Volume 62 — Arkansas Reports

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The petition in this case was filed by the railway company for the purpose of condemning a right of way 100 feet wide through section 24, township 9 north, range 26 west, in the county of Franklin. All proper allegations were made and exhibits attached necessary to entitle the plaintiff to have said land condemned. The circuit judge ordered a deposit of $20 to be made, to the end that work might begin at once.

James S. Thomas, Judge. 1. There was no sale or conveyance of the lands to Bchlin, and hence there was no vendor’s lien. The pretended sale was never authorized by the board of directors. It was intended as a sham — a scheme. The grantee never entered into possession, never claimed the land, never paid taxes on it, nor received any rents, and the pretended deed was never delivered to him.

James W. Butler, Judge. The Schwab Clothing Company brought an attachment suit against W. T. Nesbit, alleging that the latter was about to remove, or had removed, his property, or a material part thereof, out of the state, not leaving enough to satisfy the claims of , his creditors. The court sustained the attachment, and defendant appealed. The facts sufficiently appear in the opinion. 1.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. On March 2, 1893, appellant brought suit against W. J. Bell in the Clark circuit court for $10,603.43, and sued out an attachment on said day, which was levied upon the land claimed by interpleader, Alice Bell. At the August term of the Clark circuit court, Alice Bell interpleaded for the land in controversy, claiming the same by virtue of a deed dated April 14, 1887, from W. J. Bell (who is her husband).

Robert J. Lea, Judge. The answer presented a good defense, and the demurrer should have been overruled. 1. Persons dealing with officers of corporations are put upon notice as to the powers of such officers. Morawetz on Corp. sec. 691. Under secs. 1330, 1335, Sand.' & H. Dig. the management of the affairs of corporations are by law placed under the absolute control of a majority of the board of directors, when convened according to the by-laws. 2.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. This was an action upon an insurance policy issued to C. E). Bromwell by the Germania Pire Insurance Company. The amount of the policy was $500, apportioned as follows: $300 on stock of merchandise and $200 on furniture, household goods, etc. The insurance company admitted its liability for the loss of the furniture and household goods, but denied that it was liable for the merchandise.

James E. Riddick, Judge. STATEMENT BY THE COURT. Held: under, the, state, his lash purchase of any-of said lands-being from Martha Gordon in 1885, who held under a donation deed from the state. When Roman, died, in 1888, his widow and children removed from the land in suit, and, went we know not where, nor the cause of their leaving-, as the record is silent on those points.

Wigbur P. Higg, Special Judge. 1. The bill of exceptions does not expressly state that it contains all the evidence, but it contains expressions from which it may be inferred that it contains all the, evidence, and this is sufficient. 35 Ark. 450. At least, there is evidence enough set out to show that the court erred in taking the case from the jury, and in directing a verdict for plaintiff. 57 Ark. 466 ; 39 id. 451; id. 491; id. 413.

John M. Elliott, Judge. 1. The court erred in admitting improper testimony. The questions asked and answers by McCool and others were improper and incompetent. The jury were as competent to judge of the methods and circumstances as experts. The facts only should have been put in evidence, and the jury left to draw their own conclusions. 63 Ped. 797; 40 Iowa, 345; 36 la. 462, 472; 36 id. 473; 1 Gr. Ev. (12 Ed.) 440; 36 la. 37; 56 Ark. 612; 1 Wharton, Ev. 512. 2.

John B. McCaleb, Judge. Shaver, late treasurer of Sharp county, presented to the county court of that county his claim for certain commissions alleged to be due him on funds carried over by him from a previous term, and omitted from his last settlement with the county. The claim was disallowed in the county court.

James F. Robinson, Chancellor. Mrs. Mary Belle Bryan, (formerly Douglas), widow of Joel F. Bryan, brought suit against the administrator and heirs of her deceased husband, to recover dower in the lands of her intestate, who died in 1892. In answer, defendants relied upon an antenuptial contract entered into September 5,1882, between plaintiff and intestate, whereby the latter conveyed to her certain property in lieu of dower.

Jephtha H. Evans, Judge. • 1. It was error to refuse the instructions asked by plaintiff. 38 Ark. 529; 34 id. 707; id. 399. 2. The court’s instructions were erroneous. A purchase of property actually in the custody of the law is utterly void, and no title whatever is acquired. 11 Ark. 411. 3. The institution of the suit is constructive notice to all purchasers after suit commenced, and there can be no innocent purchaser. 12 Ark. 421; 16 id. 175; 13 Am. & Eng. Enc.

Cross appeals from Benton Circuit Court in Chancery. Bdward S. McDaniee, Judge. STATEMENT BY THE COURT.

Rueus D. Hearn, Judge. 1st. Is such a contract as this, entered into between plaintiff and defendant, such a one as would stand or fall, when the rule of public policy is applied to test its validity? 2d. If such contracts as a class will be upheld as not against public policy, is the contract sought to be enforced sufficiently strong to bind the parties to the same?

