Volume 66 — Arkansas Reports

James F. Robinson, Chancellor. This case should have been tried before a jury, and not in a court of equity, since it involves title and right of possession of real property. 56 Ark. 374; 32 Ark. 553; 105 U. S. 189. Defective proof of publication of notice of sale is a question which could be tried at law. 44 S. W. 1041; S. C. 65 Ark. A complaint which states only “information” or “belief” of fraud furnishes no grounds for chancery jurisdiction. Big. Fraud 450, 451.

<p>Unnecessary Administration—Costs—Practice in Equity.—Where it appears that there was no occasion for an administration, the debts of intestate having been paid, it is error to allow the administrator, in a suit in equity against the heirs for possession of intestate’s property, to recover costs needlessly incurred by him in taking care of the property and in making appraisement thereof. (Page 9.)</p>

James F. Robinson, Chancellor. To charge a lender with usury on account of the act of his agent in demanding a compensation from the borrower, which, added to the interest paid the lender, made an amount in excess of the legal interest, the lender must have had knowledge of the transaction, or the circumstance must be such as to charge him therewith. 51 Ark. 545.

Will P. Feazel, Judge. Unless a conspiracy be proved by evidence aliunde, it is not competent to introduce evidence of an alleged co-conspirator’s acts. 3 Greenl. Ev. § 94; Wbart. Ev. § 1206; Gillett, Ind. and Col. Ev. § 28; 32 Ark.- 220; 37 Ark. 67; 45 Ark. 132. Tbe court should have excluded this evidence, on the state’s failure to prove a prima facie conspiracy. Clark’s Cr. Prae. 522; 2 McLain, Cr. Law, §§ 988-990.

Richard H. Powell, Judge. The condition of the bequest was void because in restraint of marriage. 4 Kent, Com. side page 130; 1 Story, Eq. § 274. The widow can not be deprived of her homestead right by any act of the husband. Thomp. Horn. & Ex. §§ 690, 589, 590, 280; Sand. &. H. Dig. §§ 3713, 3714; Const, of Ark., art. 9, §§ 3, 6. She is entitled to it against heirs as well as creditiors. 31 Ark. 145; 33 Ark. 399. A devise to a widow during widowhood is valid.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. On June 7, 1893, appellees filed their complaint in ejectment in the Dallas circuit court against R. W. Parham and Sam Coleman, alleging that they were the owners in fee simple and entitled to the possession of “that part of the S. \ of the N. W. J, see. 27, t. 10 S., r. 14 W., lying east of the Little Bay road, except such part of one square acre on which Par-ham’s mill stands as is north of said creek and east of said road,…

Richard H. Powell, Judge. STATEMENT BY THE COURT. Appellee filed in the county court the following petition, to-wit: “To the Honorable W. G. Wilson, Judge of the County Court of Independence county:—George W. Young, clerk of the county court of Independence county, respectfully represents that the report hereto attached, marked ‘Exhibit A,' shows the amount of fees collected by him, by virtue of his office aforesaid, for the year commencing November 1, 1895, and ending…

H. Powell, Judge. STATEMENT BY THE COURT. Appellee filed his report as follows: October 1, 1896. Report of E. F. Matheney, Treasurer of Independence County.

Rufus D. Hearn, Judge. The city, and it alone, had the right to judge of the necessity for changing the street crossing. Sand. & H. Dig. §§ 5132, 5151; 114 Pa. St. 477; 7 Cush. 254; 24 Pa. St. 207; 55 N. Y. 486; Dill. Mun. Corp. § 666;'25 Vt. 49.

<p>Receiver—Appointment Pending Appeal.—Where a complaint askingfoi foreclosure of a mortgage of land is dismissed by the chancery court, and an appeal taken, the proper practice, if appellant desires the appointment of a receiver to take possession of the property and rent same during the pendency of the appeal, is to make application therefor to the lower court. (Page 43.)</p>

Richard EL Powell, Judge. The engineer had a right to presume that the child, not seeing the danger of attempting to cross in front of the engine, would abandon the attempt. 63 Ark. 177; 36 Ark. 41; 47 Ark. 497; 46 Ark. 513; 37 Ark. 393. The fact that deceased was too young to be guilty of contributory negligence does not render appellant liable unless it is guilty of negligence. 19 L. R. A. 167; 88 Pa. St. 520; S. C. 32 Am.

Kurus D. Hearn, Judge. STATEMENT BY THE COURT. This suit was begun in ejectment for eighty acres of land. Afterwards an amendment to the complaint was filed, and the case, on motion of the plaintiff, was transferred to chancery, where the defendant filed an answer, and the cause was heard, and decree rendered, and this appeal prosecuted. The special findings of fact by the court are full enough to outline the contention of both parties.

E. G. Mitchell, Judge. It was error to admit a juror who had formed an opinion as to the guilt or innocence of the accused, such that it would take evidence to remove.” 45 Ark. 165; 56 Ark. 402. A( confession, to be admissible, must be given freely, without either “the flattery of hope or the torture of fear” or any circumstance of official indictment. 50 Ark. 305.

Appealed from Little River Circuit Court. Will P. Feazel, Judge. The indictment is defective because it does not use all the words of the statute descriptive of the offense, nor words equivalent thereto. 47 Ark. 492; 62 Ark. 514. The indictment should have stated that the timber was “standing or growing” upon the lands of another. Sand. & H. Dig. § 1773. The indictment should also have stated the value of the timber.

Alexander M. Duffie, Judge. A. Harvey filed • his suit in the Garland circuit court against Vincent Gage, George Sargianovich, J. Kempner and David Belfa to recover $470, alleged to have been lost in a saloon or dram-shop managed by Gage for Sargianovich.

Thomas B. Martin, Chancellor. The debt being barred, the deed of trust is also barred. Act March 25, 1898; 61 Ark. 115. The injunction prohibiting the sale did not prevent the commencement of an action for the debt, and hence did not stop the statute. 14 Ark. 496; 2 Am. & Eng. Ch. Cas. 587. To toll the statute, the exception must come strictly within those enumerated m the statute. 13 Am. & Eng. Enc. Law, 731, § 5, note; Angelí, Lim. 196, note 3.

Will P. Feazel, Judge. It was error to cancel the deed and notes as to all the defendants, because two of them, though properly summoned, have made default. The taking of interest in advance is not usury. 2 Wm. Be. 791, 792; 2 Cow. 664, 675; 15 Johns. 162, 168; 4 Wend. 652, 653; 30 Hun, 201, 203, 204; 4 Scam. (111.) 21; 7 Rob. (La.) 539, 541; 110 111: 390, 394; 30 111.490,498; 110 111. 235; 132 111. 550; 34 111. 110; 7 Has. 405; 12 Pick. 586; 60 Ark. 288.

