Volume 69 — Arkansas Reports

RichaRd H. Powell, Judge. STATEMENT BY THE COURT. This is an action by two of the children and minor heirs of A. J. Cravens, to recover a tract of land owned and occupied by him as a homestead at the time of his death, which occurred about 1870. After his death the land was, by order of the probate court, sold to pay debts of his estate, and the appellant, John Miller, Jr., claims under such sale. This sale was made during the minority oí some of the children of Cravens.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. Action in equity upon the following note, and to enforce a vendor’s lien upon the lands therein described. “$9,000.00.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. 35. W. Farrar, being the owner of saw and planing mills and land upon which they were located and other property used in operating the mill, gave to Mann, Moon & Company a mortgage upon the whole property to secure a debt of about $8,000.

, Joseph W. MaRtin, Judge’ STATEMENT BY THE COURT. Roesch, the appellant, leased from Ratcliffe and Fred Hanger three lots and a building in Little Rock for ten years, and agreed to pay $150 rent for the last five years of the period of said lease.

Felix G-. Tayloe, Judge. STATEMENT BY THE COURT. . The appellee, Etter, brought this action of forcible entry and detainer against appellant Towell, who claimed to be a tenant of appellant Thompson, to recover possession of 35 acres of land, said to be accretion to southwest quarter of section 13, township 9 south, range 8 east, and claimed damages in the sum of $50. Thompson, being the real party in interest, was made defendant.

Edward S. McDaniel, Judge. One who claims the right of subrogation must be governed by the maxim, sic utere tuo ut alienum non laedas. Sheldon, Sub. § 4. 3 Pom. Eq. Jur. note 1, § 1419 (2d Ed.) ; 49 Minn. 386; S. C. 32 Am. St. 566. A banker cannot excuse disobedience of a customer's order by setting up that he knew or had reason to believe that the customer’s order was given in promotion of an unlawful purpose. 2 Morse, Banking (3d Ed.) § 317; 56 Ark. 508; 76 jST. C. 482.

E. G-. Mitchell, Judge. STATEMENT BY THE COURT. S. J. Morton and other adult inhabitants residing within three miles of the Heber High School building, on the 1st January, 1900, filed .a petition asking the county court of Cleburne county to make an order prohibiting the sale of intoxicating liquors within, three miles of said school house.

Joseph W. MartiN, Judge. One may grant either the fee or merely an easement in regard to quarry privileges. 2 Washb. Real Prop. 400, 403; 1 id. 19; 3 id. 416-7. Conveyance of quarry rights is not a sale of stone, since it carries with it also the right of ingress and egress for quarrying. Attachment is a proceeding in derogation of common law, and the statute is to be strictly construed. Wap. Att. § 23.

ALEXANDER M. Dueeie, Judge. STATEMENT. BT THE COÜR-T. This is the second appearance of this case in this court, ít was brought here before by appellee, and was decided in his favor October 19, 1895, Iloliman v. Hance, 61 Ark. 115. The former appeal was from the decisión of the Grant circuit court sustaining a general demurrer to the answer of appellee. The suil was brought to foreclose a mortgage executed January 5, 1883.

Edgae E. BeyaNt, Judge. STATEMENT BY THE COURT. The City Bank of Los Angeles, California, a corporation organized under the laws of California, became insolvent, and suspended business on the 19th of June, 1893, and is still insolvent. Thomas Lanigan of Fort Smith, Arkansas, now deceased, became a stockholder in the bank at the time of its organization.

Joel D. CoNway, Judge. The requirement of Sand. & II. Dig. § 5337, requiring the court to obtain and use a copy of the last assessment of the property, was mandatory. 30 Ark. 609, 612; Of. 14 Am. & Eng. Enc. Law, 249; 67 Ark. 30; 40 Cal. 255; 50 N. Y. 502. The proper assessment list was conclusive evidence of the values of the property when the council came to decide whether the petition was signed by a majority in value of the property holders.

<p>Sheriff — Failure to Return Execution — -Waiver.'—Where an execution was returned by the sheriff after the return day, and subsequently the judgment on which it was issued was satisfied, the execution plaintiff cannot maintain an action against the sheriff for failure to return the execution within the prescribed time, as the acceptance of payment waived any cause of action growing out of such failure.</p>

George M. Chapline, Judge. STATEMENT BY THE COURT. This action was brought by Theresa Lewis against the St. Louis, Iron Mountain Southern Railway Company.

Edwaed D. RobeRtson, Chancellor. The appellants are estopped by their dealings with the two corporations to allege their identity. 6 Thompson, Corp. p. 376, § 518; 1-S. W. 319; S. C. 47 Ark. 269; 91 TJ. S. 56; 95 TJ. S. 665; ■ 12 Ark. 769; 68 N. W. 863. The evidence shows the separate existence of the two corporations. If the one corporation owned the other as a branch, it would be only by virtue of charter, power to do so, and the burden is on the one alleging this fact.

Antonio B. GRAoe, -Judge. STATEMENT BY TI-IE COURT. This suit arose in the probate court of Jefferson county on the petition of S. Galligan, then guardian of Walter A. Rainey, a minor son of W. D. Rainey, deceased, to have vested in said minor $300 of the personal property of deceased, petition alleging the personal estate to be of less value than $800, and that no widow survived, but that deceased Rainey left as heirs said minor and Sallie, Rainey, who has intermarried with…

Jno. B. Me Caleb, Judge. STATEMENT BY THE COURT. William B. Turman was on the 28th day of August, 1882, the owner of the tract of land in controversy. On that day J. C. G-ilbreatli, without having any title, mortgaged it to A. D. Peace. Afterwards on the 11th day of August, 1884, Turman conveyed the same land to Gilbreath, and received back from Gilbreath a bond for title.

James S. Thomas, Judge. The case of Boehm v. Porter, 54 Ark. 665, is not applicable. Appellee should succeed, if at all, by the strength of his own title, and not by the weakness of or irregularities in his adversary’s. 64 Ark. 547; Sand. & H. Dig. § 6625; Eewell, Eject. 527; 54 la. 333; 46 la. 595; 52 Cal. 487; 20 S. E. 215; 19 S. E. 417; 3 G-ilm. 160; 23. S. E. 968; 32 K W. 314; 26 1ST. W. 314; 15 1ST. W. 568; 29 K W. 451; 70 1ST. W. 99; 70 1ST. W. 618.

Jas. F. Robinson, Chancellor. Minors have a right to redeem. Sand. & H. Dig. § 4596. Chancery is the proper forum. Id. § 1115; 52 Ark. 143; 41 Ark. 59; 43 Ark. 296. A sale of land by tax purchaser does not displace the right to redeem. 56 Ark. 551; 43 Ark. 296; 41 Ark. 59.

William L. Moose, Judge. STATEMENT BY THE COURT'. On the 8th day of August, 1898, appellant filed his complaint in the Johnson circuit court against appellee, alleging, in substance, that he is the owner and entitled to the possession of land twenty-five feet in width on each side of the right of way of the Little Rock & Fort Smith Railroad, passing through the southeast quarter of the northeast quarter, section 7, township. 9 north, range S3 west, of which appellees are in…

' Leland Leatherman, Chancellor. STATEMENT BY THE COURT. The appellant, E. Burgauer, on January 25, 1896, obtained a judgment and decree against D. F. and Laura J. Parker, in the Garland chancery court, for the sum of $4,301.07, and for the sale of certain lands (if the judgment should not be paid in four months) which had been conveyed by the said defendants to Chas.

