Volume 70 — Arkansas Reports

Joseph W. Martin, Judge. Stanley brought suit against the Lancashire Insurance Company, which has appealed from an adverse judgment. The court erred in permitting plaintiff to testify to conversations, claimed by her to have been had with the local agent of the insurance company at the time of the issuance of the policy, regarding the ownership of the lots on which the property was situated.

Zachariai-i T. Wood, Judge. A married woman might, even before the passage of the “married women’s acts,” use the property to pay her husband’s debts, although she could not bind herself personally to pay them. 47 Ark. 485; 62 Ark. 146. Money paid voluntarily cannot be recovered. 79 U. S. 185. As to power of married woman to hind her separate property by contract, see: 47 Ark. 485; 66 Ark. 437; 62 Ark. 146; 66 Ark. 113. There was no error in the court’s instructions.

<p>Appeal from Miller Circuit Court.</p> <p>Joel D. Conway, Judge.</p> <p>The Arkansas and Texas companies are separate, and in no way responsible upon each other’s contracts. 136 U. S. 356.</p>

Edward D. Robertson, Chancellor. The constitutionality of an act under which a party has been convicted may be inquired into by habeas corpus. 3 Am. St. 901; 23 Am. S.t. 110; 31 Am. St. 94; 100 IJ. S. 371; 58 Am. St. 576; Church, Iiab. Cor. § 83; 27 Ark. 467. Municipal ordinances must be confined to those objects over which power is expressly conferred by charter. 27 Ark. 467; 41 Ark. 526; 10 Wall. 497; 52 Ark. 23; 7 Am. St. 640.

Charles W. Smith, Judge. STATEMENT BY THE COURT. M. V. Phelps was a locomotive engineer on Louisiana & Northwestern Railroad Company in charge of an engine running between Gibsland, Louisiana, and McNeil, Arkansas; about half of the distance being in Arkansas and the other half in Louisiana. He was employed by the company at Shreveport, La., and he claims to have been discharged by it at Gibsland in that state.

Zacitariaii T. Wood, Judge. STATEMENT BY THE COURT. At the September term, 1898, of the Drew circuit court, the grand jury returned an indictment against appellants for “mali- ■ cious mischief, trespass and injury to property,” charging that they, in the county of Drew and state of Arkansas, “on the 1st day of August, 1898, did, without lawful authority, feloniously, wilfully and knowingly enter upon the west half of the southwest quarter and the southwest quarter of the…

Will P. Feazel, Judge. STATEMENT BY THE COURT. Wade Allen was indicted in the Howard circuit court for tbe crime of assault with intent to kill, made upon Joe Meeks. The defendant entered a plea of not guilty, and also one of former conviction.

Antonio B. Grace, Judge. The confession was improperly admitted in evidence. 66 Ark. 505; 1 Greenl. Ev. §§ 219, 223; 125. Mass. 210; 10 Pick. 489; 11 Ark. 408; 50 Ark. 305. Even if the confession had been admissible in evidence, it was error to refuse the second instruction prayed by appellant, cautioning the jury as to the proper value of extrajudicial confession. 6 Am. & Eng. Enc.

' Joel D. Conway, Judge. Under Mansf. Dig., § 3, the value of both real and personal property is to be estimated in determining the rights of the widow. 33 Ark. 824; 38 Ark. 243. Section 3, Mansf. Dig., is not repealed by the act of April 1, 1887.

John M. Elliott, Chancellor. The tax was manifestly imposed for revenue, and is invalid. The evidence in this case shows the amount necessary as expense of keeping records, etc., incidental to the licensing of vehicles; and in the case at bar differs from previous Arkansas cases. 34 Ark. 603; 35 Ark. 352; 43 Ark. 82; 52 Ark. 301. The license tax imposed should not exceed the amount necessary to defray the expenses of enforcing the ordinance. 43 Ark. 83; 9 Biss. 552.

Charles W. Smith, Judge. STATEMENT BY THE COURT The defendant, A. B. Mitchell, was indicted by the grand jury 'of Ouachita county for the crime of false pretenses.

Thomas B. Martin, Chancellor. Bemoval to Arkansas did not divest a femme sole of her separate property. 28 Ark. 351. Her husband could acquire no title by taking deed to himself. 35 Ark. 84; 58 Ark. 20. The deed from J. W. to Nancy Jones is valid in equity. 62 Ark. 26; Sand. & H. Dig., § 4945; 20 S. W. Bep. 808; 47 Ark. 301. And against all persons except creditors of the grantor. 52 Ark. 171.

Hance N. Hutton, Judge. Compensation should be equal to the injury. Suth. Dam. 79; 41 Atl. 1092. Loss of profits and advantages is an element of damages. 7 Cush. 523; 115 Mass. 298; 14 Barb. 624; 26 Colo. 307; 16 N. Y. 494;-22 Barb. 590; 50 N. Y. 37; 71 N. Y. 133.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. W. W. Bennett was indicted for larceny, alleged to have been committed by the defendant unlawfully and feloniously stealing, taking and carrying away one horse, the property of Henry Sullins. He was tried and convicted, and his punishment was fixed at imprisonment in the state penitentiary for five years.

Ti-iomas B. Martin, Chancellor. STATEMENT BY THE COURT. On the 18th day of August, 1876, Isaac Swanigan executed and delivered to A. Kempner four promissory notes, for $198.75 each, payable on January 1, 1877, 1878, 1879 and 1880, respectively, bearing interest at the rate of 8 per cent, per annum from January 1, 1877.

• Appeal from Hot Spring Circuit Court. Alexander M. Dueeie, Judge. In an action by E. F. Hackley against Dan Wetzel and E. H. Vance, Jr., as administrator of the estate of George Sellinger, certain property was levied upon by B. C. Fitzhugh, sheriff, as the property of defendants.

Hance N. Hutton, Judge. This was a contract of sale, if any at all, and the agent was allowed only a reasonable amount for making it. 15 S. W. 912; Bapalje, Beal Estate Brokers, 77. An agent who is authorized to sell for a fixed price and sells for a higher price must account for the excess. 1 G-ilm. (111.) 269; 55 111. 288; 13 La. An. 18; 36 Barb. 349; 31 111. 404; 62 Ind. 255; 27 111. App. 244. Under the statute of frauds a sufficient writing is necessary. 45 Ark. 28.

Styles T. Rowe, Judge. Each suit was necessary. Sand. & EL Dig., §§ 5341-5344. If several suits are instituted where one only is necessary] the plaintiff will recover the costs of but one. 5 Enc. PL & Pr. 339 ; 27 Vt. 766; Sand. & H. Dig., § 5708. Motion to retax costs-was not the proper remedy. Sand. & EL Dig., §§ 5350-51; 35 Mo. App. 232; 68 Iowa, 233. An officer can charge for services only actually and officially rendered. Sand. & EL Dig., § 807.

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

William L. Moose, Judge. The court’s declaration of law was erroneous. Sand. & H. Dig., §§ 6021, 3304; Acts 1895, p. 106; Sand. & H. Dig., § 6021. Deputy prosecuting attorneys were created for certain purposes only. iSand. & H. Dig., §§ 1928, 6010, 6011. Section 6021, Sandels & Hill’s Digest, does not authorize information under oath in justices’ courts. 47 Ark. 442; 55 Ark. 387.

Alexander M. Duefie, Judge. STATEMENT BY THE COURT. This suit was brought to enforce a lien on a mare for the service of a stallion. The right to recover and to a lien was denied; it being alleged that the services were by insurance contract, and that the mare was not with foal.

Edward D. Robertson, Chancellor. STATEMENT BY THE COURT. Appellee seeks by this suit to enjoin the sale of lands.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. On the 9th day of November, 1899, Tom Colley struck J. F. Hudson in the town of Salem in the Greenwood district of Sebastian county. On the same day Hudson made affidavit before one Strozier, a justice of the peace of Prairie township, in Sebastian county, charging Colley with “aggravated assault and battery.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. Appellee was indicted for carrying a pistol as a weapon. The first count charged that on the 1st of October, 1899, he did unlawfully carry a pistol as a weapon; the pistol not being such as is used in the army and navy of the United States.