Jeremiah G. Wallace, Judge. statement by the court. The appellants, having a judgment against O. W. Brown & Co., for $227, procured the issuance of an execution thereon from the justice of the peace before whom the judgment was obtained, which -was levied upon a stock of goods in possession of C. W. Brown & Co. by a constable, who took the forthcoming bond of J. B. Crownover as principal and William Campbell as surety, iu the following form, to-wit: “We, John B. Crownover,…

Hance N. Hutton, Judge. STATEMENT BY THE COURT. In October, 1895, the quorum court of Lee county levied a tax of three mills for “old indebtedness.” The old indebtedness had been bonded; the principal of the bonds being due in twenty years, with interest payable semi-annually.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. The appellant, Thomas Brannon, sold to B. W. Vaughan a tract of land; the price to be paid in installments. Vaughan executed his notes for the payment of the purchase price, and received from Brannon a bond for title to the land.

Francis Circuit Court. .Hance N. Hutton, Judge. It was error to allow the clerk fees for the warrants which he never signed nor delivered.' It was also error to allow a separate fee for each item in the accounts presented for allowance and settlement. Sand. & H. Dig. § 3309; 56 Ark. 251; 57 Ark. 491. Any doubt as to the meaning of the statutes must be construed against the officer. 47 Ark. 443.

Biohard H. Powell, Judge. ■STATEMENT BY THE COURT, The facts which gave rise to this litigation are concisely stated in the opinion rendered in this case January 23, 1897, and are as follows: “Moses B.Bhea purchased of Mrs. A.Mary Boas two lots, and paid for the same.

Thomas B. Martin, Chancellor. A voluntary conveyance, made in contemplation of insolvency, is void as against subsequent creditors, if the debtor may be reasonably supposed to have had in contemplation, at the time of the conveyance, the contracting of debts. 56 Ark. 73; 50 Ark. 46; 38 Ark. 427; Bump. Fr. Con., chap. 13; Wait, Fr. Con. §§ 96, 98, 100, 101; 59 Ark. 614; 8 Wheat. 229.

This is a suit brought on a forfeited bail bond. Defendant, Dunlap, in his answer sets up two defenses.

Richard H. Powell, Judge. An indictment must be direct and certain as to the facts and material circumstances of the offense. Sand. & H. Dig. §§ 2074, 2090; 29 Ark. 68; ib. 168; 26 Ark. 323. The description of a house as “being used and possessed by one John Head” is not sufficient in an indictment for burglary. 2 Enc. PL & Pr. 747; 4 Enc. Forms, 139; 1 Whart. Cr. Law, § 816; Clark, Cr. Proc. 214; 56 Ark. 365; 33 Ark. 518; 32 Ark. 704.

Richard H. Powell, Judge. A femme covert can bind herself by such contracts only as relate to her separate estate. 17 Ark. 194; 30 Ark. 729; ib. 17; ib. 385; 32 Ark. 776; 35 Ark. 372; 36 Ark. 476; 39 Ark. 242; ib. 360; 43 Ark. 166; 53 Ark. 511. A complaint, founded upon a married woman’s contract, must show that the contract was such a one as the woman could make. 29 Ark. 351; 35 Ark. 270; 39 Ark. 242; 36 Ark. 479.

Felix G. Taylor, Judge. The indictment alleges that the cotton was “seed cotton.” It was then incumbent upon the state to show this, as the averment was materially descriptive. 3 S. W. 716; 2 S. W. 859; 34 Ark. 160; 62 Ark. 538; 58 Ark.' 642; 60 Ark. 141; 62 Ark. 516; Wh. Cr. Ev. § 146. It is no crime to remove property on which a lien exists from the premises. The removal must be from the county or state.

Bryant, Judge. The court erred in finding that the note and contract were not usurious. This court has the same means of reaching a correct conclusion as the chancellor, and will reverse his decree if against the decided preponderance of evidence. 41 Ark. 292; 13 Ark. 350; 15 Ark. 209; 23 Ark. 341; 55 Ark. 112. Appellants are not in a position to plead usury. 32 Ark. 346; 61 Ark. 329.

Taylor, Judge. It was error to make Lanier a party defendant, upon his own motion, over the objection of the complainant. 17 How. 15; 6 Blatehf. 118; ib. 151; 4 Hen. & M. 483; 71 Miss. 1017; 1 Dan. Ch. PI. & Pr. 287, note 2; 2 Tenn. Chy. 140; 49 Ark. 103; 6 Am. & Eng. Enc. Law, 744, note 7. There was no necessity of making him a party, since the receiver was á trustee for the parties really entitled to the fund. 20 Am. & Eng. Ene. Law, 11—14, 110, 126, 137, 158-9.

Alexander M. Dueeie, Judge. statement by the court. The appellee recovered a judgment in replevin against the appellant for two cows.

Francis Circuit Court. Hance N. Hutton, Judge. STATEMENT BY THE COURT. This case was appealed to this court from St. Francis circuit court under an agreed statement of facts, which was made part of the record, and which we copy verbatim from the record, as follows: “In the St. Francis circuit court, St. Francis County v. R. F. Roleson.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. On the 16th of March, 1886, one B. F. McConnell and his wife executed a mortgage on certain lands to Hill, Fontaine & Co. The mortgagor, McConnell, died in December, 1887, leaving a widow and minor heirs. Suit was begun in 1891 to foreclose the mortgage. The widow and minor heirs of McConnell were made parties, and were properly before the court.

James S. Thomas, Judge. STATEMENT BY THE COURT. This is a suit for the immediate possession of an 80-acre tract of land in Arkansas county, by the appellants against the appellee.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. The facts in this ease are as follows: One Willoughby Williams, Sr., being the owner of land in Jefferson- county of this state, conveyed the same to his son, Willoughby Williams, Jr., and the wife of his son, Anna H. Williams, by the following deed: “This deed, made and entered into this, 29th day of May, A. D. 1877, by and between Willoughby Williams, Sr., of the county of Davidson, in the state of Tennessee, as party…

Dan. B. Granger, Special Judge. STATEMENT BY THE COURT. Woodford C. Webb died in 1882, leaving surviving him his wife, M. P. Webb, and two sons, Woodford C. Webb', Jr., and T. J. Webb. He owned at time of his death 360 acres of land, a part of which was his homestead.

Felis G. Taylor, Judge. STATEMENT BY THE COURT. This is a bill to set aside and annul an assignment made by G. W. Cartwright, a merchant doing business at the town of Earle in Crittenden county, to P. H. Thompson, as assignee, for the benefit of his creditors, preferring certain of them, and conveying to said assignee, for that purpose, all his mercantile goods at said place, with directions as to their disposal and the appropriation of the proceeds.

James F. Robinson, Judge- Possession under bond for title is notice of the claim anu rights of the possessor.' 27 Ark. 63; 29 Ark. 352; 60 Ark. 90. The legal effect of such a transfer is to vest title in the purchaser, subject to the equitable mortgage right of the vendor. A mortgagee’s interest in mortgaged property is not subject to attachment or execution. 13 Ark. 534; 18 Ark. 61; 41 Ark. 285; 40 Ark. 149.

