Volume 63 — Arkansas Reports

J. G. Williamson, Special Chancellor. STATEMENT BY THE COURT. This is a bill to remove a cloud from the title to the west part of the northeast quarter of section 22, township 17 south, range 2 west, 7.70 acres, and the north half of the northwest quarter of section 22 in the same township and range, 69.80 acres, both of which tracts were wild and uncultivated, and not in the actual possession of any one, when this suit was brought.

James S. Thomas, Judge. There was a dedication by plaintiffs of the streets and alleys to the public. The filing and recording of the plat or map, and selling lots, paying taxes, etc., with reference to same, is a common law dedication. 42 Ark. 66; 58 id. 143, 494; 2 Dill. Mun. Corp. (3 Ed.) sec. 640; 23 N. E. 602; 9 So. 584; Elliott on Streets, ch. 4, p. 85 to 134; 22 Pac. 1057; 22 id. 615; 44 N. W. 677; 5 S. W. 350; 6 N. E. 866; 12 Ill. 29; 6 Atl. 633; 69 Am.

M. L. Hawkins, Judge. 1. Land may be divided into its composite elements, so that one may own the trees, another the soil, and another the mines beneath. Tiedeman, Real Property, 10.

David W. Carrodb, Chancellor. 1. There is no proof that the preferences of Louis and Charles Rudolph were simulated, fictitious, or fraudulent. On the contrary, all the evidence shows their debts were genuine and bona fide, — due for money borrowed to pay creditors. 2. Nor is there any proof that the assignment was made to cheat, hinder, or defraud creditors. The deed is in form, and violates no provision of the assignment law.

<p>Proof of Partnership — Admission.—The admission of one of several defendants jointly sued as partners is admissible againt himself, but not against his co-defendants, to prove the existence of the partnership relation.</p> <p>Same — Reputation. — Evidence that defendants were universally understood to be partners is incompetent to prove the existence of that relation between them.</p> <p>Liability of Agent to Third Person. — The fact that an agent operates a coal mine for his principal at the time of an injury to an employee working therein, occasioned by the ignition of gas which had accumulated in the mine, does not, of itself, render him liable for damages.</p> <p>Same. — An agent having complete control and management of his principal’s business, with the power to do what is reasonably necessary to protect third persons against injuries from omissions or commissions in the conduct of the same, is under obligation to so use that which he controls as not to injure another, and will be liable in damages to any third person for a failure to discharge such duty.</p> <p>Judgment — Service of Process Out of County. — A judgment cannot, under Sand. & H. Dig., § 5698, be rendered against a defendant jointly sued with others who neither resided in the county in which suit was brought at the commencement of the action, nor was summoned therein, if he objected before judgment to the proceeding against him, unless judgment is recovered against a co-defendant who was summoned in that county, or who resided therein at the commencement of the action.</p> <p>Proof of partnership or reputation?</p> <p>Liability of agent to third person.</p> <p>. service of process out of couoty.</p> <p>NoVE — As to liability of an agent or servant to third persons for negligence, see note to Mayer v. Thompson-Hutchison Building Co. (Ala.), 28 L. R. A. 435. (Rep.)</p>

James W. Butler, Judge. 1. The interplea should have been transferred to the chancery docket with the rest of the case. 2. The deed was plainly intended as an assignment. 54 Ark. 430; id. 6. The provision that on payment it. is “to become void, and all of said property to revest in the grantors,” does not affect the question.

Alexander M. Dueeie, Judge. 1. By act of Congress, the title to the school lands is vested absolutely in the state. 19 Ark. 308. The state has reserved the title and control of same ever since. Acts 1881, pp. 154 to 159; 50 Ark. 346; 49 id. Í72; 37 id. 133. The school district could not sue for the fund, it must be done by the state. Sand. & H. Dig. sec. 7125, and cases supra. 2. The maxim “nullum tempus, etc., applies.

Abexander M. DuEEie, Judge. 1. The evidence did not warrant the verdict. But granting that a brick struck plaintiff, is it not more probable that it was knocked off by persons crowding about the fire-wall, than by the guyed cleat ? There are several theories that are as probable as that defendant caused the brick to fall. And if they are equally probable, the proof fails. 57 Ark. 402. Defendant was author-ised to stretch its wires as it did. Sand. & H. Dig-, secs. 275-7-8.

• Feeix G. Tayeor, Judge. STATEMENT BY THE COURT. This case was tried upon the following state of facts: The plaintiffs, Smith, Graham & Jones brought suit on a promissory note for the sum of $232.50, which was not due, and sued out a writ of attachment, which was levied on the property of the defendant.

Robert J. Lea, Judge. This was an action of replevin brought by the Kalamazoo Pulley Company against the Ames Iron Works for the possession of a lot of pulleys which had been sold by the Kalamazoo Pulley Company to Thomas W. Baird, and by him sold to the Ames Iron Works. The evidence shows that in May, 1891, Thomas W. Baird bought of the Kalamazoo Pulley Company, through their agent C. S. Kelsey, a lot of pulleys, which were shipped to Memphis, Tenn.

P. A. Youmans, Special Judg-e. STATEMENT BY THE COURT. This is an action by the St. Louis, Iron Mountain & Southern Railway Company ag-ainst Bnoch Y. Petty, to condemn land for the purpose of constructing- a side track.

■Bdward S. McDaniee, Judge. STATEMENT BY THE COURT. Held: it as my property. I reckon you might call it that way. Ques. At the time you told your daughter that she could have it, was it your intention at that time to make her a deed to the land? Ans. Well, if she had lived. I expect I would if she had lived. It was my intention at the time I first gave her possession. Ques.

Edgar E. Bryant, Judge. STATE5MEJNT BY THE COURT. Bernheim Brothers filed a petition of intervention in an attachment suit brought by M. C. Wallace against George Aitken. Aitken was engaged in the saloon business at Huntington, Sebastian County, Arkansas, and purchased liquors of M. C. Wallace, of Port Smith, and of the interveners, and was indebted to both of said parties. Wallace testified that, on the 8th day of May, he sold to Aitken five barrels of whiskey, for which .

J. P. Roberts, Special Chancellor. 1. The divorce is sought on the ground of personal indignities. Sand. & H. Dig. sec. 2505, subd. 5. Alimony Jendente lite will not be granted as a matter of right. Ib. sec. 2512. Merit must be shown. 28 Ark. 93; 30 id. 73; 54 id. 558. The wife must be without fault. 2 Story, Rq. 1422-1423a; Schouler, Husb. & W. 485; 2 Bish. Mar. & D. sec. 351; 54 Ark. 175. She must be corroborated. 34 Ark. 37; 38 id. 119; 38 id. 324.

