Volume 71 — Arkansas Reports

Thomas B. Martin, Chancellor. Where there is a duty to know, negligent ignorance has the same effect as actual knowledge. 3 Thomp. Corp. § 4108. The directors were bound to know, at their peril. 38 Ark. 17. The right to sue the directors is the only question involved ini this appeal. 34 Ark. 323; 38 Ark. 17; 59 Ark. 562. The amount of stock subscribed by appellee remaining unpaid is $250. Sand. & H. Dig., § 1337.

John Fletoi-ier, Special Judge. H. D. Cammaek, O. T. Bentley and Carroll Armstrong, as Lhe Board of Improvement of the Morrilton Waterworks Improvement District, sued in equity in the Conw;ay circuit court to foreclose a lien on the property of appellees, L. M. Earl and others.

Wm. L. Moose, Judge. Appellee had no power to maintain this action. Art. 19, § 27, Const. The consent of the property owners to establish a district and levy a tax must be given in the manner prescribed by law. Sand. & H. Dig., § 1176; 50 Ark. 125; 108 N. Y. 373; 2 Dill. Mun. Corp. 769; 59 Ark 358; Beach, Pub. Corp. § 1180; 117 TJ. S. 683; 71 N. Y. 309; 108 N. Y. 373; 1 Dill. Mun. C.orp. § 457.

Original petition for mandamus. This court has authority to enforce its orders by mandamus. 12 Ark. 88; 25 Ark. 527; 12 Ark. 101; 19 Ark. 410; 10 Ark. 292; 29 Ark. 188; 35 Ark. 301; 26 Ark. 452; 20 Ark. 503. The action of the chancellor in dissolving the temporary injunction was proper. Sand. & H. Dig., § 3782. The order of the supreme court cannot be restrained by the circuit or chancery courts. 13 Ark. 113; 14 Ark. 304; 22 Ark. 176; 29 Ark. 188.

Cross appeals from Pulaski Chancery Court. Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. The complaint alleges that Hunter B. Murray died in 1887, seized of south half of southeast quartér of section 24, township 1 north, range 12 west, Pulaski county, leaving him surviving eight children, Ben D. Murray, Benson Murray, Reuben B. Murray, William H. Murray, Mary A. Chapline, Sarah E. Pinkerton, Mattie Person and Millie Wilson.

<p>Mechanics’ Lien — Construction.—Under the mechanics’' lien act of 1895 (p. 225, § 18), which enacts that contractors, sub-contractors, laborers and. material furnishers shall not have liens for any greater amount in the aggregate than that contracted for between the employer and contractor, “provided that the owner, employer or builder shall pay no money to the contractor until all laborers and mechanics employed on the same and all material furnishers shall have been paid for -work done or materials furnished,” an employer is not liable for a greater sum than he contracted to pay, except to the extent that he paid money to the contractor before the liens of laborers, mechanics and material furnishers were discharged.</p>

Court. James M. Pittman, Judge. STATEMENT BY THE COURT. Action by North Arkansas & Western Railway Company to condemn a right of way across land owned by John and May Cole, and to have the damages caused by the taking of the right of way and the construction of the railroad assessed. On the trial the jury assessed the damages at the sum of $1,976. The court gave judgment for that sum, and the company appealed.

John M. Elliott, Chancellor. Judgment could not be given against the sureties on the bond in fayor of W. N. Buie because he was not the plaintiff, nor a party when the bond was executed. Sand. & H. Dig., §§ 3452, 3458; 31 Ark. 470; 17 Ark. 546; Brandt, Sure. & Guaranty, § 79. It was error to render judgment against J. H. Brooks, as he was not in possession, nor was a jury impaneled. 4 Ark. 574; 9 Ark. 358; 8 Ark. 177.

