Volume 61 — Arkansas Reports

James S. Thomas, Judge. I. The Foreign Corporation Act (Sandels & Hill’s Digest, secs. 1322 to 1325), has no application to foreign insurance companies. 139 U. S. 223; 41 Fed. 643; 55 Ark. 163. 2. The contract was made in Illinois, and is governed by the laws of that State. 2 Kent’s Com. (12th ed.), *p. 477 and note; 3 Minor, Inst. 127; 2 Pars. Cont. (7th Ed.) 712 ; 1 id. 515, 516, 562; 3 Mete. 207. 3.

The appellant company was indicted in the Drew circuit court at its February term, 1894, for an alleged violation of what is known as the “Separate Coach Act, ” approved February 23,1891, amended April 1,1893.

Joseph W. Martin, Judge. The want of jurisdiction was not raised by Allen, and is not involved. If it were, the schedule shows a separate debt of $250, which was within tfie court’s jurisdiction. But we think the larger debt was subject to garnishment for the $125 due. 47 Ark. 219 ; 31 id. 652 ; 46 id. 493.

James S. Thomas, Judge. The verdict in this was a general one. There was no proof that appellant stole the hog, and there is no proof that the amount of meat received was more than ten dollars. Hence there is a total failure of proof to sustain the verdict. 34 Ark. 532. 1. There is evidence to support the verdict. 46 Ark. 141; 47 id. 196. 2. The bill of exceptions does not set out the instructions of the court. 46 Ark. 207.

<p>Pardon — Remission oe Fine — Eeeect as to Costs. — A free and full ■ remission by the governor of and from payment of a fine imposed on a misdemeanant exonerates him from the payment of the fine proper, and takes away the criminal character of the judgment for costs, and such judgment cannot be enforced by imprisonment, although his civil liability therefor remains.</p>

Edgar E. Bryant, Judge. 1. The act is constitutional. The legislature is the sole judge in determining when a general law can be made applicable. See 35 Ark. 73 ; 36 id. 172; 48 id. 384 ; 50 Mo. 415 ; Cooley, Const. Dim. secs. 128, 168. 2. Under the act, all fees, etc., collected by officers belong to and are for the benefit of the county, and are payable in county scrip. Sand. & H. Dig. sec. 1002. The act is special legislation, and unconstitutional.

John B. McCaeeb, Judge. 1. The first instruction given for appellee was too general. 2. The second was error, for there was no evidence to support it. 24 Ark. 251; 29 id. 151; 36 id. 641; 50 id. 506 ; 2 Thompson on Trials, 2321. 3. It is error to give contradictory instructions, and the second for appellee and the seventh for appellants are wholly contradictory. 26 S. W. 591.. 4.

ChareES W. Smith, Judge. STATEMENT BY THE COURT. This was an action brought before a justice of the peace by John Norman against Samuel U. Fife. An attachment was issued and levied upon certain personal property belonging to Fife. The justice gave judgment against Fife for $121.45, the amount claimed by Norman, and sustained the attachment. The property attached was sold under order of the court. In the meantime, Fife had taken an appeal to the circuit court.

. Charees W. Smith, Judge. STATEMENT BY THE COURT. On the 12th of August, 1892, the appellant brought-, this suit in equity against the , appellees to set aside a. tax sale and cancel a tax deed of appellees to eight tracts of land, sold in the year 1887 for the taxes of 1886. The complaint alleges that each of said tracts of' land was sold by the tax collector for certain amounts, as costs, not due thereon — i. The court found against the plea of limitation.

Fdward S. McDaniEl, Judge. It was error to sustain the demurrer because : 1. The notice failed to show by what authority the lands were sold. Mansf. Dig. 577. 2. It failed to state the nature of the title by which the lands were held. Ib. sec. 577. 3. The notice was not sworn to by any publisher or jbro-prietor of any newspaper. Jb. sec. 578. The affidavit of an editor is not sufficient. 14 Ark. 408 ; 11 id. 120; 25 id. 364. 4.

Rueus D. Hearn, Judge. STATEMENT BY THE COURT. This is an action for an injury to Benjamin F. Kelley, an infant, brought by S. H. Kelley, as his next friend. The appellee, Benjamin F. Kelley, an infant three years of age, while standing upon a trestle on the railway of defendant, was struck by one of its trains, and injured. It was alleged that the injury was occasioned by the negligence of the employees of defendant having charge of the train in failing to keep a lookout.

