Volume 68 — Arkansas Reports

Hance N. Hutton, Judge. STATEMENT BY THE COURT. On the 9th day of June, 1896, Marie Dawson, tbe daughter of plaintiff, M. L. Dawson, while crossing the railway track of the St. Louis, Iron Mountain & Southern Railway Company at Haynes station, was struck by' a locomotive, run over, and killed. She was between six and seven years of age, and had started on a visit to some companions who lived in the portion of the town across the railway from her home.

Felix G. Taylor, Judge. The court erred in refusing to instruct the jury that the action by appellee company could not be maintained if the debt to it was not due at the commencement of the- suit. 17 Ark. 442; 21 Ark. 186; 21 Ark. 499; 42 Ark. 163. No subsequent act or occurence will cure the defect, if the suit is prematurely brought. 22 Ark. 572; 14 Ark. 427; 42 Ark. 163.

<p>Certiorari to Lonoke Circuit Court.</p> <p>Geo. M. Chapline, Judge.</p>

McDaniel, Judge. Also appeal from Washington Circuit Court in Chancery. Edward S. McDaniel, Judge. STATEMENT BY THE COURT. The first case is an appeal by the appellant from a judgment entered in Benton county at the spring term of the Benton circuit court, chancery side thereof, 1897.

Joel D. Conway, Judge. STATEMENT BY'THE COURT. This is a suit for damages growing out of the alleged negligent killing of a cow. The proof showed that the cow was struck about 8 o’clock at night by a passenger engine which was provided with a “fine electric headlight.” The track was straight at the place where the witness for the plaintiff said she saw the cow killed.

Rufus D. Hearn, Judge. STATEMENT BY THE COURT. The plaintiffs, Arthur A. and John S. Gibson, are merchants and dealers in drugs, wines and liquors at Hope, Arkansas. On the 14th day of September, 1895, they had four barrels of whiskey shipped to them from Louisville, Ky.

Robert J. Lea, Judge. The recital in the deeds passed between Beebe & Ashley and the city in 1843 that the city had previously accepted the plat and bill of assurances in satisfaction of the covenant is proof of that fact. 2 Pars. Cont. *512; 2 Devlin, Deeds § 845, p. 1134. No part of the property claimed here had ever been dedicated 'or recognized as a highway before the confirmation of the above mentioned deeds.

Brice B. Hudgins, Judge. The decree was erroneous in awarding to appellees the part of the fund due by the bank, and in giving the state any part of the fund. “Equality is equity” is the foundation of the doctrine of subrogation. 3 Pom. Eq. § 1418; lid. §406; 31 Ark. 42; 34 Ark. 580. The 'chancellor erred in refusing appellant’s subi*ogation. Sheld. Sub. § 141.

Will P. Feazel, Judge. The wife’s acknowledgment was a substantial, if not a literal, compliance with the statute. 57 Ark. 242, 246. The mortgage carries the wife’s interest in the homestead. 58 Ark. 117, 123. The property was not the homestead of appellee at the time of the execution of the mortgage. The act of March, 18, 1887, does not prevent the husband from abandoning the homestead. 57 Ark. 242, 252. His abandonment and his declarations estop the wife. 35 Mich. 150.

jEdward D. Robertson, Chancellor. STATEMENT BY THE COURT. B. F. Bush, as guardian of certain minor heirs, children of John W. Roman, and the widow of Roman brought ejectment against W. C. Stephensou to recover possession of certain lands alleged to have been owned by Roman. Before the commencement of this action, Mrs. Roman had sold and conveyed the land to Stephenson. On the trial the circuit court found in favor of the right of the heirs to recover the land.

Jephtha H. Evans, Judge. Money voluntarily paid to one under a mistake of law cannot be recovered. 4 S. W. 60; 15 Am. & Eng. Enc. Law, 676; 46 Ark. 167. The burden of proving fraud was on appellant, and the evidence fails to show it. The court erred in disturbing the settlement. 15 S. W. 556; 14 S. W. 909; 4 S. W. 272; 12 S. W. 863; 28 S. W. 590. The statute as to arbitrations was not complied with. Sand. & H. Dig., § 272; il. § 4319.

John Fletcher, Special Judge. STATEMENT BY THE COURT. This is a suit by Hot Spring county against Garland county for that part of the indebtedness of Hot Spring county, for which that part of Garland county taken from Hot Spring county was liable.

O. W. WatMns, Special Judge. STATEMENT by the court. We adopt appellee’s statement of facts, it being correct. It is as follows: “Appellant Coquard brought his suit by ejectment against the appellees to recover from them the lands mentioned in appellant’s complaint.

Jas. F. Robinson, Chancellor. There was no .final decree rendered in term time. 5 Am. & Eng. Enc. Law, 373, 379, 380. In construing a will, the testator’s intent is paramount, and extrinsic evidence is admissible to show the intent, where the description is equivocal. Schoul. Wills, §§ 522, 576; 1 Am. & Eng. Enc. Law, 543, §§ 5, 6; 117 U. S. 210; 60 la. 339; S. C. 46 Am. Rep. 70. The doctrine of advancements does not apply. There must be actual intestacy.

Wallace, Judge. STATEMENT BY THE COURT. H. J. White in January, 1895, commenced suit by attachment before a justice of the peace against H. E. Wheeler for the sum of $33.84; alleging as grounds of attachment that the defendant, Wheeler, concealed himself so that summons could not be served upon him. The attachment was levied upon the personal property, and a judgment obtained, ordering it to be sold to satisfy the debt of plaintiff.