<p>Petition for bail.</p>

<p>Criminal Law — Confinement in Penitentiary. — Under Sand. & H. Dig., § 2442, providing that if a judgment of confinement in the penitentiary has been executed before the certificate of appeal is delivered to the sheriff, whose duty it is to execute the judgment, the defendant shall remain in the penitentiary during the pend-ency of the appeal, a petitioner who has been lodged in the penitentiary after the issuance of the supersedeas, but before the supersedeas was served on the officer charged with execution of the sentence, is not entitled to be sent back to the county jail.</p>

Will P. Feazel, Judge. STATEMENT BY THE COURT. The appellee, by his next friend, recovered a judgment against the appellant for $2,000 for damages he sustained, while working for appellant, in running an edger in appellant’s saw mill, by which injury he lost his thumb and a part of three.fingers. From this judgment the mill company appealed to this court.

Zaci-iariah T. Wood, Judge. The complaint was defective. 73 Miss. 452; Sand. & H. Dig. § 4792. ' Must have a reasonable construction. 22 So. Rep. 831; 70 Miss. 245; 12 So. Rep. 249; 13 So. Rep. 935. This is a penal action. 19 Ark. 172; 54 Ark: 364. The venue must be alleged and proved. Sand. & H. Dig. § 5685; 56 Ark. 539. Damages in this case are, in effect, a fine and punishment. 19 Ark. 172; 54 Ark. 367. The act of March 22, 1887, is void. 52 Ark. 291; 55 Ark. 389; 122 Pa.

Wm. L. Moose, Judge. STATEMENT BY THE COURT. The appellant, Charlie Puckett, was indicted for the crime of seduction, charging that he unlawfully, on the 15th day of June, 1901, did obtain carnal knowledge of Nora Dunn by virtue of a false express promise of marriage to her previously made by said Charlie Puckett.

Antonio B. Grace, Judge. There being no evidence to show intent to commit grand larceny, the defendant was guilty of a trespass at most. Underhill, Cr. Ev. § 377; 3 Green. Ev. § 92; Rapalje, Larc. § 354; 109 111. 109; 12 Nev. 37. In the absence of intent to commit a felony, the breaking and entering constituted a mere trespass. 42 La. An. 273; Arch. Cr. PI. & Pr. 340; Roscoe, Cr. Ev. 365; 5 Am. & Eng. Enc. Law (2d Ed.) 59.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. Action brought by the plaintiff, Emrich, against the Little Eock Traction & Electric Compan}*, alleging that said defendant negligently, and contrary to a provision of the city ordinance, pla'ced one of its guy wires within five feet of the ground, and allowed it to be charged with electricity, and that, by reason of said negligence, the wife of the plaintiff, not knowing that the wire was charged, received an electric shock…

<p>Appeal from Ouachita- Circuit Court.</p> <p>Charles W. Smith, Judge.</p> <p>The indictment was sufficient. Sand. & H. Dig. § 1784; 31 Ark. 676. The conclusion “contra formam staiuti” is not necessary. Sand. & H. Dig. §§ 2075, 2076, 2087, 2091; 19 Ark. 613; 66 Ark. 65.</p>

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

<p>Certiorari to White Circuit Court.</p> <p>Hance N. Hutton, Judge.</p> <p>The circuit court had no jurisdiction. 18 Ark. 209; 26 Ark. 491; 28 Ark. 478; 30 Ark. 578; 45 Ark. 411; 52 Ark. 99. The appeal was not properly taken. Sand. & H. Dig. §§ 1264-67.</p>

Geo. M. Ohapltne, Judge. The indictment contains all the elements of murder in the second degree; and that was the crime intended to be charged. 34 Ark. 480; 36 Ark. 242.

