Volume 67 — Arkansas Reports

<p>1. Master and Servant—Breach op Duty—Form op Action.—Where the duty which a master owes to his servant is imposed by law by reason of their relation, as well as by their contract of service, the ser- • vant may, for a breach of such duty, elect to sue upon the contract, or to treat the wrong suffered as a tort, and bring an action ex delicto. (Page 4.)</p> <p>2. Railroad—Liability.—A railroad company operated wholly or in part in this state is liable in tort to an employee for an injury received in v. this state through the negligence of a co-employee who was not a fellow-servant, within Sand. & H. Dig., § 6249, notwithstanding the injured employee’s contract of service was entered into in another state. (Page 4.)</p> <p>3. Erroneous Instruction—When Cured.—The court’s error in assuming a disputed fact as true may he cured by other and more explicit instructions on the same subject. (Page 6.)</p> <p>4. Master and Servant—Fellow Servants.—An railroad employee is entitled to recover of his employer when he was without fault injured by the concurring negligence of two co-employees, one of whom at least was not a fellow-servant., within Sand. & H. Dig., <¡ 6249. (Page 7.)</p> <p>5. Same—An engine inspector engaged at a roundhouse and a locomotive fireman engaged on the road are not fellow-servants, as they are not engaged in the same department or service, nor “working together to a common purpose,” within Sand. & H. Dig., | 6249. (Page 9.)</p>

■ Appeal from Clark Circuit Court in Chancery. McNutt, as assignee of the claims against the insolvent eoporation, had no vested right, to a preference. He had only the right which the original creditors had. Broom, Leg. Max. § 354; Sheld. Sub. § 87. No preference has been “obtained or sought to be obtained” by him, in the sense of that expression in see. 1427, Sand. & H. Dig.

Appellee, having enjoyed all the benefits of the contract, should not be suffered to repudiate it. 37 Am. Dec. 438. Contracts of separation are at the present time enforced in both England and America, without the intervention of a trustee. Macq. Hus. & Wife, 324, 329; Schouler, Dom. Eel. 471, 473; 3 Yesey, 352; Bright, Hus. & Wife, 306; Schoul. M. & D. 474; 37 Mich. 563; 9 Wall. 743; Bish. M. & D. § 1266; 5 IT. L. Cas. 59; 113 Mass. 255; 41 Barb. 92; Tiff. Dorn.

The mortgage itself is the foundation of the dealings of the parties and the source of the indebtedness. Equity will regard the notes as having all been executed. 61 Ark. 266. The contract was usurious. 35 Ark. 52; 41 Ark. 331; 32 Ark. 346. As to plea of misjoinder of parties, see 44 Ark. 487.

On February 10,1897, the city council of Siloam Springs, a city of the second class, passed an ordinance laying off the whole of the city into a district for the purpose of constructing and maintaining a system of waterworks for the city.

Appellee was not a passenger, and had not the rights of one. A railroad company may make reasonable rules and regulations to govern the. receiving of its passengers, and the passengers are bound to take notice of and obey such rules. 4 Ell. Rys., §§ 1576, 1579, 1580, 1581, 1603; 132 Mass. 116. At least, until a party who enters in violation of the rules is accepted by the carrier as a passenger, he is not such. 139 Mass! 238; 19 Ore. 354; 15 Gray, 20; 59 Ark. 395-404.

On December 12, 1896, plaintiff filed her complaint in the Hempstead circuit court on the chancery side thereof, alleging: That on the 23d day of September, 1892, one Wm.

Since appellee’s acceptance of Duval’s proposition was conditioned on his carrying insurance, it did not close the contract. Mete. Cont. 14; 1 Pars. Cont. *477. The statute required the school board to sell at -public sale. Act April 1, ¡1891; Sand. & H. Dig., §§ 7114-7120; Acts 1895, p. 74. The board had no power to bind itself to sell the property at private sale to DuYal. Perry, Tr. § 43; 2 Johns. 425.

Bill for reformation of a sheriff’s deed and for partition. The complaint alleged that the land was purchased in the name of Alva Russell under execution against Williamson in favor of J. W. and Alva Russell, and that by mistake the deed was taken in the name Alva Russell, when it should have been in the name of J. W. and Alva Russell. To correct this mistake, J. Vvr. Russell and the minor heirs of Alva Russell, deceased, join in the complaint as plaintiffs.

The burden of proof, under the statute of limitations, was on the plaintiff. 21 Ark. 386; 43 id. 139. The bill and the amended bill did not state a case within the period of limitation; hence the suit should have been dismissed, regardless of what the evidence showed. 16 Ark. 169; 20 Ark. 200; 24 Ark. 390; 9 Pet. 415. The entry of the Federal troops did not affect the continuity of appellant’s possession. 20 S. W. 443; 24 Ark. 392; 83 Am. Dec. 499.

<p>Appeal from White Chancery Court.</p>

Since High was under a legal obligation to convey the lands to his wife, no other consideration was required. 40 Ohio St. 400; 66 la. 422; 92 Ga. 485. If he mingledhisown property with the trust property in such a manner that it could not be separated, he was bound to, account for it all to the cestui que trust, his wife. 104 U. S. 54; 83 Mo. 210, 216; 53 Ark. 545, 558; 47 Ark. 533.

The complaint charged that on the night of January 17, 1895, the plaintiff went to the depot of defendant in North Little Rock, for the purpose of taking a train to Hot Springs, to visit his sick wife and child; that he entered the depot waiting room provided for passengers, to wait for the train.