Francis Circuit Court. Hance N. Hutton, Judge. statement by the court. This was a suit by Brandon & Baugh, mortgagees, to replevy some mules. The answer and amended answer and cross complaint denied any indebtedness under the mortgage, and claimed that appellees owed appellant a small amount.

Matthew T. Sanders, Judge. The chancery court had jurisdiction of the subject-matter and person, and in the exercise of its discretion this court cannot control it. 26 Ark. 421; 44 Ark. 411. A decree by consent is binding and conclusive, unless procured by fraud. 5 Johns. Ch. 564; 18 111. 167-169; S. C. 65 Am. Dec. 729; 59 S. W. 1075. This is true as to infants as well as adults. 17 Am. Rep. 167-8; 53 Am. Dec. 421; 89 id. 172-180; S. C. 31 Cal. 273; 74 Am.

Francis Circuit Court. Hanoe N. Hutton, Judge. As to the exceptions to the rule that judgments of courts of record are not open to collateral attack, see: 94 H. S. 746; 33 Ark. 161; 47 Ark. 411. The heirs of H. Evans, not being parties to the probate proceedings, could not have appealed therefrom. 47 Ark. 411.

Edward D. Robertson, Chancellor. The burden was on Hodges to establish the superiority of his lien. 46 Tex. 112. The waiver was personal, and could not be assigned. 152 H.'S. 654; 9 Mo. App. 495; 2 Am. & Eng. Ene. Law (2d Ed.), 1037; Poll. Cont. (4th Ed.) 425; 127 H. S. 387; 45 Mo. 106. The waiver of lien was a valuable security or right, and as such passed to the assignee of the debt. Story, Eq.

Felix G-. Taylor, Judge. It was error to allow evidence of a subsequent oral agreement between appellee and a soliciting agent of appellant. As to what evidence is competent to modify written agreement, see 1 Gr. Ev., § 383. A parol contract cannot be introduced to vary or contradict the terms of a written contract. 16 Ark. 511; 39 Ark. 544; 30 Ark. 189; Benj. Sales, § 631; 1 Bice, Ev. 386-7.

Joel D. Conway, Judge. The appellees, Josey & Ward, filed a complaint, alleging that on June 9, 1899, they were owners and in possession of a lot of intoxicating spirits, and that appellants, Ferguson and Spraggins, unlawfully took possession of the same and converted it to their own use, to appellees’ damage in the sum of $196.50.

Zaci-iariah T. Wood, Judge. STATEMENT BY THE COURT. The plaintiff, Rust Laud & Lumber Company, brought suit to recover staves which it claimed had been made by defendant from timber wrongfully cut from its land. On the trial plaintiff introduced in evidence deeds showing that it had title to the following land, from which it claimed the timber had been wrongfully cut, to-wit: All of section 8 lying west of Lake Grampus, in township 16, range 4 west, containing 153.39 acres.

<p>1. Witness — Impeachment on Cross-Examination. — A plaintiff suing on a policy of fire insurance cannot be asked on cross-examination whether she did not previously own a house which was burned while insured, as such fact, if admitted, would not impeach her credibility. (Page 108.)</p> <p>2. Same — Impeachment by Indictment. — In a suit on a policy of fire insurance to recover for the loss of an insured building, admission of evidence that plaintiff had been indicted for the burning of such building was reversible error. (Page 111.)</p>

; Alexander M.Dueeie, Judge. The petition to Beese in 1882 conferred no authority on him to sell the land. The petition should have been addressed to the collector, and not to the sheriff. Acts 1881, 155; 37 Ark. 381; 33 Ark. 396; 31 Ark. 571. The term “inhabitant,” as used in the statute, is broader in signification than “legal elector.” Webst. Diet., “Inhabitant;” 132 Mass. 85; S. C. 42 Am. Bep. 424; 36 Ark. 178; 40 Ark. 290; 56 Ark. 110.

Edward D. Bobertson, Chancellor. Under the rule of appropriation of payments to the older items of a running account, the balance which was due on February 9, 1891, to Brooks, Neely & Co. was extinguished. 34 Ark. 285; 47 Ark. Ill; 51 Ark. 371. Even if this were not so, at the date of the foreclosure of the deed of trust, it was barred by limitation, and with it the lien of the deed of trust. 61 Ark. 115.

<p>Appeal from Union Circuit court.</p> <p>Charles TV. Smith, Judge.</p> <p>A judgment against the defendant is a prerequisite to a valid judgment against the garnishee. 62 Ark. 616; 45 Ark. 271.</p>

<p>Appeal from Monroe Circuit Court.</p> <p>George M. Ci-iapline, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>E. E. Berry, a negro merchant, is the owner of lot 3 in block 14 in the town of Clarendon, Arkansas. The lot is 75 feet by 125 feet in depth, and of the value of $900, including improvements. He purchased the north third of the lot, upon which was a storehouse, before he was married. He afterwards purchased the south two-thirds of the lot, built a residence on it, married and lived there with his family. He built a barn and smoke house on the north third of the lot, east of the store. A fence separated the residence part of the lot from that upon which the store was located, and there are gates from one lot to another. The store is used for his own business and convenience.</p> <p>E. E. Meir & Co. obtained a. judgment against Berry, upon which execution was issued and levied upon the lot in question. Defendant thereupon gave notice, and filed with the clerk of the court a list of his property, and claimed the lot as his homestead and exempt. The clerk issued a supersedeas prohibiting the sale of the lot, and Meir & Co. appealed to the circuit court. In that court Meir & Co. filed a notice to quash the supersedeas as to the storehouse and north third of the lot on the ground that the defendant “held the same out to his creditors as a part of his assets, and the same was a basis upon which credit was extended to him, and it is therefore segregated, and liable to the judgments of the plaintiffs.”</p> <p>On the trial of the motion to quash it was shown that various other creditors had judgments against Berry on which executions had been issued. Louis Solomon, a traveling salesman for Solomon Brothers & Johnson, testified that Berry stated to him “that he owned the dwelling and storehouse on lot 3, block 14, in Clarendon, and said it was all liable for his debts,” and that he sold Berry goods on credit because he said “the storehouse and goods were liable for his debts.” A salesman for the house of Newman & Son testified to a similar statement made by Berry to him. It was shown that Berry assessed his property as “N. 1-2 lot 3, block 14, $250: S. 1-2 lot 3, block 14, $400;” and that he mortgaged the south two-thirds of the lot to the Cumberland Building & Loan Association of St. Louis, and in this mortgage he and his wife expressly “waived and conveyed all their rights of homestead in.the land mortgaged.” It was also shown that in the latter part of the year 1898 Berry conveyed the north one-third of the lot to his wife, the consideration being “love and affection.” Berry testified in his own behalf, and said that he purchased and improved the lot for a home; that he conveyed a part of the lot to his wife because he had promised her to do so; that the whole lot and improvement were worth about $900, and that he claimed all of it as a homestead.</p> <p>On this evidence the court found that the north part of the lot, upon which was the storehouse having 25 feet front and running 60 feet back, “had been separated by the defendant Berry from the remainder of his homestead lot, if it had ever been a part thereof, and put into his mercantile business as so much capital.” He thereupon quashed the supersedeas as to that part of the lot,, and authorized its sale under the execution. Berry appealed.</p> <p>Appellant did not lose his right of homestead by erecting the storehouse on the south two-thirds of the lot. 37 Ark. 298.</p> <p>The declarations and acts of appellant amounted to a segregation of the storehouse from the rest of the homestead. 55 Ark. 126; 37 Ark. 298; 44 Ark. 474; 10 Pet. 25.</p>