Robejrt J. Deja, Judge. Section 4909, Sand. & Hill’s Digest was repealed by implication by the constitutions of 1864, 1868 and 1874 and the fourteenth amendment to the constitution of the United States. See Const. 1864, sec. 1; Const. 1868, secs. 3, 18; Const. 1874, art. 2, secs. 2, 3, 27; art. 11 sec. 2 and sec. 1 to schedule ; 17 Am. Rep. 34.

John B. McCaleb, Judge. STATEMENT By THE COURT. This is an indictment for incest, from the northern district of Sharp county circuit court.

David W. Carroee, Chancellor. STATEMENT BY THE COURT. Appellee Sayle-Stegall Commission Co. and sundry, other creditors of Rogers & Son had instituted their several suits by attachment against said Rogers & Son, and obtained judgment in the White circuit court, against them both for their debts and attachments, and obtained an order of sale of the property attached ; and .the sale was made by the appellant, as sheriff, by and through his deputy, one T. ,B. Paschall, on-the…

Edgar E. Bryant, Judge. 1. The election law of 1891 did not apply to and control school elections for directors. Sand. & H. Dig. secs. 7107, 7030, 7080; Mansi. Dig. sec. 6261-2 ; 49 Ark-. 97; Sutli. on Stat. Cons. sec. 229. 2. If the law of 1891 controlled such election, the district is not liable for the fees claimed, as none of the items are allowed by law against school districts. Unless compensation, is fixed by statute, officers can claim none. Throop, Pub.

Robert J. Lea, Judge. 1. No formal pleadings are required in the county court. No question could be raised by demurrer. 30' Ark. 560; 31 Ark. 384; Jb. 657; 53 id '. 378. 2. It was error to dismiss the action without giving plaintiff leave to amend. Sand.' & H. Dig. sec.. 5719; 30 Ark. 771; 44 id. 314; 27 id. 218. 3. The question of a valid contract was res judicata, and was final after the lapse of time. 24 Ark. 50 ; 22 id. 308 ; 55 id. 275; Holmes v. Or. Ry. Co., 9 Fed.

John B. McCaleb, Judge. STATEMENT BY THE COURT. The appellant brought suit in ejectment to recover of appellee one-fifth of the R. ¶ of the S. W. | of section 12, township 19 north, range 2 east, and claimed title by inheritance from her grandfather.

Jeremiah G. Waeeace, Judge. 1. Parol evidence is not admissible to show that by a parol contemporaneous agreement it was contracted that the note should not be negotiable, for this would be to allow the written contract to be directly contradicted by oral testimony. 4 Ark. 154; 13 id. 125; lb. 593; 45 id. 178, 153 U. S. 233 ; 73 Pa. St. 286 ; 15 Ind. 508. 2.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. Appellant was indicted April 2, 1894, at a special ' term of the Logan circuit court, for murder in the first •degree.

Oscar B. Miues, special judge. 1. The Jarvis-Conklin Mortgage Trust Co. was a necessary party. 2. There was no proof to sustain the decree. The only proof was that Scarbrough owned and occupied, as a homestead, the land on the 11th day of January, 1889. The notes and mortgage were dated January 1, 1889, and were presumptively delivered on that day. 14 Ark. 29 ; 62 Wis. 380.

Alexander M. Duffie, Judge.. STATEMENT BY THE COURT. This is an appeal from a judgment for one thousand, dollars against the appellant upon a policy of fire insurance upon a dwelling house of the appellee which was consumed by fire, while the policy was in force. The defenses to the action áre: (1) Failure of the appellee to give notice of the loss.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. On the 5th day of January, 1883, appellants executed under seal, acknowledged and delivered to Nancy Hance, appellee’s intestate, an instrument expressed in the following language, to-wit: “This indenture, made and entered into on this 5th ■day of January, A. D. 1883, between Elijah Holiman and Nancy Holiman, his wife, of the county of Grant and State of Arkansas, of the first part and Mrs. Nancy Hance, of the State of…

Edward S. McDanieb, Judge. There is no conflict in the testimony. Eubanks admits he told defendants there were 209 or 219 acres. • The facts in this case are not unlike those in 25 Ark. 102. -

Oscar L. Miles, Special Judge. Action by J. N. Mikles, trustee in a deed of trust, against R. Garner and the Port Smith Milling Company, to reform the deed of trust.

