Volume 64 — Arkansas Reports

H. N. Hutton, Judge. This was an action of ejectment to recover the possession of two lots in the city of Helena. The facts upon which the action was based are as follows: Vincent Taft was the owner of the lots in question, which, with the dwelling thereon, constituted his homestead.

Jephtha H. Evans, Judge. statement by-the court. Tbis case is in this court on appeal from the order and judgment of tbe circuit court of Crawford county made on a motion of appellee to quash a supersedeas which had- been issued by the clerk of said court against an execution issued out of his office in favor of appellee and against appellants, and which had been levied on certain real and personal property of said appellants.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Action in replevin to recover a lot of goods. The facts upon which the action was based are as follows : The firm of C. Tilles & Co. were in the year 1892 carrying on a’mercantile business in Fort Smith, Arkansas. Dave Tilles was business manager, and made the purchases for the firm. In that year he purchased for the firm a lot of boots and shoes from Geo.

Brice B. Hudgins, Judge.' No case for specific performance was made by appellees in their cross-complaint. The parol agreement was within the statute of fraud. There was no .consideration shown for it, and no such part performance by entry and making valuable improvements, etc., as to constitute ground for specific performance. 1 Ark. 416; 44 id. 346; 39 id. 429; 32 id. 97; 11 S. W. Rep. 112; Waterman, Spec. Perf. 258; 21 Ark. 277; 4 Wall. 513.

James P. Roberts, Special Judge. STATEMENT BY THE COURT. This is a controversy over an assignment made for the benefit of creditors January 2, 1893, by Mrs. Ella and Mrs. Anna Richardson, wives respectively of J. M. and R. E. Richardson, who had been for some time engaged in the mercantile business, but in the course of time, becoming unable to meet their obligations, made the assignment of all their property to J. U. Donovant for the benefit of all their creditors, without…

Charles W. Smith, Judge. Where the complaint shows on its face that the cause is barred, a demurrer to same should be sustained. 31 Ark. 684; 46 id. 438. More than three years had elapsed between the date of the last receipt and Leigh’s death. The cause of action was barred. 128 Ú. S. 26. There is no evidence that Leigh received any money in his capacity as attorney for Evans; but if there was, the claim is barred. 1 O' Ark. 228; 25 id. 462; 29 id. 99; 11 Ark. 228.

<p>Appeal from Garland Circuit Court.</p> <p>Alexander M. Duffie, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>' This is an action in replevin by the appellee to recover certain passenger carts, a wagonette, and a phaeton sold and delivered by the appellee to the appellant upon the condition that the title to the same should remain in the appellee until they should be fully paid for.</p> <p>Following is a copy of one of the notes, all of which are alike substantially, that were given for the purchase'price of the vehicles:</p> <p>“$127.34. St. Louis, May 21, 1891.</p> <p>“ Six months after date we, or either of us, promise to pay to the Embree-McLean Carriage Company, of St. Louis, Missouri, or order, one hundred twenty-seven 34-100 dollars, with exchange, and interest at 10 per cent, per annum from maturity. Value received. Negotiable. Payable at No. 15 South 10th street, St. Louis, Missouri. It is understood and agreed that the title to the four two-passenger children’s carts for which this note is given is, and shall remain, in the said Embree-McLean Carriage Company until this note is fully paid; it being further agreed and admitted that; the said Embree-McLean Carriage Company, or assigns', have full power to take possession of the personal property herein described whenever they deem themselves insecure, even before the maturity of this note, in which event this note shall remain in full force, in consideration of the previous use of the said property, and damage on contract, which is hereby acknowledged. If this note is not paid at maturity, it shall then be due and payable at St. Louis,” etc;</p> <p>The statutes of Missouri in reference to conditional sales, relied on by the appellant in its defense, are as follows:</p> <p>“Sec. 5180. Conditional Sales Void as to Creditors unless Recorded. In all cases where any property shall be sold to any person, to be paid for in whole or in part in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same until such sum, or the value of such property, or any part thereof, shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers in good faith and creditors, unless such condition shall be evidenced by writing executed, acknowledged and recorded as' provided in cases of mortgages of personal property.</p> <p>“See. 5181. Duty of Vendor before Taking Possession of Property. Whenever such property is so sold or leased, rented, hired, or delivered, it shall be unlawful for the vendor, lessor, renter, hirer, or deliverer, or his or their agent or servant, to take possession of said property without tendering or refunding to said purchaser, lessee, renter or hirer thereof, or any party receiving the same, the sum'or sums of money so paid’, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 25 per cent, of the money so paid, anything in the contract to the contrary notwithstanding, and whether such conditions be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed.”</p> <p>The court upon motion of appellee gave the following instructions:</p> <p>“First. You are instructed that if you find from the evidence that the defendant, the Public Parks Amusement Company, executed the notes which were attached as exhibits to the deposition of James G. Embree, with the reservation of title therein contained, you should find for the plaintiff, EmbreeMcLean Carriage Company.</p> <p>“Second. You are instructed that if you find from the evidence that the title to the wagonettes, phaeton, and carts was reserved in the vendor, Embree-McLean Carriage Company, until the price for each was paid, that the title remained in the said plaintiff until such condition was performed; and if you should further find that the vendee, Public Parks Amusement Company, afterward executed the deed of trust on said vehicles to John Loughran, trustee, for the benefit of Edward Butler, in good faith for a valuable consideration, that such deed of trust would not give any title to said trustee, John Loughran, nor to the said Edward Butler, which would defeat the plaintiff’s right of action for the recovery of said vehicles.</p> <p>“Third. The lawrs of the state of Missouri which have been read in evidence by the defendant are excluded from your consideration as competent testimony in the case.”</p> <p>The Public Parks Amusement Company and John Lough-ran, intervener, objected to the giving of each of the above instructions and saved their exceptions.</p> <p>The, Public Parks Amusement Company and the intervener, Loughran, asked the court to instruct the jury as follows, to-wit:</p> <p>“ First. The court instructs the jury that if they find from the evidence that on the 12th day of September, A. D., 1891, the Public Parks Amusement Company was in the possession of the property sued for in this cause, and on the 12th day of September, 1891, executed to John Loughran, trustee, for the use and benefit of Edward Butler, a deed of trust in which was included the property described in the complaint, and said deed of trust was so given and executed to secure the payment of a note of $10,000, and that said deed of trust was recorded in Record Book, volume 6, pages 562 and 563 of the records of Garland county, Arkansas, and that said deed of trust was so executed and recorded before the institution of this suit, and that said $10,000 had not been liquidated by the Public Parks Amusement Company, they will find that the claim of Edward Butler is a valid lien on said property, and that his rights under said deed of trust cannot be defeated by the plaintiff in this suit; and they will find for the said Edward Butler upon his claim and petition filed herein, and will find against the claim of plaintiff for the possession of the property, so far as John Loughran, as trustee, and Edward Butler, as cestui qm trust, are concerned.</p> <p>“Second. The court instructs the jury that if from the evidence they believe that, prior to the taking of the possession of the property under the process of the court in this case, the plaintiff wholly failed to tender or refund to the purchasers, the Public Parks Amusement Company, the sum or sums so paid by the purchasers as part of the purchase money after deducting therefrom a reasonable compensation for the use of such property so sold to the defendant, not exceeding 25 per cent, of the amount so paid, they will find that the plaintiff cannot maintain this action, and they will find for the defendant.”</p> <p>The court refused both instructions asked by the Public Parks Amusement Company and the intervener, to which ruling said defendant and intervener at the time excepted.</p> <p>These contracts were Missouri contracts, and governed by the laws of Missouri. 2 Rev. St. Mo. 1889, §§ 5180, 5181. These laws are a part of the contract. 16 Wall. 314; 3 Am. 6 Eng Enc. Law, p. 502. The rights of the parties, and the nature, validity and interpretation of contracts are governed by lex loci contractus; but the remedies are to be governed by lex fori. lb. 544-5; 7 Lawson, Rights, Rem. & Pr. §§ 3734, 3735. See 26 Ark. 356; 33 id. 645; -8 Pet. 361; 13 Pet. 378. Under the laws of Missouri, the legal title to the property passed to John Loughran as trustee, because he was a subsequent purchaser, and as to him the transactions were void because §§ 5180 and 5181 were not complied with.</p> <p>Registration statutes have no extra-territorial force or effect. 93 Ala. 257. See 18 Ala. 248; 30 Minn. 244; 26 Ark. 356; 49 id. 287. The removal of the property to Arkansas made Arkansas the state of performance. Whart. Confl. Laws, §§ 341, 345, 401, 403, 418; 1 Otto, 406; 106 U. S. 124; 7 Wall. 139. As to the remedy, lex fori governs. 48 N. J. L. 410\ See also 1 Otto, 406; 106 U. S. 124; 3 Am.' & Eng. Enc. Law, 575, 576, 578; 37 N. H. 86; 40 N. Y. 339; 7 Lawson, Rights, Penn, & Pr. § 3734. The law of situs controls, irrespective of domicile. Freeman, Ex. §§ 109», 209.</p>