<p>Appeal from Saline Circuit Court.</p> <p>Alexander M". Dueeie, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>Dilsia Wilson, a colored girl under 18 years of age, by her next friend, charged in her complaint that on the 29th day of December, 1898, about 9 o’clock a. m., she went to the depot at Benton, Arkansas, for the purpose of taking the train for Traskwood ; that the weather was cold and disagreeable; that she went into the colored waiting room, and was compelled to remain in the cold, without any fire, for about one hour, until the train arrived, in consequence whereof she was caused to have a chill, and was very sick during the remainder of that day, and during two weeks thereafter. The complaint further charged that, shortly after she went into the waiting room, defendant’s servants wrongfully, willfully and knowingly imprisoned her therein by locking, or causing to be locked, the only' door to the colored waiting room; wrongfully depriving her of her liberty', and preventing her from peaceable egress from said room. It further charged that she was grievously insulted and offended and affrightened by profane and abusive language, and vile and insulting signs, directed to her by persons who were outside and in the adjoining white people’s waiting room; that, notwithstanding oft-repeated demands and entreaties to defendant’s servants for protection and for a fire, defendant’s servants willfully refused and neglected to unlock said door, to build a fire in the room, or to protect her from the insulting remarks, to her damage in the sum of $1,500.</p> <p>The answer denied, explicitly and particularly, each of the charges made in the complaint.</p> <p>The testimony on behalf of appellee tended to show that on the morning of December 29, 1898, she and two other negro girls and a negro man went to appellant’s depot at Benton to take passage on one of its passenger trains. When they reached the depot, they found the colored waiting room locked, but upon request the door was opened, and they went in. There was no fire in the waiting room, and it was cold. They requested the agent several times to make a fire, or have one made. The agent cursed, and told the one making the request to “go on; the train would be there in five or ten minutes.” They remained in the waiting room about an hour and a half or two hours before the train came. A short while after they went into the waiting room one Walter McMann, a white boy, locked the door, and they remained locked in until the train came. They told the agent several times that they wanted a fire made and the door unlocked. They told the agent as soon as the door was locked. He gave no heed to their request to have the door unlocked or to make a fire. The door was unlocked when the train came. While they remained in the waiting room, some “white fellows” came to the door,' “licked out their tongues,” “made faces at them,” and were “swrearing and cursing,” calling them “damn bitches,” and using “other words.” They did not know whether Bainey, the agent, heard this cursing and swearing or not. He was in his office, and they supposed he could have heard it had he been listening. Appellee was a little negro girl. She got “awful cold,” as one witness expressed it, while she was in the waiting room; and after she left the train at Traskwood she got sick, and was sick about two weeks. She had not been sick before she went to the depot at Benton. The testimony for appellant tended to negative all the material facts which appellee’s testimony tended to prove.</p> <p>The verdict was for $300 compensatory, and $200 punitive, damages.</p> <p>The court should have set aside the verdict as being against, the evidence. 47 Ark. 567; 57 Ark. 467; 37 Ark. 164; 57 Ark. 402; 20 Ark. 600. The duty of a railroad company to protect its-passengers against annoyances, insults and abuse is only a relative one, and, in order to fix liability therefor upon the company, there must be a showing of knowledge or opportunity of knowledge of such facts and of negligence in failing to prevent or mitigate them. 58 Am. & Eng. R. Cas., 538; 26 id. 252; 21 S. W. 905;. 87 Mo. 74; 153 Pa. St. 213; 25 Atl. Rep. 1132; 58 Am. & Eng. R. Cas. 91; 157 Pa. St. 103. No action lies for mere mental anguish. 188 Mass. 185; 64 Ark. 538; 47 L. R. A. 324; 65 Ark. 182. The seventh instruction, as to punitive damages, is erroneous. 53 Ark. 7. Where the actual damage is merely nominal, there can be no judgment for exemplary damages. 37 N. W. 118; 68 Me. 279; 70 111. 497; 71 111. 241; 30 Mich. 493; 50 Mich. 645; 51 S. W. 858; 34 S. W.764; 21 Ohio, 98; 72 111. 542; 73 111. 187; 38 Kan. 578; 86 Tex. 679.</p> <p>Where there is a conflict of testimony, the supreme court will not reverse merely upon the question of the insufficiency of the evidence. 57 Ark. 577; 23 Ark. 208; 23 Ark. 32; 13 Ark. 474; id. 285; 46 Ark. 524; 47 Ark. 196; 50 Ark. 511; 23 Ark. 112; id. 131. Independent of statute, it is the duty of railroad companies to provide reasonable accommodations at passenger depots. 15 S. W. 43; 30 S. W. 720; 26 la. 138; 87 E. C. L. 410; 2 Wood, Rys. 1338; 57 Tex.-157; Hutch. Carr., 516. Exemplary damages, are recoverable where the injury is wanton. 47 Mo. 90; 48 N. H. •92; 47 Ky. 430; 18 N. C. 440; 34 Pa. St. 48; 88 Am. Dec. 574; 22 Minn. 90; 35 Ark. 492; 59 Ark. 215; 42 Ark. 221.</p>

<p>Appeal from Poinsett Circuit Court.</p> <p>Felix G. -Taylor.; Judge.</p>

Edward D. Bobertson, Chancellor. If any trust arose in favor of Melville Francis, it was an express trust, and was void under the statute of frauds. 50 Ark. 71; 45 Ark. 481; 45 Ark. 48. Before a resulting trust could have arisen, it was necessary for him to have paid, at or before the purchase, the purchase money. 6 S. E. 209; 20 Ark. 612; 30 Ark. 215; 17 Atl. 713; 25 N E. 1095; 25 Atl. 481; 48 Ark. 169; 25 Pac. 143.

Joel D. Conway, Judge. STATEMENT BY THE COURT. This action was brought by complaint in equity in the Miller circuit court in the state of Arkansas by the appellees, accepting creditors, against the appellants as sureties upon the bond of tí. B. Andrews, as assignee of J. C. Whitener, executed in the state of Texas.

<p>Evidence — Dying Declarations — Opinion—Corroborative Evidence.— Proof that one mortally wounded stated, after he was shot, that the shot was accidental was properly rejected where proper foundation for its admission as a dying declaration was not made, especially where it was merely a matter of opinion and corroborative of the testimony of other witnesses.</p>

George M. Chapline, Judge. When an equitable answer asks relief, the cause should be transferred. 36 Ark. 228. Motion to transfer to equity being overruled, exception must be saved, else the same is waived. 46 Ark. 524. It is error to try a cause in wrong forum when objection is-made. 52 Ark. 411. The court will correct appellant’s deed. 50 Ark. 179. The doctrine of estoppel is a part of the law which regulates rights and duties. 11 Am. & Eng. Enc.

Tiiomas B. Martin, Chancellor. Mrs. Mary B. Murrell sued T. Frank Henry and others, alleging that on the 20th day of April, 1889, the appellees executed to the Ladies Building Association, Perpetual, a mortgage to secure an advance of ten shares of stock for the sum of $250. That appellant was secretary of said association, and in paying the amount called for she paid the defendants an excess of $45.45.

Elbridge G. Mitci-iell, Judge. STATEMENT BY THE COURT. The appellant, Ed Keeton, was indicted for robbery at the July term, 1901, of the Newton circuit court, charged to have been committed by feloniously and violently taking $35 from the person of Frank Carleton.

Ei,bridge G. Mitchell, Judge. STATEMENT BY THE COURT. On the 1st day of July, 1896,' A. L. Dirst and his wife, J. W. Dirst, executed a deed of trust conveying 160 acres of land in Marion county to J. C. Floyd- as trustee to secure certain promissory notes executed on that day by A. L. Dirst to W. Q. Seawel and other parties named in the deed of trust, and to whom he was indebted for goods and supplies furnished to him.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. This was a local option proceeding under section 4877 of Sand. & H. Dig., as amended by subsequent acts.

Joel D. Conway, Judge. It was error to admit evidence tending to show that appellants, since the occurrence of the accident, placed their engine in front of their train. 30 Minn. 465; 144 U. S. 202, 208; 11 Colo. 507; 51 Conn. 524; 132 111. 53; 45 la. 627; 59 la. 581; 154 Mass. 168; 86 Mich. 14; 77 Mo. 34; 68 N. Y. 547; 73 N. Y. 471; 108 N. Y. 151; 131 N. Y. 382; 73 Tex. 355; 75 Tex. 155; 76 Wis. 71; 90 Wis. 22; 123 Ind. 15.