Robert J. Lea, Judge. It was error for the court to give the first instruction asked by plaintiff, and to modify the seventh and ninth asked by defendant. The conductor could not waive the requirement of the company’s rule that passengers should obtain transfer tickets. 64 Tex. 144; 92 Pa. St. 21; 11 So. 506, 511; 13 S. W. 19; Booth, St. Rys. § 237; 93 Mich. 612; 52 Fed. 197; 34 W. Ya. 65; 21 Ore. 121; 135 Mass. 407.

Leland Leatherman, Chancellor Davis’ sureties cannot claim any rights by subrogation, Sheld. Sub. p. 8, § 6; ib. § 40; ib. p. 6, § 4. No one can secure by subrogation a greater right than that held by the one for whom he is substituted. 87 Atl. 886. Subrogation is founded, not on contract, but on principles of equity. 50 N. E. 376; 70 N. W. 244; 45 S'. W. 500.

Richard H. Powell, Judge. The statute (Sand. & H. Dig., § 1338) requiring that all transfers of corporate stock be recorded does not apply to a pledge of stock. 45. Pac. 320; 93 Fed. 603; 1 Sumn. 133; 34 Atl. 1127; 34 S. W. 209; 18 id. 549; 87 Fed. 58; 4 Mass. 511; 3 Binn. 394; 2 Cow. 526. In New York it is held that the registration laws have no effect as to equitable claims. 49 N. Y. 222; 14 id. 560; 22 Wend. 362; 34 N. Y. 80.

James F. Robinson, Chancellor. There was no partnership. The parties were simply tenants in common. Sand. & H. Dig.,.§ 704; 31 Ark. 580. The parol agreement to perfect title could not not give any lien on the lands as against a Iona fide purchaser. Sand. & H. Dig., § 3469. Pettit's possession was the possession of both. 100 U. S. 37.

Will P. Feazel, Judge. STATEMENT BY THE COURT. The appellant Mills contested the election of the appellee to the office of sheriff of Little River county, and gave a bond for costs, as required by the statute. Pending the cause, it seems, the bond for costs was lost or mislaid. The court ordered the contestant to give a new bond for costs, or substitute the original bond. This he failed to do.

Leland Leatherman, Judge. STATEMENT BY THE COURT. This suit was brought by the Wyandotte & Southeastern Bailway Company to condemn a right of way over a logging road owned mainly by J. IT. Hamlin & Son, in which. Joseph Brown also had an interest. Hamlin & Son and Joseph Brown were made defendants, and also Mrs. Brown, the wife of Joseph Bi’own. Hamlin & Son answered, and asked that their rights under the contract with Brown be protected.

Oscar D. Scott, Special Judge. STATEMENT BY THE COURT. This suit was brought at law for the following lands, to-wit: “A strip of ground lying north of and adjoining block No. 2, being 525 feet in length on its east and west sides, and 280 feet in width on its north and south sides, being in Huffman’s survey, and being also a part of the southwest quarter of the southwest quarter section 28, in township 9 south, range 20 west; lot 6 in block 1; lots 5 and 6 in block 2 [and…

Edward D. Robinson, Chancellor. Indignities, to constitute ground for divorce, need not be offered to the person, but may consist of reproaches, etc. 9 Ark. 1, 516; 33 id. 156; 38 id. 1, 131; 44 id. 429. In testing the conduct of a complainant who has proved' a cause for divorce, the provocation under which he acted, etc., must be considered. 53 Ark. 486. The jurisdiction of chancery courts to grant divorces is statutory in Arkansas. 24 Ark. 552; 9 Am. & Eng. Enc. Law, 726.

Joel D. Conway, Judge. STATEMENT BY THE COURT. The appellee bought of the state, through the state land commissioner, forty acres of land at $1.25 per aere, and received a deed therefor from the land commissioner, which conveyed to him whatever interest the state had in the land. The land had been certified to the land commissioner as forfeited to the state for the nonpayment of taxes. It proved to be United States government land, not subject to taxation.

Jas. F. Robinson, Chancellor. STATEMENT BY THE COURT. Henry Flood and his wife, Catherine Flood, borrowed $2,000 from John Leonhard, To secure the payment of this loan, Edwin Pettit and J. F. Swanson signed and indorsed the note given by the Floods to Leonhard. In order to further secure the payment of the note, and to protect their sureties, the Floods executed and delivered toLeonhard a mortgage upon certain real estate owned by Mrs. Flood.

Joseph W. Martin, Judge. Unless an attachment be sued out maliciously, no damages not compensatory merely can be recovered; and all in excess thereof were erroneously allowed in this case. 34 Ark. 710; 51 Ark. 382; 37 Ark. 608; 55 Ark. 332; 39 Ark. 387; 58 Ark. 29; 65 Ark. 537; 21 Ark. 451; 34 Ark. 184.

Jephtha H. Evans, Judge. The leasing of the road of appellant company was authorized by statute. Sand. & H. Dig., § 6338.

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. The appellee ginned or-had ginned for Perry Leverett two bales of cotton. The price of the ginning was five dollars. Perry Leverett hauled the two bales of cotton to Morrilton, and had not paid for the ginning. He sold the two bales to the appellants, who knew nothing of any claim for ginning.

Alexander M. Duffie, Judge. The amendment should not have been allowed for the purpose of enabling plaintiff, who had failed. to show a cause of action, to make one a party who seemed to have such right. 34 Ark. 144; 41 Ark. 165; 17 Am. & Eng. Euc. Law, 495. Even if appellee was the agent of his wife,_he could not sue in his own name. Sand. & H. Dig., § 5623; 42 Ark. 433; 15 Am. & Eng. Enc. Law, 665.

Joel D. Conway, Judge. Under the evidence, it was error to allow appellee to recover anything for the spur. The contract specifies that the scaling done at the mill shall be the basis of payment for the logs; and it was error to admit testimony as to any other seaiage. Where the findings of a chancellor are against the evidence, his decree will be reversed. 41 Ark. 292; 42 Ark. 521; 43 Ark. 307; 50 Ark. 185; 55 Ark. 112. The evidence is sufficient to sustain the verdict.

