Volume 65 — Arkansas Reports

David W. Carroll, Chancellor. STATEMENT BY THE COURT. This suit was begun February 13, 1894, to foreclose a deed in trust made to secure a note given by N. G. Hewitt for $6,000 on August 1, 1879, due three years after date, for money borrowed of Mrs. Mary G. Van Horn. The property conveyed in the deed is lot 12 in block 1 in the city of Little Rock. N. G. Hewitt died in February, 1887, leaving a will, which was probated March 18, 1887.

Rufus D. Hearn, Judge. The court erred in refusing to amend the record entry of the judgment, so as to show the findings of fact on which it was based. If such recital of facts appeared, and the judgment was not supported thereby, it could be corrected on appeal, without motion for new trial or bill of exceptions. 46 Ark. 18; 31 S. W. 140; 26 Ark. 536; 26 Ark. 662; 55 Ark. 334.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. This was originally a suit at law aided by attachment, by the plaintiffs, the Stackhouse Brothers, against the defendant, the Woodruff Land and Timber Company.

Joseph W. Martin, Judge. There is no evidence that appellant made or ratified the contract sued on. Appellee can not maintain an action upon the contract sued on.

Richard H. Powell, Judge. STATEMENT BY THE COURT. Action by Bank of Black Rock against George W. Decker for conversion of 100,000 feet of lumber. The facts briefly stated are as follows: The Heckert Lumber Company, a firm composed of Charles and John Heckert, were engaged in the business of sawing, manufacturing and shipping lumber' at Black Rock, Arkansas. The bank agreed to loan, and did loan, this company certain sums of money.

Brice B. Hudgins, Judge. In a former trial for an offense similar to tbe one charged in the indictment, evidence was offered tending to prove the commission of the offense charged in the case at bar. The state did not elect which charge it would rely on, and the jury did not specify for which offense they convicted the defendant. Hence the plea of former conviction.is effectual in a trial under the aforesaid second indictment. 43 Ark. 68; 43 Ark. 372.

Edward S. McDaniel, Judge. STATEMENT BY THE COURT. The appellee recovered a judgment against the appellant, procured the issuance of an execution thereon, and had the same levied upon the individual interest of the appellant in the fixtures and furniture in a drug store, which were the partnership property of the appellant and J. H. Crook.

Will P. Feazel, Judge. On December 20, 1892, Sypert brought suit against Merrill upon a note given by Merrill to Wright for the purchase of a mare, and assigned by Wright to Sypert, and an order was issued that the mare be taken from Merrill’s possession, and held subject to the court’s order. Baker, Damage & Co. gave bond, and intervened for the mare, claiming under a prior recorded mortgage given to them by Merrill.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. Action upon an insurance policy issued by the defendant, the Phoenix Insurance Company, upon a stock of merchandise owned by plaintiffs for the sum of $1,500. The presiding judge at the trial in the circuit court, among other instructions, gave to the jury the following, at the request of the plaintiff, to which the defendant objected: “3.

Richard A. Powell, Judge. - The only class of persons to whom a railway company owes the exercise of “the highest degree of care, diligence and skill in running and operating its trains is that of passengers. To all others it is owes only ordinary care, etc. 46 Ark. 555; 48 Ark. 493; 59 Ark. 103; 48 Ark. 493; Sand. & H. Dig., § 6207; 49 Ark. 257; 54 Ark. 431; 11 C. C. A. 554; 34 Ark. 625. Tbe relation of passenger and carrier had ceased at the time of the accident.

Evans, Judge. The right of entry, in the heirs, accrued on the widow’s abandonment. The widow waived her homestead by failing to claim it in the probate proceeding. 33 Ark. 399; 48 Ark. 230, and cases cited; 136 Mass. 286. When the widow abandons the homestead, the period of limitation begins to run against the remainderman. 53 Ark. 403; Dembitz on Land Titles, p. 1354; 55 Ark. 562; ib. 572; 11 S. W. 809; Kerr, Beal Property, §§ 562, 1878.

Joseph W. Martin, Judge. •A claim must be properly authenticated when presented to an administrator, in order to give a right of action thereon for his refusal of it. Sand. & H. Dig., §§ 114, 119; 30 Ark. 755; 48 Ark. 304; 48 Ark. 360. In a suit by an administrator, neither party will be allowed to testify against the other, as to transactions with the deceased.

Francis^ Circuit Court. Hance N. Hutton, Judge. STATEMENT BY THE COURT. Philander Littell was the guardian of Mary Blanton. After his guardianship terminated, there was a controversy between him and the said Mary Blanton concerning the final settlement filed by him as guardian.

Bichard H. Powell, Judge. The mortgage was good between the parties, without filing or recording, and the statute, making it an offence to remove mortgaged property, does not require the lien to be recorded. Hence the filing was not necessary. Sand. & H. Dig, .§ 1868; 49 Ark. 85; 54 Ark. 184; 9 Ark. 112; 18 Ark. 105. If filing-had been necessary, the signing of the memorandum by the initials of the mortgagee was a sufficient compliance with the statute.

Richard H. Powell, Judge. STATEMENT BY THE COURT. Appellee was indicted at the spring term, 1896, of the Independence circuit court for petit larceny.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. Appellee brought suit against appellant for $125, the amount of an alleged fee for services rendered appellant as an attorney in a certain suit for partition in the Chicot chancery coui't, in which certain lands were allotted her.