' George M. Oitapline, Judge. The creditors have delayed too long in seeking the sale of the lands. The charge upon the real estate of a decedent, to pay his debts, is not perpetual. 37 Ark. 155; 46 Ark. 373; 47 ib. 470; 54 ib. 65; 56 ib. 633; 63 ib. 408. The administrator has no more control over or interest in the lands of a decedent than is necessary for the payment of debts. 27 Ark. 235.

Ti-iomas B. Martin, Chancellor. STATEMENT BY THE COURT. Appellee, W. J. Terry, as administrator of the estate of Joseph Townsend, deceased, brought suit in the Pulaski chancery court by bill in equity as follows: “The plaintiff, for his cause of action, alleged that his intestate, Joseph Townsend, employed E. S. Maloney as an attorney and agent to negotiate a loan of $3,000, and to settle a claim with Sarah Townsend.

Felix G. Taylor, Judge. In 1894 Theresa L. Organ and others obtained a decree in the Crittenden chancery court against the Memphis & Little Rock Railroad Company, as reorganized.

Frederick D. Fulkerson, Judge. No judgment should -have been rendered, in favor of the trustee, on the note; an exhibit cannot supply a defect of allegation in a complaint,, and in case of conflict the complaint controls. 50 Cal. 298; 32 Cal. 145-; 75 Cal. 633; 66 Fed. 253. The payment made by Gibson for Olney, one of the three joint defendants'in-the judgment, operated to completely discharge him. 44 Ark. 348, 349 ; 45 Ark. 290, 292.

<p>Appeal from Jefferson Circuit Court.</p> <p>John W. Craweord, Special Judge.</p> <p>This suit is barred by the former judgment in the suit upon the note. 94 U. S. 428; 21 Am. & Eng. Enc. Law, 232, 223; 11 Fed. 661; 94 U. S. 352; Wells, Res. Adj. § 239; Herman, Est. & F. §§ 469, 467, 468; id. p. 562; 19 Ark. 421; 55 Ark. 538; 18 Ark. 332; 41 Ark. 78; 7 L. R. A. 580; 1 Fr. Judg. §§ 256, 216. There was no antecedent debt in this case, but the void note was not absolute payment.</p> <p>Sand. & H. Dig., § 493, merely makes notes given for purchase money for patent rights void, unless in a certain form; and it nowhere declares that the sale is illegal, or the purchase money not collectible. 67 Ark. 575. Taking a note for an antecedent debt is not a payment thereof, unless agreed to be so taken. 48 Ark. 271. The note being void, the original consideration revived. 3 Pars. Cont. 305; 2 Dan. Neg. Inst. § 1272; 1 id. § 123; 4 Am. & Eng. Enc. Law (2d Ed.) 162; 56 Ark. 334; 35 Ark. 217; 29 Ark. 401; 38 Ark. 661; 37 S. W. 150; 2 Yan Yleet, Former Adj. § 456; 9 Rich. Law, 451. The suit on the note and the suit at bar lack that identity of issue which would be necessary in ■order for the judgment in the former to bar the latter. 29 Ark. 575; IS Ark. 162; 53 Ark. 307; 62 Ark. 77; 18 Ark. 185; 12 Ark. 164; 18 Ark. 142; 1 Greenl. Ev. §§ 528-530; S Am. St. 227; 2 Sm. Lead. Cas. 573; 24 How. 333; 5 Wall. 580; 21 Am. & Eng. Enc. Law, 184; 99 Mass. 202-3; 99 Mass. 493; 100 Mass. 409; 102 Mass. 239; 110 Mass. 267; 139 Mass. 164; 8 Allen, 454; 101 N. Y. 401; 102 N. Y. 452; 58 Mo. 61.</p>

<p>1. Evidence — Communication from Husband to Wife — Where a husband handed to his wife a note partly addressed to her and partly to another, so much as was addressed to her is inadmissible against him, as a privileged communication; but the remainder of the writing is admissible to show the purpose for which-it was written, though it was taken from the wife against her will. (Page 205.)</p> <p>2. Larceny — Instruction.—On trial for larceny of an animal which defendant claimed that he purchased from another, an instruction that, if the jury find that such vendor stole the animal, and defendant was present and assisting, then he would be guilty, was erroneous in ignoring the idea that defendant would not be guilty unless he knew that his vendor did not own the animal. (Page 206.)</p>

Edward D. Bobertson, Chancellor. STATEMENT BY THE COURT. Appellants brought an action in equity praying for the cancellation of deeds founded upon a purchase of lands at overdue tax sale; contending that the tax sale was void, and that the court that made the decree for the sale of the lands for overdue taxes had no jurisdiction, because the warning order required by the statute to be entered upon the record of the chancery court was not entered upon the record of that…

William L. Moose, Judge. STATEMENT BY THE COURT. Appellee is the board of improvement, organized under the laws of the state of Arkansas for the purpose of building a system of waterworks in the city of Morrilton. Appellants, as taxpayers of the city, sued the board in the Conway circuit court to enjoin them from further prosecuting the work. The case was heard, and the complaint dismissed. Appeal granted, and sixty days allowed to file bill of exceptions.

Will P. Feazel, Judge. STATEMENT BY TIIE COURT. Appellee obtained judgment against appellant for $475, the sum of numerous checks in denominations of 5 cents, 10 cents, 25 cents, 50 cents, and $1, given by appellant to its employees in payment of their wages.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. The city -council of Fort Smith on 5th of February, 1900, passed an ordinance, the first section of which provides as follows: *Tt shall be unlawful for airy person hereafter to sell, barter or exchange coal in any cjuantity in the corporate limits of this city until they have first weighed the same upon the city scales of the city of Fort Smith and paid the weighman the sum of 10 cents for the weighing of any load or part of a…

Joel D. Conway, Judge. Appellee’s failure to demand the penalty or exemplary damages at the time he was paid amounts to an election to abandon such claim, or a waiver thereof. Herm. Estop. 955; 15 Wall. 154; 27 Ark. 367; 135 Mass. 172; 87 N. Y. 166; 10 JBlatchf. 178; 59 Mich. 179; 2 Hill, 288; 2 Lans. 283; 15 C. B. 145; S. C. 80 Eng. C. L. 145; 121 N. Y. 161; S. 0. 18 Am. St. 803; 31 Mich. 309; L. R. 8 0. P. 309; 115 N. Y. 393; 46 Ark. 221; 92 H. S. 382.

Joel D. Conway, Judge. The intention of the parties was clearly that the machinery should pass with and as the real estate; and under the circumstances it was a fixture. 56 Ark. 56; 63 Ark. 625; 65 Ark. 23.

Styles T. Eowe, Judge. STATEMENT BY THE COURT. The Bloch Queensware Company is an Arkansas corporation, •doing business at Fort Smith. The Bloch Bealty Company is an Ohio corporation. While the two corporations were not identical, three of the Bloch brothers comprise one and four of them the ■other; and Abe Bloch, the president of the Queensware Company, was also a member of the Bealty Company. Metzger had a store at Fort Smith, and was also a contractor.

Will P. Feazel, Judge. Vexatious and unnecessary costs should be disallowed. 17' Ark. 261. Since the' cause was never set down for trial .on any particular or certain day, there could be no subpoenas issued. Gf. Sand. & H. Dig., §§ 2930, 2933, 590, 5802.

Joel D. Conway, Judge. Since appellant did not learn of the action of the judge until after the expiration of three days, Sand. & H. Dig., §§ 5541 and 5843, does not apply. Except to show that the verdict was reached by lot, the affidavit of the jurors who tried a ease are not admissible to impeach the verdict. 37 Ark. 519; 48 Ark. 396; 5 Ark. 444; 15 Ark. 452; 13 Ark. 317; 15 Ark. 403; 29 Ark. 293; 35 Ark. 109; 59 Ark. 132.