The plaintiffs, by the levy of attachment, sale of property, confirmation and deed, place themselves in a position to attack the deed from Stannard to Murray. Bump, Fr. Con. 511; Beach, Eq. 875. As to general grounds of equitable relief against fraudulent conveyances, see: 11 Ark. 411; 22 Ark. 184; Bump, Fr. Con. 76-78; 31 Mo. App. 62; 31 Ark. 666. The conveyance was in reality a secret trust, reserving an interest to the grantors, and hence is fraudulent. Bump, Fr.

Plaintiff was not defendant's passenger, but that of the parties who had chartered the train. 22 U. S. App. 220; S.C. 9 C. C. A. 666; S. C. 61 Fed. 605; 2 C. P. Div. 205; 88 Tenn. 692; S. C. 13 S. W. 691; 76 la. 655; S. C. 13 S. W. 691; 76 la. 655; S. C. 39 N. W. 188; 78 Fed. 610; S. C. 2 Am. Ry. Rep. 669; 78 Fed. 497; S. C. 2 Am. Ry. Rep. 677. It was lawful for defendant to lease the train. 47 Fed. 15; 51 Fed. 309, 318; Sand. & H. Dig., §§ 6321, 6322; 16 Am. & Eng.

The court had no jurisdiction, and consent could not give it. 48 Ark. 51. It was error to instruct the jury that defendant was bound to retreat unless by so doing he would have increased his danger. 49 Ark. 543. It was also error for the court to repeat this instruction several times in different instructions. 38 Ark. 334; 43 Ark. 184; 59 Ark. 143. There was error in the sixth instruction. 62 Ark. 286.

The sale of the homestead and the appellants’ accompanying acts constituted an abandonment. 48 Ark. 543; 9 Am. & Bng. Bnc. Law, 436; 4 Cal. 273; 39 111. 86; 43 111. 174; id 231; 54 111. 175. The proceeds of the sale were liable to appellants’ claim. 60 Ark. 264; 65 Ala. 439; 61 la. 160; 65 la. 533; 24 la. 76; 62 Miss. 354. The intention to return to the homestead, in order to preserve the right, must be found at the time of renewal. 75 Mo. 559.

The appellee brought replevin against the appellant, and recovered judgment for fifteen “barrels of Superior Patent Flour in wood barrels, and twenty barrels of Baker’s Extra Flour in one-eighth sacks,” or, in default of the return thereof, $195.00, the value of the said flour. From this judgment Carpenter appealed to this court. The cause came on for trial in the circuit court of Jackson county at its January term, 1898.

Appellee should not have been permitted to make the amendment, setting up a new cause of action, without giving appellee additional time. Newm. PL & Pr. 704, 705; 22 Barb. 116. The court should have given appellant additional time on the ground of surprise. 62 Cal. 443; 77 Mo. 26; 6 How. Pr. 336; 5 Abb. 203; 52 How. Pr. 193; 7 Rob. (La.) Ill; 34 Barb. 291-295; 33 N. Y. 69; 39 Cal. 555; 6 Abb. N. Cas. 378; 23 Ark. 543, 545; Sand. & H. Dig., 5839.

Thos. J. Walker, was, on the 22d day of February, 1896, engaged in the occupation of coal heaver for the Iron Mountain Railway Company, at Wilmot, Arkansas. On that day he procured from the agent of the Pacific Mutual Life Insurance Company an accident policy insuring him against violent and accidental injuries for one year.

There is no proof that appellant acquired possession of the mule by stealing it. There must be a felonious intent, to constitute larceny. Sand. &. H. Dig., § 1694; Bish. Cr. Law, 427. The unexplained possession of the mule, even if it had been proved to have been stolen, was not sufficient. 34 Ark. 443; 43 Ark. 39; 54 Ark. 621; 55 Ark. 244; 58 Ark. 576.

The failure of appellees to perform their part of the contract authorized appellants to treat it as rescinded. 38 Ark, 174. The contract was severable. 1 Beach, Mod. Law of Cont. §§ 731, 733. Appellant was entitled to judgment for the work done. 41 S, W. 763. The language, “other improvements,” is broad enough to cover the improvement made by-appellants. Sand. & H. Dig., § 4731. The mechanic’s lien law should be liberally construed. 30 Ark. 568; 32 Ark. 69; 49 Ark. 478.

Shattuck & Hoffman and Rives were the agents of the mortgage company, and the first loan was usurious. Interest could not be deducted for more than one year in advance. 60 Ark. 288. The usury was not purged by the second transaction, and appellee took subject thereto. 41 Ark. 331. Further, on the questions of usury and agency, see 54 Ark. 43; 51 Ark. 544.

Tbe witness alone can make the objection that his answer to a question would tend to incriminate him. 13 Ark. 360. Unless witness had failed to inform the vendor of the liquor of his minority, he was guilty of no offense in buying it. Sand. & H. Dig., § 1814.

This is a suit by A. B. Dickey, as administrator of the estate of Charity A. Robinson, deceased, against John Hays upon an account which contained among other items the following: “1895.

By sending the order to appellant, appellee conferred upon him the right to deal according to the rules and usages of the New York Cotton Exchange, and such rules and usages enter into the contract of sale in this case. 149 U. S. 481. The burden was on appellee to show that the contract was a gambling transaction, and that both parties so understood the transaction. Ib.

In the year 1876, Dick White died intestate, unmarried and without issue, seized and possessed of the lands in controversy in this cause. He left surviving him, his father, William White, and appellants, who are his brothers and sisters and persons standing in the title of brothers and sisters who are dead. The land is not an ancestral estate, but a new acquisition.

On April 21, 1896, appellee, Joseph Winter brought suit in the Miller circuit court against appellants, Chas. H. Moores and W. A. Payne.