James S. Thomas, Judge, on exchange of circuits. Since the statute making abandonment a ground for divorce is in derogation of the common law, a complaint filed under it must strictly comply with all its requirements as to allegations. 2 Bish. Mar. & Div. § 598; Stewart, Mar. & Div. 258; 2 Bish. Mar. Div. & Sep. 1460, 1466; 10 Tex. 355; 19 Mo. 354; 1 Nelson, Divorce, 112; 20 Wis. 266; 1 Nelson, Div. 112; 4 la. 324; Bish. Mar. & Div. 1500.

Appeals from Monroe Circuit Court. James S. Thomas, Judge. The proceedings in the overdue tax sale are void, because: (1) The warning order and pro confesso decree are at variance as to the year for which the taxes on the north forty acres are alleged to be in default. 56 Ark. 419; 55 Ark. 30; Acts Ark. 1881, p. 65, §§ 2 and 3. The rates for the two years mentioned are different, and of this fact the court takes judicial knowledge. Acts 1877, p. 45; Acts 1875, Adj.

Felix G. Taylor, Judge. The section men were not acting within the scope of their employment when they kindled the fire. Hence the railway company is not liable for resulting damages. 15 Am. & Eng. R. Cas. 135; 19 O. St. 110; Thompson, Negligence, 885, 886; Cooley, Torts, 133, et seq.; 38 Ark. 357; 40 Ark. 298; 59 Ark. 395.

Appealed from Jefferson Circuit Court. John M. Elliott, Judge. In instructing the jury as to what constitutes contributory negligence, it was the duty of the court to give to the jury the standard of conduct required of plaintiff.

<p>Deed — Covenant—Damages.—In case of a deed containing covenants against incumbrances, the covenantee, when sued on the purchase money note, is entitled to recoup any damages he may have sustained in consequence of a breach of such covenants; and since the covenantee may rely upon the covenantor to remove all incumbrances, he will not be chargeable with neglect if he fail to redeem from a tax forfeiture incurred by the covenantor until the state’s title has been porfected. (Page 104.)</p>

Rufus D. Hearn, Judge. The agency of Landes was not proved. Nor was the statement made by the manager of appellant company sufficient to estop it to deny such agency. Estoppels in pais are not favored. 15 Ark. 316. They will always be limited strictly to the representation made. 49 Ark. 336. Hence, appellee would not have been warranted in presuming that Landes had authority to purchase on credit, from the mere fact of his agency, if it had existed at all.

Joseph W. Martin, Judge. The affidavit for appeal is defective. Sand. & H. Dig., § 5749. The requisite notice of filing the schedule was not given. Sand. & H. Dig., § 3718. Nor does the schedule state that the claim is for a debt of contract. This is necessary. Sand. & H. Dig., § 3716. A debtor must file his claim to exemptions before judgment against the garnishee, or he is too late. 62 Ala. 397; 52 Pa. St. 423; 37 Iowa, 129; 28 Ark. 485; 33 Ark. 464.

Charles W. Smith, Judge. Tbe conclusions of a jury are final only in cases where the evidence upon which the verdict must turn is exclusively oral testimony, uncorroborated by rational or physical facts. The burden was on appellees to account for the disappearance of the staves, since it was a matter peculiarly within their knowledge. 6 Wall. 299; 4 Watts (Pa.), 361.

Jeremiah G-. Wallace, Judge. It is only in cases where the administrator improperly permits funds in his hands to lie idle, or uses them for his own profit, that ho is chargeable with interest. 2 Woerner, Adm. § 511; Perry, Trusts, § 468. An administrator can make payments only when so ordered by probate court. He is not required to pay out all mone3rs within ten days. Sand. & II. Dig., § 154,155.

Rufus D. Hearn, Judge. Plaintiff was guilty of contributory negligence. The facts being admitted, it became a question of law as to whether there was negligence or not. 61 Ark. 555; 52 Ark. 410. It was error for the court to refuse to instruct a verdict for defendant.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. This action was brought in the Lee circuit court by appellee, Jack Dawson, against the appellant, F. O. Danenhauer, to recover possession of five acres of land in Lee county. Danenhauer filed an answer, alleging that he was the owner of said land, and denying the right of Dawson to recover possession thereof.

Hance N. Hutton, Judge. A railway company is not an insurer of its servants against danger, and when a servant has undertaken a service, he is presumed to have assumed all risks necessarily incident thereto. He is held to the exercise of ordinary care in avoiding' danger; and where the danger is one which was as apparent to him as to his section boss, the orders of his section boss do not excuse him for incurring such danger.

Richard H. Powell, Judge. The notice of the order of cancellation must conform strictly to the requirements of the statute authorizing and* regulating its publication. Sand. & H. Dig., § 1004; 33 Ark. 740; 48 Ark. 238; 51 Ark. 34; 61 Ark. 259, 265. And the proof of the making and manner of publication must also conform to the statute. Sand. & II. Dig., § 4685; 51 Ark. 34, 42; 55 ib. 218; 54 ib. 627, 643; 61 Ark. 259, 265; 10 Fed. 891.

Joseph W. Martin, Judge. In an action for malicious prosecution, both malice and want of probable cause are essential elements. 33 Ark. 316. An agent of a corporation can bind his principal within only the real or apparent scope of his authority. Hence, to hold a principal liable in a suit for malicious prosecution by an agent, express authority of such agent to institute the criminal prosecution complained of must be shown. 78 Md. 394; 28 Atl. 615; 34 Am.

Francis Circuit Court in Chancery. Hance N. Hutton, Judge. Chancery court has power to, and should, on application made before confirmation of a commissioner’s or master’s sale, reopen the bidding and let in a bid which is in advance of that of the purchaser at such commissioner’s sale. 3 Daniell’s Ch. Pract. 1284 (3d Am. Ed.); 6 Heisk. (Tenn.) 539; 6 Lea, 190; 3 Tenn. Ch. 728, 268, 344, 237; 1 Tenn. Ch. 51; 3 Tenn. Ch. 228.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. The appellees, Dwyer Brothers, brought suit in the Phillips circuit court against the appellant to recover certain sums of money which were paid by them at various times from January, 1893, to February 1, 1895, as-a license for keeping a meat market in' the city of Helena, amounting in the aggregate to the sum of $109.