Antonio B. Grace, Judge. STATEMENT BY THE COURT. F. TV. Henry died intestate, leaving a widow, but no children. T. F. Tillar was appointed administrator of Henry’s estate. On January 2, 1899, in vacation, the probate judge made an order of sale of the personalty of the estate. Administrator sold same, and made report of sale, showing $232.77 as the amount realized.

William L. Moose, Judge. No sufficient showing appears for specific performance. 39 Ark. 424 ; 44 Ark. 334. Specific performance will not be decreed when the plaintiff himself has been in default. Story, Eq. § 771. A judgment will not be reversed on account of a variance between the pleadings and the evidence, where the pleading might have been amended at the trial in accordance with the evidence. 31 Ark. 155.

Elbridge G. Mitchell, Judge. Suit by John B. Bogenschultz and others against William O’Toole and others. From a decree for defendants plaintiffs appeal. Fraud cannot be predicated of a conveyance of a homestead.. 43 Ark. 434. Appellant’s possession gave sufficient notice of their claim. 54 Ark. 281-2.

Edward D. Robertson, Chancellor. STATEMENT BY THE COURT. On the 21st clay of November, 1899, William Penrose commenced an action, in the Woodruff chancery court, against Patrick Doherty, Lizzie Doherty, and Catherine Van Cleve, to quiet his title to a certain section of land described in his complaint, as to the defendants, and to restrain them from cutting timber and erecting a house thereon.

Styles T. Rowe, Judge. On the 8th day of November, 1899, the appellee, W. A. Sullivan, filed in the Sebastian circuit court, Greenwood district, his complaint against'Graham & Miller and the Choctaw & Menrphis Railroad Company, to enforce a subcontractor’s lien. From a judgment in plaintiff’s favor the railroad company has appealed.

William L. Moose, Judge. STATEMENT BY TI-IE COURT. The complaint is to the effect that on the 6th day of January, 1899, plaintiff took passage on defendant’s passenger train at Fort Smith for Knoxville, a station on defendant’s railroad extending from Fort Smith, Arkansas, to Little Rock, Arkansas; that the defendant’s employees on the train carelessly announced the station of Knoxville before reaching it, stopped the train about two hundred yards from the station, and…

George M. Obapline, Judge, on exchange of circuits. The evidence will not sustain a verdict of murder in the first degree. Of. 11 Ark. 455; 29 Ark. 248; 36 Ark. 221; 56 Ark. 8; 60 Ark. 564; 20 Tex. 522. As to meaning of “deliberation” required in murder in the first degree, see: 3 Kan. 450, 483; 6 Neb. 136; 23 Ind. 231, 263; 28 la. 522; 60 Ark. 572; 25 Tex. 33; 20 Tex. 522; 43 Tex. 322; 70 Mo. 599; 10 Yerg. 551-2; 69 Mo. 451; 15 Nev. 407; 6 Neb. 136; 3 Kan. 450, 483; 1 Whart.

Felix G. Taylor, Judge. The demurrer to the indictment should have been sustained. Sand. & H. Dig., § 1855; 46 N. W. 97. The indictment should have alleged the filing of the depositions. 63 Ark. 513. ■ The indictment was sufficient. Sand. & H. Dig., §§ 1855, 3075, 3076; 5 Ark. 513.

Francis Chancery Court. Edward D. Robertson, Chancellor. The prosecuting attorney should hjve attended to the matter, and he is allowed therefor $5. Sand. & H. Dig., § 3304. The evidence shows that Norton & Prewett were the regularly employed attorneys for the school districts. 65 Ark. 159; S. C. 49 S. W. 189. The districts had power to employ them. 39 Ark. 50; 63 Ark. 433; S. C. 39 S. W. 264.

<p>Fraud — Note—-Entirety of Consideration. — Where two partners, each owning one-half of a certain fund, executed without consideration a note to the wife of one of them for the amount of such fund, to defraud the creditors of the other, the note, being illegal as to one-half at least of the consideration, is void in toto as to creditors and between the parties.</p>

Styles T. Roave, Judge. STATEMENT BY THE COURT. W. L. Jackson, the appellee, a brakeman on appellant company’s road, brought this action against the Arkansas Central Railroad Company and William Blair, receiver of said company, and recovered damages for the loss of a finger, in the sum of $750.50, sustained tvhile coupling cars on a switch or spur track of the St. Louis, Iron Mountain & Southern Railway Company near the city of Fort Smith.

Alexander M. Dueeie; Judge. STATEMENT BY THE COURT. On the 13th day of: August, 1887, the city council of Hot Springs passed an ordinance granting to the Hot Springs Electric Light Company the right to erect poles in the streets of said city, the first section of which ordinance is as follows: “That the Hot Springs Electric Light Company shall be, and is hereby, authorized and empowered to erect and raise poles, and posts and run wires upon, over and across all the streets,…

Edgar E. Bryant, Judge. Action by Harper & Wilson against the German-American Insurance Company and others. Judgment for plaintiffs, from which defendants appeal. It was error to exclude the evidence as to the effect additional insurance would, under the rules of the company, have had on the policy in question. 21 L. R. A. 645. There was prejudicial error in the remarks of counsel for appellee. 67 Ark. 370; 65 Ark. 486; id. 626; 61 Ark. 137.

John M. Elliott, Chancellor. statement by tjie court. This was a suit instituted by Theodore Muense against S. E. Harper, to remove a cloud upon his title to certain land described in his complaint.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. The appellee was indicted for the unlawful sale of whisky on the 8th day of July, 1901, in White county, within three miles of the Methodist Church, South, situated in the incorporated town of Beebe, Arkansas, the county court of White county having previously made and entered upon its records an order prohibiting the sale of intoxicating liquors within said limits, which order was then and there of record in the office of…

Jeremiah G. Wallace, Judge. STATEMENT BY THE COURT. W. H. Miller was the owner of .a rural homestead, consisting of about 100 acres, which was underlaid with coal. Miller had opened up mines on this land, and had worked the 'mines in a small way, and marketed the coal, and had also at times leased these mines to be operated for the purpose of mining coal.

William L. Moose, Judge. A recovery as in assumpsit would have been proper. 1 Chitty, PI. 100; 58 Ark. 130; 41 Ark. 47G; 40 Ark. 78; 42 Ark. 57; 46 Ark. 57. Any change may be made in the form of a complaint. §§ 5764-57G9; 58 Ark. 612; 56 Ark. 603. The complaint was aided by the answer in this cause. 30 Ark. 249; 32 Ark. 386; 37 Ark. 551; 60 Ark. 70.

W. T. Wooldridge, Special Chancellor. Mrs. A. B. Quertermous brought suit March 16, 1898, against Thomas Walls, to recover possession of a tract of land. Defendant claimed title under a donation deed, bearing date January 14, 1898, and based on a tax forfeiture in 1891, and also pleaded the two years' statute of limitation (Sand. & H. Dig., § 4819). The cause was transferred to equity, where a decree was entered for defendant. The facts sufficiently appear in the opinion.

Joel D. Conway, Judge. It was error to refuse the first, second and fourth prayers of appellant for instructions. Sand. & II. Dig., §§ 3374, 3378, 3379, 3380. The failure of the clerk to make out a copy of the rates fixed by the county court does not excuse appellee. It could have obtained such copy by mandamus. 43 Ark. 62; 45 Ark. 121; Black, Interp. Laws, 335.

Georoe M. Ci-iapline, Judge. STATEMENT BY THE COURT. The Brinkley Car Works & Manufacturing Company, a corporation organized under the laws of this state, has its plant located at Brinkley, Arkansas. It was the custom of the company to let the water out of its boilér every two weeks to cleanse the boiler.

Joel I). Conway, Judge. . The second instruction was erroneous. Sand. & H. Dig., § 1643; 2 Thomp. Trials, § 2315. Instruction number nine invades the province of the jury. 52 Ark. 265; 50 Ark. 391-417; 55 Ark. 393; 2 Thomp. Trials, § 2326. The statement of deceased as to who shot him was only an opinion. 52 Ark. 347; 39 Ark. 225; 1 Greenl. Ev. § 159. Every instruction should be hypothetical. 31 Ark. 699^; 14 Ark. 287; 59 Ark. 419; 16 Ark. 569; Thomp. Trials, § 47.