The appellee filed his complaint in the Washington county circuit court on the 12th day of June, 1897, against W. Gollaher, V. A. Gray, Sarah C. Wilks, W. S. Pollard, administrator of It. C. Wilks, deceased, and J. E. Whitehead, and alleged that, on the 11th day of March, 1896, he loaned R. C. Wilks $200, due on or before--day of--, 189—, with interest at 10 per cent, per annum, and that defendant.

statement by the court. In October 1892, the Dudley E. Jones Company, of Little Bock, delivered to Nat Smith, of Haynes, Arkansas, a “Sailer Patent Cotton Elevator,” under a written agreement with him that the elevator should remain the property of the company until fully paid for.

The instructions given for appellee, proceeding upon a theoretical case of fellow-servant or vice-principal, not borne out by the record, are abstract and misleading. 63 Ark. 684. The case is plainly one of assumed risk. Even if a vice-principal had been present, unless through some act or conduct of his he had relieved the servant of the duty to observe and protect himself against dangers, it would have created no liability. 59 Ark. 478.

This was an action brought in the Randolph circuit court, June 2, 1897, by Maxwell Coffin against Bunk Black, J. T. Turner, and William De Clerk, on a promissory note given by them, in words and figures as follows, to-wit: “Pocahontas, Ark., May 1, 1896.

The transfer of the note to the appellee bank by the President of the Mammoth Springs Bank was invalid, and hence the latter was still the legal owner of the paper. 14 Mass. 178; 18 W. Ya. 212, 228; 1 Boone, Bankg. § 101; 7 Ala. 273; 1 Cook,Oorp. 716; 4 Th. Corp. §§ 44-46; 62 Ark.33; 34 S. W. 89.

Const, of Ark. ai't. 9, § 4. To constitute a “family,” within the meaning of the homestead law, there must be a condition of dependence, and not a mere aggregation' of individuals. Thomp. Horn. & Ex. §§ 45, 46. He who seeks the benefits of the homestead law must bring himself strictly within its terms. 34 Ark. Ill; 55 Ark. 449.

The parties being eo-conspirators, the statements complained of were admissible against all the defendants. 92 N. Car. 732, 737, 747; Und. Or. Ev. § 491; 12 Tex. App. 65; 45 Fed. 872; 32 Ark. 220; 2 McClain, Cr¡ Law, § 998. At least as against Lingo, the testimony was not prejudicial, as the court told the jury not to consider this evidence against him. 66 Ark. 16.

statement by the court. On the 30th day of June, 1897, the appellee filed a complaint in the Faulkner chancery eourt against the appellant and the county treasurer of Faulkner county, alleging that… Held: and no notice of a meeting was given, and, in fact, there was no meeting, but Pearson and Powers acted separately. That the desks were delivered to Pearson and Powers, who paid the freight on them, and took them to the plaintiff’s schoolhouse.

The land was the homestead of the appellant’s ancestor at the time of his death. 41 Ark. 309; 55 Ark. 55; 56 Ark. 621. The sale by the administrator was void, because: First. The probate court had no jurisdiction to order the s lie of the homestead to pay debts. 47 Ark. 454; Fr. Void Jud. Sales, 35; Thompson, Horn. & Ex. 546. The administrator was not even a proper party. 35 Ark. 24. Second.

Without the allegation of the notice of dishonor, or of facts which show an excuse, the complaint alleged no cause of action against the indorser. Wood’s Byles, Bills & Notes *306. The collecting agent does not assume the responsibility of doing anything more than making demand upon the maker and notifying the principal of the result. 1 Morse, Banks, § 232; 1 Dan. Neg. Inst. § 331; Story, Bills, § 232; 5 Mason, 366.

The appellees executed to the appellants their promissory note, which reads as follows: “Springfield, Mo., Sept. 20th, 1894. “Sixty months after date,.I promise to pay The Farmers’ & Mechanics’ Savings Company, of Springfield, Mo., $2,500, for value received, with interest from date at the rate of six per cent, per annum, payable in monthly installments, on the fourth Saturday of each month; and I promise to pay said company sixty monthly dues of $50 every month, as…

An attachment is a lien upon the property of the defendant subject to execution from the time of the delivery of the writ to the sheriff. 56 Ark. 292; 39 Ark. 97; 29 Ark. 85. The fact that the judgment was rendered for the debt before the attachment was sustained and execution issued is no waiver-of the attachment lien. Waples, Attach. 511. Parol evidence is sufficient to authorize a nunc pro tunc judgment. 40 Ark. 230; 51 Ark. 323.

Wm. La Porte agreed with appellants, Edward Fitzgerald and J. F. Callahan to lay the tiling and do the marble work in St. Andrews’ Cathedral at Little Rock for a price named, the work to be performed in a “good and workmanlike manner.” He performed the work, and brought this action to recover a balance of $284.40, which he claimed as due for the performance of the work. The defense to the action was that the work was not done in accordance with the terms of the contract.

• The indictment fails to allege a valid lien, because the mortgage is not alleged to have been recorded. Sand & H. Dig., § 5090. Before record, a chattel mortgage is not a lien. 1 Jones, Mort. § 11; 9 Ark. 112; Sand & H. Dig., § 5091; 43 Ark. 378. When a juror separates from his fellows, the burden is on the state to show the absence of any injury therefrom to defendant's ease. 44 Ark. 119; 12 Ark. 782; 33 Ark. 317; 20 Ark. 36; 35 Ark. 118.