Francis Circuit Court. Hance N. Hutton, Judge. The statutory proceeding for summary judgment must be strictly construed. 25 Ark. 353. The statute authorized the sheriff to pay the money to the attorneys of record, and he is not liable to summary judgment, unless he fails to pay the amount collected on execution, on demand of the plaintiff or his attorneys. Sand. & H. Dig., § 4252. There was nothing irregular in the employment of the attorneys. .

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. The appellee, Sloan, brought an action upon an account against appellant, Belding, before a justice of the peace of Garland county. Upon the day set for trial the parties appeared, and, on motion of Belding, “a change of venue” was taken to the court of common pleas of said county.

<p>1,. Carrier — Ticket—Liability for Ejecting Passenger. — A passenger on defendant’s train presented to the conductor a ticket which, by mistake of defendant’s ticket agent, was improperly made out. The conductor, acting under orders, refused to accept the ticket, and, on defendant’s refusing to pay fare, the train was stopped about a mile from the initial station, and plaintiff was compelled to walk back and take passage on a later train. Seld that defendant was liable for the damages suffered by plaintiff, such as for the delay in completing his journey, for the time and trouble of having to walk back to the station, and for such humiliation as he was made to undergo. (Page 181.)</p> <p>2. Same — Expulsion.—-Where a conductor informs a passenger that he must pay fare or get off, and, on his refusal to pay, stops the train for him to get off, the passenger is justified in treating such conduct as an expulsion. (Page 182.)</p> <p>3. Expulsion of Passenger — Damages—Mental Anguish. — A passenger wrongfully expelled from a train cannot recover from the railway company damages for mental anguish caused by the resulting delay in reaching his sick brother. (Page 182.)</p>

Leland Leatherman, Chancellor. Sand. & H. Dig., § 6251, creates a charge against property without the assent of the owner; and it must be strictly construed. 54 Ark. 522, 525; 51 Ark. 309, 315; 27 Ark. 564; 42 S. W. 1147; 43 Ark. 168; 59 Ark. 81, 84.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Appellee brought suit on the following note. “Fort Smith, Ark., January 16, 1895. No. 1209. Due April 16, 1895. $300.00.

Will P. Feazel, Judge. The defendant in an attachment cannot bring replevin against an officer holding the goods under the attachment. Sand. & H. Dig., §§ 397 and 6384, clause 5; 4 Ark. 525; 52 ib. 195.

Grant Green, Jr., Special Judge. STATEMENT BY THE COURT. Appellants, Meehan & McGowan, sued appellee in the circuit court upon a mutual running account for an alleged balance due of $714.49, embracing transactions between the parties of about three years duration, amounting in the aggregate to over $4,500; and about the same time Charley Meehan brought suit before a justice of the peace for an alleged balance due for rents of $.199.53, which cause was brought into the…

Marcus L. Hawkins, Judge. In courts of law the costs must follow the judgment. Sand. & H. Dig., chap. 31, § 787. The statute regulating costs applies only to “reasonable and necessary” costs, and it is within the sound discretion of the court to refuse to allow to the prevailing party costs which he has caused to accumulate unnecessarily. 17 Ark. 361.

Hance N. Hutton, Judge. Appellant cannot be beld liable for money had and received where the proof shows affirmatively that he did not receive it. 22 Ark. 68; 23 Ark. 300; 11 Ark. 269. Refusal to so instruct was error on the part of the trial court.

Jeptha H. Evans, Judge. A railway company has a right to make a rule requiring passengers to purchase tickets before entering freight trains; and if any one, having notice of such rule, nevertheless enters a freight train without procuring a ticket, he is not a passenger, and not entitled to be treated as such. 11 Ohio St. 457; 1 Am. & Eng. R. Cas. 278; 2 ib. 278; 55 Ind. 369; 77 Ind. 507;-59 111. 110; 63 111. 304; 27 Md. 277.

Francis Johnson, Special Judge. STATEMENT BY THE COURT. On the 30th of October, 1894, appellant obtained judgment in a justice’s court against appellee in the sum of $105.65, on which an execution issued November 16, 1895, and was returned as levied on certain personal property of appellee November 26, 1895. Appellee filed with said court a schedule of his personal property, including the property levied on, claiming same as exempt, and asked for a supersedeas.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. Action by Frankie P. Blewitt, administratrix, against the Little Rock & Fort Smith Railway Cnmpany to recover damages for the killing of G. F. Blewitt. Blewitt was struck and killed by an engine of appellant moving upon a switch or “Y” at or near a public crossing in the town of Coal Hill, about 1 o’clock a. m. of a dark night.

Rufus D. Hearn, Judge. The evidence totally fails to show that plaintiff complied with the conditions of his policy; hence any instruction based on an assumption of such compliance is erroneous. 57 Ark. 461; 42 Ark. 57.