Wm. L. Moose, Judge. The evidence is not sufficient to sustain the verdict. It was error to require appellant to go to trial upon his co-defendant’s second trial. Sand. & H. Dig., § 2189. There was no error in the court’s ruling requiring appellant to go to trial before the r«-trial of his co-defendant.

Edgar E. Bryant, Judge. statement by the court. L. A. Freker & Co. commenced an action against J. P. Matthews & Co. and J. Foster & Co. before a justice of the peace of Sebastian county, upon an account in the following words and figures: “St. Louis, Mo., Feb’y 26th, 1897. J. P. Matthews & Co., Fort Smith, Arks. Bought of L. A. Freker & Co. 48 bbls. E. Rose.......... 1.60 $76 80 35 bbls. Peerless.......... 1.60 56 00 17 bbls. Burbanks......... 1.60 27 20 5 bbls.

Rueüs D. Hearn, Judge. The case was regularly and unconditionally dismissed by plaintiffs, through their attorney, before the clerk in vacation; and petitioner was no longer a party after that. Sand. & H. Dig., § 5792. If the record of dismissal was a misprision of the clerk, it should have been corrected before the judgment by default was rendered. Sand. & H. Dig., § 4198. Judgments rendered without notice are void. Mansf. Dig. § 5201.

James F. Robinson, Chancellor. STATEMENT BY THE COURT. Elliott Tallman brought this action in equity to review and set aside a decree confirming a tax title for error apparent upon the record.

<p>Sale of Land — Defense.—The answer of a vendee of land, resisting the payment of the purchase money, to the effect that the vendor’s tax title is defective because there is a right of redemption in another, whose interest the vendee has purchased, is insufficient if it fails to state facts showing such right of redemption. (Page 217.)</p>

Marcus L. Hawkins, Judge. A common carrier does not become responsible for the care and custody of property until it is delivered to it, and it has accepted it for shipment. 56 Ark. 288; Hutch. Carr. §§ 82, 94, 95. It was the appellee’s duty to see to the safety of the cattle until they were delivered to appellant; and his failure‘to use proper precautions to that end, and not the failure of appellant to furnish cars, was the proximate cause of the loss.

Appeals from Prairie Circuit Court, Southern District. James S. Thomas, Judge. statement by the court. Plaintiff sued W. A. Tymich and Joseph Hobart, as partners under the firm name’of Tymich & Hobart, on November 2, 1896, for $739, and sued out an attachment on the grounds that defendants were about to sel! and dispose of their property with the fraudulent intent to cheat, hinder and delay their creditors.

Jno. M. Elliott, Judge. Where goods are sold on a credit to a merchant for resale, the doctrine of conditional sales does not apply in a controversy between the vendee and the assignee and creditors of the vendee. The reservation of title in such ease is void, and appellee is remanded to its remedy under the vendor's lien given by Sand. & H. Dig., § 4727. This lien is lost if the goods are assigned. 45 Ark. 136; 52 Ark. 450; ib. 458; 6 Daly, 305; 31 Barb. 650.

Powell, Judge. STATEMENT BY THE COURT. H. H. Hinkle was the owner in 1894 of certain shares of stock in the Bank of Batesville. In that' year he pledged this stock to S. R. Hinkle to secure payment of a loan of money. Afterwards he became indebted to the bank.

Will P. Feazel, Judge. statement by the court. The appellee brought a suit in the Polk county circuit court to recover the penalty provided in sections 6238-9, Sanddels & Hill’s Digest. The statute referred to provides that if any railroad company fails to put in and keep in repair safe cattle guards, after due notice given in writing, the party aggrieved may recover a penalty not less than $25 nor more than §200.

Jas. W. Butler, Special Judge. The defect in the instrument was immaterial, since the offense was a joint one. Rap. Cr. Proc. § 83; Clark, Cr. Proc. 341. “Hyde” and “Hite” are idems sonans. Rap. Cr. Proc. § 83; Clark, Cr. Proc. 341; Whart. Cr. PI. & Pr. § 119. De minimis lex non curat. 53 Am. Dec. 137. Whether the names were idem sonans was for the jury. Authorities supra.

Hance N. Hutton,'Judge, The only test of the power of cities and towns to pass penal ordinances is whether or not such ordinances are “inconsistent with the laws of the state.” Band. & H. Dig., § 5146; 53 Ark. 368. The ordinance in question was not, 37 Ark. 382. The appellant had no power to prohibit single or occasional sales of liquor, under Band. & H. Dig., § 5132. 31 Ark. 462; 46 Ark. 362; 34 Ark. 557; 27 Ark. 557; 45 Ark 455.

Bichard H. Powell, Judge. The manifest intention of the legislature in enacting the law governing tax sales (Sand. & H. Dig., § 6623 et seq.) is clearly to uphold tax sales by every reasonable intendment; and the courts should endeavor to effectuate this intent. Appellee failed to support, by any evidence, his allegation that the lands were nod legally advertised.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. Appellant was convicted under the following indictment: “The grand jury of said court accuses said parties defendant of said crime, committed as follows, to-wit: Said parties defendant, in said county and district, on 30th May, 1899, said St. Louis & San Francisco .Railway Company, being a corporation organized under the state laws of Missouri, and owning and operating a line of railway in Arkansas, and by Huntington, in the…