John M. Flliott, Judge. STATEMENT BY THE COURT. The facts proved in this case were in substance as follows: Fred Schneider, a merchant tailor in the city of Pine Bluff, owned a stock of goods pertaining to that business. The Pine Bluff Water & Light Company was engaged in the business of manufacturing and supplying illuminating gas to the city of Pine Bluff and its inhabitants.

John M. Feeiott, Judge. Action by McCain & Houston against the Pine Bluff Water & Light Company and John Hammert. Plaintiffs recovered, and defendant company appealed. The facts are stated in the opiniqn, and in the foregoing case.

James S. Thomas, Judge. 1. The court erred in allowing irrelevant, improper, remote, and indefinite testimony to go to the jury, which was prejudicial. 45 Ark. 539; 52 id. 303. 2. It was error to permit the jury to be in possession of the motion for a continuance, thus enabling them to compare the signatures to the motion and to the letter introduced in evidence. 29 Ark. 248. 3.

Rchard H. Poweee, Judge. 1. The utterances of the court were prejudicial to defendant. 2. It was error to admit Bagiey’s testimony. Whart. Am. Cr. Baw, p. 997; 30 S. W. 602. Even if appellant had been responsible for Hoxie’s bad reputatation, and had been a thief all his life, proof of the commission of other crimes is not admissible, unless they are connected. 34 Ark. 650; 37 id. 261; 43 id. 368; 54 id. 489, 621; Whart. Cr. Ev. sec. 30. 3.

WiEE P. FEAZEE, Judge. STATEMENT BY THE COURT. This was a suit in replevin to recover certain cotton and corn. It was developed on the trial that the corn and cotton claimed was the half of an undivided crop which belonged to a share cropper of appellant. Appellee claimed the cotton and corn under a mortgage from the share cropper. Appellant had released his interest in one-half of the crop of the share cropper by an endorsement on the margin of the mortgage held by appellee.

John B. McCabeb, Judge, (on exchange of circuits with Hon. Richard H. Powebb, J.) STATEMENT BY THE COURT. It appears that appellant, W. C. Walker, instituted proceedings before a justice of the peace to recover the sum of eight dollars for the services of a stallion, and to enforce a lien for same on the mare served.

James S. Thomas, Judge. STATEMENT BY THE COURT. This case arose on a motion to quash a supersedeas issued by a circuit clerk to prevent the sale under execution of land claimed by B. F. Wilson as a homestead.

ChareES W. Smith, Judge. Thomas Haley sued the Arkansas Coal, Gas, Fire-Clay & Manufacturing Company, a domestic corporation. Summons was issued and returned served on R. Hibbard, “agent of the Arkansas Coal, Gas, Fire-Clay & Manufacturing Company.” Defendant appeared specially, for the purpose of moving to quash the service of summons. The motion was denied, and defendant appealed. 1.

<p>Appeal from Johnson Circuit Court.</p> <p>Jeremiah G. Wallace, Judge.</p>

James F. Robinson, Chancellor. STATEMENT BY THE COURT. Suit upon a promissory note, and to foreclose a mortgage upon real estate executed by Nannie W. Nichol and her husband, Charles A. Nichol, to secure said note. The complaint alleged that the consideration for the mortgage and note was money loaned to said Nannie W. Nichol.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. Action by Robert S. Martin against the railway company for injuries received by him while about to cross its track. He alleged that the injuries were occasioned by the negligence of the employees in charge of train of defendant company. *The railway company denied negligence, and alleged that the injury of plaintiff was caused by his own carelessness.

Jephtha H. Fvans, Judge. 1. The evidence fails to establish the plea of usury. Moore was not the agent of the company; but admitting that he was; the expenses were necessary to show the value of the borrower’s security, and not part of the interest. 57 Ark. 347; 51 id. 549. The expenses of making the abstracts of title, recording the trust deed, and certificates of valuation and as to judgments, were legitimate charges to be paid by the borrower.

Wiebur F. Hire, Special Judge. Action by Stewart, Kelly &, Co. against Johnson and Pordyce, receivers of the City Electric Street Railway Company, to recover damages for a horse killed by one of defendant’s electric cars. Prom a judgment for plaintiffs, defendants appeal. The facts are stated in the opinion. The court erred in its modification of the instructions, particularly of No. 3. 36 Ark. 377.

Appeal frotn Sebastian Circuit Court, Fort Smith District, Fdgar F. Bryant, Judge. The First National Bank of Fort Smith sued the firm of C. Tilles & Co., and caused their property to be attached. Glaser Brothers, and other creditors of C. Tilles & Co., subsequently brought suits against the latter, and caused attachments to be sued out and levied on the same property.