Hutton, Judge. STATEMENT BY THE COURT To an action of an ejectment brought by the appellee, the widow of Dan Harris, deceased, against the appellant, the daughter of said Dan Harris, to recover possession of the homestead of the deceased, the appellant answered in substance that the appellee had, before the death of said Dan Harris, wilfully deserted and abandoned her husband, the said Dan Harris, and the homestead in suit, wholly without provocation, and removed, against…

<p>Appeal from Clay Circuit Court, Western District.</p> <p>Felix G-. Taylor, Judge.</p> <p>Railroad companies are not insurers of tlie safety of persons rightfully on their - platforms. The only duty they owe such persons is to use ordinary care to keep their platforms, etc., in safe condition. 48 Ark. 493; 61 Ark. 155; 55 Ark. 432; ib. 19; 13 Peters, 181; Thomp. Car. of Pass. 124, 183, 199; 56 N. Y. 655; 11 Allen, 312. The duty of exercising the highest degree of care, and diligence continues only during the transportation on the cars. Thomp. Car. Pass. 104; 57 Ark. 298. There is an utter failure to prove any actionable negligence with respect to the safety of the platform. Incompetent testimony was admitted.</p> <p>Railway companies are bound, to keep in a safe condition all their platforms, etc., to which passengers have a right and naturally do resort to, in their approach to or exit from the company’s cars. Whit. Smith Neg. 390; 26 la. 124; 37 Ark. 517; 2 Wood, Railways, 1170; 46 Aik. 195, and cases cited; 48 Ark. 125; 19 S. W. 182; 29 S. W. 860; 2 So. 586; 5 Am. & Eng. Enc. Law (2 Ed.), 572, 586, 587, and notes; 76 Fed. 519. Sufficient foundation was laid, in appellee’s testimony, upon which to base ahypothetical question to an expert. 1 Greenl. Ev. § 440; 1 Cent. Rep. 625; 108 Pa. St. 395; 9 Car. 601. Testimony founded on facts known to witness is not incompetent. 61 Pa. St. 404; 1 Cent. Rep. 143; 110 Pa. St. 339; 17 N. Y. 350; 2 L. R. A. 669, and note; 39 S. W. 550; 63 Ark. 391. The fact that the platform was defective and that the plaintiff was injured was sufficient to cast the burden on appellant to prove that it was not negligent. 21 S. W. 883; 54 Ark. 213; 15 S. W. 610; 5 Am. & Eng. Ene. Law (2 Ed.), 522. There being no error in the instructions, this court will not disturb the findings of fact. 48 Ark. 495; 37 S. W. 867.</p>

John M. Elliott, Judge. The proper proceeding, under the terms of the policy, would be a suit in equity, for specific performance of the contract to make an assessment for the payment of the policy. 24 Fed. 685; 114 111. 108; 72 la. 191; 50 Mo. 29. If an action at law were proper upon such a contract, the complaint fails to state facts sufficient to constitute a cause of action, because: (1) It fails to allege a breach of the covenant to make the assessment, etc. 3 Enc.

Jeremiah G-. Wallace, Judge. STATEMENT BY THE COURT. This was a suit by attachment. W. J. Stowers intervened, and claimed the property attached, under a deed of assignment. The issue raised by the interplea was tried by the court, which found the facts as follows: “The deed of assignment relied on by the interpleader, W. J. Stowers, as evidence of his title to the property in controversy, was executed on the 24th day of November,-1893, by the defendant, P. J. Wills.

Edgar E. Bryant, Judge. Action by Haglin against Apple and others for malicious prosecution and false imprisonment.

Jeremiah G. Wallace, Judge. Plaintiff knew or bad the means of knowledge of the facts that authorized a rescission of the contract of sale, at the time it sought to affirm it. Hence it is bound by its election, and cannot disaffirm the sale and maintain replevin. 155 U. S. 38; 111 Mass. 272; 31 Mich. 312; 2 Smith, Lead. Cas. 1372, and notes; 5 Met. 49; 125 Ind. 381; 149 Mass. 141; 113 N. Y. 450; 45 Ark. 141; 52 Ark. 467; 31 Mich. 311; 115 N. Y. 387; 23 Wis. 500.

Bupus D. Hearn, Judge. STATEMENT BY THE COURT. This is a contest between certain creditors of the firm of Sheppard Bros, concerning the priority of their attachment liens. The facts are as follows: The appellants, Meyer, Bannerman & Co., A. C. Pitts, and the First National Bank of Atlanta, Texas, were the creditors of the partnership firm of Sheppard Bros., which firm was engaged, in mercantile business at Era, Ark.

Richard H. Powell, Judge. An insolvent firm may, by assignment, prefer an individual debt of a member thereof to the debts of the firm. 42 Ark. 423; 52 Ark. 556; 54 Ark. 449; 60 Ark. 18; 99 U. S. 119; 64 Miss. 141; 52 111. 471; 116 N. C. 499. There was no duress in the signing of the note. 18 Ai'k. 214; 49 Ark. 70.

Edgar E. Bryant, Judge. The policy is void, because the insured made false warranties as to the character of his occupations. The insurance coinpany had a right to prescribe the conditions precedent of its contract, and the breach of any of these conditions precedent was sufficient to defeat the policy. 4 JE. L.'Cas. 484; 67 Fed. 462; 35 N. E. 105; 62 N. W. 1057; 58 Ark. 528.

Charles W. Smith, Judge. There is no evidence that appellee was employed by appellant or any one acting for it.

Hance N. Hutton, Judge. This is an action commenced on June 12, 1896, by appellee against appellant for possession of a tract of land in Lee county. The plaintiff had judgment below. The complaint showed a perfect chain of title.

Fexlix GL Taylor, Judge. Where a mortgage provides that, on default of any payment of interest, the whole sum shall become due, and the mortgage may be foreclosed, limitations begin to run when the note matures according to its terms, and not on default in payment of interest. 116 Cal. 232; ib. 220. It is no defense that the Freehold Company is a foreign corporation, and has not complied with § 11, art. 12, of the constitution. 60 Ark. 325.