James D. Si-iaver, Judge.' STATEMENT BY THE COURT. This was an action to enjoin T. M. Holt, J. B. Cheshir, Jr., and B. H. McClannahan, school directors of School District No. 55, in Howard county, Arkansas, from carrying out the contract they had made with S. W. Eeese and T. A. Floyd to teach the public school in said district, and to enjoin the treasurer of that county from paying any warrants drawn in favor of said teachers 'under said contract, upon the ground that said…

Edward D. Robertson, Chancellor. statement by the court. Rembert bought of J. O. Neely a plantation in Phillips county, Arkansas, paying him therefor $'32,500. Of this $7,000 were paid in cash, and notes were executed for balance. Rembert brings this suit to rescind the purchase, alleging that he was induced to make it by reason of certain representations made by Neely as to the extent and quality of the land, which were false.

<p>Appeal from Van Burén Circuit Court.</p> <p>Elbridge G. Mitchell, Judge.</p> <p>A judgment contrary to law is void. Sand. & H. Dig. § 2255; 58 Ark. 233; 26 Ark. 323-330; 26 Ark. 534; 26 Ark. 514; 31 Ela. 176, 164; 32 Ela. 244; 40 Ala. 698; 42 Ala. 509; 45 Ala. 32; 54 Ala. 520; 65 Ala. 492; 71 Ala. 329; 12 Md. 514; 60 Md. 402. This court has power to reverse the verdict. Sand. & H. Dig. § 2432.</p>

John B. Mo Caleb, Judge. STATEMENT BY THE COURT. The defendant, Felix Snellgrove, was indicted for arson by tbe grand jury of Baxter county.

Leland Leati-ierman, Chancellor. This was a Missouri contract. 67 Ark. 252; 68 Ark. 24. A building and loan association cannot guaranty the value of stock, and losses must fall on stockholders equally. 150 Mo. 103. Demand made by appellee did not change his status from a stockholder to a creditor. 140 Mo. 566. Appellee must settle his loan, independently of his stock interest. 62 Mo. App. 277; 81 Mo. App. 193; 80 Mo. App. 542.

Charline, Judge. STATEMENT BY THE COURT. This was a suit instituted in the Faulkner circuit court by certiorari for the purpose of quashing an'order made by the' Faulkner county court declaring that the majority of all the votes: cast at the various district school meetings in Faulkner county on the third Saturday in May, 1900, was for county uniformity, and also, it seems, to remove the appellees as members of the county school board of Faulkner county, or to prohibit them…

Antonio B. Grace, Judge. It was error to admit in evidence the letter of Sophronia Scott. 58 Ark. 390; 58 Ark. 473.' The remarks of attorney Caldwell were improper. 65 Ark. 635; 68 Ark. 577. The testimony of Willis Martin and John Burton should not have been admitted. 45 Ark. 163. When a conviction is sought on circumstantial evidence, a cautionary instruction should be given. 46 Ark. 364; 109 111. 372; 73 la. 32; 136 Mass. 571; 58 Ark. 304.

James M. Pittman, Judge. Action of ejectment by Joseph E. Sparks and another against R. A. Farris and wife. From a judgment in favor of defendants, plaintiffs have appealed. Appellee had no right or claim to the land after forfeiture to the state. 46 Ark. He could not claim adversely under his donation certificate. Sand. & II. Dig., § 4819; 68 Ark. 283. Adverse possession must be established by clear and positive proof. 1 Am. & Eng. Enc. Law, 887; 28 Wis. 226.

John N. Tillman, Judge. The complaint filed by appellee in the Washington cirfeuit court alleged that on the 25th of July, 1899, he purchased from an agent of appellant at Springfield, Mo., an accident insurance policy, insuring him against injury through external, violent and accidental means for riding upon a passenger train, as a passenger, and made a copy of the policy an exhibit to the complaint; alleged that, after he had reached a point forty or fifty miles east of…

Styles T. Rowe, Judge. STATEMENT BY THE COURT. The several actions in this case, consolidated and tried as one, were brought by the appellees, the Speer Hardware Co. et al., to obtain judgments against, and have liens declared upon, the Choctaw & Memphis Railroad Company for goods, wares and merchandise sold to sub-contractors, under contracts for the building of the road made prior to the 31st of March, 1899.