<p>Appeal from Mississippi Circuit Court.</p> <p>James E. Riddick, Judge.</p> <p>1. The judgment should be reversed for improper argument and conduct of plaintiff’s counsel. 48 Ark. 106 ; 30 N. W. 630 ; 5 Atl. 838; 1 So. 202; 61 Wis. 114; 14 S. W. 566; 11 id. 127; 18 id. 583 ; 15 Neb. 20 ; 61 Iowa, 559; 79 N. C. 589; 4 N. E. 911 ; 8 S. W. 63; 44 Wis.- 282; 70 Tex. 67 ; 52 N. W. 873. Even a withdrawal by counsel of the objectionable argument will not in all cases save him. 14 S. W. 566.</p> <p>2. The court erred in refusing defendant’s request. Sand. & H. Dig. sec. 6192; 49 Ark. 357; 43 111. 420 ; 54 Ark. 354.</p> <p>3. It was error to modify defendant’s two requests by submitting to them the two questions, first, whether plaintiff was put off at an unsafe or dangerous place, and second, whether more force was used than was necessary. There was no evidence on either point to go to the jury. Eurthérmore, they were misleading. 57 Ark. 615,</p> <p>4. The damages were excessive.</p> <p>5. The question of punitive damages should not have been submitted to the jury. 147 U. S. 101; 53 Ark. 7.</p> <p>1. The verdict is not excessive. There were elements of physical suffering, of great indignity, of reckless negligence. For such plaintiff was entitled to recover. 5 Am. & Eng. R. Cases, 560 ; 64 Miss. 80; 1 Rorer, Railroads, 735; 11 A. & E. R. Cases, 114; 5 Ark. 407 ; 26 Ark. 314; 37 id. 632; 42 id. 527 ; 35 id. •496; Suth. on Dam. vol. 1, pp. 710, 729, 755, 810 ; 3 id. p. 260. The verdict is conclusive, there being evidence to support it. 25 Ark. 380; 39 id. 491; 56 id. 314.</p> <p>2. This was a case for punitive damages. 56 Ark. 51; 53 id. 10. But actual damages only were allowed by the jury.</p> <p>. 3. The argument of counsel was harmless, and was made in reply to a bitter speech by opposing counsel, in the warmth of debate.</p>

Grant Green, Jr., Judge. 1. The verdict is contrary to the evidence and to the law. The frightening of the horse was the Jroximate cause of the injury, and not the absence of guard rails. Defendant was not in law compelled to anticipate the unreasonable scaring of any horse ; the unusual is not to be guarded against, only the common and usual events of life. 5 Fxch. 248 ; 29 Wis. 144; 56 Ark. 390; lb. 521; 139 U. S. 237; 95 id. 130 ; 2 Thomps.

Robert J. Lea, Judge. 1. The indictment is insufficient, because {a) it is not in the words of the statute, or their equivalent. The statute uses the words designedly obtain; the indictment charges “did fraudulently and feloniously obtain, etc. The obtaining must be designedly and not fraudulently and feloniously. 2 Whart. Cr. Law, p. 631; 26 Am. St. 789.

Rueus D. Hearn, Judge. statement by the court. Baird & Caruth, merchants at Washington, Hemp-stead county, failed in business, and made a general assignment. Virginia. J. Williams, one of the preferred creditors, filed, in behalf of herself and all other creditors, a suit setting up that the assignee had been unable to make bond, and praying- for the appointment of a receiver. The assignee was appointed receiver.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. This action is to recover damages for the killing of a filly by an unaltered mule. It was brought under section 7301, Sand. &.

<p>Appeal from Benton Circuit Court.</p> <p>Edward S. McDaniel, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>This was an action for damages for killing a cow. The suit was brought before a justice of the peace. Omitting the caption, the statement of the plaintiff’s cause of action is as follows: “The plaintiff, R. D. Trout, states that on the 8th day of July, 1892, the said company’s train killed a cow of his, valued by bystanders at the time to be worth twenty-five dollars or more; and claim sent into the company for the amount of twenty-five dollars at the time, on 16th day of July, 1892, and, no notice being taken of it, nor any part thereof being paid, he prays that he may have process issued for double that amount, fifty dollars, and judgment rendered as the law directs, and all his costs and damages that may accrue in this action.”</p> <p>The defendant company did not appear, and a'judgment was rendered by the justice of the peace in favor of plaintiff for the sum of fifty dollars. On a trial de novo in the circuit court on appeal, the plaintiff offered to introduce proof tending to show that the employees of the company had failed to post notice of the animal killed, to which testimony the defendant objected, on the ground that the plaintiff’s statement of his cause of •action contained no allegation that there had been a failure to post, and that it had no notice of such a claim. The court overruled the objection, and admitted the testimony, and further instructed the jury that a failure to post the notice required by the statute would render •defendant liable for double damages, The proof showed the value of the cow to be from eighteen to twenty-five ■dollars.</p> <p>1. The action was clearly brought under the act •of March 13, 1885, and was tried on this theory, but the •court allowed proof of double damages. Sand. &. H. Dig. sec. 6350. ■ It is necéssary to allege that the animal was not posted. 45 Ark. 295, 297-8.</p> <p>2. An engineer is not required to look for stock off the track. 48 Ark. 366, 370.</p> <p>3. The evidence overcame the prima facie case, and -the verdict should have been for defendant. 47 Ark. 321; 41 id. 161; 40 id. 336.</p> <p>1. The action was not based upon Sand. & H. Dig. •sec. 6350.</p> <p>2. To obtain a continuance appellant should have ■shown that the animal had been posted or that he believed such proof could be made by affidavits. Sand. & H. Dig. secs. 5839, 5842; 16 A. & E. Enc. Daw, pp. 532, 535, and notes.</p> <p>3. There is no error in the charge, and the evidence ■supports the verdict.</p>