. John M. Elliott, Judge. STATEMENT BY THE COURT. Burt sued Atkinson and others for taking from his possession some cotton, corn, two horses and a wagon, and other personal property. Atkinson answered, denying that he wrongfully took the property, but said that he had a mortgage upon it to secure a debt of $484.49, and that Burt delivered the property to him voluntarily. The other defendants filed general denials. Burt replied, setting up that the debt was usurious.

<p>1. Evidence — Copt of Contract. — Where a copy of a written contract, purporting to be the original, is filed as an exhibit to the complaint, and tlio original is in the hands of defendant, the latter cannot at the trial object to the introduction of the copy in evidence; it being provided by Sand. & H. Dig., § 2929, that “when a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.” (Battle, J., dissents.) (Page 324.)</p> <p>2. Contract — Effect of Breach. — Failure of one party to a contract to comply with its terms releases the other party from compliance with it. (Page 324.)</p>

Richard H. Powell, Judge. A remittance of money by mail is at the risk of the party sending it, unless he was authorized by express direction or previous usage to so remit it. 17 Ark. 428. In the absence of other satisfactory proof of authority to receive payment, possession of the note or security, by the alleged agent, is necessary to the protection of one paying to him. 19 111. App. 17; 2 Sandf.

Richard H. Powell, Judge. The verdict is wholly unsupported by the evidence, and should be set aside. The stenographer’s report contains all the evidence, and it is sufficient for the purpose. Acts Ark. (1897) 64-65. This court will not reverse a judgment for lack of evidence to support the verdict, unless there is an entire absence of it. 43 Ark. 317; 18 Ark. 303; 43 Ark. 367; 51 Ark. 115; 47 Ark. 567.

<p>Contract — Parol Evidence. — Where C wrote a letter to A, guarantying to the latter that B would repay a loan of $3,000 made to him by A, and beneath this letter B wrote a guaranty that he would ship to A 800 bales of cotton, or pay a commission of one dollar per bale on the deficit, the letter and indorsement together constituted one contract, to vary which parol evidence is inadmissible. (Page 335.)</p>

Edward S. McDaniel, Judge. STATEMENT BY THE COURT. Action upon a policy of insurance against loss by fire upon a stock of goods. Tbe policy was issued on the 8th day of April, 1896, and the goods insured were destroyed by fire on the 7th day of May, 1896.

Circuit Court in Chancery, Fort Smith District. Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The Board of Improvement of Sewer District No. 1 of Fort Smith, Ark., brought suit against a large number of tracts of land within its district as delinquent for the improvement taxes for the year 1896. Among other defendants was the School District of Fort Smith and various tracts of -land owned by it.

Rufus J. Hearn, ■ Judge. A sheriff cannot impeach his own return in a collateral proceeding. The remedy is by an action for a false return. 2 Ark. 26; 4 Ark 184; 11 Ark. 368. Besides this, the return is strictly legal and regular. Sand. & H. Dig., § 1004. All the essentials of the statute, regulating the proof of publication of notices, were complied with. Sand. & H. Dig., § 4685. Any objection upon this score is lost to appellee, because not. interposed in the lower court.

Joseph W. Martin, Judge. The only possible excuse for the sale, of the homestead of a minor is to obtain funds for his education and support. Sand. & H. Dig., §§ 3606 et seq. The only case where the probate court has jurisdiction over the homestead is in cases where it exceeds the limit. Sand. & H. Dig., §§ 3698-3701. It can neither be sold to pay debts, nor be partitioned. 49 Ark. 75; 53 Ark. 504; id. 400; 51 Ark. 429; 56 Ark. 563.

Edward-S. McDaniel, Judge. Where a passenger contracts and pays for the transportation of goods at first-class freight rates, it is immaterial that such goods are checked as baggage. 127 111. 598; S. O. 20 N. E. 662; 4 Elliott, Bailroads, §1650. The contract in this case fixed the character of the goods as freight. 4 Elliott, Bailroads, § 1650; 20 Am. St. Bep. 228. The check is a mere token, and does not, of itself, constitute a contract of carriage. 16 Am. & Eng.

Dueeie, Judge. STATEMENT BY THE COURT. This appeal is from a conviction for carrying a pistol as a weapon. The evidence below showed that Enoch Moss, the husband of appellant, owned forty acres of land in the county of Hot Springs, Arkansas,'upon which he and his wife, Lydia Moss, appellant herein, resided as their home. Enoch Moss had two dwelling houses on this land, one in which he lived himself; the other, about 150 yards off, he had rented to a man by the name of Rogers.

Joseph W. Martin, Judge (1) Where one is sought to be held liable for the tort or negligence of another, by virtue of a guaranty against such tort or negligence, this promise or guaranty must be in writing and signed by the party to be charged. Sand. & H. Dig., § 3469, second clause; Browne, Stat. of Frauds, § 155 and cases, 2 Day, (Conn.) 457; 63 N. C. 198; 33 Kas. 580; 12 Ark. 194; 21 Atl. 601; 45 111. App. 155; 49 111.

Richard H. Powell, Judge. Services rendered to one member of a family by another do not constitute a valuable consideration for a transfer. Bump, Fraud. Conv. (3 Ed.) 232, and cases; Sand. & H. Dig., I§ 3464; 8 Am. & Eng. Ene. Law, 767, note. Therefore the conveyance, being a voluntary one, is in fraud of creditors. Appellee cannot set up any consideration other than that mentioned in the deed. 44 Ark. 180; 30 Ark. 417.

Thomas B. Martin, Chancellor. Where a party has his election between two inconsistent modes of procedure, his choice of either mode estops him from subsequently pursuing the other one. Appellant has elected to treat the assignment in this case as void; hence he cannot now be heard to claim under its terms. Big. Est. (5 Ed.) 673; 30 Ark. 453; 32 Ark. 346; 47 Ark. 320; 53 Ark. 513; Burrill, Assign.

