolved in its favor. 49 Ark. 232; 39 id. 355; 52 id. 339 ; 11 id. 481; 27 id. 352. The power of the legislature is not to be restricted by inference. Ib.</p> <p>“A circuit judge does not imply that there may not be more than one if more are needed. 141 Mass. 257; 8 Man. Gr. & S. 849; 6 Best & S. Q. B. 970; Sand. & H. Dig. 7196; 31 Ark. 271. No technical, strict construction should be given. 12 Ark. 563 ; 38 Ark. 564; 48 id. 385; 42 id. 161; 26 id. 74 ; 9 Ark. 287; 20 id. 212 ; 49 id. 227; 45 id. 400; 49 id. 376; 47 id. 481; 15 id. 664; 35 id. 390; 14 id. 687 ; 47 id. 323; 49 id. 350 ; Ib. 519. These cases all depend on the principle that the legislature may do anything not forbidden by the language of the constitution, or by necessary implication from its language. See 15 Ark. 623; 75 Tex. 129 ; 26 Ind. 98 ; 12 S. E. 206; 4 Ark. 460.</p> <p>Except in the case of the Supreme Court (art. 7, sec. 1), no effort is made to limit the number of courts. A circuit judge is not a State officer within the meaning of sec. 19, art. 19. Nor was any new office created by the act. The office is created by the constitution. See, also, 20 Pac. 872; 41 N. W. 645 ; Cooley, Const. Dim. 71, 204; 4 Wheat. 407; 16 Ark. 364; 62 Penn. 348; 15 N. Y. 543 ; 1 Ark. 538; 48 N. W. 819.</p>

John M. Eeeiott, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: One Wyatt was a tenant of the appellees, H. C. McGaughey et al., during the year 1886, and they held his note for the sum of $810 for rent. Wyatt raised a crop on land of appellees, and, in order to obtain supplies for his use during the year, he mortgaged his crop to C. M. Neel.

James S. Thomas, Judge. STATEMENT BY THE COURT. The defendant was indicted, tried and convicted in the Lonoke circuit court, at its February term, 1894, for selling “alcoholic, ardent, vinous and fermented liquors and intoxicating spirits” without a license. The case was tried by the court sitting as a jury on an agreed statement of facts, which is as follows, to-wit: “That Geo.

<p>Appeal from Monroe Circuit Court.</p> <p>James S. Thomas, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>The appellee, as assignee of a note, recovered judgment upon it, and this appeal is to reverse the judgment for usurious interest, contracted, as the appellant alleges, to be given and taken for the loan of the money for the payment which the note was given ; the interest having been paid, as appellants contend, in a gold watch of much greater value than the interest on the money loaned at ten per centum per annum.</p> <p>The following instruction was refused as asked by the appellants, and was modified as set out below, and given as modified; to all which exceptions were duly saved : “If the jury believe from the evidence that, at the time of the contract for the loan of the money for which the note sued on was given, it was agreed that Goodrich should receive, and he agreed to accept, in money or any other valuable property, in value which made more than ten per cent, per annum on the money loaned for the time it was to be used, the contract is usurious and void, and you should find for the defendants.” This instruction was modified by the court to read as follows : “If the jury believe from the evidence that, at the time the contract for the loan of the money for which the note sued on was given, it was agreed that Goodrich should receive, and he agreed to accept, in money or other valuable property, for the purpose of evading the usury law, in value which made more than ten per cent, per annum on the money loaned for the time it was to be used, the contract is usurious and void, and you should find for the defendants. To the refusal to give the instructions as asked the defendant at the time excepted, and to the giving it in a modified form defendants at the time excepted.</p> <p>1. The court erred in modifying instruction No. 1. If it was the intention of one to receive, and the other to pay, ten per cent, per annum, it is in law a corrupt agreement, and void for usury, whether they knew the interest was usurious or not. 41 Ark. 331; 54 id. 566; lb. 40.</p> <p>2. A loan under the inducement of a promise to make a valuable gift in value more than ten per cent., is usurious whether “for the purpose of evading the usury law” or not. 54 Ark. 155.</p> <p>3. The verdict is directly contrary to the evidence, 24 Ark. 224. It is totally unsupported by the evidence. 28 id. 550.</p> <p>1. The instruction, as modified, is the law.</p> <p>2. The weight of the evidence is in support of the verdict. The jury accepted as true the evidence of Goodrich in preference to that of the Vaughans. They .had a right to do so.</p>