Feeix G. Tayeor, Judge. 1. The court erred in allowing Baer to testify to the evidence of Babb, given before the justice of the peace at the preliminary hearing. No proper foundation was laid. 33 Ark. 539, 533. 2. The motion to quash the transcript should have been sustained. Without the signature of the clerk, there can be no certificate, without which there is no transcript. Sand. & H. Dig. sec. 2173; 5 Ark. 474; 8 id. 252; 9 id. 469; 36 id. 237; 48 id. 94.

Circuit Court. Richard H. Poweee, Judge. The mode of procedure prescribed by section 6200, Sand. & H. Dig., is exclusive. * Sand. & H. Dig. secs. 6196, 6200; 26 S. W. 824; 55 Ark. 200; 56 id. 166; 29 id. 173. Where a statute creates a new offense, and provides a specific remedy or punishment, the statute is exclusive, and must be followed. 8 Otto (U. S.)., 555; 91 U. S. 59; Sutherland, Stat. • Constr. sec. 399; 39 Mich. 141; 67 Barb. 350; Sedgwick, Stat. & Const.

W. H. Collins, Special Judge. 1. The former decree in this court left no discretion in the court below. The sale was vacated and set ■ aside. The court below had no authority to do anything except to enter a decree in accordance with the opinion. 54 Ark. 395.

Francis Circuit Court. Grant Green, Jr., Judge. STATEMENT BY THE COURT.' D. M. Wilson, Sr., was appointed administrator of the estate of Vital Lesea, deceased, by the probate court of St. Francis county, and took possession of the assets of said estate. Wilson afterwards died, and the appellee, C. F. Hinton, was appointed administrator in succession of said estate of Vital Lesea.

<p>Schooe Land — Trespass—Party.—A deed conveying- land for school purposes to the people of a certain school district, instead of to the school district, though informal, is at least evidence of a dedication to public use, and the school district is the proper party to sue for a trespass thereon.</p> <p>Same — Notice oe Titee. — A school district to which land is conveyed by an unrecorded deed is entitled to possession thereof, as against one who subsequently purchases with notice of the prior conveyance or of facts sufficient to have put him upon inquiry.</p> <p>Who may sue for trespass to school laud.</p> <p>rAs to notice of title.</p>

David W. Carroll, Chancellor. STATEMENT BY THE COURT. On the 17th day of July, 1894, the appellee filed his complaint in the Pulaski chancery court, and alleged, in substance, that Merriman & Meukus had, on the 18th day of April, 1894, brought suit before Hiram Robbins, a justice of the peace of Big Rock township, Pulaski county, Arkansas, against one Fred Blittersdorf for the sum of $75, and at the time procured an attachment from said justice, which was levied on the east…

Fdgar F. Bryant, Judg-e. STATEMENT BY THE COURT. Held: the failure to give bond or make the affidavit is immaterial, surely the fact that the affidavit was based on no sufficient grounds would be immaterial, on collateral attack. 3 Pet. 193, 207; 131 U. S. 352; 150 id. 371, 380; 152 id. 327, 329; 156 id. 527, 533.

John B. McCaleb, Judge. 1. It was improper to permit counsel to use in argument the fact that defendant had taken a change of venue. 33 N. B. 1031. 2.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. Imogene Denty, an infant four years of age, was struck and injured by a train upon appellant’s railway. This action was brought to recover damages for her injury. The accident occurred at a station called Donaldson, an unincorporated village, having three stores and a planing mill, and where several families lived.

Alexander M. Duefie, Judge. The Public Parks Amusement Company was not the unconditional and exclusive owner of the property, and the policy was void. 123 Ind. 172; 70 Md. 538; 34 Pac. 140; 86 N. Y. 423; 57 How. Pr. 222; 5 Bush, 186; 61 N. W. 722. A conditional sale passes no title until the conditions are performed. 47 Ark. 363; 48 id. 160; ib. 273; 49 id. 63; 52 id. 164; 54 id. 478. The repre-rentations and stipulations were material. They were warranties. Cases sufra.

Brice B. Hudgins, Judge. STATEMENT BY THE COURT. The appellees recovered judgment, in a suit brought by them against the appellants, upon' a parol contract to renew a policy of insurance against loss by fire. The policy was not in fact issued in accordance with the agreement for renewal, and the property insured was consumed by fire. To reverse the judgment against them, King Brothers and the insurance company have brought the case here by appeal.

Edgar E. Bryant, Judge. If the company can be held at all, it must be because, with 3. knowledge of this contract, it ratified and confirmed it. Mechem, Agency, sec. 546, and cases cited. There is no evidence of this.1 To work an estoppel, there must be knowledge and conduct. Bigelow, Estop-pel, 546, 547, 552, 588, 589, et seq. Ratification can be predicated only upon knowledge, or upon intentional and deliberate ignorance. 55 Ark. 242; ib. 426-7; ib. 631, 632; 29 id. 530.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. This suit was brought by appellant, Clara T. Davis,, on the 8th day of September, 1892, upon the bond of her former g-uardian. Appellant was born on the 9th of October, 1867. Her mother, from whom she inherited property, died on the 28th day of July, 1869, and her father was, on the 7th day of September, 1869, appointed her guardian by the probate court of Jefferson county.

<p>Usury — Agreement to Eliminate. — Where the parties to a loan agree to eliminate all items that might render the loan usurious, the fact that by inadvertence some of the items were left uncorrected will not render the loan usurious.</p> <p>Same — Mistake.—Mere mistakes or clerical errors, evincing no intention to violate the usury laws, will not render a loan usurious.</p> <p>Same — Commissions.—An agreement by a borrower of money-to pay a specified commission to the lender for storing, weighing, and selling cotton to be received from the borrower will not render the loan usurious where the commission is reasonable, and is not shown to have been a cover for usury.</p> <p>Mortgage — Stipulation eor Attorney’s Eee. — A stipulation in a mortgage for attorney’s fees on foreclosure is void.</p> <p>Effect of agreement u°Surymnafe</p> <p>Effect of mistake.</p> <p>charge of commission not usurious,</p> <p>Effect of stipulation in mortgagee for attorney’s</p>

James El. Riddick, Judge. STATEMENT BY THE'COURT. This case was affirmed orally some time ago, the affirmance was set aside, and it now comes before us again on a motion for rehearing. Jones & McPherson Bros, was a firm composed of H. Y. Jones, who resided in St. Louis, Mo., and kept the firm’s office there, and J. J. McPherson and W. G. McPherson, who manage the firm’s business at Gates, Tennessee, and in and near Earle in Cross county, Arkansas, and were brothers.