Petition for Prohibition to Sebastian Circuit Court, Port Smith District. Edgar E. Bryant, Judge. STATEMENT BY THE COURT.

John M. Feeiott, Judge. STATEMENT BY THE COURT. This is an action at law upon a policy of insurance upon certain personal property against loss by fire.

Jephtha H. Evans, Judge. 1. The facts in this cause differ from those in 56 Ark. 124 in every particular, and falls within the doctrine announced in 33 Ind. 416, approved in the former, •case.

Leland Leatherman, Chancellor. statement by the court. Held: the chancery court should have remanded him, without inquiring into the truth or justice of the charge preferred. The judgment that he be discharged was not only not warranted, but was prohibited by statute. Sand. & H. Dig. secs. 3676, et seq. 2.

H. N. Hutton, Judge. I. It was error to refuse the continuance. Const. Ark, art. 2, sec. 10; Sand. & H. Dig. sec. 5797; 50 Ark. 165, 167; 60 Ark. 577. 2. The evidence of the mother to show the imbecility of another son is admissible as corroborative evidence. 20 S. W. 750. 3. It was error to exclude evidence as to appellant’s power to control his actions, if he knew right from wrong as to the particular act with which he is charged. 60 Am.

Charles W. Smith, Judge. STATEMENT BY THE COURT. This was a contest before the county court of Ouachita county to determine whether a majority of the votes cast in said county at the election in September, 18?4, were cast “.for license” or “against license.” It was begun by the appellees, Lazarus & Levy, who filed an application for license, alleging that a majority of the qualified electors voting at said election had voted “for license,” but that, through the willful…

Jfphtha H. Evans, Judge. 1. The sheriff’s return is not upon a true copy of the order. It does not show: (1) Posting at the court house door; (2) printing in newspapers published in Arkansas; (3) that the posting and publishing was thirty days before the time fixed for presentations of warrants ; and (4) no proof of publication of publishers was filed as part of, or with, the returns. Sand. & H. Dig. sec. 1004. 2.

James B. Riddick, Judge. STATEMENT BY THE COURT. In 1889, appellees, R. M. Smith and C. M. Hamilton, then engaged as a partnership in a mercantile business, and being the owners of the north part of the southwest quarter of section 33 in township 7 north, of range 4 east, and the north half of private survey 494, township 6 north, and of range 4 east, in Cross county, Arkansas, bargained and sold the same to appellant, Sam Benson, for the sum and price of $2,000, to be paid…

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The appellant, Charles W. Talpey, brought suit against the appellees, Joe R. Wright and M. P. Robinson, in the Sebastian, circuit court for the Port Smith district.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. This is a controversy over the forfeiture of a bail bond, and a judgment thereon against the appellant as surety.

Francis Circuit Court. Grant Green, Jr., Judge. 1. The county court had jurisdiction to grant the new trial. This power is granted by the code. Sand. & H. Dig. sec. 5600. See also lb. sec. 5839. Courts have control of their judgments during the term. 27 Ark. 295. The cases of 44 N. W. 892 and 24 Cal. 452, are based on the question of notice, and the peculiar statute of California. In the latter case also the term had expired. 2.

James E. Riddick, Judge. 1. Appellant was not a bailee, nor a carrier of the property. 2 Kent, 558. Appellant could only be held for a willful destruction. 17 Mass. 479. But the loss was the result of the negligence of appellee’s fellow servants, for which appellant is not liable. 46 Ark. 555; 51 id. 467; 10 S. W. 529. .

Richard H. Poweee, Judge. 1. The charge of keeping and exhibiting a gaming device is not sustained by any evidence. There is no evidence that he set up, kept or exhibited the machine or had any .interest in it. 2. The court, in its instruction, assumed as a fact there was a subterfuge in violating the laws of the state, and thus violated art. 7, sec. 23, const. 1. The evidence shows that appellant furnished the machine, and was interested therein.