<p>Appeal from Pope Circuit Court in Chancery.</p> <p>Jeremiah G. Wallace, Judge.</p> <p>There was never any sufficient delivery. 59 Ark. 195; 43 Ark. 319; 2 Kent’s Com. *430; 1 Benj. Sales, 5; 17 Am. St. 524; 107 U. S. 602; 1 Am. & Eng. Dec. in Eq. 564-7. “A gift to take effect in the future is void. 8 Am. & Eng. Enc. Law, 1315; 45 Oh. St. 108; 80 N. Y. 422.</p> <p>Delivery to a bailee for the benefit of the donee constitutes a perfect gift. 36 Ind. 78; 63 Me. 364; 4 Conn. 512; 11 R. I. 266; 43 Ark. 319; 10 Johns. 293; 128 Mass. 159; 2 N. Y. Ch. 333.</p>

Jeremiah G-. Wallace, Judge. STATEMENT BY THE COURT. This was an action of replevin by H. L. Burford against John Hoye to recover the possession of two cows. Burford claimed the property by virtue of a mortgage executed to him by R. W. Butler, dated March 11, 1895.

Joseph W. Martin, Judge. O’Leary Brothers & Co., of Pittsburg, Pa.,, sued Charles T. Abeles, doing business as Charles T. Abeles & Co., on an account for $1,216.65. Defendant admitted the correctness of the account, but pleaded payment in full. The evidence showed that on January 27, 1893, defendant mailed to plaintiffs his check on the First National Bank, of Little Rock, for $1,192.32, in payment of the amount herein sued on.

Jas. F. Thomas, Judge. STATEMENT BY THE COURT. This is an appeal from the chancery side of the Monroe circuit court.

Jephtha H. Evans, Judge. The second instruction was abstract and misleading. The sale was completed when the goods were set apart, addressed to Rawlings, and delivered to the earner. 43 Ark. 356; 1 Benj. Sales, 130-514; 71 Ala. 358, 360, 368. Appellant was entitled to instructions fairly presenting his defenses to the jury. 3 S. W. 717; 20 Tex. App. 13; 4 S. W. 22.

Jas. M. Pittman, Judge. STATEMENT BY THE COURT. Beatty sought by mandamus to compel Jackson, collector of Carroll county, to accept for county taxes the county warrant No. 267 for $75.85, issued by the county court of Carroll county in 1894.

Jeremiah G-. Wallace, Judge. STATEMENT BY THE COURT. One L. B. Reynolds owed J. C. Lofland a debt, which he secured by executing to Lofland a mortgage on real estate. Reynolds died. Lofland pi’obated his claim against his estate, and it was classed in the fourth class of claims. Afterwards the probate court ordei’ed the administrator to,pay out of the money of the estate in his hands fifty cents on the dollar on all fourth class claims.

Styles T. Rowe, Judge. There was no contract by appellant to give his fees. Yelv. 11; Ch. Cont. (11 Am. Ed.) 12; 11 Ark. 689; 47 Ark. 519; 64 Ark. 648. There was never a meeting of minds. Cases supra. Even if there had been, the county judge, except as a court, duly sitting, had no authority to make an agreement of the kind. 38 Ark. 213; 49 Ark. 145; 47 Ark. 234; 9 Ark. 320; 55 Ark. 437. There was no consideration moving to appellant.

Will P. Feazel, Judge. STATEMENT BY THE COURT. Held: adverse possession of said lands for more than two years before the bringing of this suit, and she claims the benefit of the statute of limitations of two years, made in case of donation claims in this state. “For further answer, she says that the plaintiffs, nor those under whom they hold, nor their ancestors, have not been in…

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. This suit was brought in the Conway circuit court by appellees against appellant for the value of a bale of cotton claimed by them to have been stolen from his gin through his negligence, and for the value of seven other bales claimed to have been burned and destroyed by reason of his negligently permitting his gin to be destroyed by ñre.

Richard H. Poavell, Judge. The complaint was defective in that it did not show that the injury occurred in the county where the suit was brought. Sand. & H. Dig., § 6352; 38 Ark. 206;' 55 Ark. 282. The facts do not justify the verdict. The court erred in its instructions to the jury. The statutory requirement as to lookout extends only to the traoh, and does not embrace the whole right of way. Sand & H. Dig., § 6207; 56 Ark. 599; 48 Ark. 366; 52 Ark. 162; 62 Ark. 182.

Jos. W. Martin, Judge. STATEMENT BY THE COURT. The Little Rock Traction & Electric Company operates a street railway in the city of Little Rock. A line of this railway passes along Eleventh street where that street crosses West Spring street. At that point there is a cut along West Spring street some ten or fifteen feet below the grade of Eleventh street, and the railway is carried on a bridge or trestle above West Spring street.

Jos. W. Martin, Judge. STATEMENT BY THE COURT. This is an action at law by the Binghampton Trust Company, a corporation organized under the laws of New York and doing business in that state, against the receiver of the First National Bank of Little Rock, on the following note: “$5,000.

Jos. W. Martin, Judge. STATEMENT BY THE COURT. The McCarthy-Joyce Company, an Arkansas corporation, was on 7th of December, 1892, indebted to the First National Bank of Little Rock in the sum of thirty thousand dollars; its account with the bank being overdrawn to that amount.

Felix G. Taylor, Judge. The levy on “all the lumber belonging to said E. D. Matthews” was void for uncertainty, and a sale under it would convey no title. Sand. & H. Dig., §§ 335, 336; 14 Ark. 41; 4 Ark. 198; 7 Ark. 415; 28 S. E. 219; 2 Caines, 61. As the plaintiff acquired no lien by the levy, he had no right to contest the claim of the interpleader. 19 Cal. 41; 43 Cal. 206. The interpleader could not have moved to quash the return on the attachment.