Alexander M. Dueeie, Judge. This is the second appearance of this case in this court. It was brought here first by appellee, and was reversed and remanded. Roulston v. Hall, 66 Ark. 305. The action was originally brought by appellee for partition, and was afterwards converted into a suit of ejectment.

William L. Moose, Judge. The venue was not proved. Sand. & H. Dig., § 6322; 38 Ark. 205; 55 Ark. 282. A judgment by default cures omission to prove venue. 4 Ark. 210; 17 Ark. 39. The appellate court took same jurisdiction on the same pleadings as the lower court. 37 Ark. 580; 46 Ark. 132. The question of venue should have been raised by demurrer. 4 Ark. 210; 1 Ark. 63; 55 Ark. 285; 63 Ark. 512. The question of venue was thereby waived. 34 Ark. 399; 55 Ark. 213; 46 Ark. 96.

George M. Citapline, Judge. If the debt has been paid, plaintiff cannot maintain replevin. 35 Ark. 169; 3 Am. & Eng. Ene. Law, 205. Judgment is not in the alternative, and must be reversed. 35 Ark. 544; 29 Ark. 270; 14 Ark. 425; 19 Wis. 416. A judgment in the alternative was not required. Sand. & H. Dig., § 6398.

Elbridge G. Mitci-iell, Judge. STATEMENT BY THE COURT. This suit was brought by appellees, J. W. and J. R. Aday, to recover the possession of a storehouse and certain lots. The complaint alleged that appellants, Bromley & Hensley, were tenants of appellees, and that appellants were unlawfully holding over the premises.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. The appellee brought an action of ejectment against the appellant, and obtained a judgment for the recovery of certain town lots in the town of Jonesboro. In the complaint the appellee claimed to deraign title by mesne conveyances from the government of the United States, and exhibited with his complaint several conveyances through which he claimed, but exhibited none from the United States.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. This was an action of ejectment, the complaint alleging “that defendant is now in the unlawful possession of all of that portion of the particular parts of the following lots, tracts, or parcels of land situated in the town of Osceola, in the said state of Arkansas, and county of Mississippi, described as lots Nos. 36, 37, 44 and the north half of 31, in Edrington Addition to the town of Osceola, part of the southwest…

Robert J. Lea, Judge. STATEMENT BY THE COURT. On the 25th day of November, 1885, the Supreme Lodge Knights of Pythias issued to Hiram Robbins a certificate of membership in the endowment rank of the order of Knights of Pythias, in which certificate there is the following stipulation: “In consideration of the payment to the endowment rank of the prescribed fee and of all monthly payments as required, and the full compliance with all the laws governing this rank now in force…

Styles T. Rowe, Judge. STATEMENT BY THE COURT. Emile Grober was the owner of a tract of land in Sebastian county, containing about 200 acres, which she had purchased from the United States. She was an unmarried woman, and died in February, 1867, intestate and without issue, leaving surviving her father, John C. Grober, and a sister and brother named Theresa and Rhinehold Grober, respectively.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. At the September term of the Craighead circuit court for 1899, there were pending against R. C. Brady twenty separate cases on indictment for selling liquor without license. He was tried and convicted on seven of these indictments, and fines were imposed amounting to $1,900.

James S. Thomas, Judge'. The verdict is so plainly against -the evidence as to shock one’s sense of justice, and should be reversed. 21 Ark. 468; 24 Ark. 224; 13 Ark. 71; 8 Ark. 155; 10 Ark. 309; 2 Ark. 360; 5 Ark. 407; 6 Ark. 86; ib. 42S; 10. Ark. 138, 491; id. 638; 26 Ark. 309; 39 Ark. 491; 34 Ark. 640; 57 Ark. 468.

William L. Moose, Judge. STATEMENT BY THE COURT. This is an action'brought by Henry James against the St. Louis, Iron Mountain & Southern Railway Company before a justice of the peace of Conway county. The plaintiff for cause of action alleged that the defendant company, while operating its road, “negligently ran over and killed a certain mule, the property of plaintiff and of the value of $100.” Whereupon he asked judgment for that amount.

Charles W. Smith, Judge. Public highways are defined by the statute, and it makes no distinction between wagon roads and foot roads. Sand. & H. Dig., §§ 674.3, 6744, 6745. A person using a private way does so as a mere licensee, and the railway company is not responsible for injuries sustained. Elliott, Railroads, §§ 1148-1151; 83 Wis. 547; 57 Wis. 600; 42 111. App. 93.; 100 Ind. 223; 33 Mo. App. 85; 7 Fed. 78; 2 Sh. & Redf. Neg. § 705.

Francis Circuit Court. Hance N. Hutton, Judge. The higher offense includes the lower, and the grade is a question for the jury. 41 Ark. 359. Eesisting process is a misdemeanor. Sand & H. Dig., § 1826. Eesisting by threatening to draw, or by actually drawing, a gun upon an officer is a felony. Sand. & H. Dig., § 1828. The charge may be a felony, the offense only a misdemeanor. Sand. & II. Dig., § 2261.

Will P. Feazel, Judge. STATEMENT BY THE COURT. The appellant was indicted and convicted of violating ordinance No. 5 of the incorporated town of Cubanola, and fined $25, and appealed to this court.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. This suit was brought against appellant and other carriers to recover for injuries done certain cattle during transportation.

George W. Norman, Special Chancellor. The deed of trust was not barred. Jones, Mort. (5th Ed.) § 373; 32 Ark. 598; 32 Ark. 645; 33 Ark. 72; 49 Ark.- 430. To redeem, the mortgagors would have had to pay all advances secured. Jones, Mort. §§ 1070-80; 115 Mass. 120. Taxes paid were a lien on the land. 35 Ark. 511; 43 Ark. 469. The. deed of trust was made prior to 1887, and the limitation only acted upon the remedy. 34 Ark. 312; 113 T7. S. 756; Jones, Mort.

Edward D. Robertson, Chancellor. statement by ti-ie court. This is an action brought by the board of directors of the St. Francis Levee District, in the chancery court of Cross county, to recover assessments made against certain tracts of land in that county.

Joseph W. Martin, Judge. It is the duty of an employee to make a reasonable use of his senses to avoid injury in the course of his employment. 5 Mc-Crary, 471; 75 111. 108; 27 Minn. 141; 47 Miss. 420; 12 Met. 415; 41 Miss. 131; 2 Mees. & Weis. 244; 1 Ad. & Ell. 36; 4 Bing. 142.

Edward D. Robertson, Chancellor. Ada Neal, adult, and William, Sarah and Sabina Rose, infants, on January 7, 1898, filed a bill against William M. Block, as administrator of W. B. Rose, deceased, and H. T. Blanton, to review a decree rendered on November 4, 1893, whereby the title to a tract of land was divested out of appellees and vested in W. B. Rose.

Antonio B. Grace, Judge. Homesteads are not exempt from sales made to enforce mechanics’ liens. Const. 1874, art. 9, § 3; Sand. & H. Dig., § 3710. Dower is a potential interest, and does not give possession until it is assigned. 11 Ark. 212. The homestead was abandoned. 68 Ark. 79. The bill of exceptions is not complete. 59 Ark. 291; id. 178. The amendments are a necessity. Sand. & H. Dig., § 5845. The exceptions were not properly saved. 55 Ark. 485; 46 Ark. 462; 53 Ark. 250.

Felix G. Taylor, Judge. STATEMENT by the court. The appellant was indicted and tried far, and convicted of, the crime of rape, and was sentenced to be hung, in Mississippi circuit court in this state, and appealed to this court. The appellant was a negro boy, between 14 and 18 years of age. The prosecutrix (the injured party) was a white woman named Edna Dean.

Maiious L. Hawkins, Chancellor. statement by the court. About the year 1877, A. W. Files was or claimed to be the owner of a tract of land in Ashley count}', containing 160 acres. He contracted to sell the lands to one Coats on credit.