Nimrod Turman, Special Judge. STATEMENT BY THE COURT. This action was brought in the court of a justice of the peace to recover a balance of fifty dollars for rent of land. The case came to the circuit court on appeal, and was decided against the plaintiff, who is appellant here.

Robert J. Lea, Judge. STATEMENT BY THE COURT. The appellee sued the appellant upon a negotiable promissory note for $300, payable to the order of the Southern Hedge Company, and signed by appellant, upon which is the following endorsement: “For a valuable consideration, we hereby assign the within note to--without recourse in law or equity. The Southern Hedge Company, per C. C. Caldwell.” The court sustained a demurrer to the complaint, which was amended.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. S. D. Hawkins filed a petition in the Pulaski chancery court for a writ of habeas corfiios. He alleged that in the year 1881 he was convicted of a felony in the Lonoke circuit court, and sentenced by that court to be imprisoned in the state penitentiary for the period of four years.

Richard H. Powell, Judge. Section 4856, Sand. & H. Dig., does not prohibit the sale by a licensed dealer of one qtiart of liquor in two bottles. The act does not say it shall be sold in one vessel only. Such acts are strictly construed. There was Only one sale, one price, one purchase,-one delivery to one person. No subterfuge was shown, nor any attempt to evade the law. 11 Am. St. Rep. 260; 10 id. 30; 49 Mich. 384. A quart in quantity means one quart in quantity.

Francis Circuit Court in Chancery. Matthew T. Sanders, Judge. 1. In 36 Ark. 591, 606, this court expressed an. opinion regarding the construction of the writing called the assignment, but it was clearly obiter dictum. It does not bind appellants, and, with all deference, the views expressed therein were erroneous. A power to sell, coupled with an interest in the thing to be sold, survives the grantor; otherwise, where the interest is in the proceeds only of the thing.

Petition for mandamus to Crawford Circuit Court. Hugh N. Thomason, Judge. The bill of exceptions must be signed by the judge presiding at the trial. 40 Ark. 172; 37 id. 370; 42 id. 278 ; 34 id. 627 ; 37 id. 528; 51 id. 279; Mansf. Dig. sec. .5160. We have no statute settling the practice, in case ■ of the death of the presiding judge.

Jephtha H. Fvans, Judge. Complaint by the Kansas & Arkansas Valley Railway Company and the I/ittle Rock & Fort Smith Railway Company against H. L. Fitzhugh, administrator of the estate of John Franklin, deceased. The facts are stated by the court as follows: This is a proceeding in equity to procure a new trial in an action at law.

Jephtha H. Fvans, Judge. STATEMENT BY THE COURT. In this case we have another application to a court of equity to grant relief against a judgment at law. The action at law was brought by Thomas H. Wells against the appellant railway company for the purpose of collecting a penalty for overcharges alleged to. have been made by the railway company for the carriage of said Wells as a passenger on its trains between the stations of Van Burén and Dyer, and Alma and Dyer.

Jephtha H. Evans, Judge. 1. The indictment is not good. The word “feloniously” must be used to charge a felony. 25 Ark. 444 ; 29 id. 147; 2 Dev. & Bat. 297. 2. The word “felonious” is not used in the charging part of the indictment. 60 Ark. 564. The indictment must charge the killing, and not merely the act which results in the killing, to have been done wilfully, deliberately and premedita'tedly. 21 Kas. 43 ; 27 Iowa, 412, 415. 1. Murder is the unlawful killing.

Deland Deatherman, Chancellor. STATEMENT BY THE COURT. The question in this case arose out of a lease of land, made by Garland county to George W. Baxter and Walter A. Moore, for the period of ninety-nine years. Baxter and Moore sublet portions of the land to other persons, who made improvements thereon. The appellee, Passmore, became the owner of one of the lots with the improvements.

James E). Riddick, Judge. Mrs. Maddox took the absolute interest in the real property by the will, and the power given her to dispose of it at her death accords with said interest being in her, and the intention of the testator is evidenced by the expression used in the fifth clause of the will. It was manifestly the intention to vest his wife with an absolute title to the residue of his property not otherwise specifically devised.

Alexander M. Duffle, Judge.- J. W. Harriss and others, doing business under the name and style of the Texas Produce Company, brought suit in the common pleas court against George Belding to recover the sum of $86.66, which they claimed to be due under the terms of a written lease, being two-thirds of the appraised value of a certain building erected by them on land leased from defendant.