<p>Appeal from Sebastian Circuit Court in Chancery, Fort Smith District.</p> <p>Edgar E. Bryant, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>The appellee, Ada Thornton, a minor, was the owner of a lot in the city of Fort Smith, which was included in an improvement district of said city. An assessment for the benefit of the improvement was made upon said lot, in common with the other lots embraced in the district. The assessment upon said lot was not paid, and in 1890 a suit was brought by the board of said improvement district, in the circuit court for the Fort Smith district, to collect the amount of said assessment. The lot had been assessed by the county assessor as the property of George Thornton, and the board of improvement alleged in their complaint that he was the owner of the lot, and named him as the defendant. At the time this suit was commenced, George Thornton, who was the father of appellee, Ada Thornton, had been dead several years. The board of improvement not knowing this, a summons was issued for said George Thornton, and the sheriff returned that he was not to be found in his county. Afterwards a copy of said summons was affixed to the property, and published as required by the statute in cases where the defendant is not found. Upon such service a decree was rendered condemning the lot to be sold for the assessment, penalty and costs. At the sale under such decree, the appellant, Greenstreet, purchased. The sale was duly confirmed, and, after the expiration of the time for redemption, a deed in due form was executed, conveying said land to him.</p> <p>This suit was brought by Ada Thornton to set aside such decree and sale, so far as it effects her interest, and to cancel the deed to Greenstreet. The chancellor held that the decree was void, and rendered a decree that Ada Thornton should return to Greenstreet the amount of the assessment paid by him, interest, etc., less rent collected by him, and that the deed be canceled.</p> <p>1. There is no dispute as to the facts. The proceedings were all regular, and the question is purely one of law. Sand. & H. Dig..secs. 5341-5353. The sheriff having returned the summons non est, the suit proceeded against the property as a suit in rem. 78 Mo. 94 ; 42 Ark. 330; 15 id. 331. The court had jurisdiction of the res. 50 Ark. 188.</p> <p>2. This is a collateral attack upon the judgment of a court having jurisdiction, and cannot be maintained. 49 Ark. 336; lb. 397 ; 55 id. 37; 50 id. 188.</p> <p>3. Greenstreet was an innocent purchaser under the decree. 49 Ark. 397.</p> <p>4. No valid defense to the suit is alleged. 50 Ark. 463 ; 49 id. 397; Sand. & H. Dig. secs. 4199-4200 ; 54 Ark. 539.</p> <p>5. The procedure given by the legislature for these suits is exclusive.</p> <p>1. The statute provides that the owner shall be made a defendant, if known, and “if he is not known, that fact shall be stated in the complaint, and the suit shall proceed * * * in rem, etc.” Sand & EL Dig. sec. 5344. The statutes are strictly construed. A suit against a dead man is a nullity, and a judgment in such a suit is absolutely void. 1 Black, Judgm. sec. 203; 11 S. W. 613.</p> <p>2. A judgment does not bind those who are not parties to the suit. 6 S. W. 261 ; 20 Mo. 89 ; 74 id. 474 ; 28 S. W. 971; 7 Gray, 505.</p> <p>3. Fvery requisite of the statute must be complied with. 93 U. S. 282; Cooley, Const. Dim. (5 ed.) p. 646. If not, the judgment is void. 1 Black, Judgm., sec. 203.</p> <p>4. A void judgment can be collaterally attacked. 48 Ark. 151; 14 Fed. 603 ; 22 id. 805; 23 id. 21.</p> <p>5. The court obtained no jurisdiction. 49 Ark. 345; 50 id. 188 ; 49 id. 397.</p> <p>The statute clearly provides for a proceeding in rem. 2 Black, Judg. sec. 792; 1 Herm. Estop, sec. 307; 50 Ark. 188; 22 How. (U. S.) 422; 2 Desty, Tax. p. 746; Rorer, Jud. Sales, sec. 54; 7 Gray, 505.</p> <p>2. It is true a judgment against a dead person is . void (6 S. W. 262), but that doctrine is not applicable here, as the suit was not against George Thornton, but against the property. Ib.</p> <p>3. Infants are not entitled to redeem unless expressly named in the statute. 53 Ark. 421; 51 id. 458.</p> <p>4. This was a collateral attack, and cannot avail. 49 Ark. 411-12; 30 1ST. E. 882.</p>