EdwaRD S. McDaniel, Judge. STATEMENT BY THE COURT. On the 5th ’day of April, 1898, the appellees, Gaut & Card-' well and the Phillips-Deaver-Johnson Lumber Company, filed their complaint in the Washington circuit court against the appellant, Mrs. S. J. Young, alleging that on August 10, 1897, Gaut & Card-' well had entered’into an agreement with Mrs. S. J. Yonng, in writing, to bnild for her a dwelling on lot No. 3, in block No. 1, city, in accordance with certain plans and…

Rici-iaRd II. Powell, Judge. STATEMENT BY THE COURT. The W. W. Dickinson Hardware Company of Little Rock, being the owner of 160 acres of land in Jackson county, sold it to one Lippman. Lippman paid $250 in cash, and gave note for $230,-the balance of purchase price, and the Hardware Company executed and delivered to him a bond for title.

Styles T. Rowe, Judge. If appellants’ claim is for purchase money, it is immaterial whether or not he has a lien, and the land is subject to execution therefor. Const. Ark., art. 9, § 3: 62 Ark. 398. Appellants’ claim was for purchase money. 32 Ark. 258; 37 Ill. 438; 62 Ark. 398; 66 Ark. 367; id. 442. Appellant had no lien. 25 Ark. 129.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. DeWitt Bros., contractors, entered into a contract with appellant by which they agreed to furnish all material, labor, etc., and build a cottage for appellant in' Dort Smith, Ark., for the sum of $1,000, to be paid in five installments; the last payment of $333.34 to be paid when the building was completed, and after the expiration of ten days from such completion, and when the drawing and specifications had been returned to D.…

Joel D. Conway, Judge. Appellee was bound to the exercise of all the measures and means of precaution which the highest prudence could suggest and which was in its power to employ. 101 Mo. 36; 98 Mo. 50; 8 Am. & Eng. R. Cas. 280; 65 Mo. 22; 58 iST. Y. 451; 91 Ky! 434; 29 Md. 252; 26 Atl. 937. The fourth instruction for appellee was erroneous as a proposition of law. 2 Th. Neg. 1235-6; Cooley, Torts, 668, 671; 60 Ark. 409; 8 Am. & Eng. R„ Cas. 262; id. 280; 11 Am. & Eng.

Jepiitha H. Evans, Judge. STATEMENT BY THE COURT. Plaintiffs team, frightened by a train, ran over him, and broke his arm. He sued for damages. On the trial the presiding judge refused to give the following instructions asked by defendant: “(8) It is the duty of one approaching a railroad track to look up and down the track as long as he approaches.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. The German Bank brought suit on the following note: “$15,000.00 Little Rock, Ark., May 28, 1895. Sixty days after date, for value received, we promise to' pay to the order of Ed Hogaboom fifteen thousand dollars, at the German National Bank in Little Rock, Ark., with interest at 10 per cent, per annum from maturity until paid.

ANTONIO JB. Geace, Judge. The third instruction asked by appellant should have been given. 16 Ark. 568. It was error to refuse the seventh instruction asked by appellant. Dncommunicated threats are admissible as tending to show who was the aggressor, when self-defense is set up. 55 Ark. 593, 604; Whart. Cr. Bv. § 776; 93 TJ. S. 465; 34 Ark. 473; 47 Ark. 187; 29 Ark. 249; 9 Am. & Eng. Enc. Law, 675; 34 Ark. 720; 49 Ala. 370; 9 Ind. 322; 53 la. 310; 24 la. 570; 63 N. Car. .1.

Will P. ILsazel, Judge. The mere delivery of cattle into the stock pens of a railroad company does not fix upon it the liability of a common carrier. 1 tí. W. 44 6; S. 0. 27 Am. & Eng. E. Cas.’ 49; 42 Ark. 200; 60 Ark! 338; 26 S. W. 312. To hold the company for loss or -injury of goods tendered for carriage, in addition to a delivery to the shipper, there must he shown an actual or implied acceptance for immediate shipment. Hutch. Carr. § 82; 5 Am. & Eng. Enc.

Geo. M. Chapline, Judge. Suit by R. F. Adams against school district bio. 49 of Faulkner county. From a judgment in plaintiffs favor defendant appealed. The facts are stated by the court as follows: This is a suit by the plaintiff, R. F. Adams, against school district jSTo. 49, Faulkner county, to recover three months' wages as teacher at $25 per month. To sustain his suit, plaintiff introduced as evideiree his contract with said district.

Francis Chancery Court. Edward D. RobeRtson, Chancellor. Foreclosure proceeding by James P. Brown, trustee, and another against the Allen-West Commission Company and others. From a decree for plaintiffs, the company has appealed. A mortgage constitutes no lien upon the mortgaged property, as against strangers, unless it has been acknowledged and recorded as required by the act. 9 Ark. 112. Of. 4.2 Ark. 140.

'Feedeeic D. Pulkersoh, Judge. Wlien arraigned, if the accused has reason enough to appreciate'his peril,' and comprehend his condition with reference' to the proceedings pending, he may be tried, though not entirely sane. 23 Ark. 34; 47 Am. Dee. 216; 16 Am. & Eng. Ene. Law, 622. The instruction of the court as to the degree of mental capacity required was erroneous. 3 Wh. & Beck. Med. Jur. 176-7.

Francis Circuit Court. Hance K Hutton, Judge. STATEMENT BY THE COURT. The appellant brought this action against the appellee for damages for failing to erect an electric light plant according to contract. Upon motion of the appellee the action was dismissed on the ground that the plaintiff had no interest in the controversy, and from this judgment it appealed.

Jeiuttha H. Evans, Judge. The sixth instruction was erroneous. 11 Ark. 456, 548, 460; Sand. & H. Dig., § 644. The indictment did not property submit to the jury the question of appellant’s guilt of murder in the first degree, committed in the perpetration of or attempt to perpetrate robber}'-. Sand. & JEL Dig., § 2-674; 26 Ark. 330; 2 Ark. 497; 3 Bish. Cr. Proc. § 589.

Chas. W. Smith, Judge. STATEMENT BY THE COURT. James B. Harper got on the “Cannon Ball” passenger train on defendant’s railroad at McNeil for the purpose of going to Mil-ner, another station on defendant’s road.

Appeal 'from Perry Circuit Court. ROBERT J. Lea, Judge. It was error not to allow appellant to be present at the formation and impaneling of the grand jury. Sand. & II. Dig., § .3067; 50 Ark. 543; 43 Ark. 394; 43 Ark. 395; 10 Ark. 631; 177 IT. S. 447. In the selection of the jury appellant was denied the equal protection of the law. 103 IT. S. 370; 100 IT. S. 339; id. 313; id. 303; 140 IT. S. 378; 58 S. W. 97; 177 U. S. 443; 39 Tex. Cr. Rep. 345.