Styles L. Rowe, Judge. statement by the court. This is a suit to recover a penalty, under §§ 6238, 6239, of Sandels & Hill’s Digest.

Charles W. Smith, Judge. STATEMENT BY THE COURT. This is an appeal from a judgment granting mandamus against the appellant as treasurer of Calhoun county, commanding him to pay certain county warrants of appellee. These warrants were issued upon the orders of allowance of the county court of Calhoun county in favor of W. Ii. Hall or bearer.

Alexander M. Dueeie, Judge. STATEMENT BY TI-IE COURT. In- January, 1901, the judge of the Garland. circuit court issued to the sheriff of that county the following warrant, to-wit: “The State of Arkansas to R.> L. Williams, Sheriff of Garland County, Arkansas: “Whereas, the undersigned has reasonable ground to suspect that there is in a saloon at No. 198 Central avenue in the city of Hot Springs, owned by E. A. Smith, a certain gaming device, commonly called a “slot machine/…

<p>Appeal from Sebastian Circuit Court, Greenwood District.</p> <p>Styles T. Eowe, Judge.</p> <p>Instruction No. 4 was abstract, and hence erroneous. 14 Ark. 530; 31 Ark. 684; 31 Ark. 580. Instruction No. 3 asked by appellant should have been given. 2 Whart. Or. Law (10th ed.), 1425; 2 Greenleaf, Ev., § 413.</p>

Joel D. Conway, Judge. The demurrer to the indictment should have been sustained. 26 Ark. 333; 34 Ark. 264; 61 Ark. 359; 62 Ark. 369; Sand. & H. Dig., § 2074. It was error to exclude the testimony of Arthur Green. 12 S. W. Eep. 1082. The giving of an instruction indicates that the evidence warranted the giving of it. 69 Ark. 186. It was error to give instruction No. 6. 58 Ark. 57.

Styles T. Bowes, Judge. The old company held a mere license, and the only effect of the attempted assignment thereof was an abandonment. 64 Ark. 339) 4 Johns. 418; 6 N. H. 9) 10 Conn. 375) 3 Duer, 255) 55 Pa. St. 154. The abandonment of the place where the license was to be exercised was an abandonment of any right to claim protection under it. 23 Pac. 803.

Circuit Court. Hance N. Hutton, Judge. An employee assumes all risks incident to his employment. 46 Ark. 567; 41 Ark. 392;-45 Ark. 324; 48 Ark. 463; 60 Ark. 442. An employee must take notice of obvious defects. 48 Ark. 347; 79 •Me. 405; 40 la. 341; 39 Minn. 523; 41 N. W. 104; 53 Mich. 125; 18 N. W. 584; 67 Mich. 632; 35 N. W. 708; 81 Mich. 835; 46 N. W. Ill; Bailey, Master’s Liability, 160; Wood, M. & S., § 376; 58 Ark. 178.

Thomas B. Ma*rtin, Chancellor. statement by the court. This bill was filed on March 7, 1898, in the Pulaski chancery court, by Maggie Young and the other minor children of W. N. Young, deceased, by C. N. Alexander, their guardian, and also as administrator of the estate of W. N. Young, against Alexander Williams and Mary Williams, his wife.

' Matthew T. Sanders, Judge. Suit by Octavia Mitchell (who afterwards married Schofield) and others against Sallie Spott Gibson (who afterwards married Rankin) and others.

Jeptha H. Evans, Judge. Questions not raised on former appeal and commented upon are not binding on tbe trial court. 2 Enc. PL & Pr. 371; 52 Ark. 474. The by-laws of New York Stock Exchange were improperly admitted. 2 Cook, Corp. § 714; 2 Eice, Ev. 899; Taylor, Corp. § 2.63; Field, Corp. § 391; 12 Wheat. 74; 74 Ind. 319; 13 N. H. 535; 6 Wend. 656; 42 Cal. 465; 13 111. 516; 38 La. 871; 66 Me. 100; 6 Cush. 279; 1 Doug. 282; 14 Minn. 43 ; 1 How.