John M. Elliott, Judge. 1. A carrier’s liability, as such, ends upon the completion of the transit, the unloading of the goods from the cars, and the safe deposit of same upon the platform or in the warehouse of the company. 8 Eea, 32; 9 A. & E. R. Cas. 248; 12 Heisk. 165; 55 A. & E. R. Cas. 622; following the Massachusetts rule, as laid down in 1 Gray, 263 ; 98 Mass. 212; 100 id. 455 ; 113 id. 521. • The following cases adopt the Massachusetts rule: 66 Ala. 167 ; 46 id. 63…

John M. Heeiott, Judge. 1. The court erred in its charge to the jury.

Bdward S. McDaniel, Judge. STATEMENT BY THE COURT. This was a suit in replevin to recover from the defendant (appellant) a certain fancy refrigerator, which plaintiff (appellee) had sold to the defendant, and upon which defendant had executed a mortgage back to plaintiff to secure it for the purchase money. Plaintiff claimed to be entitled to the possession of the refrigerator under the mortgage.

M. B. Stephenson, Special Judge. STATEMENT BY THE COURT. This is an action instituted at law in the Monroe circuit court by Fannie M. Black against John S. Black, as administrator of the estate of Samuel B. Black, deceased (who was the husband of plaintiff), on a promissory note given by deceased to one Julia P. Woolfolk, as part of the purchase money for certain real property situated in Jackson, Tenn., and of which note the plaintiff had become the owner by purchase for…

Grant Green, Jr., Judge. STATEMENT BY THE COURT. This is an appeal from a judgment in an action of trespass.

Robert J. Dea, Judge. 1. The jury failed to find the degree of murder. Sand. & H. Dig. sec. 2255 ; 26 Ark. 328 ; lb. 534; 34 id. 649-652; 58 Ark. 239; 2 Thomp. Trials, 2633 ; 57 Ark. 267-9; 1 Bish. Cr. Pr. sec. 1005 a. 2. It was error to refuse instruction No. 6 asked by defendant. 34 Ark. 341; 54 id. 284. 3. It was error to admit the evidence of Wait and Guilfoil because (1) no proper foundation laid. (58 Ark. 369 ; lb. 372); and (2) because incompetent.

James E¡. Riddick, Judge. Action by Lewis against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries caused by the negligence of defendant’s trainmen. The facts are stated in the opinion. 1. The law of this case is well settled, both upon principle and authority. In the case of approaching a crossing, it is a violation of legal duty for the engineer of a train not to be vigilant in anticipation of a traveler at the crossing.

Ozark District. J. Virg-ie Boureand, Special Judge. STATEMENT BY THE COURT.

James S. Thomas, Judge. Pleas, and Kate Berry sued the St. Bouis Southwestern Railway Company to recover the value of a trunk delivered to defendant’s agent at Altheimer, a station on its line, to be transported as baggage to Clarendon, another station on its line. The trunk was alleged to contain wearing apparel of the value of $113 and $413 in money, and to have been lost in transit. The answer admitted the loss of the trunk, but denied the value of its contents.