LelaND LeatheRMAN. Chancellor. Suit by' L. D. Kichardson against Thompson T. Lester and others. From a decree for plaintiff, defendant has appealed. Equity should relieve against the effects of a mistake of law and fact into which appellant was induced by the fraudulent representations of Murray. 1 Story, Eq. §§ 110, 136; 2 Pom. Eq.

MaRCus L. HaweiNS, Chancellor. STATEMENT BY THE COURT. This is an appeal from a decree of the Lincoln chancery court brought by appellees as trustees for the public to compel the school directors of School District No. 45 of said county to open for religious worship a school house alleged in the complaint to have been built by said district and by private subscriptions, upon the agreement and understanding between the directors of said school district and said subscribers…

Chas. W. Smith, Judge. STATEMENT BY THE COURT. R. B. Ford, being the owner of a tract of land in Lafayette county, on March 30, 1889, mortgaged it to Henry Moore to secure a debt due him. This mortgage was duly recorded April 6, 1889. Afterwards on February 6, 1890, Ford conveyed the land to his son, R. F. Ford, by deed which stated the consideration to be $200.

Joseph W. Mabtin, Judge. Action by Oonant against Stortliz. From a judgment for piaintiff defendant has appealed. There was no error as to joinder of the causes of action for the breach of the contract and for the tort growing out of the breach. 154 Mass. 163; 149 Mass. 410; 4 Allen, 504; 167 Pa. St. 393; 23 N. Y. Supp. 56; 1 Jagg. Torts, 22, 24, 26, 28, 29; 92 Mich. 304; 87 jST. Y. 382; Of. Sand. & H. Dig., §§ 5601, 5602, 5604, 5605; 31 Ark. 382; id. 657.

Styles T. Rowe, Judge. Hardin purchased certain lots at a chancery sale, and ñled a motion to direct the commissioner to execute to him a deed, and that an entry on’ the margin, of the judgment record, showing redemption of the lots, be canceled. MeG-reevy, as owner of the lots, resisted the motion. From an order denying the motion, Hardin has appealed.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. The State Fair Association executed a mortgage upon its property to secure certain bonds issued by the association, and after-wards brought suit in the Pulaski chancery court against Joe Townsend and others to redeem. The court found that the association had the right to redeem, determined the amount due on the bonds secured by the mortgage, and gave plaintiff 90 dajrs in which-, to make payment and redeem.

H. C. Mechbm, Special Judge. Evidence of prospective profits is not admissible to prove damages for breach of contract. 57 Ark. 203; 7 Hill, 61; 139 U. S. 169; 34 K. Y. 634; 71 K Y. 133; 36 K J. L. 262; 38 id. 496; 139 U. S. 199; 78 Ala. 249; 16 U. Y. 489. The damage growing out of loss of profits was too remote, and the amount too contingent and uncertain, to admit of recovery therefor. 110 TJ. S. 238; S. C. 28 Lawy.

Lijland Lea tiierman, Chancellor. Action by Arkansas National Bank and others against John J. and William Sumpter and others. Prom a judgment in favor of plaintiffs, defendants appeal. The patentees were trustees for appellants. 2 Pom. Eq. §§'• 981, 103f, 1040. Resulting trusts are provable by parol. Sand. & II. Dig., § 348; 9 Ark. 518; 40 ib. 624; 20 Ark. 373.

Hance IT. Hutton, Judge. Appellant had the legal right to cut the timber as the husband of the life tenant. 36 Ala. 80; 50 Me. 374; 47 Ark. 457; 9 Am. & Eng. Enc. Law, 842-3. Appellant was not bound to support his step-children. The life tenant had no right to commit waste. 1 Washb. Real Prop. §§ 107, 125; 28 Am. & Eng. Enc. Law, 891; Tied. Real. Prop. §§ 72, 73 ; Webb’s Poll. Torts, 429.

IIauoe N. PIuTTOiSr, Judge. This is an appeal from a judgment overruling a demurrer to the following complaint: “Comes the plaintiff, F. Noel Burke, and complains of the defendant, Charles R. Coolidge, Sr., and for cause of action says: That he is the owner of the following lands lying in said county, to-wit, the northeast quarter of section 28, the east half of the northwest quarter of section 28, the west half of the southwest quarter of section 22, northeast quarter of…

James S. Thomas, Judge. The complaint stated a cause of action and equity had jurisdiction thereof. 19 Ark. 139; 22 Ark. 103; 24 Ark. 431; 32 Ark. 478; 2 Story, Eq. § 700. It was error to sustain the demurrer. The court correctly sustained the demurrer.

<p>Appeal from Jefferson Circuit Court,</p> <p>A. B. Geaoe, Judge.</p> <p>It was competent for appellants to ask witness Anthony questions tending to impeach his character. Steph. Dig. Bv. art. 129; 53 Ark. 391; 42 1ST. T. 270. The court erred in its instruction as to the burden and degree of proof of insanity. 52 Ark. 517'; 37 Ark. 589.</p> <p>There was no error in the court's instruction as to the burden and degree of proof. Sack. Inst, to Juries, p. 592, § 7; Jarm. Wills, 104; Redf. Wills, 31-50; 39 N. H. 163; 36 Ind. 129; 42 Ill. 376; 11 Ga. 337; 12 la. 491; 45 Atl. 378. There was no error in the instruction of the court as to mental capacity of the testator. 49 Ark. 372; 64 Ark. 351; 29 Pa. 298; 6 L. R. A. 167-8; 36 id. 725; 2 id. 668. The court property excluded the question to witness Anthony.</p>

Court. A. B. GRACE, Judge. STATEMENT BY THE COURT. The complaint charged that the appellees were merchants at Pine Bluff, Arkansas, and that the appellant railroad company was a common carrier operating between the city of Pine Bluff, in Jefferson county., and Jonesboro, in Craighead county, Arkansas. “On Jnne 19, 1899, the plaintiffs delivered to the defendant and the defendant received from plaintiffs at Pine Bluff, Arkansas, two casks containing 300 pints of whisky in 300…

EdwaRD S. MoDANI'el, Judge. STATEMENT BY THE COURT. This is an action brought by M. A. Pace and L. 0. Woods,, shippers,of a car of live stock (cattle and hogs) over the Kansas City, Pittsburg & Gulf Railroad Company from Siloam Springs to Kansas City.

JoiiN T. HiCKS, Special Judge. STATEMENT BY THE COURT. In January last the county court of White county granted license to C. T. Doss, Jr., & Co. to sell liquors in the town of Beebe during the year 1901. Afterwards Edwin Moore and other citizens of Beebe filed a petition in the White circuit court asking for a writ of certiorari to bring up and quash the order of the county court granting license.

Jno. B. MoGaleb, Judge. Action by Watkins against Arnold and others to enjoin defendants from cutting timber on land claimed by plaintiff under a tax title. Defendants denied plaintiff’s title, and alleged that Jane Gray was the owner of the land, and that they had authority from her to cut the timber. • She was permitted to intervene and set up title in herself.

Ti-ioMAs B. Martin, Chancellor. The turnpike company had no exclusive rights which were violated by the acts of appellants. Such a grant as that claimed by appellees would be monopoly within the prohibition of the constitution. Art. 2, § 19, Const. Ark.