Styles T. Rowe, Judge. A statement in writing by a constable as to how service was made is not competent. 60 S. W. 657. The right of way conveyance operated as an estoppel against appellee from claiming any right to compel appellant to construct stock guards. 47 Ark. 330; 35 Am. & Eng. R. Cas. 178; 100 Ind. 301. Railroads cannot be compelled to perform impossibilities. 58 Mich. 300.

Will P. Feazel, Judge. STATEMENT BY THE COURT. This is a suit by the appellants against the appellees for the partition of certain lands mentioned in the complaint, and which are held adversely by the appellees. The appellees claim title to said lands by virtue of a will executed by Mary Alice Head, the mother of appellants. This complaint prays for a construction of this will and partition of the land.

Cross appeals from Sebastain Circuit Court, Greenwood District. Styles T. Bowe, Judge. Appellee had no right of action, as surviving parent, for loss of services, because death was instantaneous. 53 Ark. 127; Bodg. Dom. Bel. § 536. Gf. 125 Mass. 130; 17 Ind. 323; 24 Wend. 429.

Styles T. Rowe, Judge. Instructions inapplicable, misleading and based on unproved hypotheses should not be given. 95 U. S. 697; 20 How. 252; 41 Ark. 382; 49 Ark. 183; 8 Ark. 183; 15 Ark. 491; 16 Ark. 628; 26 Ark. 513; 24 Ark. 251; 58 Ark. 324. To constitute murder in the first degree, there must be premeditation and deliberation. 36 Ark. 127; 38 Ark. 221; 56 Ark. 8; 45 Ark. 281. Proof of injury raises no presumption of willful injury. 63 S. W. Rep. 994.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. The defendants, McCarthy & Reichardt, were contractors for the construction ■ of the Choctaw & Memphis Railroad. As such contractors, they sublet a portion of the work to be done to one Bean.

Hance N. Hutton, Judge. The remonstrance was improper, and should not have been considered. 51 Ark. 165. There was no proof to show the allegations of same were true. 38 Ark. 190; 40 Ark. 237; 45 Ark. 386; 38 Ark. 282. The signatures to the remonstrance were not proper, and should not have been considered. 38 Ark. 278; 49 Ark. 18; 51 Ark. 48.

Edward B. Peirce, Special Chancellor. OPINION OE SPECIAL CHANCELLOR. These cases were consolidated, and have been submitted together. It is agreed that the issues in each case shall be identical, and that any amendment to the pleadings necessary to effectuate this agreement shall be treated and considered as made. The cases were submitted upon the pleadings and an agreed statement of facts.

Hance N. Hutton, Judge. Schools must be conducted in each township or district not less than three months. Sand. & H. Dig., §§ 7029, 7049. The county court has jurisdiction to change and make districts. Sand. & H. Dig., § 6984. Discretion to grant or reject a petition to form a new school district is not left to the county court. Sand. & H. Dig., §§ 6988, 6989, 6990; Act April 1, 1895.

Felix G. Taylor, Judge. The indictment is defective. Sand. & EL Dig., § 1710. It should have contained an allegation to the affect that appellant was an officer. 47 Ark. 488; 48 Ark. 76; 12 Ark. 608; 29 Ark. ■68; 32 Ark. 124; 38 Ark. 519; 43 Ark. 493; Sand. & EL Dig., •§ 1712.

Will P. Feazel, Judge. STATEMENT BY THE COURT. The judgment of the lower court recites as follows: “And it further appearing to the court that on said 12th day of December, 1896, plaintiffs sued out a writ of garnishment therein, setting forth in said writ plaintiff’s claim as stated in their complaint, directed to the sheriff of Miller county, Arkansas, commanding him to summon the Central Coal & Coke Company as garnishee to appear on the first day of the present January…

Jeptua H. Evans, Judge. This was an action to recover damages for an accidental scalding caused by the negligence of one of defendant’s employees. There’ was evidence that plaintiff had just alighted from defendant’s train, and was passing the engine, which was not in motion, when one of' the defendant’s employees, engaged in wetting coal on the tender,, carelessly turned the hose so as to throw a stream of hot water on plaintiff, whereby he was severely burnt.

Antonio B. Grace, Judge. STATEMENT BY THE COURT. Action of ejectment brought by Simon Strauss and other children and heirs of Hannah Strauss against Hanchi Bloom to recover two lots in the city of Pine Bluff and other land in Jefferson county. Hannah Strauss, who was the former owner of this real estate, married Abraham Strauss in 1866, and she purchased the land and received a deed to it from the owners in 1870.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. On the 22d day of June, 1891, Louisa Graham, being the owner of lots 11 and 12 in the town of Tuckerman, Arkansas, and the improvements thereon, executed on that date a note for $500 toE. Y. Raines, and also executed a mortgage of her lots to secure the note. The note and mortgage were signed by Louisa Graham and J. E. Graham, her husband, and were due and payable twelve months after date.

Will P. Feazel, Judge. STATEMENT BY THE COURT. This is an action commenced in the Horward circuit court, founded upon a promissory note or bond executed and delivered by the appellee, Alchymy Deloney, and his wife to the Jarvis-Conklin Mortgage Trust Company on the 1st day of January, 1888, for $2,350, bearing interest at the rate of 7 per centum per annum, payable semiannually, until due, and 10 per centum after maturity until paid.

John M. Elliott, Chancellor. STATEMENT BY THE COURT. Simon Thompson was the owner of lot No. 4, in block 25, in the town of Brinkley. He had purchased the lot from one Goodwin, who had put him in possession, and had also attempted to convey the lot to him, but by mistake had conveyed him lot No. 4, in block 24, instead of the lot he had sold him. Thompson, being an ignorant negro, unable to read, did not discover the mistake.

Antonio B. Grace, Judge. The master is responsible for the wrongs of his servant, committed in the course of the service, and for his benefit. L. R. 2 Exch. 259, 265; 2 Bing. 156, 160; Poll. Torts, 72; 109 Fed. 298. Appellees conducted a private hospital for compensation, and do not fall within the rule exempting charity hospitals. Shearrn. & Red. Neg. § 331; 66 Conn. 126. Of. 120 Mass. 435-6; 109 Fed. 294; 60 Fed. 635; Poll. Torts, 50.

John M. Elliott, Chancellor. STATEMENT BY THE COURT. The appellant rented land to one Craig, with the privilege to Craig to purchase at a price named. Craig in 1894 executed to MeCloy & Trotter a mortgage on his crops for that year. That rent was due for said year to Moore, the appellant. Craig turned over to Moore, the appellant, five bales of cotton on the rent of 1894, of the value of $115, and to MeCloy & Trotter, eight bales of cotton of the crop of 1894.

Styles T. Rowe, Judge. The power of accepting title and conveying real estate is one universally incidental to corporations. Thomps. Corp. §§ 5797-5799. A person may do by an agent what he may do himself. 35 Ark. 198. There was no usury in the contract. 32 Ga. 312. If by mistake or inadvertence an amount- is charged as commission or interest, it would not constitute usury. 63 Ark. 225.

Antonio B. Grace, Judge. STATEMENT BY THE COURT. Appellant sued appellee, alleging, in effect, that he was a lawyer, and that she was indebted to him in the sum of $1,000 for money expended and professional services rendered in her behalf, and asked judgment for that amount. She demanded and he filed a bill of particulars of the money expended. Thereupon she filed an answer which was, in substance, a general denial, coupled with a plea of coverture.

Josepi-i W. Martin, Judge. STATEMENT BY THE COURT. The New York Life Insurance Company issued to S. J. Shields a paid up policy of insurance upon his life for the sum of $760, which he afterwards assigned to Moses Siegel. Shields died, and the insurance was claimed by Siegel and also by Fannie Shields, the widow of S. J. Shields.

John M. Elliott, Chancellor, If the means of information are accessible to both parties, they will be presumed to have informed themselves. If they have not done so, they must abide the consequences of their own carelessness. 31 Ark. 170; 30 Ark. 686; 26 Ark. 58; 11 Ark. 28. The party alleging fraud must establish it clearly. 63 Ark. 22. Appellee cannot complain until she has returned to appellant the benefits received under the contract. 33 Ark. 431; 25 Ark. 204.