Petition for Prohibition to Crawford Circuit Court. Jephtha H. Evans, Judge.

J. Virgik Bourkand, Special-Judge. The action is barred. Sand. & H. Dig., secs. 4834, 4835, 4846; 20 Ark. 186; 20 Pac. Rep. 49; 8 Kas. 262; 30 id. 181; 27 Pac. Rep. 978. At the time of the alleged-burning of the mill, no relation of debtor and creditor existed. 3 Ark. 552; 5 Am. & Fng. Fnc. Daw, 179, and cases cited; Whart. Daw Diet. “Debtor,” “Creditor;” Freeman on Judg. (3 Fd.), sec. 217. The relation of debtor and creditor must exist at the time the debtor absconds.

<p>Appeals from Yell Circuit Court in Chancery, Dardanelle District.</p> <p>Jeremiah G. Waeeace, Judge.</p> <p>Usury must be proved. The burden is on the party pleading it. 3 Green (N. J.) 481; 69 N. Y. 339; 57 Ill. 138; 36 Wis. 390; 22 N. Y. Eq. 606; 25 id. 491; 34 N. Y. 444; 48 Ill. 353; 17 Vt. 231; 2 Green (N. J.) 460. There was no usury shown. Banks v. Flint, 54 Ark. 50; May v. Flint, 54 Ark. 574; Holt v. Kirby, 57 id. 256.</p> <p>This case was tried upon the evidence taken in the case of Banks v. Flint, 54 Ark. 40. In these cases the lender exacted the highest rate of interest allowed by law, and was charged with notice that the agent would collect his commissions from the borrower. 51 Ark. 546; 51 id. 534.</p>

John B. McCaeeb, Judge. STATEMENT BY THE COURT. • The appellant had obtained, by conveyance to it, a right of way over the land of appellee. It fenced the right of way, enclosing a spring upon the appellee’s land, which had been used by the appellee’s tenants for general domestic purposes and for stock water. The fence cut off access to the spring by the way by which it had usually been reached from the dwelling house, barn and lots of the appellee.

Cross Appeals from Randolph Circuit Court in Chancery. John B. McCaleb, Judg-e. STATEMENT BY THE COURT. In 1890, appellants brought suit in the Randolph circuit court against the appellee, D. W. Reynolds, for the lands in controversy in the present suit.

John B. McCaleb, Judge. STATEMENT BY THE COURT. This is a case from the Randolph circuit court, and originally an appeal to that court from the probate court of Randolph county.