Felix G. Tayloe, Judge. Action bj1- Theresa Sachs against the Puller Bros. Toll, Lumber and Box Company on an agreement to indorse a note. Prom a judgment in favor of defendant plaintiff has appealed. The court erred in giving instruction No. 1. 80 Am. Dec. 668. It was also error to refuse the instruction asked by appellant, to the effect that an indorsement without recourse was not a compliance with the contract.

John M. Elliott, Chancellor. An equity of redemption in mortgaged or pledged chattels cannot be reached under execution or attachment. 42 Ark. 236; 58 Ark. 289-291; 64 Ark. 213; 17 Mich. 141. Whether appellee claims the shares under an attachment or an attachment-garnishment depends solely upon the acts of the officers under her writ, and is immaterial. Shinn, Attach. § 314; Drake, Attach. (4th Ed.), § 424. The only evidence of this is Ms return. 40 Ark. 141.

Appeal — Limitation—Dismissal.—-An appeal in a civil case prayed before tlie clerk of the supreme court more than three years after the judgment was rendered in the trial court was too late, under Sand. & H. Dig., § 1027, and will he dismissed. Appeal from Arkansas Circuit Court. James S. Tiiomas, Judge. The transcript was not filed within time. Gf. Sand. & H. Dig., §§ 1022, 1018, 1027; Acts 1899, 111 ; 36 Ark. 517.

Joseph AY. MaRtin, Judge. STATEMENT BY THE COURT. The legislature of Arkansas in 1897 passed an act authorizing the Board of Directors of the St. Francis Levee District to issue bonds for the purpose of building and maintaining certain levees in said district.

FREDERICK D. Fulkeeson, Judge. Appellee was entitled to the verdict, either upon express contract or quantum incruit. 15 Am. & Eng. Enc. Law (2d Ed.), 1081, 1082; 58 Ark. 348; 2 Ark. 370; 19 Ark. 671; 26 Ark. 360. The receipt Avas not conclusive evidence of full payment. 21 Ark. 361.

Joseph W. Maktin, Judge. It was error for the court to premise the instructions with remarks designating them as emanating from the one side or the other. 53 Ark. 118. It was error to refuse appellant’s third prayer for instruction. Antecedent negligence of a defendant becomes immaterial when the plaintiff is shown to have been guilty of contributory negligence. 62 Ark. 235; 64 id. 367; id. 420; 65 id. 435.

I-Iance jST. Hutton, Judge. Action by Clara A. Dewberry, administratrix of R. A. Dewberry, deceased, against the Planters’ Mutual Insurance Association. Prom a judgment for plaintiff, defendant has appealed.

Will P. Feazel, Judge. STATEMENT BY THE COURT. The John Iienry Shoe. Company, a corporation organized under the laws of Louisiana, and Abide McShea were the owners of certain timber lands in this state. In 1895 Gns Less and S. G-. Watkins, partners doing business under the firm name of Gus Less & Go., wilfully and without right entered upon these lands, and cut timber therefrom, aud converted it into railway ties.

Evans, Judge. STATEMENT BY THE COURT. The Union Central Life Insurance Company was in 1896 the owner or in control of a farm in Crawford county of this state. It rented the farm during that year to one Hauptman for $140, and Hauptman sub-rented a part of the farm to Sam Lyons. But J.' R. Steward also claimed to be the owner of this 'farm, and in the fall of that year he brought suit against -Hauptman and Lyons before a justice of the peace-to recover for the rent.

Pulaski Circuit Court. Joseph W. Martin, Judge. A married woman has free power to sell and convey her separate property as if she was a feme sole. Sand. & H. Dig., § 4940; Const. 1874, art. 9, § 7; 53 FT. Y. 93. The power of attorney was the best evidence to show agent’s authority. 52 Ark. 234. A principal, on being fully informed of one’s act acting without authority for him, must disaffirm it in a reasonable time, or he will he held to have ratified it. 40 Wis. 431..

George M. ChapliNe, Judge. Parol evidence is always admissible to show bow the measurement should be made. 49 N. Y. 64; 9 Gray, 401; 15 Ohio St. 179; 2 Zabriskie, 22 N. J. L. 165; 9 Wend. 346; 15 M. & W. 737. Evidence of usage is received, as any other parol evidence, when a written contract is under consideration. Starkie, Ev. 637-710; 3 Green. Ev. § 276; 69 Am. Dec. 298; 1 Green. Ev. § 292; 18 Mo. 509; 81 Mo. 37; 70 Md. 124; 79 Mich. 307.

EdwáRd S. McDaNiel, Judge. The rulo in Shelley’s case applies to and governs this case. 58 Ark. 303. If not, then Mrs. Ames took an estate in fee tail. 67 Ark. 520; Sand. & H. Dig., § 700. A vested or contingent remainder can only operate by way of executory devise. 2 Wash. Beal Prop. 541. The contingency in which a remainder is limited must not operate so as to defeat, abridge or determine the particular estate. 1 Greenleaf, Cruise, Dig. 737, § 16; 2 Wash. Beal Prop. 582.

FREDERICK D. FulKERSON, Judge. It was error not to sustain appellant’s challenge for cause against a juror who had formed an opinion of the case, as had Leggett. 45 Ark. 170; Const. Ark. art. 2, § 10; 56 Ark. 402. •Gf. 66 Ark. 53; 12 Am. & Eng. Enc. Law, 354, and note. It was •drror to permit a comparison of the inscriptions on the envelopes and the letters with the writing in dispute. 32.Ark. 337; 7 Abb.

HaNoe N. IIuttoN, Judge. Under the constitution a justice of the peace has jurisdiction over misdemeanors committed in any township of his county, Const. Ark. art. 7, § 40. Of. 35 Ark. 327. The jurisdiction of the justice was concurrent with that of the circuit court, and his judgment was a bar to further prosecution. 34 Ark. 188.

AlesaNder M. Duffie, Judge. The court erred in holding that appellee was an innocent holder of the note. The possession of the note by the maker, after indorsement by payee, raised the presumption of satisfaction. 47 Ark. 394. Appellee did not receive the paper in the usual course of business, and so took it subject to equities. Tied. Comm. Pap. § 294; 29 Mich. 355; 69 Me. 212; 11 N. Y. Sup. Ct. (4 Hun), 524; 50 N. Y. 158; 13 Ark. 160.

FREDERICK D. Fulkerson, Judge. Article 7, section 19, of the constitution does not apply to conditions coming into existence after its adoption. If future in its operation, it at least was not self-executing, and required legislative' action to authorize its application. Under the census act of 1899, there 'could be no official announcement” of the census of 1900 until the publication of the regular report in 1902.

Felix G. Taylok, Judge. STATEMENT OE EAOTS. Iu February, 1898, W. J. McDonald rented to Lewis bTichol a farm in Greene county, known as the “Clark Rowland place,” containing about 60 acres of open land, for the term of 3 years at $175 rent per year. The written contract entered into by the parties also specified that Niehol had the option to purchase the place at the price of $25 per acre, taxes and interest.