John H. Cash died intestate in Pike county in 1897, and appellant administered upon his estate. At the October term, 1897, of the probate court, Caldonia Cash, claiming to be the widow of deceased, filed her two petitions. In the first, in behalf of herself and her four minor children, she alleged that the personal estate of decedent did not exceed in value $800, and prayed that $300 in value of the same be vested in her and said minors.

<p>Appeal from Miller Circuit Court.</p> <p>STATEMENT BY THE' COURT.</p> <p>Appellee seeks by this action to recover for damage to sixty bales of cotton, which, he alleged, were delivered to appellant in December, 1896, to be taken care of and safely and securely kept for plaintiff. It is alleged that the damage was occasioned by the cotton being left on the platform of appellant unsheltered and exposed to the rain for a period of six months. The damage was laid at $1,000.</p> <p>The answer denied negligence and liability, and any damage to plaintiff, and denied that defendant was engaged in the business of receiving cotton on storage. It alleged that defendant had no facilities for such business, and had not held itself out as engaged in any such business, but that its sole business was compressing cotton; that plaintiff was not charged anything for storage on cotton, nor did it contract to store said cotton under cover of shelter; that, had defendant been authorized to compress said cotton, in due course of business after arrival and delivery the cotton would have been compressed in two or three days after arrival; that if any damage occurred to plaintiff, it was produced by his own neglect in neglecting to have said cotton compressed and disposed of. It alleged that the plaintiff had allowed said cotton to remain upon said platform, the same having been as other1 cotton delivered and placed upon its open platforms; that he neglected to notify it to compress same; and that, if said cotton was damaged, this was because said cotton was left on its platforms for an unreasonable time. The appeal is from a judgment for $524.70.</p> <p>The instructions given by the court were as follows:</p> <p>“First. If you believe from the evidence that the plaintiff, S. H. Nunnally, shipped the sixty bales of cotton in controversy to the defendant, Union Compress Company, under an express or implied contract to pay the usual customary storage charges thereon, then the said defendant was bound to take such care of said cotton as a prudent person would take of his own cotton so as to protect it from injury by rain and weather, notwithstanding you may further find from the evidence that defendant declined to demand or receive any charge for storing or handling said cotton when it was turned over to plaintiff.”</p> <p>“Second. If you believe from the evidence that the plaintiff, Nunnally, shipped to the defendant, Union Compress Company, the sixty bales of cotton in controversy without any understanding or agreement between the parties as to the charges thereon, and that the defendant received and receipted for said cotton, expected and intended to compress same, and make the usual charge for such compression, then the defendant was bound to take the same care usually exercised by a prudent person in caring for his own property of similar kind and situation.”</p> <p>“Third. The jury are instructed that a bailee without hire is responsible only for fraudulent or gross neglect, and in this case, unless the jury find that the defendant was a bailee for hire, they will find for the defendant.</p> <p>“Fourth. The bare delivery of property by one person to another for keeping, and damage thereto while in the bailee’s hand, are not sufficient for a recovery of said damage by the bailor. But, to enable the bailor to recover, it must appear from a preponderance of evidence that there was a contract of bailment, either express or implied, whereby the bailee should be paid for his services as bailee, and further that said bailee was guilty of negligence as to the property placed in his eharge, whereby said property was damaged.”</p> <p>“Fifth. Before the jury can find for the plaintiff, they must find from a preponderance of the evidence that tbüre was a contract, express or implied, between the plaintiff and defendant that for a consideration moving from the plaintiff to the defendant said defendant was to receive and safely keep said sixty bales of cotton, and unless they so find their verdict should be for defendant.”</p> <p>Objection is urged here only to the first and second of the above instructions.</p> <p>Appellee knew the character of appellant’s business and the facilities it had for storage, and his loss is the result of his own fault. 61 Am. Dec. 234-6; Wade, Notice, § 8; 23 Ark. 735, 744, 745. Thei’e was no understanding or contract between the parties as to charges. Both parties must agree to a contract.. Wald’s Poll. Cont. 2a; 2 App. Cas. 666, 692; 46 N. Y. 467, 469-470; 17 Ark. 78; 5 Ark. 256, 258; 11 Ark. 689, 690.</p> <p>The evidence sustains the verdict. 23 Ark. 61. The bailment was for hire, and appellant was bound to use the same care and attention with respect to its keeping as a reasonably prudent man would bestow upon his own property of the same kind and similarily situated. 61 Ark. 302; 127 N. Y. 500; 3 Am. & Eng. Enc. Law (2 Ed.) 7462; 52 Ark. 364. Even a gratuitous bailee is liable for gross negligence. 61 Ark. 302; 23 Ark. 61.</p>

The mortgage was void, because the equitable owner did not join in the granting clause. 53 Ark. 53; Sand. &. H. Dig., § 4945; 47 Ark. 114. Signing the relinquishment of dower did not estop her to claim her title. 53 Ark. 564; Big. Estop. 448 et seq. Aside from the mortgage, no lien existed, there being none by subrogation. 44 Ark. 507; 47 id. 118. Appellee’s failure to reply to the plea of set-off made to their cross-bill entitled appellant to judgment.

The court should have either granted a continuance or permitted the affidavit as to what would be the testimony of the absent witness to be read, as evidence, to the jury. 50 Ark. 108. The court properly exercised its discretion in overruling the motion for continuance.

The court below had no jurisdiction over a cause of action arising in the Indian Territory. There is no such thing as comity except between equals. See Webst. Diet. Comity. Hence there can be no concurrent jurisdiction between the state court and the federal court for the Territory. 18 Wall. 317; 11 Otto, .129; 9 How. 238.