<p>Appeal from Lafayette Circuit Court in Chancery.</p> <p>Charles W. Smith, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>This suit in equity was brought by the A. J. Neimeyer Lumber Company against the Sunny South Lumber Company and C. H. Gates & Son to foreclose a mortgage upon personal property. The essential facts are as follows : The firm of C. H. Gates & Son purchased from C. L. Byrne & Company certain personal property, to-wit, a saw-mill, boiler and machinery attached, besides wagons and oxen, etc., for which they agreed to pay $6,500., Gates & Son paid $1,500 in cash, and gave five notes, of $1,000 each, for the payment of the remainder. It was also expressly agreed in the written contract of sale that the title of the property should remain in Byrne & Company, until said notes were paid in full, and it was further stipulated in said contract that “if the said C. H. Gates & Son shall make default in the payment of either of said notes, and said default shall continue beyond a reasonable time thereafter, the said Byrne & Company shall have the right to repossess themselves of said property.”</p> <p>The Neimeyer Company advanced to Gates & Son several thousand dollars in money to make payment to Byrne & Company upon this contract of purchase. Before any default had been made, Gates & Son mortgaged this property purchased from Byrne & Company and certain other property to the Neimeyer Company to secure to it payment of such money. Byrne & Company also promised the Neimeyer Company that they would make no sale or transfer to prejudice the claim of said company, without first giving it an opportunity to perfect the title in Gates & Son and protect its claim against Gates & Son by paying the remainder of the purchase money due Byrne & Company for such property. After-wards Gates & Son were unable to make payment of one of the instalment notes when it became due. They afterwards sold the property to appellant, the Sunny South Lumber Company. Said company purchased the interest of both Gates & Son and Byrne & Company in the property, and took a transfer of the contract of sale from Byrne & Company. Before making the sale and transfer, Byrne & Company informed Garrigues, who acted for the Sunny South Lumber Company in making the purchase, of the promise Byrne & Company had made to the Neimeyer Company, and refused to make anj’- sale or transfer to Garrigues until he promised that the Neimeyer Company should be protected and its claim paid. The consideration which Garrigues, as agent of the Sunny South Lumber Company, agreed to give Gates & Son for their interest in the property was the payment of the claim of the Neimeyer Company against Gates & Son and certain other debts of Gates & Son, and, as a further consideration, that it would transfer to Gates & Son stock in the Sunny South Lumber Company. Under this purchase from Byrne & Company and Gates & Son, the Sunny South Company took possession of the property. Afterwards the Neimeyer Company demanded of the Sunny South Company payment of its debt against Gates & Son. This demand being- refused, suit was begun by the Neimeyer Company to foreclose its mortgage upon the property purchased by the Sunny South Company.</p> <p>It alleged that Garrigues, acting for the Sunny South Lumber Company, and under an agreement with Gates & Son, purchased the property from Byrne & Company by paying the balance of the unpaid purchase money, and taking a transfer from Byrne & Company to Garrigues for the Sunny South Lumber Company. The prayer of complaint was that plaintiff have judgment against Gates & Son for its debt, “ that the same be declared a lien on the property in said mortgage recited, and that the same be ordered sold to satisfy said mortgage debt, and, furthermore, plaintiff prays that the said Sunny South Lumber Company be required to answer herein, and show, if any, what sum of money is due it by reason of assignment of contract of purchase to them, to the end that this plaintiff may reimburse them in their expenditure, relieve the property of all prior liens, and thereby obtain a decree for sale of the property free from other incumbrances,” etc.</p> <p>The Sunny South Lumber Company appeared, and filed a demurrer to the complaint, which being overruled it filed an answer denying that the mortgage to plaintiff was a lien upon the property, or that plaintiffs had any interest in the property, and denying the right of plaintiff to the relief prayed.</p> <p>Afterwards the Neimeyer Lumber Company filed an amendment to its complaint, alleging that payment of the indebtedness of Gates & Son to the Neimeyer Company was a part of the consideration which the Sunny South Lumber Company agreed to pay Gates & Son for the mill plant in question, and that said Sunny South Company was liable to plaintiffs for the full amount of its claim against Gates & Son; and they pray judgment for the same. The defendants filed a motion to strike out this amendment, and, when the cause came on for hearing-,,the motion was sustained, and the amendment stricken out. The court held that the note and mortgage sued upon were valid and subsisting liens upon the property mortgaged, that the plaintiff had the right to redeem the property embraced in said mortgage, and subject the same to the satisfaction of its mortgage debt. The court further held that the claim of the Sunny South Company was superior and paramount to the claim of plaintiff, to the extent of the money paid by the Sunny South Company in purchase of the property of Byrne & Company, with interest thereon, and necessary expenses, and that, upon the payment of the same by plaintiff, it was entitled to the possession of said property for the foreclosure and satisfaction of its mortgage. The court gave judgment in favor of plaintiff against Gates & Son for the amount of the note and mortgage sued on, and ordered an account to be stated between plaintiff and the Sunny South Company, defendant. The report of the master showing that the mortgaged property had been completely consumed while in the possession of said defendant company, the court found that “the value of all said property and rents, reduced by expenditures as aforesaid, was more than sufficient to pay plaintiff’s judgment and decree against C. H. Gates & Son on the mortgage in question,” and . thereupon gave judgment against the Sunny South Lumber Company for the amount of said decree, being the sum of $5,94-1.00. From which decree an appeal was taken.</p> <p>The sale of chattel under agreement that the title shall remain in the vendor until the payment of the purchase price passes no title until the condition is performed, even to a bona fide purchaser, as against the original vendor. 1 Benj. Sales, sec. 366; 47 Ark. 363; 48 id. 160; 49 id. 63; 54 id. 476. The mere willingness or readiness to pay amounts to nothing, without an offer or tender of payment and a refusal by the creditor. 25 Am. & Eng. Enc. Daw, p. 916, and cases cited. There are defects in the acknowledgment and record of the mortgage which render it void. Sand. & H. Dig., secs. 715, 717, 5090; 49 Ark. 83; 53 id. 18; 9 id. 112; 25 id. 152; 4 id. 536. The mortgage is void for uncertainty of description. 35 Ark. 470; 30 id. 657; ib. 680. Appellee had no right to redeem after a foreclosure had been had under the contract. Jones, Chat. Mort. (2 Ed.), secs. 693, 696, 697. ■ Appellee was not entitled to rents. 20 Am. & Eng. Enc. Daw, p. 1035; Hempst. Rep. 563. 3 Am. & Eng. Enc. Daw, p. 200, sec. 14; 20 id. p. 611, and note 1. The cases of 36 Ark. 17, 31 id. 430, and 40 id. 275 are not applicable. He that comes to redeem a mortgage must show title to the equity of redemption. 1 Yern. 182. Appellant was not liable for the loss by explosion. A mortgagee in possession is responsible for ordinary diligence in preserving the property after condition broken, and while the right of redemption exists, and is liable for ordinary neglect. . If the property be destroyed without fault on his part, he cannot be held for its value. Jones on Chat. Mortg. (2d Ed.), sec. 697, and cases cited; 5 Wait, Act. &Def.506. The tenement houses were not covered by the mortgage. The tender by appellee was insufficient. 25 Am. & Eng. Enc. Daw, 910; 53 Ark. 69. The decree is excessive. Appellants were entitled to the amount paid Byrne on the purchase money debt. Appellee was a foreign corporation doing business in this state without complying with our statute, and cannot- sue in this state. 8 Am. & Eng. Enc. Daw, 340; 8 Wall. 168; 143 U. S. 305; 93 U. S. 99, 102; 124 id. 474.</p> <p>The conditional sale of personal property, with a reservation of title, creates the relation of debtor and creditor, and the reservation of title is but a security for the debt. 48 Ark. 160; 36 id. 71; 52 id. 162. The debtor has an equitable interest, which he can sell or mortgage. A conditional sale to secure a debt is a mortgage. 1 Jones, Mortg. sec. 11; 13 Ark. 112; 32 id. 478; 5 id. 321; 40 id. 146; 29 id. 358; 34 id. 113. The testimony shows that appellant agreed to pay appellee’s debt, and took the property under that agreement, and it cannot question the validity of the mortgage. 47 Ark. 301; 59 id. 280. The mortgage was good between the parties without acknowledgment or record. 25 Ark. 152; 49 id. 279. In a suit between senior and junior mortgagees no tender is necessary. • Jones on Chat. Mortg. sec. 690 to 696. A foreclosure does not bind a junior mortgagee unless he is made party to the suit. 37 Ark. 632; Jones on Mortg. sec. 1057. The value of the plant cut no figure. Appellant was liable for use and occupation, and it was error to allow credit for repairs and improvements made by appellant to make the plant more profitable to it in- its business, but not necessary to preserve it. 52 Ark. 381; 42 id. 422; 38 id. 285. It was error to allow interest on these expenditures. 42 Ark. 422; 36 id. 17. It is proper to tax a mortgagee in possession for use and occupation of same. Jones on Chat. Mortg. sec. 696; 2 Jones on Mortg. secs. 1114 to 1143; 36 Ark. 17; 40 id. 275; 49 id. 508. When the mortgagee converts or makes way with the property, equity will render a personal decree for the value of the equity of redemption. Jones on Chat. Mortg-. sec. 684. The court should have rendered a personal decree on the amendment to the complaint; but as appellee succeeded in its claim, no appeal was necessary from the sustaining the demurrer. It is a rule of appellate courts that it makes no difference upon what grounds the lower court bases its judgment, if the decree is right upon the whole record. 56 Fed. Rep. 567; 6 Ark. 431; 7 id. 238. Having taken the property under a promise that appellee’s claim would be paid, appellant is bound by that promise. 45 Ark. 67; 42 N. Y. 318; 67 Mass. 391. Appellee relinquished a valuable right, relying on the promise of appellant to pay its claim, and appellant is estopped to dispute or take any advantage of that claim. 35 Ark. 465; 37 id. 37; Herman on Estoppel, secs. 753 to 785. The amendment presented several causes of action, mainly equitable, and there was no motion to transfer. The court should have rendered judgment on all. 27 Ark. 585; 35 id. 565; 37 id. 164; 48 id. 312; 46 id. 96. The judgment is right upon the whole record, and as the final decree was put upon grounds differing from our view of the case, but the relief was equally adequate, appellee cannot complain, and there was no necessity to appeal. 90 Mich. 152; 56 Ark. 450; 48 Mass. 300; 24 Mich. 305; 93 id. 383; 82 id. 105; 48 Ark. 258; 80 Cal. 507; 69 Mich. 127; 63 id. 25. See 56 Ark. 119.</p> <p>The alleged promises of appellant, and the testimony taken on the issues raised by the amendment to complaint, have nothing to do with the case, as appellee did not appeal from the judgment dismissing its amended complaint. 25 Ark. 52; 34 id. 63; 26 id. 526; 24 id. 30; 14 id. 122. If such were made, they were within the statute of frauds. 45 Ark. 67; 37 id. 145; 52 id. 174. They were made before the incorporation of appellant, and are void. 37 Ark. 164. The mortgage is void because not recorded in the proper county, and for uncertainty. 43 Ark. 350; 41 id. 495. The assignment cannot be varied or added to by parol evidence. 24 Ark. 210; 13 id. 593; 24 id. 269.</p>