Will P. Feazisl, Judge. STATEMENT BY THE COURT. In a suit for wages and to recover penalty for failure to pay when he was discharged from service by the receivers, the appellee recovered judgment against the appellants, as receivers, for $121 due him for wages for services as conductor on the railroad, while in hands of the receivers appointed by the state court first, and afterwards by the United States circuit court for the Western district of Missouri, and the Western…

W. 11. Pembeeton, Special Judge.' ' ' Appellant had a right to be present at the formation and impaneling of the grand jury; and-also to take advantage of the lack of of sueli .opportunity'by.motion to quash the indictment, 177 U. S., 447; Sand. & Dig., § 2067; 50 Ark. 542; 42 Ark. 394; 43 Ark. 395; 10 Ark. 631; 58 S. W. 97.

W. V. Tompkins, Special Judge. Action by Hill, Fontaine & Co. against John C. Cowling and others. From a judgment in favor of plaintiffs, defendants have appealed. The husband had the right to make such a conveyance to his wife as that in this ease. 56 S. W. 632. Creditors cannot insist upon the husband's pleading limitation as to the rents due the wife. 68 la. 132; S. C. 26 FT. W. 35; 63 Die. 326.

Joel D. Conway, Judge. Action by the Farmers’ Savings & Building & Loan Association against M. L. Ferguson and another. The contract is not usurious. Usury must be established I y clear proof. 48 S. W: 903; 57 Ark 251; 30 S. E.- 463.

Francis Circuit Court. Hance U. Hutton, Judge. The description “L. B. R. W. Pt.” — meaning that part of the quarter section that was on the left bank of the river — was sufficient. Any description which sufficiently definite and certain to ascertain the premises is good. 1 Desty, Taxation, § 567; S3 Hans. 717; 36 H. J. L. 388; 4 Fed.

ZachaRiah T. Wood, Judge. The evidence does not make out a violation of the “blind tiger act.” The court erred in the giving and refusal of instructions and in qualifying appellant’s second one. There was no error in the court’s refusal to give appellant’s first requested instruction. 45 Ark. 173. Nor was the qualification of appellant’s second one error: 56 Ark. 444. Cider is alcoholic. 35 Fed. 570.

EdgaR E. Bhyant, Judge. STATEMENT BY THE COURT. This is an appeal from a judgment against the appellant for $200 penalty, as provided in section 6196, Sandels & Hill’s Digest.

. Felix G- TayloR, Judge. STATEMENT 13 5: THE COURT. This uras an application by the appellant to the county court of Mississippi county for' the allowance against the county of the amount of a judgment against said county recovered by the plaintiff in the United States circuit court for the eastern district of Arkansas on the 15th of December, 1888, for $8,218.63, with interest thereon from the date of the rendition thereof until the date of allowance • by the county court…

Will P. Fjgazel, Judge. This was an action by R. A. Boyd against D. C. Richardson. The cause was set for trial on Wednesday of the second week of court, in the absence of defendant and his counsel, hut plaintiff informed defendant’s junior counsel that the cause was set for Thursday of the second week of court, and the latter notified defendant and his leading counsel.

Joseph W. MaRtie, Judge. . STATEMENT BY TIIE COURT. The Searcy & West Point Railroad, which we will designate as the “Searcy Road,” intersects at right angles with the Iron Mountain Railroad at a station on the Iron Mountain called Ken-sett. The Iron Mountain road was built first. Within the angle of the intersection of the two roads a platform was erected by the Searcy road, on the right of way of both roads.

Jas. W. ButleR, Special Judge. STATEMENT BY THE COURT. Thomas Dobson was convicted of being the father of a bastard child at a trial by jury had before the county judge of Independence county.

Circuit Court. Styles T. Rowe, Judge. The court should have instructed the jury peremptorily for appellant. 62 Ark. 156; 49 Ark. 257; 47 Ark. 497; 36 Ark. 371. The first instruction given by the court was erroneous, in that it east the burden on appellant to show: (1) That a constant lookout was kept. 65 Ark. 429, 434, 436; 36 Ark. 371-5; 47 Ark. 497; 49 Ark. 257; 61 Ark. 617; Beach, Contr. Neg. §§ 197, 201, 391-2; 3 Ell. Eailroads, §§ 1165, 1175, 1254; 62 Ark. 619, 624.

E. G. Mitchell, Judge. The ordinance is invalid because it fails to distinctly state the object of the tax. Const. Ark. art. 16, § 11; 30 Ark. 435. The ordinance does not provide for the levy or collection of the tax ipursuant t'o -law. Const. Ark. art.- 16,--§ 11; Sand. •& H. Dig., ¡■$§•.5184, 5181, 642-2.

’Appeal from Miller Circuit Court. Joel D. Conway, Judge. STATEMENT BY THE COURT. The appellant, Montgomery, was appointed by the governor clerk of the county of Miller and ex officio clerk of the court of probate of said county of Miller on the 31st of October, 1900.

Styles T. Rowe, Judge. STATEMENT BY THE OOURT. This action was instituted in the court below by appellees on an open account against appellant.

Will P. Feazel, Judge. Garnishment did not lie against appellant for the debt due in another state to a citizen of such other state. 78 Ala. 524; Ell. .Railroads, § 634; 2 id. p. 888, note 1. There being no showing that the money was due the defendant in garnishment in Arkansas, garnishment did not lie against appellant. 8 Am. & Eng. Enc. Law, 1129.

Joel D. Conway, Judge. STATEMENT BY TIIE COURT. Mrs. Emma, Bragg, who lived at Gurdon, Arkansas, on the night of November 26, 1897, took passage on one of the Iron Mountain’s trains from Gurdon to Beirne, a small village and station on the same road, about four miles south from Gurdon. She was going on a visit to ber father, who lived at Beirne, and had with her two children, of whom one was about three years and the other about nine months of age.

FREDERICK D. Fulkerson, Judge. . The titles added to the signatures of appellees are not surplus-age; and, the note not showing that the signatures were meant to bind the company as principal, the appellees are individually liable. 61 Ind. 241; 26 Minn. 43; 87 N. Y. 250; 65 Ind. 27; Tied. Comm. Pap. § 123; 98 Mass. 101; 2 Conn. 260; 2 Wheat. 56; 122 Mass. 67; 5 Denio, 517; 38 Oh. St. 442; 6 Yerg. 479; 88 Ill. 219; 1 Dan. Neg. Inst. § 305; 56 Ga. 258; 34 Yt. 402; 62 Ark. 391.

Joel D. Conway, Judge. The second, fourth and fifth instructions given for appellee were erroneous. The evidence does not make out a case of adverse possession. 24 Ark. 894; 40 Ark. 371; 49 Ark. 274. Appellee’s first instruction was correct. Adverse possession is always a question for the jury, under proper instructions. 1 Thompson, Trials, § 1410.

Will P. Feazel, Judge. STATEMENT BY THE COURT. On the 15th day of June, 1896, appellees, F. W. Mullins, J. W. Harris and T. S. Mullins, partners as the Texas Produce Company, instituted their action in the Little River circuit court against J. H. Hall and B. T. Collins, partners as Hall & Collins, upon a promissory note for $1,897, which plaintiff alleged was due and owing them by defendants, and asked for a judgment thereon.