Charles W. Smith, Judge. STATEMENT BY THE COURT. Appellees filed their complaint, containing thirty-nine paragraphs, in each of which they alleged the negligent killing of certain live-stock, giving the description and value of each animal killed, and the respective date of the killing. They alleged a failure to comply with sec. 6350, Sand. & H. Dig., and asked for double damages. Motions were made to make more specific and to strike, but these have not been urged here.

Rufus D.,Hearn, Judge. STATEMENT BY THE COURT. .The Texarkana Water Company was the owner of a tract of land containing thirty acres lying within the corporate limits of the town of Texarkana, Ark.

Johm M. EJeeiott, Judge. The-Pine Bluff Water & Light Company filed a petition for certiorari to quash an ordinance of the city of Pine Bluff.

John M. Elliott, Judge. STATEMENT BY THE COURT. The appellee recovered a judgment in replevin for the possession of two horses, to reverse which the appellant has brought the case to this court. The appellee (the plaintiff below) relied upon a mortgage executed to him upon the horses in the state of Kansas, and read in evidence what purported to be the original mortgage, over the objection of the appellant, to which he excepted in general terms only.

Grant Green, Jr., Judge. 1. The circuit court had no jurisdiction, on appeal from a justice, to render judgment for $950, or forpossession of property of that value. A motion for new trial was not necessary. 31 S. W. 740. 2. Had there been jurisdiction, it was error to render judgment for the value of the goods which were not in possession of appellants. 33 Ark. 31; 34 id. 399. The agreement in the justice’s court could add nothing to that court’s jurisdiction. 1.

Grant Green, Jr., Judge. 1. The power of the probate court, at the time of the alleged sale, may well be challenged. Act Jan. 17, 1855; Act Dec. 23, 1846. But no title passed under the sale until confirmed by the probate court. 32 Ark. 97; 45 id. 41; 54 id. 480. A sale of real estate under an order of the probate court is a judicial sale. 19 Ark. 499; 26 id. 421; 32 id. 97; 47 id. 413; 53 id. 400. And in all judicial sales no title vests until confirmation. Rorer, Jud.

David W. Carrobb, Chancellor. STATEMENT BY THE COURT. This is a contest concerning the ownership of sixteen promissory notes which were executed to the McCarthy & Joyce Company by certain of its customers. The company was a corporation organized under the laws of this state, and engaged in business in the city of Little Rock.

Rueus D. Hearn, Judge. STATEMENT BY THE COURT. Luther H. Pike filed his petition in the probate court of Clark county, setting, up the following contract: “Whereas, I, Charles L. Thomas, as administrator of the estates, respectively, of Louis Thomas, deceased, and H. H. Carter, deceased, of Arkadelphia, in the county of Clark, in the State of Arkansas, have employed Luther H. Pike, attorney and counselor,. of Washington, D. C., to take charge of and prosecute to its final…

<p>.Appeal from Garland Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p>

Rufus D. Hearn, Judge. 1. The notes sued on were a debt of the corporation at the time defendants took charge under their contract. Defendants constituted the board of trustees of the college after the execution of the contract, and sec. 1395, Sand. & H. Dig., converts the incorporators into a board of trustees. The contract transfers to them and “their successors” all'the rights, franchises, etc., of the college, and was a transfer of the corporate power and franchise.

Grant Green, Jr., Judge. 1. This case is similar to 56 Ark. 457; 54 id. 431 and Railway Co. v. Martin, ante p. 15.6, and the contributory negligence of deceased was a complete bar. Besides he was an employee of the company, was fully aware, and had been duly cautioned of the danger of passing through the yards. 46 Ark. 396, 404; 106 Mass. 461. 2. The court erred in modifying instructions 4, 5 and 6.

Fdgar F. Bryant, Judge. 1. The plea to the jurisdiction should have been sustained. It is against public policy to allow such suits to be maintained at a point so far from where the acts are alleged to have occurred, and between residents of other jurisdictions. 2 N. Y. Sup. 524; Black, Const. Law, p. 222; 127 U. S. 706; 14 S. W. 228; 98 Mass. 65. It is the settled policy of our law and of Missouri that suits shall be brought where the defendants reside. Mansf.

Francis Circuit Court. Grant Green, Jr., Judge. The judgment is void for uncertainty. The suit as to Mrs. Goodman was only as to the house, and the judgment is in her favor for the whole quarter section of land, except a portion of the field which is indefinitely and uncertainly described. Judgment cannot be broader than the issues made. 1 Black, Judg., secs. 138-141. An uncertain reservation makes all pass under the grant. 11 So. 834. The appellee, fro se.