John M. Eeeiott, Judge. STATEMENT BY THE COURT. The appellee, C. H. Edwards, was a locomotive engineer in tbe employ of appellants. The engine which he operated was derailed and thrown from the track by striking a horse.

Jeremiah G. Waeeace, Judge. STATEMENT BY THE COURT. On the 7th October, 1892, appellee filed its complaint against Kinedy & Evans, merchants doing business in the town of Atkins, in the Pope county circuit court, and at the same time filed its affidavit for an order of attachment as for debt not yet due and its cost bond, and the order was issued and delivered to the sheriff at 7 p. m. of that day.

James S. Thomas, Judge. 1. A witness cannot be impeached by showing .that he has been accused of other crimes. Sand. & H. Dig. sec. 2959. Nor by proving that he has been indicted for larceny. 34 Ark. 257. 2. The record in this case shows that appellant was indicted by a grand jury composed of fifteen men. The indictment should have been quashed. 1. It was not error to permit the question to be asked.

David W. Carroee, Chancellor., 1. A bill to review a former decree lies only for error of law apparent on the face of the decree, or for new matter which has arisen since the decree, or newly discovered evidence which could not fossiblyhave been produced at the former hearing. Story, Eq. PI. sec. 404 ; 26 Ark. 600. If the evidence is cumulative mérely, the bill will not be allowed. 36 Ark. 540.

James R. Riddick, Judge. 1. Secs. 2599-2601, Mansf. Dig., have never been repealed. ' The effort of the pretended constitution of 1864 to repeal them was ineffectual, because such pretended constitution was never authorized by, nor submitted to, nor adopted nor approved by, the people of the State, and never was a constitution of the State.

Rufus D. Hearn, Judge. Action by Dobbins, by next friend, against the St. Douis Southwestern Railway. The facts are stated in the opinion. 1. It was error to refuse to let defendant’s counsel see the list of the eighteen jurors called after plaintiff had struck three names, in order that he might find what three jurors had been challenged by plaintiff. Sand. & H. Dig. sec. 4301. The argument in 151 U. S. 396 is fallacious.

<p>Sheriff’s deed — Patent ambiguity.</p> <p>Where a sheriff’s deed, and the proceedings upon which it is based, describe the land sold as the northeast part of the south half of the southeast quarter of a certain section, without otherwise identifying the land, the deed and sale are void for a patent ambiguity, and the defect cannot be cured by extrinsic evidence showing what land the sheriff intended to sell.</p>

. B. F. Fee, Special Judge. 1. The evidence shows conclusively that the claim is barred by limitation. The payments made by Chase to Bearden were not intended as payments on the $200 claimed, and hence were not acknowledgements of the debt. Wood on Lim. p. 221; lb. 225 ; 5 Ark. 551; 9 id. 455 ; 18 id. 521; 20 id. 171. 2. The court erred in refusing to admit as evidence the deposition of Stone and the written agreement referred to in his deposition.

John B. McCaleb, Judge. Appellants, John and Plisa Finley, brought suit ■against Hogan and another to recover possession of certain lands. Defendants set up tax-titles to the lands, and also claimed title by adverse possession under the two years statute of limitation. Plaintiffs filed an amended complaint, asking that defendants’ title be removed as a cloud upon their title, and that the cause be transferred to equity.

Rue üs D. Hearn, Judge. 1. The filing of the deed for record was a sufficient delivery. Delivery is a question of intention. 1 Devlin on Deeds, sec. 262; 16 Pet. 106; 85 Pa. St. 231; 2 Ired. Eq. (N. C.) 360; 25 Wend. 545; 25 Ark. 225 ; 21 Wall. (U. S.) 185; 28 S. W. Rep. 514. A trust cannot fail for want of a trustee, or by failure of a trustee to accept. A court of chancery will appoint a new trustee. 21 Wall. 185; 10 Rich. Eq. 362. 2.

Rueus D. Hearn, Judge. The only question in this case is settled by Flinn v. Prairie Co. 29 S. W. 459. He was not entitled to a fee for expert testimony. 1. A physician is entitled to compensation for post mortem examination. 55 Ark. 421-422. 2. Appellee was entitled to compensation as an expert witness. 29 S. W. 459.