Joseph W. Martin, Judge. STATEMENT BY THE COURT. This action was brought in a justice’s court by appellee, William La Porte, against Edward Fitzgerald and J. F. Callaghan, to recover a balance claimed to be due for work and labor performed under contract.

James E. Riddick, Judge. Ocobock was tbe agent of tbe Corbin Banking Company, and the bank was tbe agent of tbe mortgage company, and knowledge and participation in- tbe illegal reservation of twenty per cent., called commissions, was brought home to tbe bank and tbe company, and rendered the loan usurious. 54 Ark. 50; 51 id. 545; 27 Am. & Eng. Enc. Law, 1007; 33 Conn. 86; 43 Minn. 310; 110 U. S. 14; 46 Minn. 360; 32 Fed. Rep. 113.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. This action was commenced in a justice’s court in Upper township, Sebastian county, on the 6th day of August, 1894, by the appellant filing in said court his account, affidavit and bond for attachment. Personal service was had on the defendant, and a writ of garnishment served on the First National Bank of Fort Smith.

1 Felix G. Taylor, Judge. STATEMENT BY THE COURT, This action was brought by the Crescent Insurance Company against J. B. Wilkerson, as surety upon a bond given by S. L. Ingalls for the performance of his duties as agent of said company. One of the conditions of the bond was that the said S. L. Ingalls should properly account for and pay over and apply all sums of money which might be received by him as agent of said company.

The first case on appeal from Saline Circnit. Alexander M. Dupeie, Judge. Tbe second two cases on appeal from Craighead Circuit Court, Jonesboro District. William H. Cate, Judge. The act of March 25, 1889, is unconstitutional and void, because: (1) It is violative of § 1 of the fourteenth amendment to the constitution of the United States. 13 Fed. Rep. 757; 96 U. S. 529; 43 Mich. 141, 147; 4 Wall. 325; 92 U. S. 268; 95 id. 472; 49 Ark. 494; 113 Pa.

McDaniel, Judge. 1. The lumber sued for herein was never attached, nor condemned to be sold. 2. Conceding that the sheriff attempted to seize it, he made a signal failure in the attempt. Sand. & H. Dig. § 336, subd. 2, 3. The return must show facts, not conclusions of law. Waples, Att. p. 262; 1 Am. & Eng. Ene. Law, p. 921; 3 B. Mon. 579; 43 Miss. 225; 42 id. 515. The facts must be stated, and the presumption is the officer has stated all the facts attending the levy.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. This action of ejectment was brought by the John Henry Shoe Company against Geo. W. Williamson to recover a tract of land in Crawford county.

David W. Carroll, Chancellor. STATEMENT BY THE COURT. This suit in equity was brought by appellants, J. F. & C. W. Wood, to redeem certain land sold under power of sale contained in a mortgage. The mortgage had been executed by appellants to Holland and Sanders to secure payment of six hundred dollars. When the land was sold under the power of sale contained in the mortgage, it was purchased by Holland, one of the mortgagees, for the sum of $250.

<p>Appeal from Clay Circuit Court, Western District.</p> <p>Felix G. Taylor, Judge.</p>

Rufus D. Hearn, Judge. To constitute a valid levy', it was necessary to deliver a copy of the attachment with a notice specifying the stock levied upon to the chief officer. This means a notice in writing. This was not done, and the sale was void. Sand. & H. Dig., § 336; Cook, Stoek & Stockholders (3 Ed.), § 480; ib. § 482. The notice must be served by the officer while the writ is in his hands. Drake, Att.

John B. McCaleb, Judge. statement by the court. This action was brought by T. W. Sharp against the appellant railway company to recover damages for the loss of a certain lot of boots and shoes destroyed by fire while in the depot of appellant. The case was submitted to the circuit court upon the following agreed statement of facts: “It is agreed by and between tbe parties to this suit that T. W. Sharp is plaintiff, and the Kansas City, Ft.

Will P. Feazel, Judge. Appellee was entitled to no credits, except such as were appropriated by Downs & Sutton as payments on the note. 70 tía. 381; 57 tía. 446; Weeks, Attys. (2 Ed.), p. 482; 6 Humph. (Tenn.), 62; 18 Am. & Eng. Enc. Law, p. 194, footnote. Downs & Sutton were appellant’s agents, and, they having collected more than enough to pay the note, appellant is bound. 5 D. & B. 735; 3 B. & B: 843; 4 Ad. & El. 64; 5 N. & M. 466; 52 Barb. (N. Y.), 627; 14 La.

H. N. Hutton, Judge. STATEMENT BY THE COURT. The appellant was convicted of the murder of W. R. King at about 8 o’clock on Friday night of October 18, 1895. He was indicted jointly with Sol Gibbs, Jim Osbrook, and Hosea Perkins. A severance was allowed, and Sol Gibbs was tried first, and upon his confession was convicted of murder in the first degree.

Hudgins, Judge. Mitcliell and others sued Boone county on a claim for fees of officers and witnesses incurred in a prosecution for an assault with intent to commit, rape, a felony case, wherein the accused was convicted of an assault and battery. It was agreed that the accused had no property out of which the costs of the prosecution could be made. The county court disallowed the claim, and an appeal was taken to the circuit court, which allowed it. The county has appealed.

Thomas C. Trimble, Special Judge. There was an affidavit and prayer for appeal, and it should have been disposed of. The constitution provides for appeals as a right. Const, art. 7, § 33. This right is preserved in the act of December 14, 1875, § 17,.page 126, creating the court of common pleas. Courts of common pleas have no jurisdiction of questions involving title to or liens on land. Const., art. 7, § 32; Acts 1875, § 3, p. 124.

James S. Thomas, Judge. STATEMENT BY THE COURT'. Isaac Halpern, a creditor of the Clarendon Hardwood Lumber Company, an insolvent corporation, brought this suit on the chancery side of the Monroe circuit court, to wind up the affairs of said corporation. The court appointed receivers, who, under order of the court, took charge of the assets of the corporation.

Rufus D. Hearn, Judge. Corporations are required to pay taxes at the place of their domicile. Sand. & H. Dig., §§ 6461—3, 6724 to 6733; Burroughs, Taxation (1877), § 90, p. 186, et seq.; Cooley, Tax. (1876), p. 273. The taxes, if any, should be ascertained by a master in chancery, or competent testimony, and not by a so-called assessor. Sand. & H. Dig., § 6724; 40 Md. 483; 8 B. Mon. 536; 48 Am.

Robert J. Lea, Judge. When a person dies under suspicious circumstances, or the coroner has reason to believe a crime has been committed, it is his duty to employ a competent physician to perform an autopsy. 55 Ark. 419; 52 id. 361; 60 id. 508.