Thomas B. Martin, Chancellor. . The stipulation that the note should be null and void in «ase of failure to procure the deeds was a liquidation of damage in ease of breach of the contract. 54 Ark. 340; 56 Ark. 405. The fact that the actual damage could be subsequently ascertained would not alter the effect of the stipulation. 57 Ark. 168; 42 Mo. 606.

James S. Thomas, Judge. STATEMENT BY THE COURT. This is an action upon an indemnifying bond. One Henry Goldman was the owner of a stock of goods worth from three to five thousand dollars. Goldman was indebted to the plaintiffs, J. E. Perkins et al., in sums aggregating over seven thousand dollars. To secure this indebtedness, he gave them a mortgage upon his stock of goods, and put them in possession of the same.

Rufus D. Hearn, Judge. Confirmation cures all errors in the original tax deed. 55 Ark. 470; 62 Ark. 421. A defective affidavit is good on colateral attack. 21 Ark. 364. The notice of the pendency of confirmation proceedings was jurisdictional, and the statute must be strictly followed. 55 Ark. 33; 34 Ark. 399; ib. 221; 51 Ark. 39; 18 Wall. 350. Section 528, Mansf. Dig. governs this case. 25 Ark. 265; 66 Am. Dec. 209; 61 ib. 171, 172 and notes.

Charles W. Smith, Judge. It was error for the chancellor to refuse to pass upon appellants’ motion for new trial. 40 Ark. 338; id. 551; 48 Ark. 535; 50 Ark. 458; 51 Ark. 341; 57 Ark. 597; 61 Ark. 346. The tax-assessment list of appellees was not competent evidence. 42 Ark. 527; 44 Ark. 263.

Joel D. Conway, Judge. STATEMENT BY THE COURT. Appellant was indicted for bigamy. He demurred to the indictment, but in his argument does not insist upon the demurrer, which we do not discuss hei’e. We think the indictment sufficient. He was tried, convicted and sentenced for three years in the penitentiary. He appealed to this court. The evidence showed that when appellant married a second time his first wife was living, from whom he had not been divorced.

Rufus D. Hearn, Judge. The rights of an attorney must not conflict with the interests of his client. Weeks, Attys. §§ 258, 271; 57 Ark. 93; 9 Fed. 721. Dealings between attorney and client are scrutinized elosety, and the onus is upon the attorney to show fairness. Weeks, Attys. §§ 268, 273, 276, 277; 1 Am. & Eng. Enc. Law (2 Ed.), 333; Story, Eq. §§ 310, 311; 5 Johns. Ch. 48; 7 Atl. 842. The contract that appellee should have the penalty as his fee is void.

Chapline, Judge. The governor has the power to fill a vacancy in the office of town marshal. When any office becomes vacant, and there is no means provided for filling it, the governor has the power to appoint. Sand. So H. Dig. § 3156; art. 6, § 23, Const. Members of the council, only, can be elected at special elections. Sand. & H. Dig. § 5127. A town marshal is not a member of the council. Sand. So H. Dig. § 5259.

Thomas B. Martin, Chancellor. The first note being barred, no foreclosure could be had on it. Sand. & H. Dig. § 5094; 64 Ark. 306. Since the right to foreclose was not barred, a decree as to both notes was proper. 29 Ark. 591; 34 Ark. 318. This rule is not effected by Sand. & H. Dig. § 5094; 43 Ark. 469. The mortgagor cannot redeem part and not all of the debt. 13 Am. & Eng. Enc. Law, 704; 2 Jones, Mort. 1204; 79 N. C. 480.

William L. Moose, Judge. It was error to require defendant to go to trial before a copy of indictment was served on him. 24 Ark. 631. It was error to allow the state to prove the statements made by defendant’s wife. 64 Ark. 121. It was error to allow the state to ask defendant whether he had not been convicted of petit larceny. 58 Ark. 476; 60 Ark. 450; 34 Pac. 1078.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. W. L. Creson was the owner of a lot of second-hand clothing, consisting of overcoats, coats and vests. With the consent of R. A. Ward, Creson placed this clothing in the warehouse of Ward for safe-keeping.

Petition for Prohibition to Gai’land Chancery Court. Leland Leatherman, Chancellor. As to when chancery and circuit courts had concurrent jurisdiction before the adoption of the code, see.-. 6 Ark. 317; ib. 79. Where the common-law jurisdiction of chancery was not exclusive, the code does not authorize a suitor to shift his action from a court of law to one of equity. Sand. & H. Dig. §§ 5608-9, 5615.

<p>Appeal from .Sebastian Circuit Court in Chancery, Fort Smith District.</p> <p>Edgar E. Bryant, Judge.</p> <p>Appellees had ample notice of the original suit, if they were entitled to it. 4 Wall. 657; 7 Cranch, 322; 6 Johns, 159; 1 Sm. Lead. Cas. 139; 2 Gr. Ev. 116; 1 Johns. 317; Black. Judg. § 657; Wells, Res. Adj. etc. §§ 183, 184, 185; 4 Hill, 119; 34 N. Y. 280. The verdict was a general one,, for the identical amount asked in each of the two counts of the complaint and appellant can use it upon either of the counts. 118 Ind. 5; 36 111. App. 123; Hempstead (Cir. Ct.Rep.), 104; 6 Ark. 178; 89 Pa. St. 363; 57 la. 672. The presumption is that both counts were passed upon. 17 Ore. 381; 102 111. 596; 105 111. 336; 3 Fed. 199; 60 la. 289; 34 La. Ann. 805; 81 Me. 197; 89 Pa. St. 363; 1 Black, Judg. § 101; 23 Conn. 585; 113 Ind. 127; 2 Black, Judg. § 611; 32 S. W. 353; 53 Ark. 414; 51 Ark. 126; 51 Ark. 130; 1 Thomps. Tr. § 113; 26 Kas. 320; 49 Ala. 134. He who would avoid the effect of a general verdict must see to it that the jury specify upon which issue it is returned. 33 Yt. 180; 25 Ind. 43; 5 Bosw. 456; Wells, Res. Adj. 191; 2 Allen, 234; 1 Ch. PI. (6 Am. Ed.) 445. A party for whose benefit a promise is made to another may maintain an action on it. 31 Ark. 155; ib. 411.</p> <p>Failing to sue within the time limited by the contract, appellant is barred. Having once instituted and dismissed suit does not affect the running of the period. 7 R. I. 301; 78 N. Y. 462; 7 Wall. 386; 3 McCrary, 543; 27 Yt. 99. The judgment against the lumber company, in the absence of anything to show upon which count of the complaint it was based, does not estop appellees. Herman, Estop. §§ 252, 258; 94 U. S. 606; 24 How. 333; 43 N. E. 728; 23 N. E. 1024; 72 N. W. 1055; 16 N. E. 55; 20 N. W. 840; 102 Mass. 239, 245; 88 Ind. 149; 45 Am. Rep. 454, 460,461; 46 N. E. 431. The burden of establishing an estoppel is upon him who invokes it. Freeman, Judg. § 176; 29 Atl. 970. As to what amount of participation in 'the suit is required to make a judgment binding as an estoppel od one not a party, see, 2 Bl. Judg. § 546; 23 Atl. 30; 33 Am. St. Rep. 893; 33 Fed. 437; 26 Minn. 87; 76 Fed. 166.</p>

John M. Elliott, Judge. The statement of Wertheimer’s business rating as shown by the commercial agencies was not competent for the purpose of showing fraudulent intent in the purchase of the goods. 47 Ark. 253; 64 Ark. 16. The instructions were abstract and misleading. 53 Ark. 38; 9 Ark. 212; 13 Ark. 317; 57 Ark. 627; 37 Ark. 580; 18 Ark. 521. They were erroneous also because they assumed facts which should have been left to the jury. 51 Ark. 88; 24 Ark. 544; 94 U. S. 610.