Jephtha H. Evans, Judge. An agent’s authority cannot be proved by his own declarations. 46 Ark. 226; 31 Ark. 217. Nor by general reputation. Mechera, Ag. § 101; 76 Ala. 572. The authority of the agents of a corporation is limited, and those dealing with such agents are bound to ascertain the extent of their authority. 48 Ark. 192; Mechera, Ag. §§ 276-289; 32 La. Ann. 656; 63 Tex. 381.

Francis Circuit Court. Hance N. Hutton, Judge. STATEMENT BY THE COURT. The defendant, Bill Gossett, was charged in this case with, and convicted of, stealing two barrels of whisky, a barrel of vinegar and two boxes of cigars. The theory of the state was that the property was taken from cars on the Little Rock & Memphis Railroad.

Hance.N. Hutton, Judge. STATEMENT BY THE COURT.' Action of ejectment by F. C. Danenhower against Richard Fields and Jack Dawson to recover possession of a tract of land held by defendants. The* land was formerly owned by F. Trunkey, and he sold and conveyed the land to defendants, Field and Dawson, upon credit, for the sum of $1,381.

Prairie Circuit Court, Southern District. Thomas O. Trimble, Special Judge. The state should be held to its agreement, made pursuant to. the recommendation of the grand jury, to nolle prosequi this. case. The delay in bringing defendant to trial was not caused by “the application of defendant,” and he should be discharged. Sand. & H. Dig., § 2161. All that is required of a duly qualified expert is that he state his opinion. 61 Ala. 98; 34 Ark: 520; 55 Ark. 593, 599.

Richard H. Powell, Judge. STATEMENT BY THE COURT. In 1874 W. M. Ponder, wbo was the owner of the land on which is situated the present town of Walnut Ridge, Lawrence county, made a plat of the town defining blocks, lots, streets and alleys. Among others was defined “Vine street,” involved in this snit. The plat was dnly recorded. In 1880, upon the petition of W. M. Ponder et al., the town of Walnut Ridge, including the area covered by the plat supra, was incorporated.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. This is an action upon a guardian’s bond executed by G. W. Davis, as guardian of Clara T. Davis, in the sum of six thousand dollars. Upon a final settlement of the accounts of said guardian, he was found to be indebted to his ward in the sum of $5,924.91, and on the 9thday of June, 1892, judgment was rendered against him for that amount.

Felix G. Taylor, Judge. Appellant, having filed the affidavit for appeal required by statute, had taken all steps necessary to confer jurisdiction upon the circuit court. Sand. & H. Dig., § 1149; 35 Ark. 302; 51 Ark. 344; 13 S. W. 250. The probate court should have been made to enter up, nunc pro kmc, the order granting the appeal. 43 Ark. 33; Am. Dig. (1893) p. 135, § 302.

John B. McCaleb, Judge. The court erred in refusing to compel plaintiff to file muniments of title as exhibits. Sand. & H. Dig., § 2528; 38 Ark. 181. Had plaintiff shown that her ancestor died in posession under color of title, defendant would have to show a better title. 31 Ark. 334;.40 Ark. 108; 62 Ark. 51.

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The appellant, John W. Gacking, filed his petition in the circuit court of Sebastian county, praying for a writ of mandamus to compel the School District of Fort Smith to receive his child in its school without payment of tuition. He alleged the following facts as a basis of his petition. In December, 1895, Gacking lived in Sebastian county, in school district 21, which district adjoined the school district of Fort Smith.

Felix Gr. Taylor, Judge. Those in charge of the train might reasonably have expected deceased to get off the track upon the giving of the usual danger signals; and, until they discover the fact, they did not owe him any greater degree of care because of his being drunk. 46 Ark. 673; 25 Mich. 279; 36 Ark. 46; 36 Ark. 376; 49 Ark. 262, 263; 47 Ark. 497;-69 Miss. 631.

Rufus D. Hearn, Judge. An attorney has a lien upon the amount he recovers, to the extent of the fee for which he has contracted. 15 How. 415; 91 IT. S. 253; 130 U. S. 395; 36 Ark. 604; 42 Ark. 402; 33 Ark. 234, 235; 38. Ark. 385. A plea to the jurisdiction of the court of equity can not be raised, for the first time, upon appeal. 15 How. 415; 1 Dan.

Felix G. Taylor, Judge. The change from standing timber to cross-ties was not such a change of identity as will prevent the original owner from maintaining replevin, Avhether the change was Avrought innocently or Avilfully. r'íT’Ark. 210; 55 Ark. 307, 310; 78 Ky. 481; 37 Mich. 332; 70 id. 309; 115 N. C. 85.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The Little Rock Mill & Elevator Company brought an action upon an account for $1,540.60 against the Texarkana Grain, Lumber & Machinery Company, on April 29, 1893, and sued out a writ of attachment, which was levied upon the saw mill and one corn mill belonging to the appellants, and upon other property of the defendants in the attachment.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. This is a suit by Mrs. M. B. Murrell, appellee, against J. M. Stewart, appellant, for the rent, for the month of February, of a dwelling house in this city.

Marcus L. Hawkins, Judge. The court erred in permitting James Robinson to testify in this case, because he had been convicted of an infamous crime, and his competency had never been restored by a proper pardon. As to general purpose and effect of a pardon, see: 18 How. 307; 44 Ark. 122; 49 Ark. 176. A conditional pardon, before the condition is complied with, does not restore competency as a witness. Bish. Cr. Law, § 915, subhead 2; 30 Am. Rep. 395; 23 Am.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. Action to foreclose a deed- of trust or mortgage executed by defendants.