<p>Error to Logan Circuit Court.</p> <p>Jephtha H. Evans, Judge.</p>

<p>Costs in Criminal Cases—Witness’ Fees.—A witness in a criminal prosecution pending in the circuit court is not entitled to have his fees for attendance and mileage taxed as costs against the defendant on conviction where he has not proved his account in the manner and within the time prescribed by the statute (Sand. & H. Dig., 3340, 3341).</p>

Alexander M. Duffie, Judge. It was error to dismiss the action because the affidavit of tender was not made. The answer, filed six months before the motion to dismiss, was a complete waiver of the statutory formality. 35 Ark. 170, 174; 46 Pac. 144; 6 Ind. App. 207; 33 N. E. Rep. 254; 24 S. E. Rep. 412; 51 Ark. 397. See also Cooley, Taxation (2 Ed.), 550-554. It was not error to dismiss the action.

Alexander M. Duppie, Judge. STATEMENT BY THE COURT. The appellee, being a drummer or solicitor for the Palmyra Hotel in the city of Hot Springs, was charged in its police court with a violation of section 4 of an ordinance passed November 2, 1893, by not wearing a badge, as prescribed by said ordinance, while being engaged in or plying his business.

Edward S. McDaniel, Judge. statement by the court. This action involves the title to a forty-acre tract of land in Benton county. The land was formerly owned by David B. Neal. In the year 1870 he agreed to sell it to Richard Bennett, but Neal died-before the contract was performed by either party. Afterwards Richard Bennett told his son James that if he would pay for the land he might have it.

<p>Justice’s Fee Bills—Disallowance.—Sand. & H. Dig., § 3334, authorizing the county court to reduce, modify or wholly disallow fee hills made out hy justices of the peace in criminal cases, where they are unauthorized hy law, or based upon frivolous, malicious or unauthorized prosecutions, vests a legal discretion only in the county court; hence a disallowance hy the 'county court of a fee bill which is regular on its face will be set aside on appeal, unless some one of the grounds for disallowance mentioned in the statute existed. (Page 164.)</p>

Charles W. Smith, Judge. STATEMENT BY THE COURT. This action is a claim. against the estate of C. Leigh, deceased, in favor of the estate of Thomas J. Harvey, deceased, which was tried in the Lafayette circuit court on appeal from the' probate court of Lafayette county; said claim having been presented to and disallowed by the administratrix of the estate of Leigh, on the 20th day of September, 1894. The items of said claim, copied in full therefrom, are as follows: 1887.

John M. Elliott, Judge: STATEMENT BY THE COURT. Tbe appellant corporation delivered to the Missouri Pacific Railway Company a car load of meal for shipment to E. D. Russell at Altbeimer, Ark. The railway company thereupon gave to said consignor a bill of lading, in which it was stipulated that said meal was to be transported from Stella, Nebraska, to Altheimer, Arkansas, and there delivered to the consignee, E. D. Russell.

Joseph W. Martin, Judge. 1. This is merely an indemnity policy, and, the company having paid nothing, there is no liability. 50 N. W. Rep. 496; 48 id. 123; ib. 126; 6 Hill, 324; 1 Const. 550; 59 N. W. Rep. 1054; 144 N. Y. 182; 30 Wis. 68. Actual damage must be shown. 17 So. Rep. 646; 39 N. E. Rep. 83. The mere fact that a judgment has been obtained does not entitle the person indemnified to recover. 1 N. Y. 550; 21 N. J. L. 73; 6 Hill, 324; 2 Yt. 532.

David W. Carroll, Chancellor. [On March 6, 1897, the court, per Battle, J., handed down a memorandum for the entry of a judgment in this case. On a petition for rehearing the following opinions were handed down.]

P. Roberts, Special Judge. Fly & Hobson and Erb & Co. brought replevin against E. R. Screeton, sheriff of Prairie county, to recover a lot of shoes. Defendant answered denying plaintiffs’ title, and alleging that he held the goods under attachment in favor of Arnold & Co. against plaintiffs’ vendors, Thweatt & Cooper.

Felix G. Taylor, Judge. There is no evidence to sustain the verdict. It failed to show that appellant owned, controlled, or used the house in which it was alleged the liquor was sold. Proof of a sale at another house is not sufficient. 62 Ark. 459. The evidence is sufficient under sections 4881 and 4882, Sand. & H. Dig.

John M. Elliott, Judge. statement by the court. This is an action upon a bond executed by George W. Byington, an insurance agent, under the following circumstances: The plaintiffs, Byron Sherman, Gordon E. Sherman, Joseph E. Baker, and James E. Baker, doing business undei the firm name of Sherman, Son & Baker, were general agents of the Mutual Life Insurance Company of New York, with power to appoint agents for the purpose of soliciting insurance and collecting moneys due…

<p>Selling Mortgaged Property—Indictment.—It is unnecessary, in an indictment for selling mortgaged property, to allege the name of the person to whom the property was sold. (Page 195.)</p> <p>Same.—An indictment for disposing of mortgaged property is not defective for failure to state the manner of disposal of the property in alleging the intent, if in the stating part immediately preceding it is alleged that the defendant sold the property. (Page 196.)</p>

Jephtha H. Evans, Judge. Thompson sued Huffman upon a note not due, and procured an attachment to be issued, which was levied upon property of defendant. Judgment was taken by default. Subsequently defendant filed a schedule claiming the property exempt, alleging “that the attachment is for debt not due upon contract.” The circuit court disallowed the exemption sought, upon the ground that the schedule failed to show that the attachment was for a debt by contract.

Brice B. Hudgins, Judge. One holding under a mortgage or deed of trust is entitled to protection as a bona fide purchaser. 31 Ark. 85; 49 id. 207; 35 S. W. Rep. 433. There was no proof that appellants had any notice. Martin’s purchase was not fraudulent—he bought for himself at an open, public, fairly conducted sale; and had a right to sell afterwards to any one. 2 Woerner. Am. Law of Adm. p. 1086; Bump, Fr. Oond. (3 Ed.) p. 19.

<p>Vendor’s Lien—Enforcement—Defense.—In a suit against the administrator, widow and heirs of a deceased vendee to foreclose a vendor’s lien on land, the widow cannot defend and ask that title be conveyed to her upon the ground that she made advances to her husband in his lifetime to pay part of the purchase money, and for improvements on the land, and that since his death she has tendered to the vendor the balance of the purchase money. (Page 202.)</p>

James S. Thomas, Judge. The county is not liable for the fees claimed. If any one is, the person who filed the claim is liable, not the county. Sand. & H. Dig., § 3309;' 32 Ark. 45; 57 id. 487.

Bufus D. Hearn, Judge. A return consists in (1) an indorsement upon the writ stating what has been done, signed by the officer, and (2) filing the writ in the office of the justice. 60 Ark. 182. The indorsement was properly made, and it was returned within the time. 60 Ark. 182; 21 id. 580; 28 id. 244; 19 Am. & Eng. Enc. Law, p. 461; 12 Ark. 63; 120 Mass. 130; 44 Ark. 174, 580.- A justice is a judicial officer, and cannot delegate his authority. Const.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. This is an action instituted originally in the court of common pleas of Garland county, by appellees against appellants, on an account, and at the beginning of the suit an attachment was issued against the property of appellants, on the alleged grounds that they had sold and conveyed, and were about to sell and convey, their property, with the fraudulent intent to cheat, hinder, and delay their creditors.

Brice B. Hudgins, Judge. STATEMENT BY THE COURT. The appellee, Harris, was the owner of two mules, one of which he mortgaged to appellants, Cox & 'Denton, to secure payment of a promissory note he had executed to them. Cox & Denton, being indebted to Hill, Fontaine & Go., .transferred the note and mortgage to them as collateral security. Afterward, J. P. Clendenin was employed by Hill, Fontaine & Co. to collect the note.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. This action was brought by Hickman against Martin to recover the sum of $147. The circumstances out of which the action arose were briefly as follows: Martin, being the owner of a house and lot in the town of Warren, contracted to sell and convey it to O’Neill for the sum of $230. O’Neill took possession of the property under the contract of sale, and paid $85 upon the price, leaving due a balance of $145.