Hance N Hutton, Judge. The variation in the allegation and proof is fatal. 1 Bish. Cr. Pro. §§ 488, 582, 584; 2 Whar. Cr. L. § 1610; 1 Bussell, Cr. 826. An attempt to break into a house does not constitute burglary. 49 Ark. 516; 25 Ark. 44. The allegation as to ownership was proper. 115 111. 17; 68 Iowa 611; 69 Ind. 159; 38 Ga., 165; 35 Fla. 171; 33 Tex. Cr. 504; 20 Wis. 630; 66 Ark. 65; Sand. & H. Dig. §§ 2076, 2080, 2089. A sufficient “breaking” was proved.

Styles T. Rowe, Judge. No venue is proved. 32 Ark. 179. The bill of exceptions signed by the bystanders should be a part of the record. Sand. & H. Dig. § 5849; 56 Ark. 594; 57 Ark. 1. The demurrer to the indictment should have been sustained. Sand. & H. Dig. § 2075; 33 Ark. 180; 24 Ark. 636; 31 Ark. 427; 33 Ark. 815; 54 Ark. 489. The motion for continuance'should have, been granted. Sand. & H. Dig. §§ 2157-8, 5797; 50 Ark. 161; 57 Ark. 165.

Zaohariah T. Wood, Judge. A contractor must stand by the words of his contract. 91 U. S. 50. One who has been imposed upon by a contract must act promptly to rescind it. 93 U. S. 55. Fraud that can be set up in law must be fraud in the execution of the instrument. 33 S. W. 23; 61 Fed. 54; 31 S. W. 962; 19 How. 211; 5 Notes, U. S. Eep. 679. The appellee was a vendee in possession. 8 Ark. 272; 19 Ark. 23; 42 Ark. 246; 48 Ark. 535.

Styles T. Rowe, Judge. statement by ti-ie court. J. H. Smith was the owner of a tract of land in Sebastian county, across which the Arkansas Central Railroad Company desired a right of way. On the 31st of July, 1897, Smith and his wife executed a deed conveying a right of way to the company.

Zaohariah T. Wood, Judge. The court erred in refusing to exclude the testimony 'of the husband of appellee. Sand. & H. Dig. § 2916; 31 Ark. 684; 33 Ark. 207; Id. 259; 33 Ark. 816; 34 Ark. 663. The declarations of an alleged agent are not competent in proof of his agency. 44 Ark. 213; 2 Whart. Ev. § 1284; 43 Ark. 289. There is no room for estoppel. 2 Herm. Estop. §§ 787, 948. Husband and wife are competent witnesses for each other when acting as agents of each other.

Joseph W. Martin, Judge. Petition for mandamus by H. D. Parker and another to compel H. C. Tipton, treasurer of the State of Arkansas, to accept an auditor’s certificate of indebtedness in part payment of a half section of land which Parker desired to purchase from the state. The certificate was numbered 54, dated January 12, 1882, and was for the sum of $72.

Geo. M. Chapline, Judge. The court erred in denying appellant’s motion to postpone the trial. 67 Ark. 142; 66 Ark. 612; 55 Ark. 567; 57 Ark. 60. The granting of a motion for new trial on the ground of surprise rests in the discretion of the trial court; and its ruling will not be disturbed, unless clearly erroneous. 34 Ark. 659.

Styles T. Kowe, Judge. The change in the contract released the surety. 61 S. W. 369; '65 Ark. 550; 66 Ark. 289; 22 S. W. 622; 24 Minn. 387; 59 Barb. 319. An alteration which changes the legal effect of the instrument is material, and discharges the sureties. 76 Ya. 537; 29 Am. 6 Eng. Ene. Law 965, 977; 28 S. W. 439; 73 N. W. 524; 99 Fed. 299; 59 Mo. App. 44; 40 Mo. App. 213; 55 Mo. App. 427; 116 Mo. 179.