Feazel, Judge.. STATEMENT BY THE COURT. Henry Lazarus brought this action of ejectment against H. C. Williamson and others to recover 160 acres of land. The land was at one time owned by E. H. Flanagin.

Rupus D. Hearn, Judge. The statement that the firm owed Mrs. Page $500 for services as bookkeeper was open to suspicion (64 Ark. 377), and the subpoena duces tecum should have been granted to bring the books into court. Oglesby's testimony was incompetent as hearsay.

John M. Elliott, Judge. It was error for the court to instruct the jury that it should not take into consideration the false representations made by Wertheimer as to her solvency, unless they should find that she purchased the goods with- the preconceived intention of not paying for them. 64 Ark. 12. This vice in the first, second, third, sixth, seventh and eighth instructions is not cured by giving other and correct instructions on the point. 44 S. W. 715.

Felix G. Taylor, Judge. The plaintiff cannot recover, because he was guilty of contributory negligence, in that he used too short a stick in unclogging the saw. 70 N. W. 176; 163 Mass. 515; 23 Pa. St. 147; 36 Ark. 46; ib. 377; 51 Ark. 467; 47 Ark. 504; 41 Ark. 542; 95 U. S. 439; 71 Fed. 270; 8 Pac. 888; 67 N. W. 633; 40 N. E. 430; 37 N. E. 1065; 148 Mass. 533. The evidence does not support the verdict.

Joseph W. Martin, Judge. Where a chattel is sold with a reservation of title in the vendor until the price is paid, the title remains in him until the •condition is performed, and the vendee can convey no title. 47 Ark. 363; 49 Ark. 63; 48 Ark. 160; 48 Ark. 273. The recital in the note of reservation of title did not inpair its negotiability; and the assignment of the note carries with it the security reserved. 48 N. W. 1100, 1103; 4 Chand.

John M. Elliott, Judge. No fee is payable to officers unless specifically provided by legislative enactment. Mansf. Dig. § 1237; 56 Ark. 581; 57 Ark. 487. Tie state and county are not affected by the general provisions of Mansf. Dig. § 3307; 32 Ark. 45. A county is not liable for services rendered by the clerk in filing accounts of individuals against the county. 41 S.W. 220. Appellee was legally bound to pay for the filing of the claims.

Charles W. Smith, Judge. The evidence shows that appellant did all that the law requires of it, and hence was guilty of no negligence. 36 Ark. 607; 57 Ark. 16; 37 Ark. 693. The verdict, being supported by evidence, will not be disturbed on appeal. 23 Ark. 208; 47 Ark. 196; 46 Ark. 524; 51 Ark. 324. The jury had a right to disregard the testimony of the train crew. 57 Ark. 214.

' Appeals from Tell Circuit Court in Chancery, Dardanelle District. Jeremiah G-. Wallace, Judge. The widow is entitled to dower in all lands whereof her husband was seized as an estate of inheritance during marriage unless released by her in legal form. Sand. & H. Dig. §§ 2520, 2552; 31 Ark. 557; 2 Woerner, Adm. 1074 and note; 5 Am. & Eng. Enc. Law, 912, notes 14 and 15; 21 Ark. 347. Dower can not be released by parol. 21 Ark. 62; 4 Lead. Cases, Am. Law Real Prop. 521.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. Nettie Brownlow sued the railway company for personal injuries. The issues were made up, and the cause was transferred to the equity docket, where it had progressed to submission, but, before a decree was rendered, the railway company settled with the plaintiff, and secured her written authority to dismiss her suit.

Charles W. Smith, Judge. STATEMENT BY THE COURT. The appellant, Fern Williams, a negro boy eighteen years of age, was indicted for the crime of rape alleged to have been committed upon Julia Lagrone, a negro woman a year or two older than defendant. She testified on the trial in substance as follows: She was returning from church alone and on foot on a Sunday afternoon when she was overtaken by the defendant, who had attended the same church.

Bichard H. Powell, Judge. STATEMENT BY THE COURT. J. F. Allen owned a tract of land in Independence county adjoining a tract owned ' by B. L. Baker. Baker’s’ tract lay south of Allen’s land. Both tracts were nearly level bottom lands, subject at times to overflow from White river. A swale or slight depression extended across a portion of Allen’s land, and also across Baker’s land.

Jephtha H. Evans, Judge. A justice of the peace has no jurisdiction in matters of damage to personal property where the amount sued for exceeds $100; hence on appeal the circuit court acquired no jurisdiction. 44 Ark. 100; 45 Ark. 346; Const. 1874, art. 7, § 40; 47 Ark. 59; 48 Ark. 295. The complaint should have been made more specific, so as to state the locality and dates of the alleged torts. 59 Ark. 165; Pom. Rem. & Rem. Rights, § 554; Newm. PI. & Pr. 246; 8 Oh.

E. 8. McDaniel, Judge. Admissions of the owner or his agent, as to character of title, etc., made during possession, are admissible in evidence. 1 Ph. Ev. 396, 390-1, 301; 1 Greenl. Ev. §§ 108-9, 189-191; 20 Ark. 597; Abb. Tr. Ev. 11, 12, 14, 286-7, 710-11, 158, note 5, 236, § 7; 49 Ark. 207; 5 Am. & Eng. Enc. Law, 367. The possession of appellant gave him a better right than appellee or any one not the true owner.

.Robert J. Lea, Judge. It was error to allow the state to impeach defendant’s witnesses by showing that certain ones of their families and kinsmen were felons. It was error to allow the prosecuting attorney to comment on this in argument. 58 Ark. 368. The question as to argument of prosecuting attorney, being raised here for the first time, will not be considered.

Smith District. Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The Fort Smith Ice & Gold Storage Company, desiring to have a building erected for cold storage and other purposes, contracted with one Wickshire for the erection of the same. The-building was to be one story high, and constructed of brick. Wickshire was to furnish all material except the brick, and was to receive the sum of $7,875 for constructing same.

John B. McCaleb, Judge. In condemnation' proceedings the statute must be closely followed. 1 S. W. 216; 96 Mo. 39; 14 Pac. 140; 13 S. W. 1027. The petition should have specified the place of beginning, the intermediate points and place of termination of the road; and none of these places are adequately described by saying they are “near” to a certain place or thing.