<p>Appeal from Prairie Circuit Court.</p> <p>J. S. Thomas, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>E. R. Screeton and twenty-six other citizens of Prairie county filed a petition asking the county court of Prairie county to open up a new road from the town of Hazen in said county to a point on the DeVall’s Bluff and Hazen road, which petition in every way complied with the requirement of the statutes. Said petitioners filed the bond and proof of publication required, and the court appointed three viewers to view out said road. Said viewers were notified by the clerk of tbeir appointment, took the oath as required by law, and, after viewing said road, reported that the same should be established. Said new road, as established by said viewers, crossed the Little Rock & Memphis railroad, of which appellee, Rudolph Fink, is receiver. Rudolph Fink, as receiver, at his own request, was made a party to the record, and filed a petition showing that it would cost him, as said receiver, the sum of $81.66 to build the crossing and approaches and put up a signboard at said crossing, and asked the court to allow him damages for that amount. The viewers did not find that appellee would be damaged by the opening of said road. The court approved the report of the viewers, and the said new road was opened and established according to the recommendations of said viewers. Appellee appealed to the circuit court from the order of the county court refusing to allow him the damage asked.</p> <p>In the circuit court appellant demurred to the petition of appellee asking for said damages, and the court overruled the demurrer, and allowed the damages asked. To which ruling of the court the appellant, Prairie county, at the time excepted, and appealed to this court.</p> <p>Every railroad company takes its right of way subject to the right of the public to extend highways across it. 30 O. St. 604; 105 111. 388; 140 111. 315-318; 24 N. Y. 345. Nor can courts inquire into the expediency of the taking. Cooley, Const. Lim. 537; 71 111. 333; 2 Mich. 432; 80 By. 149. Damages cannot be claimed by citizens or corporations for expense or injury resulting from obedience to a police regulation. 54 Ark. 608; 105 111. 388. The railway company is bound to construct and maintain the crossing. Sand. & H, Dig., § 6263; 79 Me. 386; 117 111. 203; 91 Ind. 121.</p> <p>Where the highway is laid out after the railroad is constructed, the company is entitled to all damages and expenses incurred by them in building and maintaining a suitable crossing. 14 Gray, 154; 26 N. W. 159; S. C. 58 Mich. 541; 28 N. W. 532; S. C. 61 Mich. 507; 51 N. W. 934; S.C. 90 Mich. 385; 45 Kas. 716; 46 Kas. 104; 29 Pac. 1084; S. C. 48 Kas. 576; 102 Mo. 633; 66 Mich. 42; 51 N. J. Law, 428; Borer, Bailroads, 554. There is no obligation resting on the company to build the 'crossings when the public is seeking to make a road across the established tracks of the company. 45 Kas. 543; 79 Mo. 98.</p>

Richard H. Powell, Judge., STATEMENT BY THE COURT. The facts in this case are as follows: The appellee, Ida Brazile, purchased from R. W. Martin and W. J. Thompson a certain eighty-acre tract of land lying in Jackson county, and took possession of the same under a deed from them.

Joseph W. Martin, Judge. This is an action on a personal covenant, and does not involve the title to land. 1 Ark. 313; 7 Ark. 132. Hence the justice had jurisdiction to try it, even though, in determining the suit, he had to examine questions touching the title to land. Murfree, Jur. Just. §§ 200, 374 and 178; 52 Mich. 50; 48 Mich. 175; 40 Ark. 78; 63 N. W. 920; 54 Ark. 16; 55 Ark. 147; Const. § 40, art. 7; Sand. & H. Dig., §§ 4317-22.

Felix G. Taylor, Judge. A deed made to a partnership, the title of which expresses the name of no person, vests no title. 36 Ark. 456; 1 Dev. Deeds, § 208. Amendment of this defect after ejectment brought by the partnership does not support the action. 36 Ark. 456; 59 Ark. 391; 52 Ark. 411. Further than this, the deed was unavailing, because it was never acknowledged in its amended form. It was not entitled to record, hence its execution should have been proved at the trial.

■Appeal from Lawrence Circuit Court, Western District. Richard H. Powell, Judge. The indictment is not in proper form. Sand. & H. Dig., §§ 2089, 2090. There is no repugnancy between Mansf. Dig., § 1571, and the carnal abuse act of 1893. Hence, both should stand. Bish. Stat. Cr. §§ 169, 171. A confession, to be admissible, must be voluntary. 1 Leach, 293, note a; 1 Greenl. Bv. §§ 211, 218 and 220; 50 Ark. 311.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. Held: as we understand, by the Bank of Conway. If you realize your money out of the goods and property before all the account falls due, your are to give us an equitable discount on amounts you realize before maturity, at the rate of 10 per cent, per annum.

Alexander M. Duffie, Judge. The court erred in permitting the original answer of defendants to be read in evidence, because: (1) It had been displaced by the filing of an amended answer. 33 Ark. 253; 37 Cal. 154; 51 Cal. 222; 71 Cal. 126; 76 Cal. 340; 41 Fed. 172; 2 How. (Miss.) 824. (2) Because it was not signed or verified by the defendant himself. 2 A. K. Marshall (Ky.), 428, 828; S. C. 12 Am.

John M. Elliott, Judge. STATEMENT BY THE COURT. The appellants, A. Brewster, W. Z. Tankersley, and J. M. Fain, were partners under the firm name of J. M. Fain & Co., and engaged in the business of buying and selling cattle. Brewster and Tankersley lived at Pine Bluff, Ark., while Fain made his home at Jennings, La.