Robert J. Dea, Judge. The cause should have been transferred to equity. Sand. & H. Dig., sec. 5619. Interpleader is one of the recognized heads of equity jurisdiction. 2 Story, Rq. Jur. sec. 806; 11 Am. & Rng. Rnc. Daw, p. 496 and p. 506. Ror practice, see 2 Paige, Ch. 572; 3 Rdw. Ch. (N. Y.), 71; Story’s Rq. Jur. sec 801; 2 id. sec. 824; 20 Ark. 641; 3 Wait’s Ac. & Def. p. 138.

Appeals from Clay Circuit Court in Chancery, and from Craighead Circuit Court, Jonesboro District. Eebix G. Tayeok, Judge. The general rule is that money realized from a voluntary sale of the homestead or other exempt property is subject to execution. But where sold under an execution or at forced sale, the proceeds in excess of the amount required to satisfy the liens are exempt from seizure and sale under execution. 48 N. Y. 188; 86 Am. Dec. 707; 92 Am.

A-ppeal from Clark Circuit Court. Rufus D. Hearn, Judge. Since the passage of the act of March 30, 1891, a defendant, after having been convicted of a misdemeanor before a mayor’s court, cannot be convicted again of the same offense on indictment in the circuit court. That is the -plain intention of the legislature. 3 Ark. 284 and 285; Const. 1874, art. 7, sec. 40; Sand. & H. Dig., sec. 1932, subd. 5; 56 Ark. 367.

Robert J. Lea, Judge. STATEMENT BY THE COURT. The appellant was indicted with one Charles Gow-ens in the Pulaski circuit court for and convicted of grand larceny, and appealed to this court. No exceptions were saved to the instructions of the court. The chief witness against the defendant was the said Charles Gowens, who was an accomplice, and was himself convicted of the offense.

Robert J. Dea, Judg-e. STATEMENT BY THE COURT. The appellant, Ed. Jenks, was a convict serving- a term in the penitentiary for the crime of burglary and larceny. While thus serving as a convict, he was made a “trusty” by the commissioners of the penitentiary. He was afterwards sent with other convicts from the walls of the penitentiary to a camp or stockade, near the state insane asylum, upon which the convicts were at work.

Jeremiah G. Waeeace, Judge. There is no provision of law for the payment of the services charged for in this claim. It may be one of the duties required of him, but he takes the office cum onere. 32 Ark. 45; 56 id. 581; 57 id. 487. Nor definition of “settlement” and “account,” see Webster; 1 Am. & Eng. Enc. Law, p. 108; 22 id. p. 488; Bouvier, Law Diet.

Rueus D. Hearn, Judge. This suit is founded on an illegal contract, which can neither be enforced in law or equity, and all the parties are in -pari delicto, and the courts will leave them where they have placed themselves. Dawson, Cont. secs. 310, 311; 32 Vt. 721, 546; Dawson, Cont. secs. 314, 315; 2 Parsons, Cont. (3 Ed.), p. 253; 47 Am. Dec. 422; 33 Am. Rep. 548; 47 Ark. 378; 48 id. 490; 31 Am. Dec. 599; 34 id. 712; 32 id. 348.

<p>Vacating Judgment — Jurisdiction—Docket.—The fact that an action to vacate a judgment at law, under Sand. & H. Dig., § 4197, was placed on the chancery instead of the law docket is immaterial.</p> <p>Same — UnavoidabdE Casuai/üy. — A judgment by default may be set aside where the defendant therein was not served with summons, under Sand. & H. Dig., § 4197, subdiv. 7, authorizing the vacation of a judgment for “unavoidable casualty or misfortune preventing the party from appearing or defending.”</p> <p>Same — Practice.—In an action at law to vacate a default judgment on the law docket for failure to serve defendant with notice, the judgment should be set aside and a new trial ordered, instead of making perpetual a temporary injunction restraining the execution of the judgment.</p> <p>Jurisdiction to vacate judgment at law.</p> <p>Unavoidable casualty.</p> <p>Practice as to injunction.</p>

Jeremiah G. Wallace, Judge. statement by the court. This appeal is to reverse a judgment for $286.90, which appellee recovered of the appellant for an alleged conversion of certain cattle, which appellants agreed to transport under the following- contract: “Arkansas Station, November 3, .1892- This agreement, made between the Missouri Pacific Railway Company, of the first part, and-of the second part, witnesseth: That, whereas, the Missouri Pacific Railway Company transports…

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. To reverse a judgment recovered by the appellee for $250 against the appellants, on account of damages claimed to have been sustained by the appellee, in injury done to his cattle shipped over appellant’s railway, this appeal was taken. In consideration of a reduced rate, the shipper (the appellee) entered into a contract with the carrier (the railway company), as follows : “First.