Felix G. Taylor, Judge. The evidence does not show that the required notice was not posted within the time allowed by statute, and hence the verdict for double damages was unwarranted. If appellant did post the notice in time, he could easily have so proved, and his failure to do so is evidence that he did not do it.

Hance N. Hutton, Judge. STATEMENT BY THE COURT, The appellee as administrator of the estate of Martha Teer, who was the deceased wife of Manuel Teer, of whose will the appellants were executors, presented to the probate court, for allowance against the estate of Manuel Teer, a claim in favor of Martha Teer for $700, which was allowed by the probate court. The executors of the will of Manuel.

James S. Thomas, Judge. STATEMENT BY THE COURT. A. Brown filed a petition in the county court of Monroe county, asking said court to order the construction of a ditch across certain lands m said county. The county court, in obedience to the statute, appointed viewers to examine the line of the proposed ditch and make report thereon, and said viewers reported in favor of the construction of said ditch.

<p>1. Judgment—Evidence—Res Inter Alios.—A decree of divorce which found that the husband was occupying a certain place as a homestead is not admissible against a stranger to prove that it was the husband’s homestead. (Page 307.)</p> <p>2. Estate in Entirety—Dower.—Where land is conveyed to a husband and wife, they take an estate of entirety, which is not subject to dower. (Page 307.)</p> <p>3. Same—Divorce.—Upon the granting of a divorce, the wife is entitled to receive the rents of one half of land held by her and her husband by the entirety, so long as both live; the entire property, at the death of either, going to the survivor. (Page 309.)</p>

Edgar E. Bryant, Judge. STATEMENT BY THE COURT. The Bank of Paris was the holder of two negotiable promissory notes made by Walter Pearson and S. J. Pearson to Evans and Hiner or bearer. Evans discounted these notes at the bank before the maturity thereof, receiving value for same, and, after indorsing same, he delivered same to the bank. The notes- were secured by a mortgage on certain lands.

Wm. P. Feazel, Judge. The delivery of the bill of exceptions to the express company 'within time was tantamount to a delivery to the clerk, and the negligence of the carrier is not imputable to appellant. In the absence of a statute, indorsement by the clerk is not essential to filing any paper. 8 Enc. PI. & Pr. 927; 6 Ark. 208; 12 Ark. 62; 21 Ark. 578. The bill of exceptions could be filed nunc pro tunc. 45 Ark. 102, 107.

<p>1. Justice of the Peace—Jurisdiction—Penal Bond.—A justice of the peace has jurisdiction of an action on a bond to indemnify a principal against loss through his agent, regardless of the amount of the penalty of such bond, if the amount sought to be recovered is within his jurisdiction, and the agency has terminated, so that the right to recover a judgment for the penalty of the bond, as security for any demands that might thereafter be sustained by breach of any condition of such bond, had ceased to exist. (Page 315.)</p> <p>2. Party—Action on Bond.—Where a bond is made payable to a principal or a designated agent, either may bring suit upon it. (Page 316.)</p> <p>3. Foreign Corporation—Failure to File Certificate.—In a suit brought by the agent of a foreign corporation upon a bond made payable to such corporation or its agent, it is not' ground for a motion to dismiss that the corporation has not filed with the secretary of state a certificate designating a citizen of the state as its agent for receiving service of process and its principal place of business; such matter, if good for any purpose, should be pleaded in bar, as a defense. (Page 316.)</p>

Richard H. Powell, Judge. STATEMENT BY THE COURT. D. A. Morrison brought suit against Champ Farris and others upon a promissory note executed by them to him for the sum of $1,111.17. The defendants answered, admitting the execution of the note, but alleged that it had been paid, and set out the sums paid and the date of payment.

Brice B. Hudgins, Judge. Appellee (the sheriff) had no right to impeach appellant’s judgment. Drake, Att. § 304; 1 Black, Judg. §§ 160,246,268, 269; 2 id, § 604; 54 Ark. 525. The return of the sheriff is conclusive as to the method by which the sheriff came into possession of. the goods. 14 Ark. 11; 4 Ark. 185. It was the duty of the sheriff to hold the fund derived from the sale of the goods. Sand. & H. Dig. § 350. The court erred in giving instruction No. 5.

Edward S. McDaniel, Judge. The burden was on the cashier to account for shortages in the bank’s assets. 12 Pick. 303; 1 Pet. 46; 1 Morse, Bank:*, etc., § 42, note a; Murfree, Off. Bonds, § 597. The judgment of the court declaring appellant’s lien upon the capital stock owned by the cashier was correct. Sand. & H. Dig. § 1342; 2 Beach, Priv. Corp. § 646; 60 Ark. 198.

John B. McCaleb, Judge. An oral agreement to execute a mortgage is within the statute of frauds. 8 Am. & Eng. Enc. Law, 697, note 12. The precise terms of an oral contract must be shown before it will be specifically enforced, if at all. 45 Ark. 17; 49 Ark. 306; 44 Ark. 334. Part performance must be shown. 39 Ark. 424. An oral mortgage can not be established in this state. 57 Ark. 220; 12 Ark. 428; 30 Ark. 745; 34 Ark. 346.

Marcus L. Hawkins, Judge. The previous suit in chancery, involving the same matters as arise in this action, renders them res adjudicatae (2 Black, Judg. §§ 505, 549, 609), and not open to collateral attack. 1 Black, Judg. 193, 194. Limitation was suspended during the pendency of that ease. 7 Am. St. Rep. 679. The court erred in refusing to instruct the jury that one employed to do all acts connected with a certain subject-matter was, as to such, a general agent. 13 Am.

Rufus D. Hearn, Judge. The justice of the peace had no jurisdiction, since the amount in controversy was over $100. Sand. & H. Dig. § 4317, note 2. For meaning of phrase “all matters of damage to personal property,” as used in the statute, see 41 Ark. 478; 42 Ark. 210; 47 Ark. 59; 48 Ark. 293. The total amount claimed or involved is the test. 7 Ark. 258; 13 Ark. 40; 44 Ark. 100; 45 Ark. 346; 47 Ark. 59; 48 Ark. 293; 62 Ark.209.

Will P. Feazel, Judge. STATEMENT BY THE COURT. This is an action to recover from the railway company an amount which the appellant alleges was exacted of and paid by him for. freights on lumber, which he shipped over appellant’s road, in excess of the amount'stipulated for by him in a contract made by him with the appellee, which contract is as follows, to-wit: “State of Texas, Bowie county. .