Robert J. Dea, Judge. 1. He who seeks recovery for an injury caused by the alleged negligence of defendant must prove, not only that he has suffered loss by defendant’s act or omission, but also that the act or omission was a violation of a duty required of him. 36 Ark. 607. There is no proof that White’s wire touched the wire of the street railway company at all, or that a current was communicated to it from the company’s wire.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Mary P. Branch brought suit in the Phillips circuit court against Sallie M. Polk, and the heirs of Lucius B. Polk,.

Grant Green, Jr., Judge. To enter into a contract, the ayes and nays must be called and recorded. Sand. & H. Dig. sec. 5157. But, to appropriate money for any purpose, the ayes and nays are not necessary, lb. sec. 5165. ■ A contract with an alderman is not void, the only inhibition being that they shall not be allowed to make a profit, lb. sec. 5166.

H. N. Hutton, Judge. The indictment is not based upon any statute, and charges no common law offense. 2 Wharton, Cr. Daw, sec. 2003, 2004, 2055; 1 Bish. Cr. D. sec. 536, 538; 2 Bish. Cr. D. secs. 517-18 ; 13 Vt. 344 ; 23 Am. Dec. 212 ; 30 Ark. 433 ; 35 id. 345. The offense should be punished under the common law, as provided by sec. 601, Sand. & H. Dig. See 37, Ark. 261; 48 id. 56; 1 Bish. Cr. Daw, secs. 569, 570 625 and note. 30 N. E. 1118; 5 Cow.

Jeremiah G. Wallace, Judge. The county is not liable for costs in bastardy cases. Sand. & H. Dig. sec. 474. When justices had jurisdiction, this court held that such cases had the principal features of criminal cases less than a felony, where no indictments were required. 29 Ark. 62-68. The liability of counties in criminal prosecutions rests alone on the statute (Sand. & H. Dig. sec 2316), and under that statute the county is not liable.

<p>Appeal from Jefferson Circuit Court.</p> <p>John M. Eeeiott, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>John W. Tucker, administrator of the estate of S. D. Morrow, employed W. P. & A. B. Grace, attorneys at law, to commence and prosecute an action for damages against a railway company for causing the death of said Morrow. The result of the action thus brought was a judgment against the railway company for the sum of twenty-five hundred dollars. The company paid the amount of the judgment to Tucker, and this action was afterwards brought by said attorneys to recover of Tucker five hundred dollars as a fee for their services in the action against the railway company. There was a verdict and judgment in favor of the plaintiffs for the sum of three hundred and ninety-five dollars. A motion for new trial was filed, overruled, and appeal taken.</p> <p>1. There was no allegation in the complaint that the services were rendered under an order of the probate court. Without such order plaintiffs could not sue defendant as administrator. 30 Ark. 322 ; Sand. &. H. Dig. sec. 219.</p> <p>2. If defendant was liable at all, it was only for the fees fixed by statute. Sand. & H. Dig. sec. 217.</p> <p>3. Under the proof appellant was not individually liable.</p> <p>4. Plaintiffs should have presented their claim to the probate court. 34 Ark. 204.</p> <p>1. The suit was properly brought in the circuit court to settle the disputed claim. 1 Woerner, Am. Law of Adm. p. 346-7-8.</p> <p>2. The personal liability of appellant is well settled. 2 id. p. 576 ; 34 Ark. 204; 39 id. 257 ; 40 id. 187; 48 id. 390 ; 56 id. 161.</p>

A. F. Mabrrry, Special Judge. John Gunn and William Black, doing business under the name of Gunn & Black,, brought a suit in equity against Lena Salinger and Louis Salinger, her husband, to cancel a tax deed to certain town lots and other land executed to Lena Salinger. Afterwards, Lena Salinger instituted an action of forcible entry and' unlawful detainer against the St. Louis, Arkansas & Texas Railroad Company for possession of the lots in controversy.

James E. Riddick, Judge. The guaranty in this case was a continuing one, running until the notes were paid. The contract was that the appellees should pay the interest on the notes, which by terms was interest from date until paid. 31 Ark. 626 ; 40 id. 120; 32 id. 572; Jb. 616; Id. 165; 36 id. 480; 49 id. 427; 51 id. 204. The court below misconceived the effect of 43 N. Y. 194 and 44 id. 677. In those cases there was no contract to pay interest after maturity.