J. Gr. Williamson, Special Chancellor. STATEMENT BY THE COURT. Baldwin & Lake recovered judgment against Willis D. Thomas in Ashley county for $1,037.86. Afterwards an execution issued on the judgment, and was levied upon 110 acres- of land belonging to Thomas. The land was sold under the execution, and purchased by Norman, and after the expiration of the time for redemption the sheriff executed a deed to Norman, who purchased for Baldwin & Putnam.

Edward D. Robertson, Chancellor. The sale was invalid because there was no valid view and appraisement of the property. Of. Sand. & EL Dig. §§ 5112-14, 5111. The appraisement should not have been made without viewing the property, and hence it is void. Conditions annexed to powers of sale must be strictly complied with. 2 Perry, Trusts, §§ 602, 611; Ping.

James D. Shaver, Chancellor. Equity does not favor forfeitures. 38 Ark. 285; 68 Ark. 505, 524; 7 Leigh, 22, 24; 15 Wall. 146; 67 U. S. 13; 144 H. S. 384; 13 S. E. 439. He who claims a forfeiture must show exact complianee with the law. 15 Ohio, 134, 149; 43 N. Y. 107; 43 N J. L. 270; 13 S. E. 439.

Cross Appeal from St. Francis Circuit Court. Hance N. Hutton, Judge. The levee district had no power to sell the timber on the lands donated by act of 1893, p. 173. 67 Ark. 413. Express authority is necessary for conveyances by public and quasi-public corporations. 7 Am. & Eng. Enc. Law, 747; 4 Tex. 375. The grant of power must be strictly pursued, and acceptance of purchase price will not ratify an unauthorized conveyance. 16 Cal. 591; 18 Id. 590; 21 Id. 351.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. Appellants presented to the probate court of Sebastian county a petition in -which they state “that one G-. W. Lewis at the time of his death resided in Barry county, Missouri. That appellant G-. A. Lewis was, by the probate court of said county of Barry, duly appointed as his administratrix, and qualified as such.

'Appeal from Prairie Chancery Court.. John M. Elliott, Chancellor. The certificate of the appraisers, together with the recitáis of the deed, make out a prima facie case. 61 Ark. 473. • The offer to amend was properly denied. 68 Ark. 314; s. c. 57 S. W. 1105; 18 Ark. 537; Id. 236; 26 Ark. 360; 24 Ark. 16; 25 Ark. 7; 5 Ark. 485; 14 Kan. 306; 60 Ark. 526. •

'Appeal from Clay Chancery Court. Edward D. Robertson, Chancellor. Parol evidence, or evidence dehors the record, was not admissible to show when The judgment was rendered. 33 Ark. 475; 49 Ark. 397; 50 Ark. 338; 11 Ark. 369; 5 Ark. 363; 10 N. E. 191; 12 Rob. 531; 2 Root, 358; Bl. Judg. § 373. Consent may authorize a judgment in vacation. Bl. Judg. § 179; 5 Enc. PL & Pr.' 1033; 4 id. 345, 346; 19 Am. Dec. 46; 44 Cab. 84; 48 Ark. 156; 7 N. Y. Supp. 281; 23 La.

William L. Moose, Judge. The railway company discharged its duty as to the character and construction of cattle guards, and was entitled to the peremptory instruction asked. 58 Mich. 500.

Jepti-ia H. Evans, Judge. The Indian Territory has no districts or district courts, within the meaning of the statute authorizing arrest and removal of offenders from one district to another. 20 Fed. 298; R. S. (U. S.) § 1014. The courts of the Indian Territory are simply United States courts, and not district or circuit courts. 1 Supp. R. S. p. 670, §§ 1, 5, 16.

Felix G. Taylor, Judge. statement by the court. The appellant brought suit to recover for loss by fire to certain property in Jonesboro, Ark., in the sum of $500.