Robeiit J. Lea, Judge. The statute (Sand. & H. Dig., § 579) provides for dismissals ■without prejudice only before final submission. It was error for the court to allow such dismissal after submission. 8 S. E. 806; 10 Wend. 520; 20 Wend. 36; 1 T. R. 52; 11 Johns. 458; 5 Johns. 346; 2 Johns. 181, 191; 10 S. E. 807; 8 la. 462; 23 la. 216; 59 N. W. 1009; 70 lad'. 524. Appellant had the right, with leave of the court, to dismiss before the case was decided. 26 Mo. 492; 42 Mo.

FREDERICK D. FulkeRSON, Judge. STATEMENT BY THE COURT. A raft of logs owned by Gaunt & Layman was allowed to strike and break a ferry rope belonging to Fortenberry & Rattan, who owned a ferry on Black river. They thereupon brought suit against Gaunt & Layman before a justice of the peace for $20 as damages,, and procured the issuance of an attachment, and had the same levied upon the rafts of the defendant.

<p>Appeal from Randolph Circuit Court.</p> <p>Joidt B. Ma Caleb, Judge.</p> <p>Conducting a licensed saloon is not per se a nuisance. 11 Humph. (Tenn.), 411; Black, Intox. Liquors, § 343. The county judge cannot discriminate between parties as to licenses. 43 Ark. 61; Black, Intox. Liquors, §§ 170, 171; Sand. & H. Dig., §§ 4856, 4857, 4863, 4867, 4868, 4-877.</p> <p>Appeals lie only from final decrees, judgments and orders. 26 Ark. 4-52; 26 Ark. 95; 25 Ark. 420; 36 Ark. 200; 30 Ark. 665. The opinion of the judge is not final. 48 Md. 592. The judgment must be rendered and entered before it is final. 32 N\ W. Rep. 42; 1 Wash. T. 153. A final judgment must give relief by its own force, without further action by the court. 61 Ely. 30.</p>

ALEXANDER M. Duffie, Judge. The court erred in overruling appellant’s demurrer, and iu its declaration of law holding section 4309 of Sandels & Hill’s Digest constitutional. Const, art. 7, § § 38, 39; ib. art. 3, § 1; 32 Ark. 131; 45 Ark. 400; Const, art. 13, § 3.

<p>Appeal from Washington Circuit Court.</p> <p>Jambs 11. Pittmah, Judge.</p> <p>As to what constitutes probable cause, see 63 Ark. 387; 97 Mo. 390; 53 1ST. Y. 14; 31 Am. Dee. 422; 11 Am.'St. Rep'.'193; (39 Ill. 376; 30 Inch 457; 24 How. 544; 28 Graft. 906; 56 Conn. 493; 30 Minn. 516; 67 Wis. 350; 4 Cush. 217. As to what constitutes malice, see 31 Yt. 189; 2 Greenleaf, § 544; Bishop, Hon. Con. 232. If there is probable cause, the prosecutor is protected. 33 Ark. 316. Honesty of purpose precludes malice. 86 Ala. 250; 26 Am. St. 140; 76 Mo. 660.' The defendant in a --malicious prosecution suit must prove the guilt of plaintiff. "Bishop, Hon. Con. Law, 229; 13 R. I. 616; 57 la. 474; 12 'Ala: 264; 68 Miss. 117; 10 Ired. 287; 28 Hun, 446;'14 Am. Dec: 572; 25 Am. Dec. 102. It was error to refuse instruction''Ho. 13 asked by defendant and instruction Ho. 14. 63 la. 529; 76 Mo. 660; '22 W. Ya. 234; 46 Kan. 550. Malice must be'proved. 30 Am. Dec. 617; 67 Wis. 350; 98 II. S. 187. The court should have authorized a verdict for defendant. Bishop, Hon.' Con. 240; 26 Am. Dec. 141.</p>

Antonio B. GRAoe, Judge. To constitute a valid sale, there must he a delivery. ■ 63 Ark. 10. A contract for sale of standing timber carries no interest in the land. 45 Mass.‘583; 9 Barn. & Cress. 561; 3 Day, 484; 7 'Greenleaf, 44-7; 1 Mete. 313; Ohitty, Contr.'(5 Am. Ed.), 300 '302; 1 Greenleaf, Ev. § 271. Trees, when cut and carried away, become personal property. 79 Mass. 502;.4 Mete. 580; 8 Mete. '34; 81 Mass. 444; 1 Benj.

Will P. Feazel, Judge. Alexander was not a qualified elector. Const. 1874, art. 2, § 30; 56 Ark. 404; 45 Ark. 165; Const. 1874. art. 3, § 1. TJncom-municated threats are admissible as part of res gestae. 16 Ark. 569; 29 Ark. 238; 34 Ark. .473; 18 Ga. 194. When the question as 'to the aggressor arises' proof of uncoromunicated threats áre admissible. 85 K.y. 77; 11 Ind. 557; 54 Ark. 603; 6 Baxt. (Term.) 493; 61 S. W. Rep. 918-.

Haecb.K. IIuttoe, Judge. STATEMEET BV, TI-IE COURT. ' Appellant intermarried with the mother of appellees after the cléath of their father, and moved upon the place left them by their father, which' was their homestead. Here he lived, Raving voluntarily assumed the care and support of appel-lees, until about two months and ten days after the death of his wife, when he moved away from the plane, leaving appellees living thereon.

<p>Appeal from Conway Circuit Court.</p> <p>William L. Moose, Judge.</p> <p>There was no criminal conversion of the property. 8 S. W. 936; 49 S. W. 387; 54 S. W. 688; Bishop, Stat. Cr. (2d Ed.) § 424; 1 Whart. Cr. Law (8th Ed.), § 1058. What constitutes larceny, see Sacketfis Inst. 539; 55 Ill. 334; 2 Bish. Cr. Law (6th Ed., 372. Criminal intent must be alleged and proved. 2 Bish. Cr. Law, 379; Rapalje’s Larcenjr, 472. Amere failure to return the property is not sufficient. 2 Bish. Cr. Law, 376; 28 E". W. 838. No vepue is proved. 25 Ohio St. 168; 54 Ark. 611; Whart. Cr. Law, _§ 1059; 51 Cal. ST'S. Embezzlement cannot be committed without a conversion and intent to deprive the owner of his property. Bish. Stat. Cr. (2d Ed.) 424; 2 Bush. Cr. Law (6th-Ed.), 372; 45 K J. L. 372; 70 Iowa, 180; 1 N. E. 214; 58 Ark. 98; 98 Mo. 482 16 Tex. App. 586; 10 Ala. 45; 6 Am. & Eng. Enc. Law, 480; 25 Pac. 325; 90 Mo. 166.</p>

Prohibition to St. Francis Chancer}'- Court. EdwaRD D. RobeRtsont, Chancellor. STATEMENT BY TITE COURT. The legislature in 1901 passed an act dividing Woodruff county into two judicial districts, one called the Northern district and the other the Southern district.

John N. Tillman, Judge. STATEMENT BY THE COURT. Appellant filed his petition in the circuit court of Washington county for a mandamus against the appellee, as secretary of the board of trustees of the University óf Arkansas, which petition (omitting the style of the court and parties) is as follows: “The petitioner, W. G-.

ALEXANDER M. Dueeie, Judge. STATEMENT BY THE COURT. Action by Regina Tomlinson, widow and administratrix of the estate of Arthur Tomlinson, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for his death. The facts are stated in the opinion. On the trial in the circuit court the presiding judge gave to the jury the following instructions at the request of the plaintiff: “1.