James E. Riddick, Judge. This was an action in ejectment, brought by the appellee, James D. Driver, against the appellant, D. W. Wallace, for recovery of a portion of the lands situated in a fractional quarter section of land lying along the banks of the Mississippi river. The answer set up a general denial; also the special plea that the land held by defendant was the property of the State of Arkansas, by reason of having been formed in the bed of the Mississippi river.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. On the 15th day of December, 1890, Jones & Fulton, a firm of merchants in Hot Springs, Arkansas, executed the following instrument: “Know all men by these presents, that, for and in consideration of the sum of $8,000.00, to be paid as follows: $4,392.86 credited on the debt we owe Rice, Stix & Co. of St. Louis, Mo.; $1,804.73 credited on the debt which we owe the Clark Shoe Company, of St. Louis, Mo.; $278.58 credited on…

James P. Riddick, Judg-e. The affidavit required under sections 2595-6-7 Sand. .& H. Digest is required only in actions for the recovery •of land or its possession. This was not a suit of that •character. 21 Ark. 323 ; 29 id. 487 ; 43 id. 399; 41 id. 63 ; 43 id. 306; 49 id. 552; 53 id. 418; lb. 423. ■ It was error to dismiss the bill.

James E. Riddick, Judge. Ejectment by Day & Proudfit against Ella G. McConnell and others. The facts are stated in the opinion of the court. 1. Mrs. McConnell is not barred by the U. S. court judgment. It was void for want of jurisdiction, apparent upon the record. Mansf. Dig. sec. 5201; 49 Ark. 413 ; 34 Cal. 391; 57 Ark. 49, 628 ; 56 id. 338.

William P. Feazel, Judge. The number of voters necessary to give the court •jurisdiction to order the election was 674. Neither of the petitions for the four designated places contained the requisite number, i. e. one-third of the qualified voters. Sand. & H. Dig. secs. 943, 945; 15 L. R. A. 503-4. The names on the different petitions designating different places cannot be joined to give the requisite one-third. Sand. & H. Dig. secs. 943-5.

James S. Thomas, Judge. John Hubman was indicted for selling five gallons of wine “in a territory where the sale of wine was not licensed by the county court.” The cause was tried upon an agreed statement of facts, which recites as follows: “That defendant, John Hubman, did in Lonoke county, Arkansas, on the first day of November, 1894, sell G. W. Scott five gallons of wine, made from grapes grown and raised by said defendant, John Hubman, in Saline county, Arkansas; the…

RuEus D. Hearn, Judge. STATEMENT BY THE COURT. The appellant, W. P. Lee, being the county examiner of Hempstead county, held a teachers’ institute at Washington, in that county. Held: but failed to attend the same. Por this reason the appellant revoked the license which had been granted to Huff to teach in the public schools of the county.

Rufus D. Hearn, Judge. Public policy demands that, while attending the trial, or incidental and auxiliary proceedings, parties shall be privileged from arrest or service of summons in other suits. 46 Ohio St. 41 ; 136 N. Y. 585; 11 L. R. A. 101; 53 Mich. 541 ; 7 Fed. Rep. 42-45; 12 id. 590 ; 68 id. 439 ; 23 Am. Rep. 35; 4. Pa. Dist. Rep. 119; 58 N. W. 376 ; 55 id. 961; 20 Atl. 788; 39 N. W. 308; 74 Hun, 130 ; 1 Rich. Law, (S. C.) 196 ; 37 Minn. 118; 1 Bin.

Grant Green, Jr., Judge. 1. Where there is no exemption of a loss by explosion stipulated in the policy, .the fire producing the explosion is a cause of the loss, so as to come within the meaning of the policy, even though it be the remote, and not the proximate, cause. The rule is otherwise, where there is an exemption against loss by explosion. 103 Mo.’ 595 ; 11 S. W. 945. 2.

Jephtha H. Bvans, Judge. 1. The mere statement in a note that the consideration is for rent does not create a landlord’s lien. Calling purchase money rent does not create a landlord’s lien. 54 Arli. 16; 51 id. 218. 2. The sale of the cotton to Smith was complete. 31 Ark. 155; 21 Am. & Bng. Bnc. Law, p. 514 ; Tiedeman on Sales, sec. 3. 3. There was no abandonment, even if the cotton was delivered to Smith as a mere pledge. 59 Bed. 249 ; 47 111. App. 87; 18 Am. & Bng. Bnc.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. Appellees filed their complaint in the court below on the 21st day of February, 1894, against the appellants, alleging that the plaintiffs were directors of school district 54, within which lay a part of the incorporated town of Mt. Nebo; that H. C. Cunningham, mayor of that town, had in 1893, in compliance with a petition signed by twenty persons, ordered an election as to the formation of a single school district in the…

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. Plaintiffs, Mollie C. Terry and John D. Trigg, as the only heirs of John P. Dickson, deceased, seek to cancel a deed executed by him to Samuel W. McKneely to what is known as the “John Dickson place” in Miller county, Ark.