Rufus D. Hearn, Judge. A claim for unliquidated damages cannot be sustained as a set-off to a suit for an accounting of rents by one tenant in common against another. Sand. & H. Dig., § 5917; 61 Ark. 26; 4 id. 527; 54 id. 187, 190; 118 111. 403; 9 N. E. Rep. 201. If sustained at all, it must be as a counter-claim under § 5723, Sand. & H. Dig. But it did not arise out of the contract or transaction sued on. Tied. Real. Pr. §§ 651, 652; 29 Minn. 95; 12 N. W. Rep. 149; 34 Pac.

<p>Appeal from Prairie Circuit Court in Chancery, Southern District.</p> <p>James P. Roberts, Special Judge.</p>

Robert J. Lea, Judge. The failure to pay the one-third cash as it became due was not such a breach of contract as to authorize the plaintiffs to abandon the contract and sue for a breach thereof. 44 Cal. 18; 54 id. 605; 18 111. 219; 63 Cal. 196, 205; 33 111. App. 583; 18 111. 223; 28 id. 223; 31 Pac. Rep. 4; 13 How. (U. S.) 307; 9 App. Cas. 434; L. R. 8 Q. B. 14.

Charles W. Smith, Judge. STATEMENT BY THE COURT. Appellant was convicted of violating the fish law, and appealed to this court.

Charles W. Smith, Judge. STATEMENT BY THE COURT. This action was brought against the appellant railway company to recover damages for the killing of a mule, a mare and a cow owned by plaintiffs. The animals, the property of plaintiffs, were struck, and killed at different times by trains of appellant, and the complaint alleged, in separate paragraphs, that the killing of each of them was due to negligence of the employees of appellant in charge of its trains.

Will P. Feazel, Judge. STATEMENT BY THE COURT. The appellant, Beardsley, was the owner of town lot No. 24 in block 23 in the town of Nashville, Ark. The town council of the incorporated town of Nashville directed certain persons in its employ to build a house upon the alley on which this lot of appellant abutted, and opposite this lot, for the purpose of keeping therein its fire engine and attachments. The house was erected, and stood several years, when it was removed.

<p>Bill of Lading—Transfer without Indorsement.—If a written indorsement is necessary, under Sand. & H. Dig., §§ 509, 510, to transfer the legal title to the property described in a bill of lading, a transfer of one without indorsement as security for advances made is sufficient to pass the equitable title therein. (Page 246.)</p> <p>Execution—Priority of Liens.—One who, at the request of a consignee, pays the charges shown by the bill of lading, and holds the goods and the bill of lading unindorsed as security for such charges, has a lien superior to that of an execution against the consignees which has been . placed in the hands of an officer. (Page 246.)</p>

John B. McCaleb, Judge. STATEMENT BY THE COURT. The grand jury for the southern' district of Sharp county returned an indictment against William Kent, charging him with stealing $1,800 in money from Robert Wooldridge.

Jeremiah G. Wallace, Judge. Defendant should have been allowed to amend its pleadings to conform to the proof. Sand & H. Dig., § 5769; 58 Ark. 504; 42 id. 57.

Francis Circuit Court in Chancery. H. N. Hutton, Judge. The statute must be strictly construed; no presumption in favor of regularity of acts of board. The burden is on appellants to show same. 59 Ark. 344, 356; 58 Ark.375; 24 N. J. Eq. 144; 3 Wall. 320; 50 Ark. 116, 123; 6 Wend. 486; 34 Vt. 156; 45 Vt. 202; Burroughs, Taxation, 149; 51 Ark. 34, 51; 10 Fed. 891; Mechem, Pub.

Jeremiah G. Wallace, Judge. Mere delay is not discrimination; all discrimination is not forbidden, only such as is unjust or undue. The act should be construed strictly. L. R. 22 Q. B. 642 (C.S..40 A.& E.R. Cas. 64); 9 A. & E. R. Cas. 126; id. 207; 4 S. W. 875; 2 Ker. 245; 14 Wend. 215; 40 Mo. 491; 46 Mass. 458; 32 Vt. 559; 6 Duer, 376; 5 Hun, 562; 1 L. R C. P. 385; 12 Conn. 410; Hutcb.

<p>Judgment—Estoppel.—Where a suit is brought to reform the description of land in a mortgage, a finding of the court concerning certain chattels conveyed by the same mortgage will not preclude the parties from subsequently litigating their rights with reference thereto. (Page 303.)</p> <p>Statute op Limitations—Conversion op Mortgaged Chattel.—The statute of limitations begins to run in favor of one who purchases mortgaged chattels from the time he took possession under claim of absolute ownership. (Page 304.)</p>

Jephtha H. Evans, Judge. The act making the same limitation apply to mortgages as to the debts secured does not apply to the right of the mortgagee to take possession and apply rents and profits to debt. 16 Ark. 129; Boone, Mortgages, § 209; Wood, Lim. 451; Angelí, Lim. §§ 7, 23 and 29; 5 Ark. 536. The fact that the remedy on the debt is barred does not not extinguish the indebtedness. Jones, Mortgages, § 1203; Wood, Lim. pp. 77 and 451; 13 Am. & Eng. Enc.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The above-entitled actions were brought against the Planters’ Warehouse & Compress Company to recover for damages alleged to have been caused by fire from sparks emitted from the smokestack of a cotton compress owned and operated by said company. Both eases rest upon substantially the same facts, and by consent they were tried together in the circuit court before the same jury. On the trial the evidence was eon-' flicting.

Edward S. McDaniel, Judge. Tbe court in its order of sale should fix the time, terms and place of sale for attached property, and also specify the length and manner, of giving of the notice for same. Sand. & H. Dig., § 366. The return of the officer should show that the sale of the lots and lumber was advertised, as required by statute, lb. § 4685.

H. N. Hutton, Judge. Tbe provision of the statute of 1889 that the same limitation should apply to mortgages and the debts they secured does not affect a mortgage with power of sale, when sought to be enforced by trustee’s sale, given before the passage of the act. 43 Ark. 469; id. 504; 47 Ark. 515. This would be to impair the obligation of subsisting contracts. 40 Ark. 423; 47 Ark. 515; 2 Jones, Mortgages, § 423; Cooley, Const. Lim. 433; 40 Pa. St. 327; 44 Pa.

<p>Exemption—Reservation in Deed of Assignment.—A deed of assignment for the benefit of creditors is not invalidated by a reservation in general terms of a claim of exemptions. (Page 326.)</p> <p>Same—Selection.—Where a grantor in a deed of assignment reserves his exemptions in general terms, he may select the property within a reasonable time, and at a value not exceeding its market value at the time of the assignment; and the selection will be made in time if it does not delay the assignee in the discharge of his duties. (Page 327.)'</p> <p>Assignment—Withholding Assets.—One of the members of a firm, with his co-partner’s consent, withdrew a portion of the firm assets for the purpose of paying his individual debts, and at once so expended it. -On the next day the firm made an assignment for the benefit of creditors. Held that the portion so withdrawn and expended ceased to be a part of . the firm assets, so that the subsequent assignment was not invalidated by reason of the fact that it was withheld therefrom. (Page 327.)</p> <p>Partnership—Withdrawal of Assets.—Where one of the members of a firm, with his co-partner’s consent, withdrew a portion of the firm assets for the purpose of paying his individual debts, and was charged therewith on the books of the firm, the portion so withdrawn ceased to be part of the firm assets, and its omission from a subsequent assignment of the firm assets will not be fraudulent. (Page 327.)</p> <p>Assignment—Withholding Assets.—A deed of assignment purporting to convey all of a debtor’s individual property will be invalidated, as to attaching creditors, by his withholding a valuable part of his property, though done for the purpose of paying his debts. (Page 327.)</p> <p>Same—Effect of Fraud.—Where an assignor withholds property from his assignment with a fraudulent intent, he cannot subsequently validate the instrument by claiming the property withheld as exempt. (Page 328.)</p> <p>Separate Assignments—Effect of Fraud in One.—Where a deed contains three separate and distinct assignments, one by a firm and the other two by the members thereof, a fraud contained in one of the assignments will not vitiate the other two assignments. (Page 328.)</p> <p>Assignment—Disconnected Fraud.—An assignment will not be vitiated by a fraudulent conveyance of the assignor’s property made at a time when the assignment was not in contemplation. (Page 329..)</p>

Charles W. Smith, Judge. An assignee is not bound by a judgment against the validity of the assignment, in an action where he was not made a party. 19 Wis. 1Í4; Herman, Estoppel & Res Adjudicata, 202; 15 Ark. 128; '38 Ark. 332.