Richard H. Powell, Judge. It was error to allow appellee to introduce the trust deed as evidence. 61 Ark. 119. The court erred in its instructions to the jury. 57 Ark. 520; 24 Ark. 251. The trust deed was competent as evidence, and the instruction touching it was correct

<p>Appeal from Prairie Circuit Court.</p> <p>Jas. S. Thomas, Judge.</p> <p>-""Appellant’s claim is founded on statute, and is not within the meaning of section 4822 of Sand. & H. Dig. "Wood, Dim. § 19, p. 41.</p>

Alexander M. Duefie, Judge. STATEMENT BY THE COURT. The appellee, B. B. Toler, sheriff and collector of Grant county, sold at public sale a portion of the sixteenth section or school land in said county. The only bidders at the sale were appellant, Brown, and one Gates, who bid for the Haywood Lumber Company. The lands were struck off and sold to Gates, as agent for such company, for the sum of $1,780, that being the highest bid offered.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. The plaintiff, M. H. Ford, was the owner of a cow, which was struck and killed by an engine and train of the defendant company. The injury occurred within, the corporate -limits of Marianna, a town of from 1,500 to 1,800 inhabitants. The cow was killed near the depot of the company, about 500 feet south of the public crossing on Tennessee street, and about 600 feet north of the crossing on Louisiana street.

Edward S. McDaniel, Judge. STATEMENT BY THE COURT. This is a suit in equity by appellees to foreclose a mortgage executed by appellant in favor of appellees. On August 23, 1890, one Daily and wife owned the land in controversy, and executed a mortgage thereon to secure a note given by them to the Lombard Investment Co. for a $500 loan.

<p>Will—Construction—Credits.—A. testator bequeathed to his mother-in-law and to his mother each a half interest in “any stock, notes, bonds or other credits” of which he might die seized, and devised to his mother-in-law all the remainder of his personal effects not enumerated in the will. After execution of the will, the testator purchased a half interest in an insurance agency, paying for the same with the proceeds of the sale of stock held by him at the time the will was made, which interest he owned at his death. Held, that his interest as partner in the insurance business was included in the term “credits.” (Page 380.)</p>

Thomas B. Martin, Chancellor. A husband has no right of homestead in the lands of his wife. Const. (1874), art. 9, §§ 3—6. No homestead is allowed to a person after ceasing to be the head of a family. Freeman, Ex. § 240. Occupancy is essential to the claim. 29 Ark. 401; 31 ib. 466; 42 ib. 175; 51 ib. 87. A home is necessary to a homestead exemption. Freeman, Ex. § 241. A mere aggregation of individuals is not a family. 42 Ark. 539. A tenant by curtesy can claim homestead.

John B. McCaleb, Judge. L. B. Sid way and the American Mortgage Company of Scotland (Limited) brought suit against John W Harris and wife to foreclose a deed of trust executed by him to Sidway as trustee for the company. The facts are stated in the opinion. The burden of proving usury is on him who alleges it. 109 N. Y. 477; 57 Ark. 256.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. This is an action of replevin brought by the appellant against the appellee, in a justice court of Garland county, to recover possession of two mules, for the purpose of subjecting them to the satisfaction of a chattel mortgage executed by appellee to appellant.

Chancery, Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The complaint alleges that on May 2, 1889, one Marcellus McLain and wife executed a mortgage on certain lands in Clark county to the British-American Mortgage Company to secure the indebtedness amounting to $1,368.

Will P. Feazel, Judge. statement by the court. June 30, 1897, Virgil EL Moon, by his next friend, W. L. Moon, brought his action before A. P. Alexander, a justice of the peace of Center township, Polk county, Arkansas, to recover $3.30 unpaid wages and exemplary damages at the rate of one dollar and ten cents ($1.10) per day. Summons was made returnable July 17, 1897.

Jeremiah G-. Wallace, Judge. statement by the court. This suit is for damages in the sum of $25 for injury to plaintiff's mai’e, through the alleged negligence of the company.

Brice B. Hudgins, Judge. STATEMENT BY THE COURT. This was a suit to enjoin the sale of certain lands ordered by the probate court of Cleburne county for the payment of a certain claim which had been allowed by said court. It appears from the record that the appellant was appointed administrator de bonis non on the 28th day of December, 1883; that the claim was allowed by the probate court in October, 1886.

Richard H. Powell, Judge. The burden was on appellee to show bona fides. 57 Ark. 573; 50-Ark. 46. Fraud must be proved by him who alleges it. 8 Am. So Eng. Enc. Law, 654; 9 Ark. 483; 31 Ark. 554; 38 Ark. 425. Knowledge of or participation in the fraudulent intent is necessary to charge one with fraud. 32 Ark. 255; 60 Ark. 425; 61 Ark. 255.

Edward S. McDaniel, Judge. The description of the land was sufficient. Cooley, Taxation, 407; 64 Ark. 580; 81 Ind. 180; 78 111. 570. The collector had the discretionary power of filing the delinquent list at any time after April 10, and before the second Monday in May. Sand. & H. Dig. §§ 6574 and 6603. The word “by,” as used in the statute, means “before.” Webst. Diet.; 5 Am. & Eng. Enc. Law (2 Ed.), 82. The use of the word “until” in section 5731 Mansf.

Marcus L. Hawkins, Judge. The .presumption, in the absence of proof to the contrary, is that an officer having a duty to perform performs that duty in accordance with the law. 25 Ark. 311; 30 Ark. 69; 35 Ark. 99; 31 Ark. 609. The evidence fails to show that the land was sold three times, as alleged by appellees. A new trial should have been awarded on the ground of surprise.

James S. Thomas, Judge. Tbe confirmation of tbe tax title should be set aside on account of fraudulent concealment of facts. Black, Judg. § 368; 42 Ark. 638. The subsequent deed of the clerk, when by mistake the land has been sold twice, could be no bar to the first purchaser in the assertion of his claim. 2 Wall. 605; 78 Wis. 701; 128 U. S. 456; 101 U. S. 260; 25 Kas. 340; 13 Wall. 72; 91 U. S. 330; 106 U. S. 447; 30 Kas. 67.

Felix G. Taylor, Judge. The common-law disabilities of married women remain, except in so. far as they have been removed by statute. 32 Ark. 776; 39 Ark. '361. Their power to contract generally is not enlarged by either the constitution or the “married woman’s aet.” Sand. & H. Dig. chap. 105; 43 Ark. 164. The act of 1895 should be construed to harmonize with the “married woman’s act.” 23 Ark. 304; 5 Ark. 236.

Bichard H. Powell, Judge. The complaint, in .order to state a cause of action, should state that the killing occurred in the county where the suit is brought. Sand. & H. Dig. § 6352; 55 Ark. 282; 45 S. W. 909; 38 Ark. 206. Appellant saved due exceptions to all the testimony as to where the animal was found, etc., and hence the question of its competency is fairly before the court.

John B. McCaleb, Judge. STATEMENT BY THE COURT. Appellee, Barnes, owned a homestead of less value than $2,500, which ordinarily was exempt from sale under execution. He sold his homestead to one Pulliam, and afterwards bought it again from Pulliam, and paid him $1,000 therefor, which one thousand dollars was loaned to him for the purpose of repurchasing the homestead by the appellant, Acruman.

Chas. W. Smith, Judge. STATEMENT BY THE COURT. This case was commenced in a justice of the peace court, and comes here by appeal from the circuit court. The appellant company employed one L. Harper, about December 20, 1894, to travel and sell tobacco for it, and were to advance him money to defray his expenses, to give him a salary, and a per cent, on all he sold over $3,000 worth.