Alexander M. Dueeie, Judge. 1. The protest of the notary was not under his seal of office, and was not admissible in evidence. Sand. & H. Dig., sec. 2884-5; 2 Daniel, Neg. Inst., secs. 945-6-8. 2. The burden of showing due notice was on plaintiff. 2 Dan. Neg. Inst., sec. 1050-1, 961; 962; Tiedeman on Com. Paper, sec. 327. No material fact will be presumed. 19 Ark. 484. The notice in the case was not in time. 2 Daniel, Neg. Inst., sec. 1039. 1.

Jeremiah G. Waeeace, Judge. statement by the court. Held: and that, after giving his son credit for the $1,848, he still owed him $242.28. A good deal of evidence was introduced to show the bona fides of appellee’s claim against his son, and, as far as the record, as it now stands, shows, N. E. Armstrong did owe his father about $2,200 at the time he bought him out in January, 1894.

Rueus D. Hearn, Judge. There is no law authorizing the paying or charging for the service of summoning special jurors. By sec. 3318, Sand. & H. Dig., the sheriff is allowed $10 for summoning a petit jury, but no fee is allowed for the services claimed. Constructive fees are not allowed. Sand. & H. Dig., sec. 1237; 25 Ark. 235; 32 id. 45; 55 id, 387; 56 id. 581; 57 id. 487, 565.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. This was an action at law upon a fire insurance policy. The complaint stated, in substance, the following facts: The defendant insurance company, in consideration of a premium paid to it by the plaintiff, issued on the 30th day of Nov., 1892, a policy of insurance against loss or damage by fire upon the barn and dwelling house of plaintiff, for the term of three years.

Wilbur R. Hill, Special Judge. I. The agreement is plain and unambiguous, and means what it says, that appellees were to have one-fourth of the lands recovered. There is no room for construction, and no interpolation can be made. 2. The agreement embodied the entire contract, and parol evidence was not admissible to vary it, by extending or enlarging its terms so as to include rents. 3. The claim of quantum meruit cannot be sustained.

Wieeiam F. SeEmmons, Special Judge. 1. The court erred in striking out the word “threats” in instruction No. 1, asked by defendant. 2. The court erred in refusing No. 3, asked by defendant; and in refusing Nos. 4 and 5. 3. Also in refusing Nos. 7, 8, 9, 10 and 11 asked by defendant. 4. The court erred in giving No. 5, asked by the state; and in giving Nos. 8 and 9. 5.

John B. McCaleb, Judge, on exchange of circuits. STATEMENT BY THE COURT. The appellant brought this suit to recover the land in controversy. Judgment was rendered against him, and he seeks by this appeal to reverse said judgment. The land was owned by the appellant’s brother, who died, while a soldier in the Confederate army, in 1862, leaving him surviving, Julia, his widow, and an infant son, who died in 1863.

B. B. Hudgins, Judge. STATEMENT BY THE COURT. This is an appeal from a judgment adverse to appellant in a suit in ejectment for the recovery of lands devised to her by the will of her father. Appellant and her husband, who was living at the time of the institution of this suit, and from whom she had not been divorced, conveyed the lands by. deed to one McMahan, who conveyed to the appellee.

B. B. Hudgins, Judge. 1. The rule laid down in Meyer v. Gossett, 38 Ark. 377, governs this case. It was re-affirmed in Donahoe v. Mills, 41 Ark. 421 and 45 id. 117. See 1 Devlin on Deeds, sec. 530. Appellants were bona fide purchasers.

Grant Green, Jr., Judge. statement by the court. This action arose out of a contract made by plaintiff, Dunham, with defendant, Messinger. By the contract, which was in writing, Dunham agreed that he would erect his saw mill on a certain tract of timber land in Lee county, and proceed to saw the timber, which was owned by him, into lumber for Messinger.

AEEXANDER M. DuEEIE, Judge. STATEMENT BY THE COURT. J. A. Busch, on the 28th of December, 1892, entered into a contract with Mark J. Smith to erect a bath house for said Smith in the city of Hot Springs. Busch after-wards sublet a portion of the work to appellee, J. E. Hart, agreeing to pay him therefor the sum of $4,100.

Jephtha H. Evans, Judge. 1. No bill of exceptions was necessary. The error appears upon the face of the record. 34 Ark. 686; 47 id. 230; 46 id. 21; 32 id. 159, 163; 26 id. 536; 26 id. 662; 27 id. 464; 43 id. 403. 2. There was no usury. The charges were legitimate. 57 Ark. 347; 51 id. 549. 3. The evidence shows that the company had an agent and was doing business in Louisiana. It was a Louisiana contract. 54 Ark. 566. 4..

William H. Cate, Judge. 1. Plaintiff’s claim was extinguished and settled when he accepted the seven dollars. Compromises of disputed claims, fairly entered into, are final, and will be sustained. 21 Ark. 69; 43 id. 172; 29 id. 131; 61 N. Y. 623; 60 Mass. 148; 12 Wall. 232; 120 N. Y. 190; 8 id. 402; §9 id. 174. 2.