The indictment in this case reads as follows: “The grand jury of Arkansas county, in the name and by the authority of the State of Arkansas, accuses Irvin Bock and H. C. Gage of the crime of misdemeanor, committed as follows, to-wit: The said Irvin Bock and H. C. Gage, in. the county and state aforesaid, on the 22d day of October, 1897, then and there acting as agents, and representing the Fire & Marine Insurance Company of West Virginia, unlawfully did insure buildings for…

As to the right to an injunction, see 35 Ark. 497; 40 Ark. 83. A judgment establishing a road cannot be collaterally attacked. 47 Ark. 431. The order of the <o mty court was obtained through fraud, and is void. 42 Ark. 348; 2 Fr. Judg. § 489; Big. Fraud, 87. The statutory notice was requisite to the validity of the order. 51 Ark. 34; 65 Ark. 94; id. 142, 143; 13 Ark. 491; 52 id. 312; 55 id. 30; 54 id. 642; 59 id. 487; Sand. & H. Dig., § 4190.

Larceny—Evidence.—In a prosecution for larceny of cattle if there was a conflict of testimony as to the ownership of the cattle taken by defendant, it was error to exclude proof that the prosecuting witness had formerly given a mortgage of the cattle alleged to have been stolen wherein they were described as marked differently from the cattle which defendant was proved to have taken. (Page 316.) Appeal from Lincoln Circuit Court, Varner District.

It was error to permit the plaintiff to testify as to transactions with the appellant’s intestate. Sand. & H. Dig., § 2914; sec. 2, schedule, Const, of Ark. 1874; 26 Ark. 476; 51 Ark. 401; 52 ib. 550; 54 ib. 185-6; 30 Ark. 285, 295. The evidence does not sustain the judgment. When a contract is proved, the surviving party can testify to amount of services and value; for such is neither a transaction with, nor statement of, deceased. 38 Hun, 157.

It was error to require appellant to pay the fee of the guardian ad litem,. Sand. & H. Dig. § 787. It was also error to refuse to set-off the judgment for costs against the judgment for betterments. Sand. & H. Dig., § 5861. In the absence of fraud, parties under disability are not estopped. Big. Est. 600; 55 Ark. 423. Courts of equity are governed by the statute of limitations, just as are courts of law. 46 Ark. 25; 46 Ark. 552; 47 Ark. 301.

<p>, Appeal from Pulaski Chancery Court.</p> <p>Appellant did all that the law required of him to assist appellee in its suit; hence he is entitled to share in the proceeds thereof. 137 Ind. 282, 284. Cf. 61 Ark. 199. The rule in this state is that the prior judgment creditor has a lien on property conveyed in fraud of creditors, paramount to that acquired by a subsequent judgment creditor who uncovers the property. 14 Ark. 69; 55 Ark. 116, 123; 57 Ark. 579; 49 Ark. 117; 50 Ark. 108; 33 Arkl 762; 23 Ark. 746, 759; 46 Ark. 542. Such conveyances are, in respect to judgment liens, treated as though they had never been made, and the title is considered as still in the debtor. Fr. Judg. § 350; Bl. Judg. § 423; Fr. Executions, § 207. Appellant’s priority being fixed by law, equity will enforce it. 61 Ark. 199; 3 How. Pr. 185; 19 N. Y. 369; 96 Mo. 216; 36 Minn. 494; 67 Pa. St. 434. To the point that the scire facias kept alive the lien of appellant judgment, see Sand. & H. Dig., § 4214; 13 Ark. 543, 557; 15 Ark. 73, 88; 45 Ark. 304; 19 Ark. 297. It was unnecessary for appellant to issue an execution which would have been fruitless. 11 Ark. 411, 418; 27 Ark. 637, 641; 56 Ark. 476, 481. Mere delay to sue out process on a judgment does nol affect the lien. 18 Ark. 142, 156.</p> <p>Priority in time is enforced only when the equities are equal, and does not apply to a case where the prior judgment creditor has, by negligence or laches sunk his equity below that of a more diligent junior creditor. 31 Ark. 600. This latter took place in the case of Stix v. Chaytor, 55 Ark. 116. The other cases cited by appellant do not involve any contest between judgment creditors, and are not in point. If, as in 55 Ark. 166, supra, the prior judgment creditor’s claim could be sunk by laches, below the equity of an innocent purchaser, it should be made to yield to that of a more diligent but juuior creditor. 29 111. 27; 51 Ark. 418; 33 Ark. 328; Bl. Judg. § 455.</p>

The chancery court had no jurisdiction to try the case again after its reversal, until the mandate was filed. 10 Ark. 453. The judgment of the probate court ordering a fro rata payment was in rem-, hence it is a valid estoppel against the world. Big.Est. 45, 200, 329 and600; 16 Mass. 299; 50 Ark. 201; 53 Ark. 514. It was error for the court to overrule appellant’s plea of the ten-year, statute of limitation as to judgments.

Garnishment—Practice.—The proper practice in a justice’s court, where a garnishee in an attachment suit has failed to answer satisfactorily the allegations and interrogatories propounded to him, is to institute suit against him, and a personal judgment against the garnishee in the original suit is not authorized. (Page 349.) Appeal from Ashley Circuit Court.

The court erred in refusing to allow appellant to prove the facts and circumstances immediately leading up to and following the shooting. These facts and circumstances were admissible as res gestee. 43 Ark. 100; 29 Ark. 249; 27 Cal 572. In connection with proof of threats, evidence of previous attacks and affrays is admissible. 11 Tex. App. 288.