Wm. L. Moose, Judge. The attempted arrest was not made in the manner required by law. Sand. & H. Dig., §§ 1971-3 f49 Ark. 449. The court erred in giving the ninth, thirteenth and fourteenth instructions asked bythe state. Sand. & IT. Dig., §§ 1971-2. The court erred in its refusal of instructions asked by appellant upon the law of self-defense. No warrant was required for deceased to make an arrest for a crime against the United States.

Leland Leatherman, Chancellor. STATEMENT BY THE COTRT This suit was brought to foreclose a mortgage for $500 on lot 6, block 1, and lot 1, block 9, in the city of Hot Springs. A note was given by appellants for the $500, in which it was stipulated that, if default was made in payment of interest or insurance upon the property, the principal and interest should at once become due and payable.

Jas. S. Thomas, Judge. STATEMENT BY THE COURT. This is an action to recover damages for personal injuries sustained by appellee while in employ of appellant.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. Petitioner asked for certiorari to quash the following judgment: “In the Independence Circuit Court, spring term, 1899. On Monday April 17, 1897, a regular day of said term of court, among other things the following proceedings were had, to-wit: P. A. Olson v. Jeff Porter.

Richard H. Powell, Judge. STATEMENT BY THE COURT. John Elliott and Amanda Ross, two negroes, were married on the 18th of January, 1877, in the state of Alabama. They resided in that state, but Elliott afterwards abandoned his wife, and came to Jackson county, Arkansas. Without procuring a divorce from his wife in Alabama, he, in 1884, married Amanda Moore of Jackson county.

<p>Appeal from Sebastian Circuit Court.</p> <p>Styles T. Rowe, Judge.</p>

<p>Appeal from Clark Circuit Court.</p> <p>Joel D. Conway, Judge.</p>

Chas. W. Smith, Judge. STATEMENT BY THE COURT. Plaintiff, Henry W. Myar, filed his complaint in the Ouachita circuit court, wherein he alleged “that on the 22d day of January, 1890, the defendant executed and delivered to Henry Berg, as trustee, his certain deed of trust, conditioned for the payment of a certain note on the first day of November, 1890, and for securing the said Henry Myar for any advances he might make to the said W. O. Beavers.

J. E. Gatewood, Special Judge. The evidence fails to prove the venue as laid in the indictment. This allegation was material, and the state is required to prove it. 8 Ark. 406; ib. 455; 13 Ark. 110; 16 Ark, 505; 25 Ark. 435; 30 Ark. 41; 35 Ark. 389; 56 Ark. 244; 58 Ark. 396; 20 Ark. 174; 62Ark. 499; 55 S. W. 15; 17 S. W. 5.

Geo. M. Chapline, Judge. Where special findings of fact are made by a court, they must state all the facts necessary to support the verdict. 33 Ark. 534; 8 Enc. PI. & Pr. 933, 949. There can be no “implied authority” toholdan election. 10 Am. & Eng. Enc. Law (2d Ed.) 563; 32 Fla. 545; 148 Ind. 38. The city council, and not the mayor, was authorized to set the time and place of the spe - cial election. Sand. & H. Dig., § 5127. Hence the election is void. 10 Am. & Eng. Enc.

Marcus L. Hawkins, Judge. The appropriation was made by the county court aba time when the law did not provide for the holdiug of said court, and hence is coram non juclice and void. '2 Ark. 229; 20 Ark. 77; 27 Ark. 414; 32 Ark. 687; Sand. & H. Dig., § 1163. The court will take judicial notice that October 2, 1899, was the first Monday in October. 38 Ark. 548. The court for levying taxes and making appropriations is a county court, within § 1163, Sand. & H. Dig. 32 Ark. 687.

Edward S. McDaniel, Judge. STATEMENT BY THE COURT. On the 6th day of January, 1897, appellee brought this suit on the chancery side of the Benton county circuit court against appellant, W. H. Austin, and others.

Geo. M. Chapline, Judge. STATEMENT BY THE COURT. ■ Z. T. Newberry was indicted for murder of John Bass. Bass was a tenant. He and his wife occupied one room of a house belonging to Newberry. In the other room Newberry had stored wheat. Newberry had two keys to the house, and gave one of them to Bass, retaining the other. Bass, while occupying the house, lost his key. During Newberry’s absence, he obtained the other key from Newberry’s wife.

Jas. F. Robinson, Chancellor. STATEMENT BY THE COURT. This action was brought against the Arkansas City Improvement Company by S. F. Steers, a liquidator, under the law of Louisiana, of the firm of S. B. Steers & Co., of New Orleans, to quiet the title of said firm to certain land in Desha county of this state. The defendant, Arkansas City Improvement Company, filed an answer, and'claimed title to the land.

Edward D. Robertson, Chancellor. The heir is not held to be disinherited, unless the intent to do so is clear in the will. 1 Redfield, Wills, p. 434; Schouler, Wills, § 545. The rule in Shelley’s case is in force in Arkansas. 51 Ark. 61; 58 Ark. 303. This rule is applicable in the construction of deeds as well as wills. 64 Pa. St. 9; 101 N. C. 162; 62 111. 88; 127 Ind. 42; 109 Ind. 476; 80 Ga. 367; 9 Yerg. 400; 13 Pa. St. 344; 53 Pa. St. 211.

Edward S. McDaniel, Judge. The burden of proving publication of the ordinance was on appellee. 53 Ark. 368; 56 Ark. 372. The failure to prove it is an absolute defense to this action. Beach, Pub. Corp. §§ 503, 1253; 76 111. 317; Dill. Mun. Corp. §§ 310, 334, 422; Tied. Mun. Corp. § 148; 57 N. Y. 526; 60 N. Y. 16; 46 N. Y. 42; 38 N. J. L. 110; 22 Minn. 218; Ell. Mun. Corp. § 218, p. 191; 40 111. App. 19.