A. B. Grace, Special Judge. 1. John B. Mills had no authority to waive the forfeiture clause in the policy. He was a mere clerk in the office of his father, who himself could not waive it. 54 Ark. 75; 60 id. 532. The moment the chattel mortgage was placed on the property, the policy was void. No return of the premium was required. May on Ins., sec. 567 ; 53 Ark. 155; 151 U. S. 452. 2.

Jeremiah G. Waeeace, Judge. Suit by Alice Stevenson against the Little Rock & Ft. Smith Railway Company and the Missouri Pacific Railway Company. The facts appear in the opinion of the court. 1. The evidence fails to support the verdict as against the Missouri Pacific Railway Co. 2. The evidence fails to show any negligence on part of defendant. 3. If plaintiff was injured as alleged, it was due solely to her jumping from a moving train.

Rueus D. Hearn, Judge. 1. The evidence fails to show that there were funds in the treasury to pay this warrant when it was presented. 2. Under the statute, before plaintiff can recover he must show he was the holder of the warrant at the beginning of this suit. Sand. & H. Dig., sec. 993. The statute is highly penal, and must be strictly pursued. 3.

Samuel Peete, Special Judge. On June 19, 1894, Ida P. Anderson and others filed their suit against the St. Uouis, Iron Mountain & Southern Railway Company, alleging that they were the lessees in possession of the old Patterson place, lying on the Batesville branch of defendant’s railway; that in the spring of 1890 the defendant caused a trestle in said branch road, and near said farm, to be closed up, thereby stopping a natural drainage of said farm; causing six acres of…

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Tkis is an appeal from a judgment of conviction of malicious mischief, committed by shooting and wounding a mule trespassing in the enclosed grounds of the appellant. The proof tended to show that the fence around the enclosure where the mule was shot was not a lawful fence, — -that is, that it was not five feet high, — when the offense was committed.

ChareES W. Smith, Judge. 1. The omission of the word “wilful,” and the failure to state the degree, render the indictment defective and insufficient to charge murder in the first degree. 2 Bish. Cr. Pro., sec. 576; ib. secs. 571, 587; 29 Ark. 265; 34 N. H. 510; 97 N. C. 465; 60 Ark. 564; 27 Iowa, 402; 4 Green (Iowa), 415, 500; 27 Iowa, 415; 21 Kas. 43; 64 Iowa, 333; 1 Bish. Cr. Pro., sec. 40, 43, 548, 503, 613; 618. 2. The verdict is not sustained by the evidence.

Brice B. Hudgins, Judge. 1. Instruction No. 1 is not sustained by any authority, ancient or modern. After usurious securities have been destroyed by mutual consent, a promise by the borrower to repay the principal and legal interest is founded on a sufficient consideration, and is binding. 17 Ark. 138; 3 Am. Dec. 273; 10 Wheat. 368; 1 Campbell, 165; 2 Taunt. 184; 19 Johns. 447 ; 4 Denio, 104; 13 Wend. 505; 53 Iowa, 719; Perley, Int. 247. 2.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Plaintiffs, J. A. Williams and W. A. Gage & Co., sued the defendant upon a fire insurance policy to recover for the loss of certain property embraced therein. The defense was that the policy had been cancelled before the fire. The policy was issued to Williams, and by him, on the 18th of November, 1893, assigned to W. A. Gage & Co., with the assent of the defendant company indorsed thereon.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. This is an action by Campbell Leflore against John B. Maledon for a balance of $1,665.59 alleged to be due upon a promissory note. The note was jointly executed to Leflore for the sum of $5,000 by the following parties, to-wit: Fort Smith Evaporating Company, J. H. Clendening, Wm. M. Cravens, Geo. Sengel, and John B. Maledon, the appellant.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. In the year 1888, the appellants, Benj.

Brice B. Hudgins, Judge. The land is subject to execution. A debtor cannot schedule his homestead against a judgment on a note for the purchase money thereof, although the purchase money note has been transferred to the hands of a third party before suit. Const. Ark. art. 9, sec. 3; 36 Ark. 92; 48 id. 214; 54 Ga. 355.

James R. Robinson, Chancellor. STATEMENT BY THE COURT. In the year 1879, the Memphis & Great Southwestern Railway Company was incorporated under the laws of this state. Afterwards J. B. Bowman subscribed for 16,670 shares of the capital stock of said company, of $100 each. The company did nothing but organize and make a preliminary survey.

David W. Carrorr, Chancellor. STATEMENT BY THE COURT. This is a controversy concerning the right of the city of Little Rock to control and keep open a street across a piece of land claimed by appellant, Waring. The suit was brought by Waring to enjoin the city from interfering with his possession of such land. The city claimed that Eighth street extends across said laud, and that it has been established across said land both by dedication and prescription.