Smith district. A constructive trust arose in favor of the appellants, as against Turner, by reason of his preventing them from collecting their demand from the Rogers’ estate. Story, Eq. Jur. §§ 1250, 1251, 1255, 1256, 1258; 2 Pom. Eq. Jur. §§ 1044, 1053; 51 Ark. 351; 1 Lewin, Tr. 180; Perry, Tr. 166; 51 Cal. 158; 43 Yt. 48; 16 Wis. 91; 6 Lans. 368; 113 ü. S. 89. No constructive trust arose in favor of appellants. 152 111. 651.

Hood sued the St. Louis, Iron Mountain & Southern Railway Company to recover the statutory penalty for the latter’s delay in building stock-guards on either side of an enclosure, after being duly notified to do so, thereby causing his meadow to be destroyed by cattle. Plaintiff’s testimony showed that, at the time he served the notice on the defendant to put in the stock-guards, he had no enclosure at the points where he wanted the stock-guards placed.

The court erred in holding the writ of attachment to be a lien upon the land without a levy thereon. Sand. & H. Dig., §§ 336, 341, 346, 363, 365; 29 Ark. 92; 39 Ark. 101; 34 Ark. 399; 45 Ark. 270; 54 Ark. 185; 56 Ark. 293; 59 Ark. 310; 60 Ark. 398.

The lien prevails over the right of a Iona fide purchaser. The statute gives it precedence over any “conveyance.” Sand. & H. Dig., § 4795. For meaning of “conveyance,” see: 1 Abb. Diet. 284; And. Law Diet. 254; id. 285; Webst. Diet.; 54 Ark. 346. The reference in the statute is to a purchaser of the product or an assignee of the receipt for the same when in storage. Suth. Stat. Const. § 260.

It was error for the court to refuse to reprimand the prosecuting attorney for his misconduct, and instruct the jury to ignore the question to the witness and the statement made by the prosecuting attorney. 61 111. App. 55; 12 Mo. App. 431; 2 S. W. 585; 62 N. W. 572; 32 N. W. 849; 58 Ark. 473; ib. 353; 150 U. S. 76; 64 N. W. 261; 34 S. W. 228; 24 N. W. 390; 39 N. W. 585; 1 Bish. New Cr.

Where the question involved is the amount of damage occasioned by a particular act, witnesses, whether expert or not, can not give their opinion, but are confined to the relation of facts; Rogers, Exp. Tes. § 154; 66 Vt. 343; 73 Ga. 705; 47 Ark. 497; 25 Neb. 138-145; 23 Wend. 433; 66 Barb. 604; 43 N. Y. 279; 8 Hun, 358; 71 Ind. 271; 58 Ga. 107; 11 La.

* The complaint charged that on March 16, 1897, plaintiff’s intestate was employed by the defendant in its yards in North Little Rock as switchman; that on the night of said date he was run over and killed, while switching cars, by reason of the negligence and carelessness of defendant’s employees in the handling of its trains and the incompetency of its servants, and in violation of its rules, and in consequence of the incompetent and unskilful engineer in charge of the…

This is an appeal prosecuted from the judgment in a suit by the appellee, Mrs. Mattie E. Allen, against the appellants. Duncan Brown, as constable, and James P. Brown, C. H. Banks and L. Benham, his sureties, and Ben Elder and E. B. Walton. The two defendants last named were plaintiffs in an attachment suit against W. B. Allen, the husband of the plaintiff.

The complaint charged that defendant was a common carrier, operating a railroad between Little Rock and Benton; that on the 23d day of May, 1894, she purchased a ticket from Little Rock to Benton, and entered one of defendant’s passenger ears, upon one of its trains, and took a seat therein as a passenger, for the purpose of going to Benton; that, after she had taken her seat, one of the agents of defendant in charge of said train maliciously, without cause, and against the…

This action was brought by Thomas H. Osborn against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries which he alleged were occasioned to him by being ejected from its platform and depot at Little Rock on the 6th day of August, 1894. The plaintiff testified that he had purchased a ticket and was traveling to Benton, Ark.

The initial carrier could not be forced to deliver the goods beyond its own line. 64 Ark. 115; 63 Ark. 326; 39 Ark. 148; ih. 529; 40 Ark. 375. Hence the initial carrier’s stipulation against liability beyond its own line is valid. 63 Ark. 330; 47 Ark. 103; 44 Ark. 209; 52 Ai’k. 30; 35 Ark. 402. If appellee had been merely an agent of the initial carrier, the exemptions in the latter’s contract might apply. 50 Ark. 397; 39 Ark. 148, 154; 18 Am. & Eng. R. Cas. 590.

The bill of lading was conclusive evidence of the contract between the parties, and the shipper was bound by its terms. 50 Ark. 397; 32 Ark. 669; Hutch. Carr. § 126; 74 Mo. 125; 136 Mo. 189; 46 Ark. 236. The contract entered into was a reasonable one, and the notice of loss a condition precedent to the right to sue. 16 U. C. C. P. 76; 76 Mo. 514; 20 Mo. App. 445; 18 Mo. App. 577; 16 Ind. Sup. Ct. Rep. 543; 23 Am. & Eng.

Appellant has the rightful tittle to the land in controversy, and appellee’s tax-title is void. 60 Ark. 163. Appellee had no constructive possession of the land. Tied. Real Prop. § 696; 57 Ark. 527; 60 Ark. 163. Disseizin, by election of the owner to so treat it for the purpose of an ejectment suit, does not create such an adverse possession as will ripen to good title. Tied. Real Prop. §§ 698, 695, 693.