Jas. F. Robinson, Chancellor. STATEMENT BY THE COURT. The facts in this case are, briefly stated, as follows: Eliza R. Walkerwitz, a married woman, owned certain farming lands in’Jefferson county; also live stock and other personal property on said farm. She entered into a partnership with James S. Rutherford for the purpose of cultivating said lands, and sold him a half interest in the personal property for the price of $1,800.

.Alexander M. Duffie, Judge. STATEMENT BY THE COURT. Mrs. N. C. Richardson, on the 31st day of October, 1896, brought suit against Henry Bales to recover $733.61, due her for money loaned, and evidenced by four promissory notes of defendant.

Edward S. McDaniel, Judge. A fraudulent conveyance passes no title, as against creditors affected thereby. Bump, Fr. Conv. §§ 451, 468. The curative act of April 13, 1893, (Sand. & H. Dig. § 743) validated all conveyances avoided by Sand. &. H. Dig. § 3713; 58 Ark. 117; 60 Ark. 269. The conveyance to the mother was simply a cloud upon appellant’s title, and the better practice was to remove the cloud before proceeding to sell the property on their judgments. Wait, Fr.

Marcus L. Hawkins, Judge. A judgment entered by default against a party who has not been served is void. 1 Black, Judg. 83; Sand. & H. Dig. § 4190. The nunc pro tunc order, being without proper notice to appellant, did not give jurisdiction. 34 Ark. 300. To sustain a default judgment, the complaint must state a cause of action. 49 S. W. 489; 1 Black, Judg. 84.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. Appellee received of appellant the sum of $8, and turned over to him a sewing machine valued at $45. Appellee claims that she let appellant have the machine as security for the sum of $8 borrowed of appellant. Appellant contends that he bought the machine of appellee. At the time of the transaction the following instrument was signed by appellant and appellee: “No. 1865.

Edgar E. Bryant, Judge. The acknowledgment, in the letter of appellee, that the note was due, and his promise to pay same, are explicit, and were sufficient to toll the statute of limitations. 10 Ark. 134; 18 S. E. 504; 22 Pick. 291; 107 N: Y. 346. Nor was the concluding clause of the sentence a condition attached to the acknowledgment. 9 Exch. 282.

Joseph W. Martin, Judge. statement by the court. The attorney general of the state filed a complaint against the defendant Lancashire Insurance Co., alleging that it was a foreign corporation organized under the laws of England; that it was, on and after March 6, 1899, engaged in the business of insuring property in this state against loss or damage by fire, and that, while so engaged, it became and was a member of a pool or combination with other corporations engaged in a…

Joseph W. Martin, Judge. The complaint states a cause of action. 25 Ark. 84; 26 Ark. 228, 230, If any of the averments were uncertain or incomplete, the remedy was by motion to make more specific, and not by general demurrer. 32 Ark. 315; 38 Ark. 393; 31 Ark. 657; 52 Ark. 378; 19 Ark. 695; 27 Ark. 369; 31 Ark. 379; 19 Ark. 173. A demurrer should not require any statement of facts to sustain it. 16 How. Pr. 422; 2 Estee’s Pldg. § 3074; 23 How. Pr. 396; 43 Barb. 261.

Richard H. Powell, Judge. STATEMENT BY THE COURT. The complaint in this case is as follows: “Plaintiff states that it is a corporation, duly organized under and by virtue of the laws of the state of'Ohio; that as such corporation it obtained a judgment against the defendant, J. B. Judkins, the White Sewing Machine Company, and H. R. King, in the Pulaski circuit court on the 16th day of June, 1890, for the sum of $1,719.54, as will appear by reference to a copy of said…

Felix G. Taylor, Judge. There was no right of redemption by the statute. Acts 1895, p. 91. When a statute gives no right of redemption, there is none. 2 Desty, Tax. § 140; 51 Ark. 453. The law in force at the rendition of the judgment must control. 43 Ark. 420; 69 N. W. 826, 828. The appellant’s title was not such as could be tried on a summary motion. 3 How. 62; 8 Sm. & Marsh. 456; 14 Enc. PL & Pr. 81, 84. The sale by the commissioner was not a judicial sale.

James S. Thomas, Judge. It was error to permit plaintiff to testify as to his opinion with regard, to the danger or difficulty of boarding the car. 1 Whart. Ev. 509; 29 Ark) 448; 24 id. 251; 56 id. 612; 57 id. 387. It was error to admit evidence of what the motorman said after the accident—it was not of the res gestae. 95 N. Y. 275; 19 Am. & Eng. Ry. Cas. 400; 58 Ark. 47; 1 G-reenlf. Ev. § 108; 1 Wh. Ev. § 262.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. At'the September term, 1895, of the Greene circuit court the appellant, William Sullivan, was indicted for grand larceny. At the spring term, 1899, the cause came on for trial. Appellant, waiving formal arraignment, entered his plea of not guilty, was tried, convicted and sentenced to one year in the penitentiary, and appealed to this court.

Frederick D. Fulkerson, Judge. If there was any doubt as to the sufficiency of the first indictment, re-indictment was the proper course. 32 Ark. 236. The second indictment superseded the first. Sand. & H. Dig. § 2099. The first indictment should have been quashed. 50 Ark. 541. The time during which it was pending is not to be computed as part of the time of limitation of prosecution for the offense. Sand. & H. Dig. § 1957; 42 Ark. 109.

Richard H. Powell, Judge. The complaint states simply a cause of action in debt. 6 Ark. 497; Oh. PL 99, 313; 110 Pa. St. 569. The court erred in transferring this case to equity on defendant’s motion. Const. Ark. (1874), art. 2, § 7; Sand. & H. Dig. §§ 5608-5609; 52 Ark. 415; 56 Ark. 396; 22 Ark. 32. The court erred in postponing the ease after submission, and suggesting the necessity of additional evidence.

Jepktha H. Evans, Judge. It was error for the court to deny the defendant’s motion for continuance to enable him to obtain the evidence of the witnesses who were in Texas. 60 Ark. 564; 21 Ark. 460; 50 Ark. 161; 32 Ark. 462; 1 Bish. Cr. Proc. 951, a, b and e; 38 L. R. A. 721; 4 Am. & Eng. Enc. PI. & Pr. 847-849, 861; 80 Ky. 480; 65 G-a. 332; 14 S. W. 1008. The fact that the evidence sought is cumulative is no reason for denying the motion in a felony case. 14 S. W. 1008.

Cross Appeals from Sebastian County, Fort Smith District. Edgar E. Bryant, Judge. The court erred in holding that the decree in the federal court did not merge the contract to convey stock. 1 Freeman, Judg. §§ 215, 240; 1 Herman, Est. §§ 125, 222; 54 O. St.,214; 37 Ind. 264; 117 Ind. 315; 111 Pa. St. 99; 24 Minn. 4; 47 N. W. 151; 17 Conn. 420; 59 Mo. App. 26: 15 111. 420; 50 Miss. 391; 63 Ark. 259; 54 Conn. 253; 49 Ga. 585; 20 N. J. Law, 249.