P. O. Dooley, Special Chancellor. It was error to allow plaintiff to take judgment on notes loaned it for the purpose, because: (a) Suits must be brought in the name of the real party in interest (Sand. & EL Dig., § 5623); (b) no one but the holder and owner of the paper could bring suit on it (3 Rand. Com.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The facts in this case are as follows: The plaintiff, Michael Kelley, on the 28th day of April, 1894, entered into a contract with defendant, C. A. O’Neal, by which O’Neal, for the sum of $2,000 to be paid by Kelley, agreed to furnish materials and erect for said Kelley a two-story brick house in the city of Texarkana.

W. S. Luna, Special Judge. The pleading, so denominated by appellee, was no cross - complaint. Sand. & H. Dig., § 5712; 32 Ark. 281. Nor was it a valid counter-claim, because: (1) A counter-claim can only set up some breach of the contract sued upon. 27 Ark. 489; 17 id. 245; 26 id. 314; 22 id. 409; 32 id. 284. (2) A counter-claim based on tort is no defense in an action on contract. 57 Ark. 609; 1 id. 338; 4 id. 527.

John M. Elliott, Judge. N. L. Cook, coroner of Jefferson county, presented to the county court his claim for $10.50 for services performed by him in holding an inquest over the dead body of John Brown. The claim was disallowed by the county court. He appealed to the circuit court, where his claim was allowed. The county has appealed.

Eldon A. Bolton, Special Judge. The indictment is fatally defective, because it charges the commission of the offense at a future date. 10 Am. & Eng Ene. Law, 584, note 3; ib. 589, par. 2; Sand. & H. Dig., § 2075. The court erred in refusing the first, fourth and seventh instructions asked by appellant.

Chas. W. Smith, Judge. W. W. Stewart brought suit, against S. L. Harris, sheriff of Lafayette county, and alleged that on the first day of July, 1893, a suit was brought against Alex Stewart by S. Gr. Dreyfus & Co., and a writ of attachment was issued, and a large lot of personal property was taken into the possession of the sheriff under said writ, among said property there being four log wagons of the value of $250.

James S. Thomas, Judge. Appellant was in good standing, and was entitled to withdraw and be paid the value of his stock. 42 N. E. 1008; 48 N. E. 1016. An action at law is the proper one in such a case. 47 N. E. 739; 27 N. E. 543. The articles of association in force at the time of appellant’s contract form part thereof. 148 N. Y. 281; 52 N. Y. 131; 39 N. Y. Sup. Ct. 73; 66 N. Y. 533; 94 N. Y. 104; 92 Hun, 572; 1 Mor. Corp. 96; 1 Beach: Corp. 521; 1 Tkomp. Corp. § 1136.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. The appellee sued the appellant for damagés in negligently treating a broken arm of his-son, for whom he sued. The son, Lawrence B. Lewis, a boy 13 years old, fell and dislocated and otherwise injured an arm, and on the next day was carried from their home in the country, seven or eight miles, to Hot Springs to procure the services of a surgeon.

Alexander M. Duffie, Judge. There was no evidence to support the verdict. The evidence shows that the insured knew of, and made no objection to, the answers written by Ellsworth. If this were not true, the insured ought to have read over the application, and he can not urge that reason to avoid the agreements therein. 58 Ark. 281; 117 TJ. S. 519; 62 Ark. 47.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. This action was brought, under the provisions of Sand. & H. Dig., ch. 85, p. 928, to recover damages for trespass upon certain lands, which it was alleged the state owned, by cutting and removing therefrom certain timber and ties. The answer denied the taking of the timber and ties, as alleged in the complaint, and denied that the state was the owner of the land, timber and ties.

Felix G. Taylor, Judge. An oral agreement for the lease of real estate for a year, to commence in the future, is invalid under the statute of frauds. Sand. & H. Dig., § 3469, sub-div. 5 and 6; 1 Ld. Raym. 736; Browne, Stat. Fr. § 33; 20 So. 77; 43 Minn. 166; 9 So. 164; 19 Mo.

Marcus L. Hawkins, Judge. The court erred in allowing' appellee to introduce in evidence the complaint in another action to which appellant was not a party. 21 Ark. 329. Where one is led into , a contract by fraud, he must repudiate it as soon as it is discovered. 26 Ark. 28; 17 Ark. 228; 91 U. S. 592; Bigelow, Fraud. 434.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. Appellee, J. A. Townsend, was the owner of a house and lot in the city of Hot Springs. The board of health of said city, composed of W. W. Waters and other appellants, caused this house to be torn down and removed. Townsend thereupon brought this action against them to recover damages occasioned to him by the removal of such house.

James S. Thomas, Judge. STATEMENT BY THE COURT. The appellant, Kincaid, brought suit before a justice of the peace against Jos. Hicks and Isaac Halpern for the sum of of seventy dollars. He claimed that they owed him that amount for labor performed in “getting out” certain logs, and he claimed a lien upon the logs. The justice of the peace gave judgment in favor of Kincaid. The defendants appealed, and gave an appeal bond worded as follows: “Appeal Bond.

Marcus L.-Hawkins, Judge. The evidence does not show negligence on the part - of the company. Cooley, Torts, 630; 21 L. R. A. 820, note; 12 Ain. & Eng. Ry. Cas. 163; 76 Mich. 591; 113 Mo. 670; 53 N. J. L. 233; 112 Ind. 404; 40 S. W. 863; 100 Pa. St. 144; 34 L. R. A. 459. If a child under 10 years of age is capable of understanding the obligation of an oath, he is a competent witness. 25 Ark. 96; 1 Greenl. Ev. § 367; 25 Ark. 448; 1 East, PI.