James E. Riddick, Judge. 1. The verdict was without evidence to sustain it. The evidence is that deceased never looked or. listened before or after going on the tracks. 2. The verdict is contrary to law. A person going upon the tracks of a railway company must use due precautions by looking and listening. No neglect of the company will excuse this duty of using both eyes and ears. 54 Ark. 434; 24 A. & E. R. Cas. 124 ; 56 Ark. 459; 29 Mich. 274; 2 Binney (Pa.) 159.

Jephtha H. Fvans, Judge. 1. There is no evidence that appellee ever offered this cotton for shipment, and was refused. 2. The court erred in,refusing to give the declarations of law numbered 1, 2 and 3 asked by defendants. 3. Lack of facilities for shipment was not the proximate cause of appellee’s alleged damage. On the contrary, the proximate cause was his failure'or inability to sell the cotton. 95 U. S. 130; 139 id. 237; 56 Ark. 521; 2 Thomps.

Fdgar F. Bryant, Judge. STATEMENT BY THE COURT. The appellee, alleged that for thirty-five dollars he procured from appellant a “scholarship” in the bookkeeping department of the Fort Smith Commercial College, with the express understanding that appellee could not attend said college longer than the term of three months from the 6th day of October, 1891, and that he should have the privilege, after the expiration of that time, of returning to said college at any future time…

James E. Riddick, Judge. The law gives the debtor the right to select his homestead. There is no evidence that the selection in this case was capricious. Exemption laws are liberally construed, and courts should stand by the letter of the law. In 7 So. 333 and 63 N. W. 632 the selection by the debtor was set aside for irregularity and as being arbitrary.

John H. Craweord, Special Judge. James Y. Thomas brought suit in equity against R. T. Sypert and others to quiet title to certain land. Held: the amount, nor the numbers, nor anything else about it. He did not state when he heard these rumors. We are therefore left to presume that he heard them all along, from the time he reached his majority.

Robert J. Lea, Judge. STATEMENT BY THE COURT. Fisher Appleton was indicted and tried for the murder of one Louis Richardson. Richardson was a deputy constable, and had in his possession a warrant for the arrest of Appleton on a charge of grand larceny. At the time he was shot, Richardson was attempting to execute this warrant. The defendant claimed that the killing' was done in self defense.

H. N. Hutton, Judge. STATEMENT BY THE COURT. The appellant, P. M. Routt, and one Jim Morgan, whom the evidence shows to have been gamblers and confidence men, obtained from C. F. Holt one hundred dollars in the following manner : They were passengers upon a train of the Cotton Belt- railroad. Routt began a conversation with Holt, and exhibited some cards, saying that the boys had been using them for trick cards, and had won the cigars and drinks from him.

William P. Feazell, Judge; STATEMENT BY THE COURT. Appellant was tried and convicted, in the Howard circuit court, of the crime of perjury, on the following indictment to-wit (omitting the formal parts): “The grand jury of Howard county, in the name and by the authority of the state of Arkansas, accuse Jake Leak of the crime of perjury, committed as follows, to-wit : The said Jake Leak, in the county and state aforesaid, on the 9th day of August, A. D. 1895, in the county…

John M. Flliott, Judge. Petition for certiorari by Fdward Fitzgerald and others, creditors of the estate of Nannie W. Nichol, deceased, to quash an order of the probate court erroneously classifying in the third class of debts a claim of the Merchants & Planters Bank against the estate, which had not been reduced to judgment in deceased’s lifetime. The court quashed the order, and the bank has appealed. 1.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. This was an action brought by Aubrey against the Western Union Telegraph Company to recover damages alleged to have been sustained by him, by reason of an error in transmitting a cipher telegram from Cowen & Co. to him.

<p>Railroad Company — Liability por Employees’ Negligence. — A railroad company is not liable for the failure of its employees to discover a danger to which a person on the track is exposed by his own negligence.</p>

Joseph W. Martin, Judge. 1. The circuit judge held the act unconstitutional, upon the ground that it was in violation of sec. 23, art. 5, const. 1874. The law is, and purports to be, an independent act. It nowhere attempts to revive or amend the provisions of any act, or to confer anything by reference to the title of any other act, nor to revise, alter or amend any prior act or law. It repeals all inconsistent acts.

Rueus D. Hearn, Judge. ' The court erred in refusing plaintiff the right to open and conclude the argument. When a party assumes the burden of proof, he is entitled to open and conclude the argument. 58 Ark. 446; 32 id. 593; 29 id. 151; 59 id. 143. The burden remained on the interpleader to make out,his case. 58 Ark. 446; 29 id. 270; 27 id. 504; 45 id. 492; 53 id. 96 ; 58 id. 564; 55 id. 59. But, if error, it was harmless.