John B. McCaleb, Judge. STATEMENT BY THE COURT. This suit was by the appellant as treasurer of the incorporated town of Pocahontas on the following instrument: “$500. On or before November 15,1895, we or either of us promise to pay John Hencke, as treasurer of the incorporated town of Pocahontas, Ark., or successor in office, five hundred dollars, value received, to bear interest from date until paid at the rate of ten per cent, per annum.” Signed by the appellees.

Alexander M. Dueeie, Judge. The deed in this case is sufficient to convey to appellant all the title which the state had. 1 T. B. Mon. 30; 35 Neb. 587. The state is bound by its contracts in the same degree as if it were an individual. 22 Am. St. Rep. 626; 104 Cal. 690; 127 Ind. 204; 71 N. Y. 549; 43 Am. St. Rep. 158; 42 Ala. 548; S. C. 94 Am. Dec. 665; 2 Paine, 557; 4 Peters, 87; 8 How. 313; 3 Johns. Cas. 174; 22 Ala, 718; 7 Cal. 527; 10 Mass. 155; 3 Pick. 224.

Jeptha H. Evans, Judge. STATEMENT BY THE COURT. The evidence in this case shows that the appellee, a citizen of the city of Van Burén, bought a ticket from the appellant at Van Burén, which entitled him to be carried thence on a local freight train of the appellant to the city of Fort Smith, and the train carried him to within about one mile of the station at Fort Smith and stopped; and that, after waiting some ten minutes, the appellee inquired of the employees on the train…

Hance N. Hutton, Judge. The evidence does not justify the verdict. It was error for the court to refuse to allow the witness, Roach, to be impeached by the written minutes of the proceedings in the examining court. 10 L. R. A. 696. Where the jury is allowed to separate, the burden is on the state to show that they were not improperly influenced. 40 Ai'k. 454, 471. Appellant was not prejudiced by the court’s refusal to admit the minutes of Roach’s testimony.

James S. Thomas, Judge. The appellants acted in good faith and without malice. Therefore the court’s instructions as to examplary damages were erroneous. 39 Ark. 387; 35 la. 306; 3 Suth. Dam. 472. The true measure of damages was the value of the property, with interest. 39 Ark. 387; 29 Ark. 448; 63 N. W. 737; 59 N. W. 387'; 49- Pac. 910; 3 Suth. Dam. 472-5, 491; 527-8, 572. The sixth instruction given for appellee was erroneous.

Edward S. McDaniel, Judge. STATEMENT .BY THE COURT. The appellee, C. E. Ostrander, in 1896, moved his home from Oto, Iowa, to Rogers, Arkansas.

Bryant, Judge. Where the purchaser at mortgage sale bids the full amount of the mortgage debt, interest and costs, the mortgagor being in possession at the time of the sale, the purchaser is not entitled to possession of the lands during the year allowed the mortgagor in which to redeem. 54 la. 650; 78 Ky. 496; 43 111. 327; 63 111. 426; Wiltsie, Foreclosurses, 673; 35 Pac. 169; 52 ■N. W. 897; 61 N. W. 668.

Thomas B. Martin, Judge. The act under consideration is unconstitutional in that it embraces two special appropriations under one head and in one bill. Const.1?Ark. 1874 art. 6, §§ 29, 30; 7 So. 231; 4 La. Ann. 298; 13 Mich. 494; 32 La. Ann. 780; 39 Pae. 1096; 13 So. 688; 29 Pac. 771. The erection of the new capitol is not a necessary expense of government, and it requires a vote of two-thirds of both houses to appropriate money therefor. Const, art. 8, § 31.

Joseph W. Martin, Judge. The statutes authorizing and regulating garnishments must be strictly construed. 5 Ark. 135; Rood, Garnishment, §§ 3, 5 and 6. The allegations and interrogatories provided for by the statute are jurisdictional, they being the means by which jurisdiction of the subject-matter is obtained. Hempst, 662; 16 Ore. 329; S. C. id. 539; 23 Ore. 206; 18 Ark. 593.

Conway,-Judge. The death of the insured, though perhaps accidental, was not from “accidental cause.” The means or cause of his death was not accidental, though the result may have been unforeseen or accidental. 76 N. W. 683; 127 U. S. 661; 75 Wis. 116; 47 N. Y. 52; 144 Mass. 572; 44 Pac. 996; 1 Am. & Eng. Enc. Law, 331; 112 N..Y. 422; S. C. 8 Am. St. Rep'. 763; 80 Mo. 251; 28 S. W. 877; 3 N. E. 818; 1 Am. & Eng. Enc.

Thos. B. Martin, Chancellor. To constitute such desertion as entitles to divorce, three things are necessary: (l) Cessation of the deserter from cohabitation for the statutory period; (2) the intent of the deserter not to return; (3) absence of consent of the deserted party. 34 Ark. 37; 53 Ark. 484; 62 Ark. 611; 5 Am. & Eng. Enc. Law, 799. The evidence clearly establishes all these, and plaintiff was entitled to a divorce.

Will P. Feazel, Judge. STATEMENT BY THE COURT. Appellee sued appellant for damages for alleged wrongful ejection from its train. Holden boarded appellant’s train at Hatton, a mail station on its railroad, and entered the coach. Janssen is a station on appellant’s road several miles north of Hatton, and DeQueen is a station some distance south of Hat-ton. Hatton was not a passenger station. Trains only slowed up there for the purpose of taking on mail.

Chas. W. Smith, Judge. The indictment was defective because it did not allege the value of the hog 2 Bish. Cr. Proc. § 713; 33 Ark. 567; Sand. & H. Dig. § 1764. An indictment based on a statute must use such language as to clearly indicate the section upon which it is based. 1 Bish. Cr. Proc. § 612. The court erred in refusing the fourth' and fifth instructions asked by appellant.

Feazel, Judge. Fraud may be shown by circumstantial evidence. 59 Ark. 625; 52 Ark. 470. The close relationship of the parties to the transfer, together with other circumstances in the case, raised a presumption of fraud, and cast the burden on appellees to disprove same. 57 Am. Dec. 577; 50 Ark. 289; 55 Ark. 721; 46 Ark. 550; Wait, Fr. Con. §§ 300-301; Bump, Fr. Con. pp. 54—55.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. The plaintiff sued on a policy for $2,000 upon the life of his deceased wife, bearing date July 24, 1896, alleging that she died October 12, 1896.

John B. McCaleb, Judge. The probate of a will is conclusive as to all matters affecting the validity of the will or of its probate. Croswell, Ex. & Adm. 34. It was error for the court to refuse to transfer this case to law, after the filing of the supplemental complaint and answer. Sand. & H. Dig. § 6121. The will, having been executed and proved according to the laws of Missouri, is valid here. 3.1 Ark. 175.