Edward S. McDaniel,, Judge. STATEMENT BY THE COURT. This action was brought by the State of Arkansas against W. H. Wood, as treasurer of Carroll county, and Jas. Held: etc., and he was ordered by the court to produce said funds to be counted, and refused, • failed, and neglected so to do.

John B. McCaeeb, Judge. Defendant’s relation to the baggage, at the time it was destroyed, was that of warehouseman, and not that of common carrier, and, without proof that the fire was occasioned by negligence of defendant, plaintiff could not recover. ° Hutchinson, Carriers, secs. 707, 713; 50 Barb. 193; 49 id. 148; 56 id. 191; 3 Daly, 162, 390; 8 Bush (Ky.), 184; 18 S. W. Rep. 850; 4 Mo. App. 582; 17 S. W. Rep. 135; 35 Vt. 695; 2 Civ. Ct. App.

Rueus D. Hearn, Judge. STATEMENT BY THE COURT. Suit in equity to foreclose a mortgage upon the roadbed, rolling stock, and other property of the Southwestern Arkansas & Indian Territory Railroad Company.

Marcus L. Hawkins, Judge. statement by the court. On the 21st November, 1894, R. W. Shelton, of Monticello, made an assignment for the benefit of his creditors.

Marcus B. Hawkins, Judge. STATEMENT BY THE COURT. This action was brought by Parker & Waters against the Carpenter Humber Company. The plaintiffs seek to establish a lien upon land of said company for the value of materials furnished and repairs done for and upon building's and improvements thereon. The property upon which it is claimed that the lien exists consists of two separate tracts of land, over a mile apart.

James W. Buteer, Judge. The effect of the conveyance was to vest the title in the minors, and they acquired a present interest. 45 Ark. 481; 48 id. 17; 51 id. 530; 52 id. 188.

Appeal, from Lee Circuit Court. H. N. Hutton, Judge. STATEMENT BY THE COURT. The appellant, Lee Berry, was convicted of murder in the first degree, committed by poisoning; and appealed to this court. On the trial of the cause, Dr. E}. V. Chandler, a witness for the state, testified : “On the night of the 26th of last October I was called, in my professional capacity, between 8 and 9 o’clock, to visit Bd.

Will P. Fea£EL, Judge. STATEMENT BY THE COURT. This is a suit on a promissory note. The defense is usury. The proof shows that appellees applied to one John C. Short, husband of the appellant, for the loan of four hundred and fifty dollars. Short did not have the money at the time, but informed appellees that he could get the money for them.

Jephtha H. E)vans, Judge. 1. When an attachment is sued out under an honest and reasonable belief that plaintiffs are entitled to it, then they act without… Held: because of its wantonness, for more than actual damages, unless he participated in the evil intent. See 9 Heisk. 52; 42 Wis. 654; 56 N. Y. 44; 10 Wis. 388; 57 Wis. 510, 577; 3 R. I. 88; 26 At. Rep. 193, 196; 62 Ped. Rep. 469, 480; 16 Mich. 447 ; 21 Vroom, 481. There is no proof of .injury to credit. 9 So. Rep. 818.

Wide P. Feazee, Judge. A contract to build a court house without an appropriation therefor, in dollars and cents, is invalid. Sand. & H. Dig., secs. 1379, 1276, subd. 1, 1278, 1277, 6418; Const. 1874, art. 16, secs. 12, 13, and art. 5, sec. 29; 34 Ark. 307-310; 61 id. 74; 54 id. 645, 657, 659. As to what is necessary to constitute an appropriation, see 106 Cal. 113. See also 30 Ark. 609, 612; Cooley, Taxation, p. 280.

George Sibey, special Judge. STATEMENT BY THE COURT. At the August term of the Bonoke circuit court, -to wit: On the 17th day of August, 1896, a day of said term, S. S. Glover, the sheriff of said county, reported to the court that J. H. Hicks, the contractor for the county prisoners, refused to pay costs and take the defendants convicted of misdemeanors in cases where the fine was less than twenty dollars.

Fdgar F. Bryant, Judge. STATEMENT BY THE COURT. Joseph Brogan, a resident of Sebastian county, died in 1873, leaving an estate of real and personal property. His brother, H. C. Brogan, who was also an heir, was appointed administrator of his estate in November, 1873. The assets of the estate have now been exhausted, with the exception of a lot in the city of Fort Smith, and a farm in the county of Sebastian, but a portion of the debts of the estate are still unpaid.

David W. Carroee, Chancellor. STATEMENT BY THE COURT. Suit in equity by Arkansas Pire Insurance Company against Zeb Ward, Oscar Davis, and J. P. Joyce & Company to set aside a transfer of cotton alleged to be fraudulent, and to subject said cotton to the satisfaction of plaintiff’s judgment.

Robert J'. Lea, Judge. STATEMENT BY THE COURT. The appellant, Jennie Grow, had a credit in the First National Bank of Little Rock, in February, 1892, and on the 15th of that month wrote to H. G. Allis, then president of that bank, addressing him in his individual capacity, however, and made inquiry of him as to how much the bank would pay as interest for the loan of her money, or language to that effect.

<p>Dangerous Premises — Contributory Negligence. — One who enters a freight house by a door 22 inches higher than the platform in front of it and in coming out falls, in consequence of the absence of a step, is guilty of contributory negligence, and is not entitled to recover for the injuries received by the fall.</p>

John M. Feliott, Judge. STATEMENT BY THE COURT. This action was to recover $186.75 for rent of a store-house in Pine Bluff.

Preston C. West, Special Judge. The county court has no power to levy a school tax; it must be voted by the electors of each school district. When so levied, it becomes a fund to be placed to the credit of the district levying and paying it, and is not subject to be apportioned to any district subsequently created by law out of part of its territory. Const.

Rueus D. Hearn, Judge, The court erred in ruling out the written contract of shipment. 46 Ark. 238, 240-6; 50 id. 397. The clauses exempting from liability were reasonable and valid. Cases sujra; 57 Ark. 112; 11 So. Rep. 791; 24 S. W. Rep. 355; 18 S. F. Rep. 88; 59 Fed. Rep. 879; 8 C. C. App. 341; 24 S: W. Rep.. 354; 21 id. 77: 78 Tex. 374; 14 S. W. Rep. 666.

Grant Green, Jr., Judge. STATEMENT BY THE COURT. Suit in equity to surcharge and correct final settlement made by a guardian, which settlement had been confirmed by the probate court. James H. Campbell, guardian of Lucy Clark, a minor, filed in October, 1888, his final settlement'of such guardianship.