.Appeal from Mississippi Circuit Court. Felix (L Taylor, Judge. The court should have made appellees coniine their proof to the allegations and responses. 32 Ark. 553. The fraud shown to have taken place in Fletcher township, in the absence of any attempt by contestees to purge the ballot, made it necessary to throw out the returns from that precinct. 41 Ark. 123; 61 Ark. 247: McCrary, Elections, §§ 534-7; 10 Am. & Eng. Enc. Law, 774, 5.

E. G. Mitchell, Judge. Action by T. W. Johnson and others against W. P. Conley and others. Judgment for plaintiffs, and defendants have appealed. The facts are stated by the court as follows: This suit was to cancel the lease of a certain tract of land. The lease was to continue twenty-five years.

Thomas B. Martin, Chancellor. Ex parte application by B. Morrison for the confirmation of a tax title to land. From an adverse decision of the chancellor he has appealed. The act of 1899 repeals the former statutes on “Confirmation of Titles.” When the legislature takes up an entire subject anew, and covers the whole ground by a new act, the former one is thereby repealed. 10 Ark. 588; 27 Ark. 419; 31 Ark. 19; 43 Ark. 425, 427; 46 Ark. 450; 47 Ark. 491; Am.

Geoege M. Ciiaplihe, Judge. On petition of W. L. Hayes the circuit court quashed a judgment obtained against him by Ferdinand Gates in the court of common pleas. Gates has appealed. The ease is stated by the court as follows: This appeal is from a judgment setting aside a judgment of the court of common pleas. The proceeding in the circuit court was by writ of certiorari.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. C. C. Woodson, the agent and manager of the Central Coal & Coke Company, a corporation engaged in the business of mining and selling coal in this state, was indicted for failing to weigh coal before it was screeened and pay for it according to the weight so ascertained. TJpon a trial of such charge in the circuit court, Woodson was convicted and fined $25. From this judgment he appealed.

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

Felix G. Tayloe, Judge. STATEMENT BY THE COURT. This suit is in ejectment by appellant for certain lands described in the complaint. There was judgment for the appellee, from which appeal was taken to this conrt. The appellant claimed by virtue of the eighth clause of the will of his grandfather, George S. Fogelman, which reads as follows: “Item 8.

BRICE B. Hudgins, Judge. The goods sought to be recovered constituted part of a stock of goods which had been purchased by Reynolds from Dr. Steel, who purchased from Mrs. Neely, as surviving member of the insolvent firm of J. M. Bradford & Co. Through her husband as agent, Mrs. Neely had sold her entire stock of goods and her accounts to Dr. Steel for a sum not stated, but estimated to be about fifty cents on the dollar.

ChaRles W. Smith, Judge. STATEMENT BY THE COURT. On the 20th day of May, 1901, the grand jury of Ouachita county returned an indictment against Will Bussey, charging him with having, on the 16th day of the same month, committed the crime of rape upon one Clara Watson. Attorneys were appointed by the court to assist the defendant, Bussey, on his trial.

íIancb E. Hutton, Judge. Even if that part of Sand. & H. Dig., § 4588, which provides that the offender “shall be prosecuted in the manner prescribed by law for depredating on timber lands of the state” is violative of § 23, art. 5, of the constitution, still the indictment is good under § 1774, Sand. & H. Dig. 159 IT. S. 491; 167 IT. S. 191. The land belonged to the state. Of. Sand. & Ii. Dig., §§ 4573, 4575, 4577, 4579.

Edwahd D. RobeRtson,v Chancellor. Under our statute the punishment for contempt cannot exceed a fine of $50 and an imprisonment for ten days. Sand. & H. Dig., § 686; S3 Ark. 151; 44 Cal. 475; 44 la. 580; 34 Kan. 314. Certi-orari is the proper remedy when the court has exceeded its ¡jurisdiction. 39 Ark. 173; 53 Ark. 313; 30 Ark. 17; 33 Ark. 107. The legislature has no power to impose limitations upon the authority of the courts to punish contempts by disobedience of process.

E. Q-. Mitotibll, Judge. STATEMENT BY THE COURT. Tn 1899 T. S. Noe made a contract witli Alex and And}’ Davis by which Noe agreed to furnish land, farm implements, work-animals and feed for same. The Davis brothers were, on their part, to cultivate the crop, and they were to have one-half of the crop raised, which half of the crop was to stand good to Noe for any supplies furnished by him to the Davis brothers during the crop season.

Geoege M. Chapline, Judge. The evidence shows that there was no obstruction to the the free and easy passage of fish. It was error to allow witnesses Dobbins and Bogy to express their opinions as to the effect of the dam. 24 Ark. 351; 56 Ark. 612; 57 Ark. 387; 67 Ark. 375; 62 Ark. 510; 47 Ark. 497; 59 Ark. 110; 66 Ark. 498, 499.

E. G-. Mitchell, Judge. The evidence does not sustain the verdict. The court erred in not allowing the diagram to he introduced in evidence. Rice, Ev. (Cr.) 154; Rice, Ev. (Civil) 110, 1171; 6 L. R. A. 768; 4 id. 21, 22; 45 1ST. Y. 224; 125 1ST. Y. 147-8; 106 1ST. Y. '603. The discretion of the trial court as to the admission or rejection of such-evidence is reviewable. 82' 1ST. Y. 41; 83 N. Y. 464; 106 1ST. Y. 598; 118 1ST. Y. 88; 125- 1ST. Y. 147.

Francis Circuit Court, Hance if. Hutton, Judge. STATEMENT BY THE COURT. The facts in this ease, as far as it is necessary to state them, are as follows: C. C. Graham and W. H. Howes were owners of a tract of land in St. Francis county.

Geoege M. Chapline, Judge. Evidence of a previous offense is competent, where it discloses a motive for the act which is the subject of the investigation. 49 Ark. 44-9; 2 Ark. 229; 17 S. W. 358. The court erred in refusing to give the instructions asked by appellant upon the law of self-defense. 67 Ark. 594.- The third instruction asked by appellant should have been given. 57 S. W. 820, 825.

<p>Appeal from Craighead Circuit Court.</p> <p>Felix G. Taylor, Judge.</p>

<p>Costs — Motion to Retax. — A deputy sheriff instituted an independent action in a justice’s court on a claim ex contractu against the plaintiff in an attachment suit for his fees in taking care of the attached property. On appeal to the circuit court, relief on the contract was refused, hut the suit was treated as a motion to retax the costs in the attachment proceeding, and judgment was rendered for plaintiff. Meld, error, because the costs involved did not accrue in the proceeding at bar, and because neither the sheriff nor any of the parties in the attachment proceeding had moved therein for a retaxing of the costs.</p>

Circuit Court. E. G. Mitchell, Judge. The local law is binding, unless it conflicts with section 2324, Eev. Stat. TJ. S. There is no statute in Arkansas upon the subject. Cf. 15 Am. & Eng. Enc. Law, 559; 7 Fed. 336. Any _ rule, regulation or custom which attempts to make the manual labor on a mining claim less than $100 in actual value is void. Eev. Stat. IT. S. § 2324; Morrison’s Min. Eights (10th Ed.), 86, 6; Barr. & Ad.