Charles W. Smith, Judge. It was error for tbe trial court to instruct the jury that not the law, but their own judgment, must supply the criterion as to what a reasonable man should do under the given circumstances. This is something which the law defines. Patt. Ry. Acc. Law, 174, 175; 85 U. S. 161; 12 Q. B. Div. 70, 73; L. R. 3 App. Cas. 1155; 11 Q. B. Div. 213; 35 S. W. 1070; 4 C. C. A. 350; 16 S. W. 909; 73 Pa. St. 504; 13 Wright (Pa.), 60; 92 Pa. St. 336: 102 Pa.

<p>License—Assignment.—Where the owners of land, being engaged in erecting a building thereon, enter into a verbal agreement with a Masonic lodge that the lodge shall add a second story to the building, which it shall have the right to use and occupy, it being understood, though not expressly provided, that it should be used as a lodge room, and after-wards the owners execute an instrument guarantying to the lodge the exclusive right to use and occupy suoh second story, together with the right of ingress and egress at such times as said lodge or its representatives may designate, the agreement conveys only a personal right to the lodge, and is not assignable. (Page 342.)</p> <p>Same—Determination.—A license to enter upon and use the building of another is .extinguished by an attempt on the part of the licensee to transfer it to a third person. (Page 344.)</p> <p>Sale of License—Estoppel of Licensor.—Evidence that a licensor made no objection to a sale of the license by his licensee will not be sufficient to support a finding that he was estopped to question the-validity of the transfer, where it is not shown that he had notice of the-sale before it was consummated, or that his failure to object misled orafi'eeted the action of the purchaser. (Page 344.)</p>

Felix G-. Taylor, Judge. The claim of the appellant, Mrs. E. D. Davis, was already-barred by her laches when she commenced her suit in 1883. 146 U. S. 88; 55 Ark. 85. But, even if this were not true, her claim was lost by her failure to prosecute her suit after instituting it. 148 U. S. 370; 10 Bush, 437; 1 Watkins, 149; 2 Dana, 404; 6 Iowa, 258; 4 Ore. 361. The same limitation applies in equity as at law. 58 Ark. 85; Buswell, Lim. & Adverse Poss. § 232.

<p>Will—Probate—Right to Appeal.—Where a will is admitted to probate in the common form in the probate court, without notice to interested persons, they may make themselves parties by perfecting an appeal to the circuit court, in order to contest the will. (Page 350.)</p> <p>[Por a discussion of evidence held not to establish mental incapacity, see opinion.]</p>

H. N. Hutton, Judge. The husband’s right to curtesy is subject to the claims of the wife’s creditors. Hilliard, Real Prop. (14 Ed.) p. 117; 47 Ark. 175; 4 Am. & Eng. Ene. Law, 963.; and cases; 46 Ark. 376; 42 Ark. 26. The husband, not being a party to the suit as such, had no right to interpose his claim for curtesy.

Edward S. McDaniel, Judge. STATEMENT BY THE COURT. The railway company brought this suit against the widow and heirs of John B. Kelton to compel specific performance of a contract made by said Kelton, in Ms lifetime, to convey to said railway company a right of way over forty acres of land described in the complaint, 200 feet in width, and also five acres of land for a railroad “reserve,” for depot grounds, etc. John Kelton had. homesteaded a tract of United States land,…

Will P. Feazel, Judge. A town council has power to pass an ordinance requiring parties engaging in trade or business to pay a license. Const. Ark. art. 11, § 23. The constitutional provision as to revenue applies only to state revenues, and not those imposed by the proper municipal authorities for municipal purposes or police regulation. 13 Ark. 761-2. Avocations and pursuits may be taxed. 33 Ark. 442-3-4.

H. N. Hutton, Judge. STATEMENT BY THE COURT. Between 8 and 9 o’clock a. m., on the 17th day of August, 1894, appellee, who was 62 years of age, while attempting to cross the tracks of appellant at Bald Knob, was run over by one of its freight cars and badly injured. Appellee -says he turned aside from the public road crossing, his regular route home, because same was blocked, and remained blocked for half an hour.

James S. Thomas, Judge. STATEMENT BY THE COURT. On the 30th day of January, 1891, J. W. Williams, a resident of Cleburne county, executed to W. E. Davis a chattel mortgage conveying two mules to secure certain indebtedness due Davis. On the 4th day of March, 1891,'Davis endorsed the mortgage, “This instrument is to be filed,” and on the same day it was filed by the clerk of Cleburne county, Davis paying to the clerk the fee for filing such mortgage.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. This was an action by attachment brought by Beál & Fletcher Grocer Company against W. L. Page and Mary C. Baldwin, partners doing business under the firm name of W. L. Page & Co. The writ of attachment was levied upon a stock of goods in the possession of the Carl & Tobey Company, which stock of goods had been purchased from the defendants, W. L. Page & Co. The defendants, Page & Co:, did not dispute plaintiff’s debt, but filed…

Joseph W. Martin, Judge. STATEMENT BY THE COURT. The appellee, J. F. Young, brought this action against J. H. Kies and his wife, U. M. Kies, for the- sum of $139.25. Upon the trial in the circuit court, where the case was tried on appeal from a judgment of a justice of the peace, it was agreed that Mrs. Kies, while a widow and unmarried, kept a boarding house, and purchased supplies from, and became indebted to, the plaintiff Young.

Jambs S. Thomas, Judge. No written motion is necessary for an appeal from the common pleas.court to the circuit court. Acts 1887, pp. 74— 79, § 12; Sand. & H. Dig., § 5889; 41 Cal. 650; 3 Estee, PI. &Forms,. 146; 15 Am. & Eng. Enc. Law, 892; Abbott’s Law Dictionary. The steps .set out in the statute for the taking of an appeal are 'directory. The affidavit takes the place of the motion. 47 Ark. 31; 50 ib.. 444.

Robert J. Lea, Judge. Common carriers are held to a strict accountability for the acts and defaults of their servants. 34 Ark. 613; 43 Ark. 298; 60 Ark. 381. It is against ,public policy to make any contract whereby the railroad company would be in any way hindered or restricted in the discharge of the duty which it owes to the public to employ only competent and careful servants. Such a contract is void. 22 W. Va. 600; 4 Humph.

John C. Hawthorne, Special Judge. In an action of ejectment, under our statute, after the plaintiff has shown a prima facie title in himself, the defendant is required to show , a better title in himself. 31 Ark. 334. This statute is unambiguous, and demands a literal construction. 24 Ark. 487; 11 N. Y. 573; 7 N. Y. 97; 23 Am. & Eng. Enc. Law, 399; Black, Interp. Laws, 35.

Richard H. Powell, Judge. STATEMENT BY TH-E COURT. On 1st of October, 1894, the appellants brought suit against the appellee, before a justice of the peace, for $170, and sued out a writ of attachment, which was levied upon four barrels of whiskey, the property of the appellee.

Alexander M. Duefie, Judge. The plaintiff was guilty of contributory negligence; and such negligence bars his recovery, notwithstanding it may appear that the appellant either did discover him, or might have, by the exercise of the diligence required by the “lookout” statute, discovered him in time to avoid the accident. 62 Ark. 124; Patterson’s Ry. Acc. Law, §§ 174—5; 95 U. S. 191; ib. 697; 114 U. S. 615; 149 Mass. 127; 113 N. Y. 667; Whitt.

Hance N. Hutton, Judge. The determination of the council that anything is detrimental to public health is conclusive, unless' it vitiates express statute or constitutional law. 1 Dillon, Mun. Corp. § 144, and cases cited. The town council had power to pass the ordinance in question, because it is a sanitary regulation. 1 Gill, 264; 11 S. E. 545; S. 0. 8 L. R. A. 854; 94 U. S. 147; 67 111. 37; 33 Cal. 279; 19 Ga. 323; 85 U. S. 138.