David W. Carrodl, Chancellor. The provisions of secs. 4759-60 of Mansf. Dig. are broad enough to apply to foreclosure sales under decrees in chancery. The language is: “At all sales of real estate under mortgages and deeds of trust,” etc. Sec. 4759, Mansf. Dig., does not apply to a foreclosure sale in a court of chancery. It only applies to sales by the mortgagee or trustee.

Charees W. Smith, Judge. A county judge may, notwithstanding that a majority of the votes cast at an election be “for license,” refuse license to any and all persons, and his refusal cannot be questioned in any legal proceeding, or before any legal tribunal. Sand & H. Dig. sec. 4869 ; 34 Ark. 394; 43 id. 42. But, having elected to issue license, he is not allowed arbitrarily to issue to one and withhold from another. 43 Ark. 42.

Jeremiah G. W abb ace, Judge. The word “upon” renders the indictment uncertain. 27 A. & E. Ene. Law, p. 699. The word “upon” can not be stricken out as surplusage. Whart. Cr. PI. & Pr. secs. 158 (8 ed.); 10 A. & E. Ene. Law, pp. 545-6,554. The indictment was not good at common law. 29 Ark. 147; const, art. 2, sec. 8; 140 N. Y. 134.

Edward S. McDaniee, Judge. Deane sued the St. Louis & San Francisco Railway Company, and obtained a judgment, from which defendant appealed. In the circuit court the appeal was dismissed because the affidavit for appeal failed to show the venue in which the oath was administered. The affidavit in question was as follows: J. “In Justice Court, before F. M. Liner, J. P. T. Deane, Plaintiff. v. Affidavit for Appeal. St. Louis & San Francisco Railway Company, Defendant.

David W. Carroll, Chancellor. STATEMENT BY THE COURT. On the 2d day of December, 1891, the appellant filed in the Lonoke chancery court a complaint against B. L. Adams and Alabama Adams, his wife, Perry Adams, Clara Adams and P. C. Dooley, alleging that on the 8th day of April, 1889, B. L. Adams and Allen Adams were the owners of the following lands in Lonoke county, Ark., to-wit: Southeast quarter of the southwest quarter and northwest quarter of the southwest quarter and…

Alexander M. Dueeie, Judge. The rights of parties claiming insurance arise out of and depend upon contract, and must be ascertained and fixed by the contract. 52 Ark. 206; 1 Wood, Fire Ins. p. 179; 1 May on Ins. sec. 173. Parol testimony is. not admissible to control or vary their terms. 1 May on Ins. sec. 171-2; 14 S. E. 532; 5 Law. Rep. Ann, 799, 805; 1 Wood, Fire Ins. p. 11; 11 Am. & Eng. Fnc. Law, p. 286, note.

Alexander M. Dueeie, Judge. The agency of Sumpter & Son had been revoked, and their permission did not bind the company. 54 Ark. 78; 50 111. 419 ; 36 Barb. N. Y. 372. The removal of the property without the consent of the company rendered the policy inoperative. 29 N. Y. D. 1013 ; 10 R. I. 74; 73 111. 166 ; 53 Iowa 236 ; 1 Wood, Ins. 113, 116; 62 Tex. 461 ; 7 Am. & Eng. Enc. Daw, 1005, note 4; 48 Mo. App. 186.

John L. Black, Special Judge. statement by the court. The appellee recovered a judgment for $1000, as damages for an injury received by him by being scalded in a pool of hot water, which had been formed by water let out of the steam boiler of the appellant. It was the custom of the company to let the water out of its boiler at 3 o’clock p. m. on every other Sunday, that the boiler might be cleaned out on the following Monday.