Francis Chancery Court. STATEMENT BY THE COURT. This is an action by appellants to perpetually enjoin the appellee from cutting, removing and destroying timber on certain lands. Appellants claim that they as a firm are the owners of the lands, having purchased same from Jno. B. Driver, as President of the Board of Directors of the St. Francis Levee District, by deed dated 9th day of September, 1899.

It was error to refuse to allow appellant to show to what extent the gnu used would “scatter” at the ranges contended for by the state and defendants respectively. The evidence was relevant. 1 Whart. Or. Ev. §§ 20, 2.1; 42 Ark. 554; 29 A.rk. 386. Where the state relies upon circumstantial evidence, each material circumstance must be proved beyond a reasonable doubt. 59 Ark. 426, 427. The instructions were not full enough. 9 S. W. 737; 10 S. W. 210; Wilson's Or.

<p>"Wine—Unlawful Sale—Negativing Exceptions.—An indictment which alleges that accused on a day named unlawfully sold wine in a certain township and county “when and where the majority of the votes cast at the last general election voted against the sale of wine, ” without alleging the quantity sold, alleges the commission of a public offense, under Sand. & H. Dig., § 4851, as, if accused, being a manufacturer of wine, sold wine in original packages of not less than five gallons (under Sand. & H. Dig., $ 4851), or if he sold wine made from grapes or berries grown by him in quantities not less than one-fifth of a gallon (under act March 29, 1899), either would be matter of defense. (Page .425)</p>

It was error to strike appellant’s reply from the files. 44 S. W. 393; 99 N. Car. 107. The usury, if any, in the renewal notes did not affect the consideration, which was free from usury. Hence the pleadings should have been considered amended by the proof, and judgment given for the original debt. 29 Ark. 323; 42 Ark. 57; 55 Ark. 143; 56 Ark. 334; 35 Ark. 217; 98 N. Car, 107; 27 Am. & Eng. Enc. Law, 946-7.

A misnomer of parties to a judgment can be taken advantage of only by plea, and is waived if not so called to the court’s attention. 1 Freeman, Judg. § 154; 55 Ark. 200; 5 id. 234; 6 Ark. 68; 18 How. 409. App.ellee, having acquired title through appellant’s lessee, is not in a position to contest appellant’s title. 49 S. W. 494; 43 Ark. 28; 31 Ark. 472. Appellant had a right to perform the conditions of the deed, and keep the lands. 2 Paine, 545.

The appellee, William P. Hale, plaintiff below, brought suit at the fall term, 1897, of the Mississippi circuit court, against the Phoenix Insurance Company, of Hartford, Conn., alleging, in substance, that on the 12th of November, 1891, the insurance company issued and delivered to him a policy of insurance No. 6906, for the sum of $600, in which it covenanted and agreed, in consideration of the payment of the premium of $19.50, to insure his barn, located upon the…

. The right of appellants to foreclose their mortgage was a matter for equitable cognizance. There being an adequate remedy at law, chancery has no jurisdiction. 27 Ark. 157.

This is an appeal from a decree in chancery in favor of the appellees, claiming an undivided half interest in certain lands described in the complaint of appellees, and canceling the deeds under which the appellants claimed title to the same, and quieting the title of the appellees thereto. The bill was filed October 28, 1874, by Alexander Adler and others against the appellants.

Appellants, J. L. Cocke & Co., filed a complaint in equity against Mrs. Edna E. Clausen and her minor brother, Win, C. Urie, seeking partition of certain lands, in manner as will presently appear. The lands in controversy were originally held in common by the defendants and their sister, Mrs. Botts, as heirs of S. D. Eives.

An answer alleging inconsistent defenses is bad on demurrer. Bliss’ Code Pldg. §§ 342, 343. Denials must be direct. 33 Ark. 227. Appellant could, after surrendering his tenancy, set up the title he had acquired to the land. 15 Ark. 104; 33 Ark. 536; 31 Ark. 471; 33 Ark. 195; 42 Ark. 289; 64 Ark. 453. The decree in the overdue tax ease is conclusive in any collateral proceeding. 49 Ark. 336; 50 Ark. 188; 11 Ark. 521; 49 Ark. 419.

It was in the surety’s power to surrender his principal, and, having failed to do so, he is liable on the bond. 49 S. W. 349; 62 Ark. 505; 51 Am. Rep. 277; 35 Ark. 532; 25 Am. Rep. 524; 35 Am. Rep. 437; 4 Am. Rep. 58; 16 Wall. 366. The habeas corpus act (Rev. St. U. S. §§ 751-766) gives the federal courts power to release a person only when the body of the petitioner can be brought before the judge and by the person actually having him under involuntary custody.

Contracts like this -one are prohibited by statute. Sand. & H. Dig., § 1488. A note given in consideration of the dismissal of a prosecution is void. Tied. Com. Pap. § 183; 1 Dan. Neg. Inst. § 196; 54 Mo. 340. It is sufficient if the offense be charged. 1 Dan. Neg. Inst. § 196; 51 Ark. 519. If the promise to dismiss the prosecution constituted any part of the consideration of the note, it was void. Teid. Com. Pap. §§ 179, 183.

It was error for the court to re-confirm the same sale which the judgment of the supreme court, in 64 Ark. 312) ordered it to set aside. The attachment lien became merged in the judgment lien, which was a specific lien. Waples, Att. 582, 583. This specific lien exists no longer than the court’s actual custody of the property. Waples, Att. 279, 280, 298; Waples, Proc. in Rem. §§ 611, 612. The court loses control of the property upon its being taken beyond its jurisdiction.