Appeals from Garland Chancery Court. Leeand Leatherman, Chancellor. 1. All inquiry as to the validity of the tax-sale or tax-title is cut off by the decree confirming the sale. 42 Ark. 344; 55 id. 105; 52 id. 400; 55 id. 400; 50 id. 189; 49 id. 336; 57 id. 423; 55 id. 37; lb. 472. 2. Appellee does not fall within the purview of “defendants constructively summoned,” as mentioned in sec. 4197, Sand. & H. Digest. 57 Ark. 49. 3. The first deed from the land commissioner was good.

Jephtha H. Evans, Judge. 1. The answer does not set up the fact that the mortgage was void under the homestead act, and there was no evidence presented to sustain that defense. The sole defense was usury. Thompson, Homestead, etc., sec. 701-2; Beach, Eq. Pr., .sec. 516; 46 Ark. 103. Homestead should be pleaded. Waples, Homesteads, 718; 26 Ark. 356; 42 id. 513; Thompson, Homestead, etc., 701; 29 id. 500; 24 id. 371; 6 id. 135; 59 id. 170; Mansf. Dig., sec. 5077.

Marcus L. Hawkins, Judge. 1. Appellant’s mortgage bound the crop the same as if it had already been in existence. Sand. & H. Dig., sec. 5100; 32 Ark. 598. The title vested in appellant from the date of its execution, and any contract made with appellee afterwards was subject to appellant’s rights. Sand. & H. Dig., sec. 5102, 5105.

David W. Carroll, Chancellor. STATEMENT BY THE COURT. One Valentine Melvin died seized of a certain tract of land, which was his homestead. His widow, Rebecca Melvin, while occupying it, married one Bourke, to whom, for a valuable consideration, she conveyed same. Bourke filed a bill in the Pulaski chancery court, setting up the deed from his wife, and alleging that there were no known heirs of Melvin, but that there were unknown heirs, non-residents of the state.

John B. McCalEB, Judge, on exchange of circuits. STATEMENT BY THE COURT. Appellees were the holders and beneficiaries of two deeds of trust, which were executed by one M. A. Wycough, to secure an indebtedness which amounted in the aggregate to $5,500.

William P. Ffazfl, Judg-e. 1. The complaint is fatally defective. It does not state facts to constitute a cause of action. It fails to state where the defendant neglected to post its schedules; the agent upon whom the notice was served; the kind and character of notice served; to show any facts as to how plaintiff was aggrieved, or whether he was aggrieved at all. All these facts were necessary to be set up, not only in the notice, but in the complaint. 2.

Felix G. Taylor, Judge. John Bryant was tried and convicted before a justice of the peace on an information filed by the prosecuting attorney, alleging that, being the owner of the old Baird Saloon building in the town of Paragould, in the county of Greene and state of Arkansas, he “did unlawfully sell and give away, and cause to be sold and given away, and keep for sale and to be given away, and allow to be kept for sale and to be given away, in said building, ardent,…

Jephtha H. Evans, Judge. “No one species of property * * shall be taxed higher than another species * * of equal value.” Const, art. 16, sec. 3. There must be uniformity. 27 Ark. 202-210; 49 Ark. 337; 48 id. 382; 101 U. S. 143, 153; 127 id. 193; 41 Fed. 468. It is a violation of the constitution to assess at its full value one piece of property, while all other property is assessed at fifty per cent. 1.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. The intestate of appellee brought his action of unlawful detainer for the property in question against H. C. Billingsly in April, 1892, alleging a lease of the premises to Billingsly in writing, and a forfeiture of the lease by Billingsly; and prayed for possession, and for $600 damages for the unlawful detention thereof.

James S. Thomas, Judge. 1. There is a total want of proof to sustain the verdict. 34 Ark. 632; 47 id. 567; 57 id. 567. 2. The third instruction given by the court on its own motion is not the law. It throws the burden on defendant to show his innocence by a preponderance of the evidence. The court should have given the second and third asked by defendant. An honest purchase of property cannot be criminal by reason of the price paid.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Proceeding to enjoin clerk of Sebastian county from extending taxes against certain lands owned by the School District of Port Smith. The facts are as follows: A portion of the military reservation at Port Smith was donated by act of Congress to the city of Port Smith, to be held in trust for the use of the free public schools of said city.

Alexander M. Pueeie, Judge. 1. But one offense was charged in the indictment. The counts are but a foryi of alleging the modes and means in the alternative, which may be done. Sand. & H. Dig., sec. 2076. The second count states that the offense therein charged is the same as that charged in the first. Such indictments are good. 60 Ark. 13; 34 id. 433; 50 id. 306; 37 id. 224. 2.

Jephtha H. Bvans, Judge. Whether the original agreement was usurious or not, it matters not now; as that note was paid off. There was no usury in the $110.50 note, as the bank only deducted the interest in advance. 60 Ark. 288. Nor was there any in the Hays note.