Felix G-. Taylok, Judge. A landlord, having a lien on tbe whole crop for his rent, can seize any part thereof, and cannot be deprived of his right thereto by any inferior conflicting claims of other persons upon said crop. 35 Ark. 225.

HaNoe N. IIuttoN, Judge. The court should have sustained the demurrer to the complaint. The freight conductor had no control over the moving of freight, and a request to him to furnish a car was not a request to the company. 40 Ark. 309. If he had such authority, it should have been alleged. 46 Ark. 103; 29 Ark. 501. Nor did the agents at McCrory and Wynne have such authority. 51 Ark. 155.

JaMes W. ButleR, Special Judge. STATEMENT BY THE COURT. On the 21st day of August, 1899, the appellant filed his petition, asking that the record of the county court in the matter of changing the road of road district No. 3 be certified up, and that the order making the change of the road over the land of petitioner be quashed.

Appeal irom Garland Chancery Court. Wm. II. MaktiN, Special Chancellor. STATEMENT BY THE COURT. This was originally an action of ejectment brought in 1873 by W. II. Smith and John M. Harrell against Mary J. McMahan and the administrator of the estate of John A. Riley, to recover of them the possession of a lot in the city of Hot Springs.

Thomas B. MARTIN, Chancellor. There was never such an occupancy as impresses the homestead character on property. Mere intention to occupy is not sufficient. 31 Ark. 466; 22 Ark. 400. The occupancy must be by the husband, in his lifetime, and as a residence. Const. Ark. § 5, art. 9; 33 Ark. 399. The fact that the homestead claimant is only a co-tenant with another does not deprive him of his right to claim his homestead.

Felix G. Taylor, Judge. The allegation that the name of the deceased was unknown to the grand jury was a material one, and should have been proved. 13 Ark. 718; 30 Ark. 162; 34 Ark. 720. Proof of the killing of the father was incompetent on a trial for killing the sister, unless it tended to show a motive for killing the latter. 34 Ark. 370; 13 Ark. 239; 14 Ark. 555; 43 Ark. 367; 1 Bish. Cr. Prae. 628.

John M. Elliott, Chancellor. The agreement ■ between appellant and the mortgagor as to the release of the equity of redemption was valid and binding. 62 Ark. 207. The mortgagor must plead and prove that the mortgaged property is his homestead, in order to be entitled to the benefit of the formalities necessary to a transfer thereof. 53 Ark. 182; 56 Ark. 139; 57 Ark. 179.

Edwakd D. Robertson, Judge. The judgment of the county court established Rhodes’ election, and he was entitled to possession pending appeal. 29 Ark. 85; Sand. & H. Dig., §§ 2699-2701; 17 Minn. 90; 63 la. 711; S. C. 17 N. W. 433; 17 Ark. 407; 38 Tex. 70. The judgment of the county court was self-executing, and eo insianti divested appellee of all official authority, and removed him from office. 7 How. Pr. 282; 6 Abb. Pr. 222; 80 N.-Y. 185; 64 Ind. 493; 59 How.

Leland Leatherman, Chancellor. STATEMENT BY THE COURT. The plaintiff alleged that the American Building & Loan Association was incorporated as a mutual building and loan association in 1887 under and virtue of the laws of the state of Minnesota, having its office and principal place of business in the state of Minnesota.

E. G. Mitchell, Judge, STATEMENT BY THE COURT. Appellants filed in the Boone circuit court their complaint against appellee James A. Foster, defendant below, to recover $260 for breach of contract, and at the same time filed affidavit, bond, and. interrogatories for garnishment against appellee 0. L. Scott, and caused a writ of garnishment to be issued and personally served upon him.

Will P. Teazel, Judge. The court erred in giving the second instruction asked by • plaintiff. 48 Ark. 366. It was also error for the court to declare it to be the duty of all persons running trains to keep a constant lookout. 62 Ark. 182; 65 Ark. 619.

<p>Appeal from Jackson Circuit Court.</p> <p>BeedeRiok D. FulkeRsoh, Judge.</p>

- Chaeles W. Smith, Judge. Until a verdict is received and recorded, it is without force or validity. Thompson, Trials, § - 2635; Proffatt, Jury Trials, § 449; 33 Kan. 145; 31 Ark. 198. The verdict must be returned as the law directs. Sand. & H. Dig-., § 5828. If a juror dissent, there is no verdict. 31 Ark. 199; 110 Pa. St. 387. And the entire jury should be sent back for deliberation. 63 Ala. 97; 31 Ga. 641; 41 Kan. 345; 3 Johns. (K. Y.) 255; 2 Wend.-..,(lsr.

. Chaeles W. Smith, Judge. Money expended in the maintenance and education of a child is not deemed an advancement unless the same clearly appears to havd been the parent’s intention. 104 bT. Y. 74; 80 Am. Dee. 555; 12 L. R. A. 566; 1 Am. & Eng. Enc. Law (2d Ed.), 760; 41 TJ. S. 769.' Declarations of- the purchaser before ■ or at the time of the purchase may be shown as throwing light on the question of intent of the grantor. 169 IT. S. 397; 1 Perry, Trusts, § 147; 2 Pom. Eq.

Joseph W. MaRtin, Judge. No one can recover for an injury which he brought upon himself. 41 Ark. 542; 45 Ark. 318; 46 Ark. 388; 36 Ark. 371; 36 Ark. 41; 62 Ark. 245; 56 Ark. 271. The engineer and appellee were fellow servants. The appellee cannot recover if his injuries were caused by the engineer. 39 Ark. 21; 42 Ark. 417; 61 Ark. 302. The instruction as to measure of damage is erroneous in that it does not limit the amount of recovery. 61 Mo. 19; 57 Mo.

Geoege M. Chapline, Judge. The appeal Was properly taken. Sec. 32, acts of 1887, pp. 74-79. This case is unlike the case in 33 Ark. 663. An application for an order is a'motion. Sand. & H. Dig., § 5889; 41 Cal. 650'; 3 Estee, PI. &• Forms, 146; 15 Am. & Eng. Enc. Law, 892. An affidavit must he filed to get attachment. 47 Ark. 31; 50 Ark. 444.

Petition for Prohibition. STATEMENT BY THE COURT. Arkansas Western Railroad Company, incorporated under the laws of Arkansas for the purpose of constructing, maintaining and operating a line of standard-gauge railroad from Howe or Hav-ener, in the Indian territory, to Waldron, county seat of Scott county, Arkansas, on May 11, 1901, for the purpose of securing by condemnation a right of wa.y over the lands of John T. Wood, filed its petition, under the statute, in the office…

George M .ChapliNe, Judge. It was error to admit the statement of Bradley after shooting was over as part of the res gestae. 9 Cush. 36; 41 Conn. 55; 119 IT. S. 99; 8 Wall. 397; McKelvey, Evidence, 278; 43 Ark. 99; 43 Ark. 289. The statement was hearsay evidence. 10 Ark. 638; 62 Ark. 494; 45 Ark. 343. Declarations of an accomplice after the crime is committed, made in the absence of the prisoner, are not admissible. 37 Ark. 67; 45 Ark. 165; 45 Ark. 132.