Antonio B. Grace, Judge. The court erred in refusing a continuance. 119 111. 151; 34 Tex. Cr. 277; 92 Ky. 485; 72 Ga. 98; 5 Am. Crim. Bep. 443. The affidavit for continuance on the ground of absence of a witness must show due diligence in procuring the attendance of the witness. 144 Ind. 290; 39 La. 918; 154 Inch 1; 54 Mo. 274; 22 Tex. 593. And that defendant was not absent by defendant's consent or procurement. Thomps. Cas. (Tenn.), 192.

<p>1. Mining Claims — Location.—Lands valuable for ores found in lodes are not subject to locations of placer mining claims. (Page 531.)</p> <p>2. Foreign Corporation — Right to Maintain Action. — Under the act of February 16, 1899, which provides that every foreign corporation, before it shall be authorized to do business in this state, must file a certificate designating an agent upon whom service of process may be had, and that any corporation which shall fail to comply with the act shall not maintain any suit or action, a foreign corporation which complied with the act after it had commenced an action was entitled thereafter to maintain its. action. (Page 534.)</p> <p>3. Same — Doing Business in State. — The institution and prosecution of an action is not “doing business” within the meaning of the. act of February 16, 1899, and of other statutes upon the same subject. (Page 535.)</p> <p>4. Vein and Lode Defined — The terms “vein” and “lode,” as used in the mining acts of congress, are applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. (Page 535.)</p> <p>5. Mining Claim — Sufficiency of Description. — Where a notice of location of a mining claim describes it as “beginning at the nw. corner of Ed Williams’ 1-16, at a black oak post; thence 1,500 feet north, between secs. 10 and 11, to a dogwood bush; thence 600 feet E. to a dogwood bush; thence 1,500 feet south to oak post in Williams’ field; thence 600 feet to place of beginning; this being in the northwest quarter of the southwest quarter sec. 11, t. 17, range 15 w.,” it will be presumed that the point designated as. the place of beginning is a well known natural object until the contrary is shown. (Page 536.)</p> <p>6. Same — Presumption as to Regularity of Location. — Where appellant purchased certain mining claims, and has been in possession, controlling and developing them, and holding adversely to. the world, for a time longer than the statutory period of limitation, the presumption, as against adverse claimants, is that the location of the claims was regularly made. (Page 537.)</p> <p>7. Record — Notice of Location.. — Failure to file notice of the location of a mining claim within 30 days is not prejudicial if it was recorded before any adverse rights to the same ground were acquired. (Page 537.)</p> <p>8. Adverse Possession — effect.—Adverse possession, of a mining claim on government land for a time longer than the statutory-period of limitation renders the claim valid against everyone except the United States. (Page 538.)</p> <p>9. Abandonment of Claim — Stoppage of Work. — Proof that a mining claimant quit work upon its claim temporarily, except annual assessment work, on account of the lack of transportation for the ores taken from the mines, does not establish an abandonment of the claim. (Page 538.)</p> <p>10. Stoppage of Work — Resumption-—-Relocation.—Where a mining claimant failed to perform the annual labor required by Rev. Stat. _ U. S., § 2324, during certain years, but afterwards resumed the work in good faith, and thereafter annually performed the required amount of labor, no one else had a right to relocate upon the land covered by his claim after such resumption. (Page'539.)</p> <p>11. Forfeiture of Claim — Burden of Proof. — A forfeiture of a mining claim by the failure of the former owner to perform the annual labor required by law cannot be established except by clear and convincing evidence, the burden of proving which rests upon him who sets it up. - (Page 540.)</p>

Will P. Feazel, Judge. STATEMENT BY THE COURT. Appellee seeks to recover the sum of $100 of the executors of the estate of Nat Graves, Sr., deceased, for services rendered in nursing him during his last illness. The appellant resisted the payment of the claim, denying liability. The appellee proved by Rebecca Graves, the widow of Nat Graves, as follows: “Mr. Graves hired plaintiff to wait on him in his last sickness.

<p>1. Three-mile Law — Inhabitants.—On a petition by inhabitants residing within three miles of a school house to set in force the three-mile prohibition law, a declaration of law by the court that any adult persons “who have a permanent or fixed place of abode for some definite period of time, for the purpose of labor or other work or business, is an inhabitant,” is erroneous. (Page 547.)</p> <p>2. Same — Inhabitant Defined. — An inhabitant, within the three-mile law, is one who has a fixed place of abode, with no intention of removing elsewhere. (Page 548.)</p>

Styles T. Rowe, Judge. STATEMENT BY TIIE COURT. The city of Fort Smith, a city of the first class, on the 17th day of January, 1901, duly enacted and published an ordinance, the first section of which provides as follows, to-wit: “ That hereafter it shall be unlawful for any person, firm or corporation of the city of Fort Smith to keep and use any wheeled vehicle, including cart, buggy, carriage, surrey, delivery wagon, or any other vehicle, except bicycles, without first…

Joe’l D. Conway, Judge. STATEMENT BY THE COURT. The appellant was indicted for murder in the first degree, pleaded not guilty, was tried and convicted, and appealed to this court.

Appeals from Washington Circuit Court and Washington Circuit Court in .Chancery. James M. Pittman, Judge. The court had power to issue an alias writ of possession, and it was a denial of justice to refuse to do so. 50 Ark. 551; 21 Ark. 130. A court, having jurisdiction for one purpose, has it for all. 46 Ark. 25; 14 Ark. 50; 33. Ark. 454; 37 Ark. 286. The decree is conclusive as to all rights which could have been asserted. 19 Ark. 420; 41 Ark. 75; 43 Ark. 230; 44 Ark. 165.

Thomas B. Martin, Chancellor. The decree is too vague and ambiguous to be enforceable. 123 TJ. S. 443; 105 Fed. 459; 117 U. S. 52, 71; 31 S. E. 191, 192. An injunction is not grantable where it could not be enforced. 3 Pom. Eq. Jur. §§ 1341, 1405; High, Inj. § 731; 96 111. 503, 512; 31 Midi. 43, 52; 2 Ch. Cont. 1467; 33 Mich. 331; 31 Mich. 43, 52; 38 Ohio St. 24. Certiorari and not injunction was the proper remedy, if any remedy existed at all.

<p>Appeal from Clay Chancery Court.</p> <p>Edward D. Robertson, Chancellor.</p> <p>The ten-year statute of limitation has been repealed. Acts 1889, p. 87. Appellee’s claim was barred. 65 S. W. 103; 65 S. W. 125.</p>

Antonio B. Grace, Judge. It was error not to permit appellant to question appellee concerning her former life and habits. 53 Ark. 390; 62 S. W. 66. Appellee failed to identify her property. 14 Ark. 202; 28 Ark. 550; 34 Ark. 632. The instructions were abstract and misleading. 16 Ark. 656; 23 Ark. 289, 731; 42 Ark. 61; 62 Ark. 544; 63 Ark. 108, 177, 563.

George M. Chatline, Judge. STATEMENT BY THE COURT. J. S. Stallings was on the 23d of May, 1900, in the employ of the Choctaw, Oklahoma & Gulf Bailroad Company as one of a crew of hands working under foreman John Eddy, and engaged in loading and unloading cars attached to a construction train on said road. On that day they unloaded cars with dirt and rock at Hickory spur on said road, to be unloaded at Fourehe La Fave river for use on the road at that place.

Styles T. Bowe, Judge. The court was entitled to a fee of ten cents for each allowance against the county. Sand. & H. Dig., § 3309; 66 Ark. 243. Filing a claim against the county and presenting it for allowance is the institution of an action. 32 Ark. 8; 66 Ark. 243. Duncan was entitled to the fees allowed by the county court. Sand. & H. Dig., § 3354; 68 Ark. 276; 10 Ark. 186. The entries in question were not proper orders of allowance. 32 Ark. 45.

Joe.D. Conway, Judge. Chess Levy was convicted of murder in the first degree for the killing of one íl. C. Cox in Nevada county.