John M. Elliott, Judge. Action by Mrs. Sweet against the St. Louis, Iron Mountain & Southern Railway company. The facts are stated in the opinion. 1. The Desha court had no jurisdiction. No notice was given to appellant, as required by sec. 5798, Sand. & H. Dig. 2. The third prayer given at plaintiff’s request was erroneous, as applied to this particular case. 57 Ark. 298; 52 id. 524; 14 How. 486; 97 Mass. 361; 34 Am. & Eng. Ry. Cases, 405; 2 Wood, Ry.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Riddick, J. The appellees, D. R. Wing, C. E. Stephens and Joseph Eggleston, are partners doing business under the firm name of Arkansas Machinery & Supply Company. In the course of their business as such firm, they sold one E. H. Miller the following machinery: One 35 horse power return tubular boiler, with fixtures and fittings, and one 35 horse power C. & T. engine complete with fixtures and connections.

Grant Green, Jr., Judge. 1. The indictment does not charge murder in the first degree. Sand. & H. Dig. sec. 1644. 2. The court erred in refusing a continuance. 3. It was error to refuse to admit the testimony offered by appellant. 1. There was no demurrer to the indictment, and no motion in arrest of judgment. The indictment charges murder in the first degree. 2. There were no objections to the instructions. 3. There was no error in refusing the continuance.

John M. Elliott, Judge. STATEMENT BY THE COURT. This is an appeal from a judgment by default, in the Jefferson county circuit court, against the appellee, a mutual aid association, incorporated in the State of Massachusetts. The summons issued upon the complaint was directed to the sheriff of Pulaski county, and was served by him in said county of Pulaski upon C. B. Mills, the auditor of the State.

Edgar E. Bryant, Judge. There is nothing in the law of Arkansas, or in the-common law which affords the' slightest ground for the-presumption that a boy of fourteen is incompetent for duties requiring no special strength, skill or intelligence. On the contrary, the presumption is exactly the other-way. 1 Gr. Ev. sec. 367 ; Schouler’s Dom. Rel. sec. 398; 56 Ark. 232; 133 Pa. St. 538 ; 53 Mich. 274; 125 N. Y. 737 ; 38 id. 481.

Richard EL Poweee, Judge. STATEMENT BY THE COURT. The sheriff of Jackson county failed to summon four of the persons whom the jury commissioners had selected to serve on the grand jury. It appears that these persons were well known citizens, residents of the county, and could have been summoned by the sheriff. No reason is assigned why they were not summoned.

James W. Butler, Judge. statement by the court. The appellee, E. B. Douglass, brought this action in the Jackson circuit court, against the appellant, the Union Compress Company, and also against the Newport Compress & Storage Company, for wages due and to become due under his contract with the latter company, and claimed to have been assumed by the former.

David W. Carrodd, Chancellor. The deed conveyed all the interest Mrs. Rice had in -the land. It was an absolute deed. She had no interest in the crops, and hence could reserve no interest in or lien upon them. The reservation cannot be called a mortgage, for Schichtl would have to execute the mortgage; he would have to convey to her. But if it was a mortgage, it must have been recorded, to be good against strangers.

Appeals from Franklin Circuit Court, Charleston District. Jephtha EL Hvans, Judge. Sec. 4877, Sand. & H. Dig., does not render unlawful the sale of pure grape wine made of grapes grown by ■the person who sells it, within the three mile limit. Sand. & H. Dig., secs. 4852-3-4-5. This was the act of April 3,1889, which was construed in 53 Ark. 490. See, also, 37 id. 361. Mansf. Dig., sec. 4524, contains a proviso excepting these native wines from the operation of the act.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. The appellants, Taylor, Duffin & Co., brought suit against appellee, James Purcell, on a promissory note, for $433.44. The defendant, among other defenses, undertook to show that the note was procured from him while he was intoxicated, and that it was without consideration.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. S. H. White, a constable, and W. P. Best, a town marshal of Judsonia, levied executions upon certain logs as the property of B. D. Barnum. Joseph McCracken brought this action of replevin to recover possession of the logs, claiming to have purchased the same from said Barnum before the issuance of said executions.