Rowe, Judge. STATEMENT BY THE COURT. The facts in this case are correctly stated in appellant’s brief as follows: “The American Building & Loan Association was a Minnesota corporation, duly organized under the laws of the state of Minnesota to do a building and loan business.

Thos. B. Martin, Chancellor. There was no loan of $5,000. The signature of Mrs. Goldsmith was obtained by misrepresentations of her husband, appellee’s agent, and the assignment is therefore void. 1 Big. Fraud, 353; 38 Ark. 428, 432; 2 Hare’s Lead. Cas. Eq. 1213; 14 Yes. 273; 40 Ark. 28, 30, 31; 58 Ind. 493, 498; 18 Md. 305, 320; 78 N. Y. 68; 42 Md. 140, 153; 68 Mich. 116, S. C. 35 N. W. 853; 78 N. Y. 68, S. C. 34 Am.

Bichard H. Powell, Judge. The debt was barred by limitation. Part payment, to revive a debt and toll the statute, must be made under such circumstances as can be treated as an admission of the continued existence of the debt. 65 Ark. 6'; 60 Ark. 491; 20 Ark. 189; 18 Ark. 522. The appropriation, being made by the creditor, carried no implication of such acknowledgment. 9 Ark. 459; 14 Ark. 197; 10 Ark. 643; 18 Ark. 521. Appellant is not estopped by any acquiescence.

George M. Chaplins, Judge. The court erred in denying a continuance and in excluding the evidence of Russell. 21 Ark. 460. The court admitted incompetent evidence, and its mere direction to the jury that they should not consider it did not cure the error. 60 Ark. 89. It was error to allow the jury to disperse during the trial without the admonition required by Sand. & H. Dig., § 2237. 44 Ark. 115; 57 Ark. 1; 1 Bish. Or. Proc. §§ 991-2-3; 44 111. 452; 9 Sm. & M. 465.

<p>1. Advancement — Presumption.—In the absence of clear evidence to the contrary, a gift of a horse and of an insurance policy from a father to his daughter will be presumed to be an advancement. (Page 408.)</p> <p>2. Same — Value op Insurance Policy. — The value of an advancement of a policy of life insurance payable to a daughter at her father’s death should be estimated as of the time when her right of beneficial enjoyment accrued, which was at the death of the insured. (Page 408.)</p>

Jas. F. Robinson, Chancellor. STATEMENT BY THE COUET. Henry C. Dade died in 1865, leaving property both real and personal. In the will which he left he appointed his wife, Elizabeth Dade, executrix and trustee. She took charge of the estate, and during her life sold and disposed of most of the property.

Joseph W. Martin, Judge. The railway company was guilty of no negligence. It owed appellee no duty to keep its bridge in a safe condition for passage of runaway animals. 48 Ark. 493; 57 Ark. 21; 36 Ark. 607; 37 Ark. 593; 48 Ark. 368; 6 Pa. St. 472. It was the duty of appellant to erect and maintain suitable guards to prevent persons and animals passing on the near-by public road from accidentally being injured on the bridge. 57 Ark. 21.

Joel D. Conway, Judge. The complaint in this cause was as follows: “The plaintiffs, S. R. McNutt, J. C. Wallis, Dave Graves, and J. M. Gordon, complaining of the defendant, Arkadelphia Lumber Company, state: That the Arkadelphia Lumber Company is a domestic corporation under the laws of the state of Arkansas.

Joseph W. Martin, Judge. In the absence of proof to the contrary, the presumption is that the common law prevails in a sister state. 10 Ark. 169. The best evidence of the statutes of Ohio would have been the statutes themselves. Sand. & H. Dig., § 2875. The usual and best mode to prove the unwritten laws, customs or usages of a foreign state is by introducing some one familiar therewith. 1 Gr. Ev. § 488. The demurrer should have been sustained.

James S. Thomas, Judge. One who has no interest in land can not contest a petition for the confirmation of a tax title thereto. 1 Ark. 472; Sand. & H. Dig., § 627. Appellees’ claim is based upon a fraudulent entry under the swamp land act (Gould’s Dig. chap. 101, § 15, as amended by act February 8, 1859), and hence void.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. This is an action by appellant against appellee for the statutory liability arising upon the following sections of Sand. & H. Digest: “Section 1337.

Felix G. Taylor, Judge. It was error to admit the reading of the alleged evidence of witness Poteet. 52 S. W. 276; 40 Ark. 476. It was error for the court to give undue prominence to evidence of Poteet when instructing the jury. 36 S. W. 587; 45 Ark. 165; 45 Ark. 492; 23 Ark. 115; 57 Ark. 580; 44 Ark. 115; 49 Ark ■439; 37 Ark. 88; 37 Ark. 33; 57 Ark. 512; 62 Ark 286; 30 Ark. 383; 18 So. 121; 64 N. W.’ 961; 19 So. 711.

Wm. L. Moose, Judge. STATEMENT BV THE COURT. This suit was brought by appellant against appellee in the Yell circuit court, for the Dardanelle district, for the recovery of $3,000 damages for personal injuries inflicted upon appellant by appellee. There is no complaint of any error in the admission or rejection of testimony, nor were there any objections made or exceptions saved to the instructions of the court.

Chas. W. Smith, Judge. The object of the legislature was to prohibit the carrying of a pistol for use as a weapon. 34 Ark. 448; 56 Ark. 559; 33 Ark. 559. The second instruction is faulty because the definition of the term “carry as a weapon” is contrary to 56 Ark. 559 and 34 Ark. 448. A pistol carried for the purpose of shooting hogs constistutes the offense. Sand. & H., Dig. 1498; McCain, Or. Law, vol. 2, § 1032.