W. L. Moose, Judge. STATEMENT BY THE COURT. Sherman and King were owners of adjoining tracts of land. The lines between these two tracts had been surveyed in 1869 by a surveyor employed by Odom, a former owner of the Sherman tract of land. The fences on the land afterwards conformed to the lines of this survey.

Circuit Court. Frederick D. Fulkerson, Judge. STATEMENT BT THE COURT. Goldman was the owner of two store buildings in the town of Newport, known as “racket stores.” On the 30th day of March, 1899, he leased these buildings to one Hayes for a period of nine months from the 30th day of March, 1899, until the 30th day of December, 1899, for a monthly rental of $75, to be paid in advance.

Circuit- Court. Alexander M.’Dueeie, Judge. On the 7th of February, 1899, William Haist, a fireman on one of defendant’s freight trains, operated at the time.in the state of Louisiana, was killed in á collision between the train he was on and a passenger train on a rainy night, near-a station' on the defendant’s road called Howcott. One Watkins was engineer on said freight train, and John C. Farrar was the conductor.

Circuit Court, Greenwood District. Styles T. Bowe, Judge. STATEMENT BY THE COURT. The complaint states, in substance, that the plaintiffs, Eugene Adler and Julius Joel, partners under the firm name of B. Baer & Co., were the owners of a certain tract of land in Greenwood district of Sebastian county, which is described in the complaint.

Edward D. Robertson, Chancellor. TJpon the death of Tolbdrt the title rested absolutely in the widow. 24 Afir. 561; 32 Ark. 824; 29 Ark. 280, 633, 407; 47 Ark. 504; 51 Ark. 429; 48 Ark. 230; 55 Ark. 572. The title of the Tolbert heirs was not diverted under the seven years’ statute. 53 Ark. 400. A break in the continuity of the possession will arrest the operation of the statute. 22 Ark. 79; 27 Ark. 77; 48 Ark. 277; 49 Ark. 277.

Elbridge G-. Mitchell, Judge. Fraud is never presumed, but must be proved. 11 Ark. 378: 38 Ark. 419; 17 Ark. 151; 20 Ark. 216; Beach, Mod. Eq. Jur. §§ 71-2; 10 Bush (Ky.), 519. Notice to a director of a corporation is notice to the corporation. 1 Pet. 309; 4 Paige, Ch. 127. As is also notice to an agent. 1 Mor. Private Corp. §§ 229, 540; 36 Am. Dec. 186; 8 Fed. 1.

James N. Tillman, Judge. STATEMENT BY THE COURT. George Park was the owner of a tract of land in Johnson county containing 60 acres, upon which he resided with his wife, and which was his homestead. On the 9th day of October, 1897, he executed and delivered a deed conveying this land to his son Leonard Park.

James M.. Pitman, Judge. The judgment against 'Sam Box is void for want of service. 63 Ark. 513; 83 Ga. 1; s.c. 20 Am. St. 301. The return must state the maimer in which the writ was served. Sand. & H. Big. §§ 5667, 6003. Unless the statute is strictly followed, a judgment by default should be reversed on appeal. 1 Ark. 50; 3 Ark. 522; 4 Ark. 428; 5 Ark. 157; 6 Ark. 552; 7 Ark. 44; 9 Ark. 439; 22 Ark. 362; 35 Ark. 502; 59 Ark. 583; 22 Am. & Eng. Enc. Law 182-3; 18 Enc.

William L. Moose, Judge. The court erred in not admitting the evidence offered to prove the conditional nature of the undertaking. 19 Ark. 495; 57 Ark. 72; 22 L. B. A. 619; 1 111. App. 612; 5,Mo. App. 580. In any view of the case, actual compensation would be the extent of the recovery allowed. 19 Am. & Eng. Enc: Law, 410; Sedg. Dam. 492-3; 14 Ark. 316; 55 Ark. 376; 57 Ark. 168; 45 c.e. A. 343; 53 L. E.' A. 122.