Jephtha H. Evans, Judge. The assessment is void and illegal even under the terms of the act. The act is unconstitutional, because the tax is not uniform. 25 Ark. 295; 32 Ark. 38; Cooley, Const. Lim. 515; Const, of Ark. art. 16, § 5. The attempted description of the land is vague and indefinite. This vitiates the whole proceeding. 50 Ark. 489; 31 Ark. 491; 30 Ark. 579.

Edgar E. Bryant, Judge. It is the duty of the assessor, and of him only, to assess property for taxation. He may be compelled to do so. Sand. & H. Dig., § 6544; 48 Ark. 238; 45 Ark. 121; 49 Ark. 39'; 54 Ark. 468; 43 Ark. 66; Sand. & H. Dig., § 6499. Failure to make a separate list of exempt property does not in any way affect the return he did make. 25 S. W. 372; 28 S. W. 448.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. Action of ejectment by Sarah E. Green and others to recover from Robert E. Craig the possession of a tract of land in Chicot county, known as “Pastoría Place.” The facts in the case, so far’ as it is necessary to state them, are as follows: One L. C. Bryan, the former husband of Mrs. Green, one of the appellants, was in 1881 the owner of the land in controversy.

Hance N. Hutton, Judge. The findings of the court as to the alleged circumstances of fraud “dehors the deed” are conclusive. 54 Ark. 235; 53 Ark 327; 53 Ark. 537. On the trial of the interpleader, it is not competent to re-litigate the questions passed on in the previous trial of the attachment suit. 1 Shinn, Att. & G-. 318; 62 Ark. 171; Drake, Att. 411; 44 Ark. 153-165; 38 N. Y. S. 620; 125 N. Y. 261; 55 Fed. 695; 51 Am. Dec. 573; 29 Ark. 91; 30 Am. Dec. 155.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. This is a bill to foreclose two mortgages, and appropriate the proceeds to the payment of the debts secured according to priority, as between the debt of the first mortgage on the one hand and the debts of the second mortgage on the other, and pro rata as between the latter..

Grant Green, Jr., Special Judge. If there was any trespass, it was not malicious. There was no malicious prosecution by appellant. / Both malice and want„of probable cause must be present to constitute malicious prosecution. 1 Hilliard, Torts, 443. Appellee was a mere trespasser. 14 R. I. 119; 17 Atl. 921. After due notice to the tenant, the landlord has a right to enter peaceably and take possession. 59 Me. 598; 6 Allen, 76; 107 Mass. 406; 7 Mete. 147; 6 N. H. 11; 46 111.

H. C. Allen, Special Judge. Harp brought suit against Gale on a note for $155.

<p>Appeal from Saline Circuit Court</p> <p>Alexander M. Duffie, Judge.</p> <p>The verdict is clearly without evidence to support it, and should be reversed. 34 Ark. 632. The burden is on the party-alleging payment to prove it. 16 Ark. 651 ; 57 Ark. 270.</p> <p>The presumption, in this court, will be that the proof was sufficient to sustain the verdict, unless there is an entire absence of evidence on which to base the verdict. 46 Ark. 67 ; 46 Ark. 141 ; 47 Ark. 196 ; 51 Ark. 467.</p>

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The appellant, Will Nations, was indicted by tbe grand jury of the Ozark district, Franklin county, for the crime of incest.

James S. Thomas, Judge. STATEMENT BY THE COURT. The appellant sued the appellees upon the following certificate of deposit, to-wit: “Certificate of Deposit. Duvall, Leslie & Leslie, Bankers, Arkansas Banking Company. Stuttgart, Ark., April 6, 1891. No. 2027.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The appellant,'L. M. Bledsoe, was indicted by the grand jury of Clark county for the crime of perjury.

Felix G-. Taylor, Judge. . No breach of the guardian’s bond is shown, and therefore no right of action against his surety. There was never a final settlement made, nor an order to pay over the balance in the guardian’s hands.

Charles W. Smith, Judge. The petition should show it to be a fact that there is a special fund in the hands of the county treasurer subject to the warrants of the district. This fund is to be provided in a certain way, and the petition should state that such was the fact. Const, art. 14, § 3; 38 Ark. 371; Gantt’s Dig., § 5524; Sand. & H. Dig., § 7104. The writ must show on its face what is claimed, and the facts on which the claim is based. High, Ext. Leg.

Jeremiah G. Wallace, Judge. The evidence shows clearly that the meeting was a call meeting, and not a regular meeting. The notice of a special meeting of the directors of a corporation should be in writing, and should definitely state its objects. Beach, Pub. Corp., § 1359; 53 Conn. 576. If one of the directors failed to receive proper notice, the acts of the directors at the meeting are void. 21 Am. & Eng. Enc. Law, 755; 52 Ark. 511; 22 Oh.

James F. Robinson, Chancellor. statement by the court. In 1892 James Floyd was the owner of a lot in Taylor’s addition to the city of Pine Bluff. In that year he became indebted to the Bluff City Lumber Company for materials furnished him by said company towards the erection of a building upon said lot; and on the 14th day of May, 1892, said company duly filed its lien for the price of said materials, in manner as provided by statute.

Will P. Feazel, Judge. There is no provision in our law allowing a sealed verdict. Even where it is allowed, the jury are required to return their verdict into court. 28 Am. & Eng. Enc. Law, pp. 343 and 409; Sand. & H. Dig., § 2252; 19 Ark. 476, and eases cited. After the jury was once discharged, and had separated, it was error to recall them, and receive a verdict from them. 32 Ark. 585, and cases cited; 49 Ark. 195.

Richard H. Powell, Judge. Tbe terms of tbe circuit courts are fixed by law, and this is notice of their times to every one. An addition of a statement that the first day of a term will fall' on a certain day of a certain month is surplusage, and may be rejected. 1 Ark. 119.

John M. Elliott, Judge. The lien of a mortgage is superior to that of a material man (claiming under the act of April 20, 1895.) whose lien attached after that of the mortgage. Sand. & H. Dig., § 4737; 56 Ark. 640. Even if this were not true, this act does not operate on existing rights. Sec. 17, art. 2, Const, of Ark.; 3 Am. & Eng. Enc. Law, p. 760; 40 N. W. 513; 9 S. E. 359; 30 N. W. 458; 5 Ark. 217; 17 Ark. 489; 57 Ark. 481.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Action in replevin by Edward Haglin against tbe sheriff of Sebastian county to recover a stock of merchandise, store fixtures, etc., held by said sheriff under a writ of attachment.

Hance N Hutton, Judge. The damages claimed in the counterclaim were too remote, contingent and uncertain, and the demurrer and motion to strike them out should have been sustained. 57 Ark. 203, and cases cited; 1 Sedgwick, Damages (2 Ed.), pp. 71-72; 2 Sedgwick, Damages, New Ed. 764, 741, p. 219; 21 Wend. 342; Tiedeman, Sales, 336; Benjamin, Sales, 1307; 58 Ark. 34; 7 Cush. (Mass.) 516; 15 S. E. 940; 11 N. C. 92.

Petition for summary judgment for failure to return execution. Tbe supreme court has jurisdiction to render summary judgment against one refusing to obey its mandates. Sand. & A. Dig.; §§ 4245—4252; 2 Ark. 93; dissenting opinion in 25 Ark. 354; 29 Ark. 208. This court bas no jurisdiction. Sand. & H. Dig., § 3107, and note 2.

. Edgar E. Bryant, Judge. The office of collector being a constitutional one, the legislature has no power to pass a law which deprives its holder-of all compensation, or so reduces it that it cannot be maintained properly. Art. 7, § 46, Const, of Ark.; 61 Ark. 26, and eases cited; 18 Atl. 445; 65 N. C. 603; 26 Wis. 412; Cooley, Const. Lim. p. 79, note, and p. 332 note; 23 111. 547; 15 Lea, 679; Throop, Pub. Off. § 458; 64 Miss. 312; S. C. 1 So. 353.