John C. Hawthorne, Special Judge. The proof did not warrant the court in setting aside the sale of real estate to Andrews on June 1, 1887. A probate court judgment, if erroneous, can be corrected only on appeal. 48 Ark. 544; 11 Ark. 519; 12 Ark. 84; 54 Ark. 480; 54 Ark. 341; 33 Ark. 575; 27 Ark. 647. The lauds brought their full market value, and the sale is valid.

Chas. W. Smith, Judge. No venue is proved. 23 Ark. 156. Tbe burden of proving venue is on tbe state. 42 Ark. 73-77. So much of § 1938, Sand. & H; Dig., that authorizes an indictment to be found and a trial had in either county where the boundary line is uncertain is unconstitutional. Decl. Rights, § 10, Const. 1874. Legislature cannot invest a court with jurisdiction of crimes committed beyond the limits of the county. 30 Ark. 41; 32 Ark. 565.

Zachariah T. Wood, Judge. There is no proof of venue, and the judgment must be reversed. 58 Ark. 390; 56 Ark. 242; 25 Ark. 435; 16 Ark. 499; 8 Ark. 400; 8 Ark. 451; 13 Ark. 110. None but electors are qualified to act as grand or petit jurors. Sand. & H. Dig., §§ 4271, 4273. An elector is one who has the right to make choice of public officers, or one who has the right to vote. Bouv. Law Diet. Payment of poll tax is one qualification of an elector in this state.

Hance N. Hutton, Judge. The defendant’s motion for a change of venne being in due form, as prescribed by act April 4, 1899, it was error for the court to overrule it without hearing evidence touching the credibility of the supporting affiants. 25 Ark. 445; 54 Ark. 243.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. Arthur Taylor was indicted for selling intoxicating liquors without license. One Williams testified that Taylor hired a buggy from him, for which he was to pay two dollars. Taylor paid witness $1.50, and said to witness that he would pay the balance soon. To this witness replied: “I will take the balance in beer.” Taylor said “he didn’t have any beer right then, but could get me some.

Eupus D. Hearn, Judge. Parol evidence of facts collateral to those stated in the instrument is admitted to show their full intention. 52 Ark. 30, 42; 42 Me. 435; 39 Mich. 565. Both instruments will be considered as one transaction. 5 Ala. 324. The court will not look outside of the deed to determine whether there was enough property to pay all debts. 47 Ark. 367. The transfer of policies must have been absolute, else void. 47 Ark. 347; 46 Ark. 405.

Robert J. Lea, Judge. Evidence which does not tend to prove any issue is inadmissible. 57 Ark. 512. Incompetent evidence is prejudicial where the verdict is otherwise slightly supported. 51 Ark. 509; 14 Ark. 502. If a defendant indicted for resisting an officer can prove that he was ignorant that the party resisted was an officer, this is a defense for such resistance. 1 Whart. Cr. Law, 649; 32 N. Y. 509; 38 Pa. St. 265; 76 N. C. 10; 26 Texas, 119.

<p>Appeal from Phillips Circuit Court.</p> <p>Hance N. Hutton, Judge.</p>

<p>Appeal from White Circuit Court.</p> <p>Hance N. Hutton, Judge.</p>

Eugene Lankford, Special Judge. It was necessary, to convict the appellant, to show the indebtedness under the mortgage, and that the same was valid and unpaid. 49 Ark. 436; 1 Texas, App. 438; 50 Iowa, 194. There is no proof that the removal of the property was made without the consent of Campbell, Hunt and Adams. 44 Ark. 39. Under the proof in this case no conviction can be had.

Will P. Feazel, Judge. STATEMENT BY THE COURT. This is an appeal from a decree in chancery setting aside the allowance by the probate court of Little River county of a olaim for $1,200 in favor of the appellant, Thomas M. Scott, against the estate of his deceased brother, Robert N. Scott. The claim had been duly sworn to, and was allowed by W. D. Miller, the administrator of the estate of Robert N. Scott, before it was presented to and allowed by the probate court.

Will P. Peazel, Judge. STATEMENT BY THE COURT. The appellees, R. B. Blanks, doing business under the name and style of the Monroe Stave Factory, at Monroe, Louisiana, George Rosenberg and A. Goldsmith, filed a complaint on the chancery docket in Little River county ¡ Arkansas, July 15, 1896, against James M. Matthews, alleging that on the 14th day of July, 1896, the said Matthews had recovered a judgment against them for $730.10, besides costs of suit.

Circuit Court, Ft. Smith District. Edgar E. Bryant, Judge. STATEMENT BY THE COURT. Appellee, as the beneficiary of a life insurance policy issued to his mother by the appellant, sued appellant for the amount of the policy, less an amount loaned his mother by the appellant.

Joel D. Conway, Judge. The evidence fails to support the verdict, because it fails to show any mutuality of understanding. 17 Ark. 78; 1 Ai’k. 415. An indefinite hiring is a hiring at will. 56 Pac. 652; 11 Atl. 176, S. C. 76 Md. 554; 42 N. E. 416, S. C. 148 N. Y. 117; Wood, Mast, and Serv. § 136; 36 Atl. 714, S. O. 19 R. I. 697; 35 Ark. 156; 22 Pac. 1126, S. C. 81 Cal. 596; 48 N. E. 597, S. C. 18 Ind. App. 474. The evidence sustained the verdict.

Jephtha H. Evans, Judge. STATEMENT BY THE COURT. The appellant, L. France, was jointly indicted with Charles Clem and Boley Kuykendall for the crime of grand larceny. The indictment charged that, they stole 250. pounds of meat belonging to one Oliver. France and the two other defendants lived a short distance from Van Burén, while Oliver lived about eleven miles north of that place. The meat was stolen from Oliver’s smoke-house on the night of April 9, 1900.