Court. H. N. Hutton, Judg-e. I. The testimony does not sustain the verdict. Mays is not corroborated, except by Hamilton and Roberts, and only as to his statements to them before the meat was found, and in the absence of defendant, which was hearsay, and inadmissible. 1 Gr. Rv. (12 Rd.), 99; Rice on Cr. Rv., 370, 371; 11 Tex. App. 388; 14 id. 49. 2. The fifth instruction should have been g-iven.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. The appellant was indicted for assault and battery, alleged to have been committed in Greene county, was convicted, and appealed to this court. The evidence tends to show that the offense was committed on Lower White Oak Island, and that this island is in the St. Francis river, and that the river is the boundary between Craighead and Greene counties.

John M. Eleiott, Judge. STATEMENT BY THE COURT. The grand jury of Jefferson county in 1891 indicted W. J. Hancock for the crime of assault with intent to kill. Thereupon the circuit judge made and signed the following indorsement upon the indictment, to-wit: “Bail will be received in this case in the sum of one thousand dollars.” Hancock was arrested, and gave bond in the sum of $1,000 for his appearance, with the appellants, Ferd Havis and Alvah Collier, as his sureties.

Rueus D. Hearn, Judge. 1. The policy was cancelled. The cancellation took effect the moment the agent received the policy from the appellees for cancellation. 36 Mo. App. 126; lb. 142. 2. The surrender of the policy by insured to the agent, and the acceptance of it by the latter with the mutual intention of cancelling, is a cancellation. 62 N. Y. 599; 39 Mich. 489; 90 Pa. St. 220; 6 N. Y. S. 602, 876.

Richard H. Poweee, Judge. STATEMENT BY THE COURT. • This is an indictment in the Independence circuit court for the crime of incest. Trial and verdict against defendant, and he appeals to this court. The errors assigned in the motion for new trial are: (1) The verdict is contrary to the evidence. (2) The verdict is contrary to law.' (3) The verdict is contrary to both the law and evidence. (4) The instructions 1, 2, 3 and 4, given by the court, were erroneous.

James S. Thomas, Judge. It was not necessary for the indictment to state that the words and acts of defendant were done in a manner calculated to disturb, insult or interrupt the con-g-reg-ation. Sand. & H. Dig., sec. 1541. The indictment charges appellant with disturbing the congregation by doing certain things, naming them. This is sufficient. 31 Ark. 638; 14 Ind. 219; 47 Ark. 233. It is not necessary to use the exact language of the statute.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. At the February term, 1895, of the Craighead circuit court, Jonesboro district, the defendant, J. P. Bennett, was indicted for forgery. The case was removed on change of venue to the eastern district of Clay county, and at the January term thereof, 1896, defendant was convicted, and sentenced to the penitentiary for a term of two years and six months. The indictment is as follows : “INDICTMENT.

Richard EL Poweee, Judge. STATEMENT BY THE COURT. The defendant, Starchman, was indicted by the grand jury of Lawrence county for the crime of burglary.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The appellant, Charles Hamilton, on the 2d day of December, 1895, in the Charleston district of Franklin county, killed A. C. McAbee by shooting him with a gun. He surrendered himself, and was placed in jail at Ozark, in said county, to await the action of the grand jury.

Robert J. Lea, Judge. STATEMENT BY THE COURT. The American Employers’ Liability Insurance Company issued its policy to the City Electric Street Railway Company, which contained this clause: “That said company will pay to the insured or their legal representatives all damag'es with which the insured may be legally charged, or which the insured may be required to pay (not exceeding the amounts hereinafter limited), for or by reason of any liability on account of injuries…

Appeals from Carroll Circuit Court in Chancery, Western District. Edward S. McDaniel, Judge. STATEMENT BY THE COURT. The appellee brought this suit to foreclose a .mortgage which was given to secure the following note, to-wit: “$2000.00 Minneapolis, Minn., Dec. 11th, 1888.