Marcus L. Hawkins, Judge. Prank McCoy was an accomplice. Sand. & H. Dig., sec. 1451. And defendant could not be convicted on his uncorroborated testimony. Ib. sec. 2230. Instructions Nos. 11 and 12 asked by defendant are the law. 122 Ill. App. 79.

Robert J. Lea, Judg-e. The court erred in admitting- the testimony of the constable, Beller, that the rapist was described to him by the prosecutrix, and that he identified him by that description, and arrested him. Lewis v. State, 61 Ark. 494. Also in allowing- him to testify as to what prose-cutrix said and did when he arrested defendant and took him in her presence. • 34 S. W. Rep. 274; 28 id. 810.

<p>Appeal from Lawrence Circuit Court in Chancery, Pastern District.</p> <p>James W. Buteer, Judge.</p> <p>This was an action of ejectment, based on a tax deed executed by virtue of a sale for non-payment of taxes for the year 1887. The defense was that the sale was void because the land was sold for a larger amount of costs than was chargeable against it. Defendant asked that his answer be taken as a cross-bill, and that plaintiff’s deed be removed as a cloud upon his title. Upon defendant’s motion, the cause was 'transferred to equity. On the hearing- a decree was entered in plaintiff’s .favor, from which this appeal is prosecuted.</p> <p>1. The land was sold for illegal charges, and the tax title is void. 56 Ark. 93; 60 id. 36.</p> <p>2. The delinquent list was not posted in the clerk’s office for twelve months, as required by law. 55 Ark. 194; ib. 216; Cooley on Tax. p. 334; 9 Tex. 420-1; 15 id. 453; 61 Pa. St. 413; 48 Mo. 536.</p> <p>1. The evidence shows that no illegal charges entered into the sale. The law requires the collector’s fee of 25 cents for the certificate of purchase to be taxed as costs of sale, and hence it is not illegal. 61 Ark. 36 is wrong, and should be overruled. Sand. & H. Dig., secs. 6607, 6613, etc.</p>

Febix G. Tayeor, Judge. Appellee knew of the defect. He took the risk, and, on the evidence, the court should have directed the jury to return a verdict for defendant. 57 Ark. 461. See Shearman & Redf. Neg. (4 Rd.), sec. 11; 46 Ark. 555; 21 S. W. Rep. 648; 23 id. 643; 59 Tex. 22; 33 S. W. Rep. 722; 30 id. 759; 22 id. 162; 150 Mass. 423; 23- N. R. Rep. 227; 46 Ark. 567; 26 S. W. Rep. 592; 33 Kas. 660.

Brice B. Hudgins, Judge. STATEMENT BY THE COURT. T.he appellant, John Bench, was indicted for forgery and for uttering and publishing a forged instrument of writing.

James S. Thomas, Judge. I. The court should have excluded the testimony of appellee as to the value of his services. He was not an expert, and if he was no foundation was laid. 34 Am. Sc E)ng. R. Cas. 424; 27 id. 307. Appellee was not insurable, and the tables of life expectancy were inadmissible.

Marcus L. Hawkins, Judge. Applying the test laid down in Jaggard, Torts, p. 603, appellee has no standing in court. The original suit must be terminated. Id. p. 610; Drake on Att. sec. 730; 14 Am. & Eng. Enc. Law, p. 28. The plaintiff must have been the defendant in the original proceeding. Jaggard, Torts, p. 612; 18 S. W. Rep. 354. See 2 El. & Bl. 216; 91 Ky. 135; 15 S. W. Rep. 60; ib. 57. What Breathwit said or did was not an injury to her title. 18 S. W. Rep. 354.

<p>Usury — Building Association Loan. — A.n agreement by a borrowing member of a building and loan association to pay monthly instal-ments as dues on his stock, and also to pay legal interest on the amount of the loan in monthly instalments, until the stock shall attain to par .value, is not usurious.</p>

Febix G.' Taybor, Judge. STATEMENT BY THE COURT. The appellant was convicted of carnally abusing a female under the age of sixteen years, and appealed to this court. The injured girl was introduced as a witness, and testified against the defendant, who asked the court to instruct the jury that she was an accomplice, and that he could not be convicted upon her testimony alone, unless the same , was corroborated.

Brice B. Hudgins, Judge. STATEMENT BY THE COURT. The appellee filed a motion in the Cleburne circuit court, showing that appellant on the — day of February, 1893, obtained judgment in said court against appellee ; that said judgment was paid at its maturity, but was not marked “Satisfied,” and stood thus upon the record for more than sixty days ; that on or about the — day of February, 1895, appellee paid to an attorney for appellant, $11.04, unjustly claimed by appellant as…

Jeremiah G. Waelace, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: One G. W. Lake was the owner of a patent right to make, use, and vend a certain roof paint in the state of Texas and other states. The appellant, John W. White, and the appellees, R. H. Smith and C. P. Hall, formed a partnership for the purpose of purchasing said patent right.

<p>PARTNERSHIP — When Exists. — Whether a partnership exists in any particular case depends upon the intention of the parties, and is to be determined from the facts and circumstances in proof.</p> <p>Same — Participation in Promts. — Participation in the profits of a business is evidence of a partnership, and may be conclusive unless there are circumstances disproving the existence of that relation.</p> <p>Same — Case stated. — Where a father gave the profits of his business to his sons, upon an agreement that, in consideration of his leaving his original capital in the business, hg should receive a share of its profits, without agreement that his capital should be repaid in any event, a finding of the chancellor that he was a partner with his sons will not be disturbed.</p> <p>Test of partaersliip.</p> <p>Participation in profits.</p>

Francis Circuit Court. H. N. Hutton, Judge. I. The indictment is uncertain. Sand. & H. Dig., sec. 2077; 27 Ark. 493; 26 id. 323; 34 id. 265; 54 id. 549. 2'. It was error to allow the state to challenge peremptorily, without showing cause, the jurors McDaniel and Casteel after they had been accepted. Sand. & H. Dig., secs. 2203, 2213; 32 N. E. Rep. 1105; 137 N. Y. 29; 15 S. E. Rep. 556; 19 S. E. Rep. 797; 58 Ark. 361; 4 S. W.- Rep. 86; 12 So. Rep. 582; 12 So. Rep. 688; 18 Can.