Feazel, Judge. The wife’s returning to the husband was not a condonement of his mistreatment of her. The forgiveness is conditional, and revives on the repetition of the treatment. 4 Barb. 217; 25 Yt. 678; 20 Ala. 629; 1 Hag. Ecc. 736; 27 Wis. 252; 48 Neb. 794; 10 Paige, Ch. 20; 4 Paige, 462; 20 111. App. 253; 101 Mich. 102. The wife is not held to be so strictly barred by condonement as is the husband. 140 Fed. 70; 1 Hag.

Richard H. Powell, Judge. The mental condition of a party being in issue, evidence of his habits, physical condition, conduct and conversations, is admissible. 15 Ark. 601; 20 Ark. 21G; 54 Ark. 598; 55 Ark. 259; 61 Ark. 241.

Elliott, Judge. The instructions given for appellee were erroneous, because they made the liability of the company to rest on the willfulness, rather than the negligence, exhibited by the engineer. A railroad company, operating cars along a public street, owes a high degree of diligence to the public, and is liable for any negligent injury to a person. 3 Elliott, Railroads, §§ 1093-4; 42 Ark. 327; 37 Am. & Eng. R. Cases, 345; 2 Wood, Rys. §271, and cases cited; 36 Am. & Eng.

William H. Cate, Judge. ■STATEMENT BY THE COURT. This action was commenced to recover damages by the appellant against the appellee for a failure to deliver promptly the following telegram, sent to appellant, at Paragould, Ark., to-wit: “Central City, Ky., 6-23-1894. To James Peay, City: Sallie, Dot, Saline Smith, and Jim Maddox killed in accident at McHenry to-day.

Will P. Feazel, Judge. statement by the court. This is an action of ejectment.

Felix G. Taylor, Judge. One partner has no right to use firm assets in the purchase of property for his individual use. 40 Ark. 551; 52 id. 556; 85 Ala. 198; 12 Pet. (U. S.) 220; 78 la. 617. Proof by mere custom of settling firm debts in this manner is not sufficient. The assent of all the firm is the fact necessary to prove. 17 N. W. 751.

<p>Constitutional Law—Ditching Act.—The ditching act (Sand. & H. Dig., 2 1203, et seq.), which provides, (§ 1205) that all lands benefited by a public ditch or drain shall be assessed in proportion to the benefits, for the construction thereof, whether it passes through said land or not,” is not unconstitutional as providing for a taking of private property for public use without just compensation. (Page 558.)</p> <p>Ditching Act—Assessment of Benefits.—In providing that “all lands benefited by a public ditch shall be assessed in proportion to the benefits,” the ditching act contemplates that only those benefits should be estimated which are local and peculiar to the land taken or assessed, and not those which the owner receives in common with the community generally. (Page 559.)</p> <p>Same.—The amount which may be assessed against the property to be benefited by a public ditch is limited to an amount within the special benefits to be received. (Page 561.)</p> <p>Constitutional Law—Taking Without Compensation.—The fact that an act provided for the taking of one’s land for a public purpose without providing just compensation would not render it void, blit only ineffectual to take the land in invitum. (Page 560.)</p> <p>Same—Delegation of Taxes.—Local assessments for the purpose of constructing a public ditch are not “taxes,” within the meaning of the constitution of 1874, art. 2, 2 23, providing that “the general assembly-may delegate the taxing power, with the necessary restrictions, to the state’s subordinate political and municipal corporations, to the extent of providing for their existence, maintenance and well being, but no further.” (Page 562.)</p> <p>Constitutional Law—Taking without Dub Process.—The ditching act, providing for the taking of land necessary for the construction of a public ditch, does not infringe the constitutional prohibition against taking property without due process, since the expression of the legislative will authorizing such taking is of itself due process, and since the act itself provides for notice to interested parties, and points out a remedy to such as may be aggrieved. (Page 562.)</p> <p>Same—Discrimination Against Non-Residents.—In providing that the ditch tax shall be collected on the lands of a non-resident as other taxes, but that it shall be enforced against the lands of a resident by proceedings in the circuit court, the ditching act does not discriminate against non-residents, nor is it a violation of art. 4, 2 2, Const, of the United States, guarantying equal privileges and immunities to citizens in the several states. (Page 563.)</p> <p>Same—Act Unconstitutional in Part.—If any special provision of an act be unconstitutional, and can be stricken out without affecting the validity of the residue of the act, it will be done, and the remainder of the act allowed to stand. (Page 563.)</p> <p>Ditching Act—Divergence erom Petition.—Where a petition for the establishment of a public ditch in general terms asked that the three several lakes mentioned should be drained “by a ditch running from about west to east,” and emptying into the river on the land of D, it was not an unwarranted divergence for the county court to establish a ditch which would drain the three lakes by a shorter and less expensive route running north and south on the divisional lines, although such ditch would not empty into the river on the land of D. (Page 564.)</p> <p>Same—Notice to Landowners.—The notice of the pendency of a petition for the establishment of a public ditch, which the statute (Sand. & H. Dig., 2 1208) requires to be given, is designed for the protection of the landowner, and must serapulously conform to the statute. (Page 569.)</p>

Felix G. Taylor, Judge. The answer of defendant does not deny the allegation of ownership by plaintiff, and hence it must be taken as confessed. Sand. & H. Dig., § 5761. Appellee is estopped to deny the validity of the decree of foreclosure, or the title of the respective parties thereto. Act January 16, 1861, § 4, p. 236;' 57 Ark. 58; 38 Ark. 181. The tax forfeitures of 1866 and 1872 were void, so far as the state’s lien was concerned.

Marcus S. Hawkins, Judge. The description, “NE. SE. sec. 24; township 13; range 7; No. of acres 40,” is sufficient to identify the land, and give notice to the delinquent owner. Sand. & H. Dig., § 6625. The description of the lands in the assessment list, and also in the notice of sale of delinquent lands, was too vague. 59 Ark. 460; 43 N. Y. 107; 18 Am. & Eng. Ene. Law, pp. 278, 279 and 280.