The appointment of appellee as night watchman could not be made by the vote of less than a majority of the whole council. Sand. & IT. Dig., § 5158. The resolution having failed to pass, there was no such office as night watchman, and appellee could not be even a de facto officer. 68 Am. St. Rep. 95; 118 U. S. 425. Even a defacto officer cannot recover fees or salary, unless he be also an officer de jure. 28 Am. St. Rep. 163; 32 Am. St. Rep. 228.

statement by the court. ■Johnson, Caruthers & Rand Company brought replevin in justice court against A. S. Atkins and one Terrell, from whom Atkins purchased the goods in controversy. Upon a trial before a jury in the justice court, the jury returned a verdict for the defendant, Atkins, the case having been dismissed as to Terrell. Johnson, Caruthers & Rand Company attempted to appeal the case to the circuit court.

The motion in arrest of judgment should have been sustained. The evidence is insufficient, and fails to show that any o fense 'was committed before the indictment was returned. The indictment charged the offense with sufficient clearness. 16 Ark. 506; 1 Ark. 178; 1 Bish. Cr. Proc. §§ 356, 357, The proof was sufficient.

This action was commenced by a petition of the railway company, filed in the county court of Miller county, asking that court to set aside and declaro void an asssessment of certain land owned by the company in the city of Texarkana. The different .lots of land assessed, with the exception of that portion used by the company for stock yards, lie on each side of the railway tracks of the company, no portion thereof being within fifty feet of any such track.

The officers of the subordinate lodge had no authority to waive the positive requirement of the by-laws that all back dues be paid before re-instatement. Nib. Ben. Soc. 197; 81 la. 401; 10 N. Y. Supp. 503; 86 111. 479. It was error to instruct the jury that the member must have had notice of assessments due. Since the by-laws did not provide for such notice, the custom of the society to give it did not render it necessary. 58 Md. 463; 104 U. S. 252.

This suit is to recover damages for the alleged killing of a mule. The complaint is as follows: “The plaintiff, Henry Cady, for cause of action against the defendant, St. Louis,.Iron Mountain & Southern Railway Company, states that on the 18th day of July, 1898, said defendant wilfully, negligently, carelessly ran its train over a mule, the property of said plaintiff, of the value of one hundred and ten dollars, thereby killing said mule.

statement by the court. This suit was commenced in a justice-of-the-peace court, by the filing of the following account: “St. L., I. M. & So. Ry. Co. to W. C. Landers. “To damages for killing one two-year old steer on the 6th day of July, 1896, at a public crossing in the town of Harrisburg, valued at $10» W. C. Landers.” Defendant made default, and judgment was rendered in the justice’s court for the amount sued for, and the defendant appealed.

This suit was brought by appellees to recover possession of certain lands in Jackson county.

At the October term, 1894, of the Sebastian county probate court for the Fort Smith district, the appellee, as administrator of the estate of his deceased brother, Joseph Brogan, filed a petition, in which he represented that the estate was involved in litigation, and that it was necessary to secure the assistance of an attorney, or attorneys, and asked leave of the court to employ the same in the interests of said estate.

statement by the court. The appellee brought this suit in equity against his daughter and her husband, alleging that before her marriage appellee had made her a deed to certain land in consideration that she would support him as long as he lived, and that she afterwards married, and turned him ont.

This is a suit for damages for personal injury. The injury complained of was caused by a fall while plaintiff was alighting from appellant's train at Bald Knob.

Appellee sued appellant on the following note: “$300. Texarkana, Tex., November 16, 1891. “Sixty days after date we promise to pay to the order of A. Weinstein three hundred dollars at---. If collected by law or placed for collection, we agree to pay 10 per cent, for attorney fees. [Signed] “Texarkana & Ft.

This suit was brought by appellees to recover on a fire insurance policy.

On July 1, 1899, John McRaven filed his claim in the county court of Franklin county against said county for service as court stenographer for the quarter ending July 1,1899, in the sum of $63.87. The claim was regularly filed, and the circuit judge duly certified same. The county court at first allowed the claim, and ordered a warrant drawn for the payment of same out of the stenographer’s fund.

A purchaser pendente lite takes subject to the result of the suit. Freeman, Ex. § 475. As forcible entry and detainer is an action which excludes inquiry as to all defenses except as to the character of the possession, it was improper in this case. The sheriff was not a trespasser. 137 U. S. 43; 15 Wall. 671. In any event, appellee could not recover more than an individual half of the property held by her in common with appellants. Freeman, Cot. § 295.

March 10, 1898, appellant brought suit in the circuit court against appellees on a negotiable promissory note for $282; executed by them at Rogers, Ark., December 28, 1896, to one J. 0. Grenamyer, and indorsed in blank by Grenamyer. The note is copied in the findings of the court. The plaintiff alleged that the note was transferred to him by Grenamyer for a valuable consideration, and that he immediately notified the makers of the transfer.

Petition by appellee for habeas corpus, alleging as follows: On the 6th of April, 1899, appellee was convicted of an assault in the court below, and fined $50, making, with the costs, $109.

On the 26th day of January, 1897, T. M. Loyd took out a policy of insurance in the Planter’s Mutual Insurance Association for the sum of $1,000 upon his dwelling house and certain furniture therein against loss by fire. Loyd had a short time previously made an application to the Teutonia Insurance Company for insurance upon this same property.

Several petitions were filed in the county court of Little River county in 1897, asking for an order for an election for removal of the county seat from Richmond to the places named in the petitions. These petitions were heard by the county court in May, 1897, and the court refused to order the election.

The first instruction of the court was misleading, in that it told the jury that a specific intent might be conceived in a moment.” 25 Ark. 407; 36 Ark. 132; 51 Ark. 189.