<p>Appeal from Yell Circuit Court, Dardanelle District.</p> <p>Jeremiah G. Waeeace, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>The appellant, W. P. Cotton, was indicted for selling whiskey within five miles of the public school building of the town of Dardanelle. The case was submitted to the court upon the following agreed statement of facts: “It is agreed that, on the first day of June, 1895, the defendant, W. P. Cotton, sold to Hugh McNutt for the sum of two dollars five gallons of whiskey at his distillery in the town of Dardanelle, Yell county, Arkansas; that at the time of said sale the said W. P. Cotton was a manufacturer of ardent liquors in said town of Dardanelle, and that said sale was made at his warehouse in said town, and that said whiskey was in the original package, and was manufactured by said Cotton.”</p> <p>The court found the defendant guilty as charged, and assessed his punishment at a fine of $50.00 and imprisonment in the county jail for a period of thirty days, and gave judgment accordingly. Prom this judgment an appeal was taken.</p> <p>The act of 1895 is but cumulative of the acts of 1883 amending the act of 1879, and appellant comes within the proviso of sec. 1 of said act. The act of 1895 contains no repealing clause, and the proviso of sec. 1 is not repealed. 51 Ark. 177; 41 id. 308 ; 51 id. 182.</p> <p>In the construction of a statute the context and the general scope of the same must be considered. Pndlich, Interp. Stat., sections 40, 41, 43, 46, 228 241. In amendments to a general scheme of legislation a repeal is not presumed. Pndlich, sections 195, 183, 210, 226; 67 Iowa, 541; 91 N. Y. 231. Where there is no repealing clause, it does not repeal a former statute, unless it is repugnant, or covers the whole scope of legislation. 41 Ark. 150; 11 Wall. 656; 11 Wall. 364, 365; 3 How. 648; 10 Ark. 588; 23 Ark. 304. It is not enough to justify the inference of repeal that the later law is different; it must be contrary to, and in conflict with, the prior law. Sutherland, Stat. Const, sec. 147, 152, 153; 94 Pa. St. 495, 502, 503; 50 Ala. 276, 277; 56 Ala. 500; 16 La. An. 379, 380; 39 N. J. L. 274, 275, 276, 277; 16 Peters, 342, 363; 54 Mich. 168, 171. If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced, and made to operate in harmony, and without absurdity, both statutes will be upheld. Sutherland, Stat. Con. sec. 152; 12 Bush (Ky.), 233, 236, 237; 64 Md. 419, 420, 421, 422, 423; 2 Ohio St. 607, 608.</p>

John M. Feeiott, Judge. An owner of lands not in possession, but who has leased the same for a term of years, and placed his tenant in possession, cannot maintain forcible entry and detainer against one who takes possession with the consent of his tenant in actual possession. 38 Ark. 587; 13 id. 448; 31 id. 296; 38 id. 257; 41 id. 450; 53 id. 94; 27 id. 46.

William H. Cate, Judg-e. 1. The evidence does not show title in appellees. 47 Ark. 210; 18 So. 655. 2. A sale is not completed when the quantity of the property sold is to be ascertained. 39 Am. St. 39; 29 Tex. 204; 22 Wall. 180; Benj. on Sales, B. 2, C. 3. Appellants had no notice of the sale, and they were innocent purchasers. 127 Mass. 381; Benj. on Sales, sec. 675, and note; 57 N. H. 102; 44 Yt. 389; 49. N. Y. 35; 68 N. Y. 598.

James S. Thomas, Judge. The indorsement in this case was a complete written indorsement, expressing only one thing, i. e., a transfer of title, and there was no personal liability as ■an indorser. This personal liability was excluded by operation of the maxim, Exftressio unius, etc. 32 Ala. 540; 39 Mich. 171; Tiedeman on Com. Pap., p. 442. 1 Dan. Neg. Ins.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. The appellees, John Y. Taylor et al., who resided in Tennessee, owned lands in Arkansas. They employed the appellant, P. M. Quertermous, a resident of Arkansas, to sell certain tracts of their lands. He afterwards informed them that one Derreisseaux wished to purchase the land, and had offered therefor the sum of $1,000.

Edward S. McDaniel, Judge. 1. If there was any doubt about the validity of the contract of 1888, it has been ratified by plaintiff. 30 Ark. 453; 32 id. 346; 47 id. 301; Id. 320; 50 id. 201; 53 id. 514; 11 Yes. 318; 2 Pom. Eq. Jur. sec. 965. 2. The complaint should have been dismissed for laches. 2 Pom. Eq. Jur. 965; 55 Ark. 92; Id. 155. 3. By statute, administrators are entitled to commissions on all sums paid out. Sand. & H. Dig., sec. 134.

IvEEAND Leatherman, Chancellor. STATEMENT BY THE COURT. W. M. Reed brought this suit against his wife, Henrietta Reed, to obtain a divorce. For cause of •action he alleged wilful desertion for over the period of one year without reasonable cause. The defendant filed an answer denying the allegations of the complaint, and further alleging that plaintiff had deserted her, and prayed for a divorce and alimony.

James W. Butler, Judge. The Adler-Goldman Commission Company, a corporation, brought suit in attachment in the Jackson circuit court against Morris, Charles, and Ben Bloom, partners by the style of Bloom Bros., and procured writs of garnishment to be issued, directed to Rufus C. Jones and David Bloom. Plaintiff filed interrogatories, and the garnishees answered, denying any indebtedness to defendants.

T. P. McGovern, Special Judge. Defendant is not entitled to rescissions of the contract because— 1. If there ever was any trust relationship, it was dissolved and repudiated by plaintiff more than a year before the sale of the land, and it is not contended that defendant agreed to pay more than the land was worth, or that he was in any manner deceived by defendant or forced him to make the trade. 2.