<p>Appeal from Sebastian Circuit Court, Fort Smith District.</p> <p>Edgar E. Bryant, Judge.</p> <p>statement by the court.</p> <p>B. Luce sued upon a note executed by E. M. and W. S. Harrison for $200 and interest, dated April 22, 1889, payable to J. B. Nedry, and by J. B. Nedry assigned to Gus A. Gill, and by Gus A. Gill assigned to appellee. He alleged in his complaint that J. B. Nedry changed the date of the note from the 22d to the 24th without the consent or knowledge of E. M. Harrison-, but that, before Gill purchased the note from Nedry, he found Harrison on the street, and exhibited the note to him (Harrison), and asked him if it was all right; that Harrison assured Gill that said note was all right, and that he intended to pay it.</p> <p>E. M. Harrison answered that the note was changed in date after its execution and delivery, and was void, and denied that he ever promised to pay Gill, or that the note was exhibited to him by Gill. He alleged that Nedry was the real plaintiff, and that Gill had withdrawn his suit upon the note, and transferred same to B. Luce, for the reason that Luce had Nedry in a place where he could force payment.</p> <p>Upon the trial plaintiff proved by Gus A. Gill that, before purchasing the note from Nedry, he exhibited same to E. M. Harrison, and that Harrison took it, and, after looking at it, said it was all right, and that he (Gill) could safely purchase it, and promised to pay it; that he did not call Harrison’s attention to the change in date; that when he sold the note to Luce, he told Luce of the conversation with Harrison.</p> <p>J. B. Nedry swore that he changed the date from April 22d to 24th; that he sold to Gus A. Gill; that he was in Gus Gill’s office, and Gill asked him if he wanted to sell the note, and that Gill said if it was all right he would buy it; that Harrison was not present at this conversation. • The defendant objected to the evidence for the reason that Harrison was not present. The court admitted the evidence, and the defendant saved his exception. And, over the objection of defendant, he was permitted to state: “Gill told me to stay in his office until he went to see Harrison about it.” Defendant saved his exception. Over objection of defendant he was permitted to state: “After Gill came back, he told me it was all right, and that he would buy it.” Defendant saved his exception for same reason, that Harrison was not present.</p> <p>B. Luce testified that he purchased the note, and never had a conversation with E. M. Harrison before doing so.</p> <p>The defendant swore that the note was changed in date, and a mortgage given by Nedry to secure same without his consent or knowledge, and that he never agreed to pay Gill; that.Gill never exhibited the note to him; that he did not know of change in date of note until Gill first sued on it; that when Gill’s collector presented same for payment, they refused to allow him to look' at it; that Gill never pointed out any change in date of note. Defendant further offered to swear that Gill told him he withdrew his suit on the note because he had secured a place for Nedry’s daughter, and that Nedry would pay him, and that he could transfer it to Luce, who could force him to pay it. This evidence was ruled out, and defendant saved his exception.</p> <p>Defendant offered to prove by W. S. Harrison, one of the makers of the note, that he was in Fort Smith, and that Gill never presented the. note to him to see whether it was all right. The court refused to admit this testimony, and defendant saved his exception. He also offered to prove by W. S. Harrison that the sale of the note was made to Luce for the purpose of forcing Nedry to pay same, and that Gill withdrew the original suit because he had got Nedry’s daughter a position upon the promise that he would pay him. The court refused to admit this evidence, and defendant saved his exception.</p> <p>The court instructed the jury as follows: “The court tells you that the change of the date of the note by Nedry invalidated the note, and made it void, and plaintiff cannot recover on it unless you find that, before buying the note, Gill, not knowing that Nedry had changed its date, went to E. M. Harrison, and, showing the note to him, asked him if it was all right, and told him he was about to purchase it, and that Harrison, after looking at it, told Gill it was all right, and that he could safely purchase it, and that Gill thereafter, relying on said assurance of Harrison, bought the note of Nedry, in which case you should find for the plaintiff.” The defendant objected, and saved his exception to the giving of this instruction.</p> <p>Defendant asked the following instruction: “I charge you that, before there could have been a ratification on the part of Harrison, it. would have been necessary to call his attention to the change in the contract. In other words, after the change in the date, the contract became another from that executed by Harrison, and, before he could be bound by the new contract, he should have been informed of the change which rendered the original contract a new one, and then a promise from Harrison to pay Gill if he bought it.”</p> <p>The court refused to give instruction, and defendant saved his exception. Defendant filed motion for new trial, setting up the usual grounds therefor, which was overruled. Defendant exceptéd, and prayed an appeal to this court, which was granted.</p> <p>The maker of a negotiable instrument, which has been rendered void by a material alteration, will not be held to ratify such alteration by any act or deed on his part, unless he knows of the alteration at the time he speaks or*acts. 48 Ark. 426; 29 S. W. 332; 43 Pac. 837; 36 Pac. 1037; 60 Mo. 449; 67 Ga. 167; 30 Ark. 186.</p> <p>Appellant, being the maker of the note, and knowing its date and terms originally, is estopped to set up the defense of material alteration, after having examined the note and advised appellee to buy it. Bigelow, Estop. (4 Ed.) 564, 565 and 575; 33 Ark. 468; 48 Ark. 409; 39 Ark. 131; 50 Ark. 128; 90 Ind. 386.</p>

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The appellant was indicted and convicted for violating section 1904 of Sandels & Hill’s Digest, which is as follows, to-wit: “If any person having a license to keep a tavern or dramshop shall knowingly permit any person to play at any game of cards, dice or other gaming device within his house, outhouse, curtilage or enclosure, he shall be deemed guilty of a misdemeanor, and, on conviction, in addition to the punishment…

John C. Hawthorne, Special Judge. STATEMENT BY THE COURT. The appellee, Ira A. B. Minner, brought this suit in the Randolph circuit court against the appellant, Phoenix Insurance Company, on a fire insurance policy issued by the appellant to him on the 23d of September, 1893, insuring the appellee for one year from that date against loss by fire and lightning on certain property to the amount of $1,620, apportioned as follows: “Dwelling, $1,000; household furniture, $200;…

Edgar E. Bryant, Judge. The signing of a bill of exceptions is imposed. by law on the circuit judge, and, it being a judicial act, cannot be delegated. 37 Ark. 370; 37 Ark. 528; 40 Ark. 172; 42 Ark. 278; 42 Ark. 488; 38 Ark. 283. The court could not even extend the time into the next term. 61 Ark. 339.

Jephtha H. Evans, Judge. The liability of the sureties on a dramshop keeper’s bond is complete the instant he receives his license and begins to derive the benefit therefrom. Approval of such bond is not mandatory. 2 Ark. 79. Acceptance of the bond is necessary to its validity. Murfree, Official Bonds, §§ 46-48; 79 Cal. 84; 47 Mich. 586. The council had no right to delegate its power to accept or approve the bond. 47 Mich. 586; 22 S. W. 5,22; Dillon, Mnn.

Alexander M. Duffie, Judge. The court erred in finding, as a matter of law, that the provision in the deed of assignment that the assignee should “dispose of the same (the property) in the mannner provided by said laws” (of Arkansas) included a requirement that he should sell the choses in action, as well as the rest of the property.

, Leland Leatherman, Chancellor. The board of health has no power to adjudicate or abate nuisances. The city council alone has this power, and it cannot delegate it. Sand. & H. Dig., §§ 5132, 5203; 29 Am. Rep. Í05, and note; 30 Am. Rep. 776; 37 Am. Dec. 271, and note; 96 Am. Dec. 311, and note; Wood, Nuisances (2 Ed.), 820. But even if the board of health had such power, the house in this case was not a nuisance per se. 16 Am. & Eng.

1 Rueus D. Hearn, Judge. STATEMENT BY THE COURT. Appellee filed Ms suit in the circuit court of Miller county, alleging that on June 4, 1894, while a passenger on the road of appellant en route between Lewisville and Texarkana, the conductor of the train, Randall Silverman, cursed and abused him willfully, and did beat, bruise and ill treat him, striking him with a lantern, by reason of which curses, blows and ill treatment he was damaged in the sum of $20,000.

Thomas B. Martin, Chancellor. There can be no recovery upon the note sued on, because the college was located outside the town of Searcy. “In, as used in this case, means “within” or “inside of.” Century Diet., definition of “In”; Webster’s Diet., definition of “Within”; 2 Parsons, Cont. § 527; 30 Ark. 186; 82 Tex. 553, 559; 32 Md. 37. So with the preposition “at.” 1 Ark. 171, 180, 181; 3 Cranch (C. C.), 599, 606; 1 Bish. Dir. & Forms, § 80; 1 Bish. Cr. Pro. § 378; 30 Tex.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: The appellants, A. L. Douglas et al., brought a former action against the appellees, H. J. Sharp et al., to recover from them the possession of certain land in Drew county.

Fetus G. Taylor, Judge. The act of 1891 (p. 91,) entitled “An act to fix the liability of sureties on bonds and other obligations in this state,” bars the defense set up in the first paragraph of Spain’s answer. No notice of acceptance need be given to the guarantor by the guarantee in the case of an absolute guaranty, the terms of which are definite as to extent and amount. 4 Ark. 86; 24 Ark. 517; Tied. Com. Paper, § 320; 3 N. Y. 203; 28 L.R.A. 209; 9 Am. & Eng. Enc.

Alexander M. Duefie, Judge. Parol evidence is not admissible to contradict or vary the terms of an unambiguous written contract. 1 Greenleaf, Evid. §§ 257, 277, 281 and 282; 4 Ark. 179; 15 Ark. 543; 35 Ark. 164; 50 Ark. 393; 55 Ark. 347; 28 Ark. 146. It was the duty of the court to tell the jury the meaning of the clause in controversy. 3 Am. & Eng. Ene. Law, 867 et seq.; 20 Ark. 583.

J. V. Bourland, Special Judge. The owner of a homestead does not lose it by not claiming before sale under a judgment or decree of court. 55 Ark. 55; 49 Ark. 299; Const, of Ark. (1874), art. 9, § 4, and authorities cited; Sand. & H. Dig., § 3714; 55 Ark. 139. Fraudulent conveyance of a homestead does not forfeit it.