Edward D. Robertson, Chancellor. Mutuality is necessary to an account stated. 1 Wait, Act. & Def. 191; 38 Neb. 161; Beach, Cont. § 425; 63 N. Y. 631. The rendering of an account stated does not estop the creditor from correcting errors or omissions. 1 Wait, Act. & Def. 192; Whart. Cont. § 778.

Francis Circuit Court. Hance N. Hutton, Judge. STATEMENT BV THE COURT. John H. David and others brought this action of ejectment against India A. Walker and others to recover a tract of land in St. Francis county containing 44 acres. The plaintiffs claim the land as heirs of Rebecca Cook, who at one time owned, the land, and was in possession of it at her death..

Will P. Fbazel, Judge. Notice is a fact, to be proved as all other facts. 16 Am. & Eng. Enc. Law, 857; 35 Mo. 71; 47 Mo. 304; 7 Yt. 152. The notice to the railway company required by § 6238, Band. & H. Dig., need not be served in any particular manner; audit was error to permit the return of the constable to be offered in evidence. Cf. Murfree, Sher. § 866.

Felix G. Taylor, Judge. f Appellees’ ancestor did not hold actual adverse possession of any portion of the lands in controversy continuously during seven years. He could not prove his possession by declarations to that effect or the understanding of the neighbors. 90 Ga. 52. Fitful acts of ownership, in connection with payment of taxes, are not sufficient. 45 Ark. 81; 49 Ark. 266; 48 Ark. 201; 57 Ark. 104 — 5.

Richard H. Powell, Judge. The state was not a proper party, and the demurrer for misjoinder should have been sustained. 54 Ark. 468. The filing of the bond required by Sand. & H. Dig., §§ 2702-3, was a prerequisite to the issuance of summons. 5 Ark. 457; 6 Ark. 408; 3 Ark. 501; 17 Ark. 286; 30 Ark. 359. The circuit court had no jurisdiction of a contest for a municipal office. Gf. Const. Ark., § 24, art. 19; 27 S. W. 123; 33 Col. 581.

Styles T. Rowe, Judge. The suit contemplated by the statute (Sand. & H. Dig., § 6196) is a civil suit, and a proceeding by indictment was not warranted. 55 Ark. 550; id. 206; 56 Ark. 156, 157. The default judgment rendered on the indictment is voidable by direct attack. 93 U. S. 283, 284. The indictment did not lay the venue, and hence is fatally defective. 58 Ark. 41; 12 Ark. 399; 34 Ark. 497; 41 Ark. 42; 54 Ark. 546.

John B. McCaleb, Judge. The original contract was not such as to bind appellant to purchase appellee’s stock at market price when the office of general manager was discontinued. The action of the board on Sept. 8, 1895, put an end to such a contract, if it ever existed.

<p>Murder — Premeditation.—Evidence that deceased was’killed with an ax, and that defendant confessed that deceased first attacked him, but failed to strike him, and then walked away, with the ax in hand, about sixty feet, when defendant approached Mm stealthily, seized the ax and slew Mm, is sufficient proof of premeditation and deliberation to sustain a verdict of guilty of murder in the first degree. (Page 575.)</p>

Joel D. Conway, Judge. STATEMENT BY THE COURT. At the June term, 1900, of the Miller circuit court, on the 7th day thereof, defendant was indicted for murder in the first degree, and on the 18th day thereof was tried. On said 18th day of June'the jury were unable to agree upon a verdict, and on the next day they returned a verdict against the defendant, assessing his punishment at seven years in penitentiary.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. The appellant and the appellee agreed to submit to arbitration matters of difference between them that grew out of a contract between them for the making of staves. It is not shown that the agreement for arbitration was in writing, nor are the particular terms upon which the arbitration was to be made set out or shown, except that the matter to be arbitrated was the settlement of a disputed account between them.

Charles C. Reid, Special Judge. Appellee was the owner and in possession of certain tracts of land; and, to secure a sum of money owed by him to the Jarvis-Conklin Mortgage Trust Company, conveyed said land to a trustee. After the mortgage debt fell due and on the 6th day of November, 1897, the laud ivas sold by a substitute trustee, and bought by appellant for the full amount of the debt, interest and costs.

Alexander M. Dueeie, Judge. The burden of proof is upon plaintiff to show negligence. 2 Shear. & R. Neg. § 676; 49 Ark. 535; 33 Ark. 816; 59 Ark. 112; 30 Wis. 55; 75 Vt. 499; 54 Pa. St. 345; 52 Pa. St. 379; 43 S. W. 431; 37 S. W. 779. It was a sufficient defense to show that the spark arresters were in good order. 29 S. W. 860; 31 S. W. 319; 3 Elliott, Railroads § 1245; 29 S. W. 860; 91 Wis. 447; Wood, Ry. Law, 1576-1581.

Evans, Judge. STATEMENT BY THE COURT. The Little Rock & Fort Smith Railway Company brought au actiou against D. and J. Allister to condemn a right of way across certain lands in which they owned a reversionai’y interest. Defendants filed an answer, setting up special damages and injury to that part of their land not embraced in the the right of way. On a trial to ascertain the damages-to the landowners, damages were assessed in favor of defendants in the sum of $2,000.

Joel D. Conway, Judge. The injury resulted from unavoidable accident, unmixed with negligence. Being a Missouri case, the right to recover is ruled by the Missouri doctrines. 54 S. W. 865; 178 111. 132. The injury must be the result of negligence in failing to exercise reasonable care and foresight as to appliances, servants, etc. 102 Mo. 451; 108 Mo. 249; 133 Mo. 6; 118 Mo. 199; 127 Mo. 197; 83 Mo. 608; 102 Mo. 438; 76 Mo. App. 606; 57 Mo.