Rueus D. Heaen, Judge. 1. The court erred in denying the petition for removal. 50 Ark. 388; 69 Red. Rep. 417; 141 U. S. 327; act March 1887, as corrected by act August 13, 1888, U. S.; 59 Fed. Rep. 523: 145 U. S. 593; 152 U. S. 454; 104 ü. S. 126. 2. There is no testimony to support the judgment in this case. 1. If appellants ever had a rig-ht to remove the cause, they are estopped by taking- a chang-e of venue and g-oing- to trial.

Robert J. Lea, Judge. STATEMENT BY THE COURT. The appellant, Scanlan, brought suit against the appellee, Guiling, before a .justice of the peace, and sued out an attachment, under which two horses, a wagon and harness belonging to Guiling were seized. When the parties appeared before the justice, Guiling confessed judgment for the amount of his debt to Scan-lan, but resisted the attachment. On a trial in the justice’s court, the attachment was sustained, and Guiling appealed.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. This is a controversy between two school districts, on petition of what appears to be a majority of the citizens of each of the districts, to transfer a sixteenth section from district No. 11 to district No. 20, which of course was a change of the boundary line between them.

Richard H. Powell, Judge. The complaint stated a good cause of action. The deed tendered did not convey “a good and sufficient title in fee simple,” as conditioned in the bond for title, for the following reasons : (1) George Maxfield’s widow was entitled to dower. Her husband and Theodore Maxfield were tenants in common. Sand. & H. Dig., sec. 2520. It does not appear that the widow was barred by seven years’ adverse possession. 30 Ark. 640; 48 id. 277.

Grant Green, Jr., Judge. 1. It was error to exclude the entries upon the journals of W. P. Campbell & Bro., the bookkeepers being dead, and the original books of entry burned. 57 Ark. 415; 18 Wall. 540, 541. 2. It was error to refuse to allow J. H. Campbell to testify, after his interest in the suit ceased, and he was no long-er a party. 43 Ark. 307; 46 id. 378. Even interest does not disqualify. 46 Ark. 306.

John M. Reeiott, Judge. 1. There has been a recovery in this case once, and there is no evidence to sustain an additional verdict. 60-Ark. 550; Sand. & H. Dig-., sec. 5908; 53 Ark. 126. ‘There were no debts due by the deceased intestate, as none had been probated within two years. 2. There was one issue of defendant’s neglig-ence,. and one only, presented by the pleadings and proof. That was negligence predicated on the failure to keep a. safe track.

L. L. Mack, Special Judge. 1. A widow cannot transfer her dower before it has been assigned, so as to confer on her vendee a right of action for the dower interest. 21 Ark. 62; 31 id. 334; 30 id. 775. 2. The execution of the mortgage to “all my right title and interest in and to” the land did not assign the judgment she held against the land. . 3. The heirs of Hardesty should have been made parties. 1.

Fdward S. McDaniel, Judg-e. STATEMENT BY THE COURT. Appellee, The American Baptist Home Mission Society, held a note of the First Colored Baptist Church, of Fayetteville, executed through its trustees on 22d day of April, 1886, for $300, due one year after date. The note was secured by a mortgage on the land- in controversy, which mortgage was duly recorded on the 1st day of July, 1886.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. Bil.1 for injunction against the collection of tax alleged to be illegal.

'Samueb PeETE, Special Judge. STATEMENT BY THE COURT. This is a suit by appellee against appellants as principal and sureties on a bond executed under the provisions of section 4870, Sand. & H. Dig., which reads as follows, to wit: “Each applicant for a dramshop or drinking saloon shall, present his petition to the county court of the proper county, setting forth the place where such dramshop or drinking saloon is to be kept, verified by his affidavit, and shall enter into…

<p>STREET Railway — Mortgage Sate — Removal—Damages.—A street railway company is not entitled to recover damages from a purchaser of its road bed under a mortgage sale who tore up the track and sold the material prior to the expiration of the period of redemption where the road bed was worth only what its materials were worth in the market, and such value did not exceed the price paid by the purchaser under the mortgage.</p>

Joseph W. Martin, Judge. STATEMENT BY THE COURT. Held: this would make it a holder for value, and protect it against prior equitable defenses between the parties. For instance, if the bank at the time gave up the Biscoe notes from Reinman & Simon, this would be a valuable consideration, and would protect the bank..

Jeremiah G. Wallace, Judge., STATEMENT BY THE COURT. This is an action in replevin brought in the Pope circuit court by appellee, John A. Croom, against Silas A. Henry, as sheriff, to recover a stock of goods, wares and merchandise. The circumstances out of which the action arose are as follows: Henry and Walter Croom were engaged in a mercantile business at Atkins, Pope county, Arkansas, under the firm name of Croom & Bro.

H. N. Hutton, Judge. A plea of guilty to a bad indictment confesses no crime. 12 Ark. 170. The indictment is bad. Const. art. 2, sec. 8; 29 Ark. 147. There is a repugnancy between the instrument set out and the averments as to its purport, which is fatal. 32 Ark. 609; 37 id. 116; 5 id. 349, 350; 31 S. W. Rep. 377; 36 id. 947; 32 id. 899; ib. 983; 34 id. 921. Tenor imports an exact copy. Roscoe, Fv. title “Forgery,” 58 Ark. 242. The rule “ideip, sonans” has no application.

Francis Circuit Court in Chancery. Grant Green, Jr., Judge. Bemis, by paying- the notes, became subrogated to whatever lien the orig-inal payee may have had on the property. 3 Pom. Fq. Jur. sec. 1419; 40 Ark. 132; 44 id. 504; 50 id. 205, and cases cited. No lien by attachment could intervene, so as to cut off appellant’s lien, even if it were true that the deed was executed in payment of the debt and discharge of the lien. 39 Ark. 531; 54 id. 153; 55 id. 542.

Marcus L. Hawkins, Judge. The accident happened upon the premises and right of way of defendant. Neely .was a trespasser, and negligence must be alleged and proved. The only duty on the company was to avoid injury after discovering that he had placed himself in a position of peril.

Charles W. Smith, Judge. Dogs were not property, except in a qualified and restricted sense, by the common law, and our statute has not changed the character of such property. A railroad is not liable for killing a dog unless it be done wantonly or maliciously. 75 Ga. 444; 58 Am. Rep. 476; 10 Rich. Daw, 52; 69 Ga. 447; 14 S. W. Rep. 691. A new trial should have been granted for newly discovered evidence, under secs.. 5842-3, Sand. & H. Dig. .