Joel D. Conway, Judge. The Missouri corporation and the Texas one are not identical. 65 S. W. 706. Suit was brought against the wrong one.

Will P. Feazel, Judge. T. M. Loyd, took out a policy of insurance in the Planters’ Mutual Insurance Association for the sum of $1,000 upon his dwelling house and certain furniture therein against loss by fire. The facts are stated in the report of this case on a former appeal. See :Planters’ Mutual Insurance Co. v. Loyd, G7 Ark. 584.

Antonio B. Grace, Judge. Consolidated actions by R. A. Galligan and W. P. Lawton against the Franklin Life Insurance Company. From a judgment for plaintiff Galligan, defendant and the other plaintiff appeal. STATEMENT BY THE COURT.

William L. Moose, Judge. STATEMENT BY THE COURT. The appellee sued the appellant for $200, the alleged value of grass upon thirty-three acres of land standing thereon, alleged in his' complaint to have been destroyed by fire started by a spark from a defective engine drawing an excursion train, going in an easterly direction over the track of the railway of appellant,.on the 22d day of August, 1899, in the county of Pope in the state ’of Arkansas, The appellant answered the…

Hance N. Hutton, Judge. STATEMENT BY THE COURT. H. P. Gorman was in April, 1896, the owner of certain real estate in the town of Searcy and the residence and improvements thereon. Gorman lived in Forrest City, and, desiring to sell this property, he turned it over to J. J. Baugh, a resident of Searcy, that Baugh might sell it. Baugh sold the property to T. B. Hutchinson, and Gorman executed a deed to Hutchinson.

<p>Appeal from Chicot Circuit Court.</p> <p>Zaohariah T. Wood, Judge.</p> <p>Judge Springer was a judge de facto. 63 Ark. 1; 48 Yrk. 227; 49 Ark. 439; 38 Conn. 449; 3 S. E. 849; 8 Paige, 428; 4 t. Y. Ch. 490; 15 Pac. 778; 92 Cal. 31; 33 Pac. 732; 91 U. S. 594; 32 Atl. 484; 19 Ark. 46; 49 Ark. 439. One may always depend on the judgments of court fair on their face. Black, Interpretation of Statutes, § 153. No one can base a claim on the erroneous decision of a court. 47 Ark. 359; 43 Ark. 514; 47 Ark. .369; 7 Ark. -209. Judgments of de facto judge can not be attacked collaterally. 1 Black, Judg., § 266; 49 Ark. 397. The spirit of the law with reference to statute of limitations should be enforced. 58 Ark. 151.</p> <p>There is no possession under a void tax deed. 57 Ark. 523. The finding of the court sitting as a jury is as binding as the finding of a jury. 45 Ark. 41; 56 Ark. 621; 60 Ark. 250. There is no foundation for color of title. 63 Ark. 1. The proceedings of the circuit court were void in toto. 34 Ark. 578; 55 Ark. 30.</p> <p>There are no rights under a void judgment. 63 Ark. 1; 48 Ark. 227; Freeman, Judg., § 117. Appellees were never disseized. 57 Ark. 527; 53 Ark. 404; 20 Ark. 516; 60 Ark. 163; 55 Ark. 168; 49 Ark. 266. Constructive possession forms the legal title. 60 Ark. 163.</p> <p>Where there is an office de jure, there is an officer de facto. 24 Pac. 367; 49 Ark. 439.</p>

Antonio B. Grace, Judge. The verdict is contrary to law. 36 Ark. 451; 37 Ark. 562; 39 Ark. 413; 41 Ark. 161. The verdict is not sustained by the evidence. 66 Ark. 439. It is sufficient if the fireman and engineer keep a lookout. 62 Ark. 182; 64 Ark. 236. The owner of domestic stock is not required to keep them in enclosures. 46 Ark. 207; 48 Ark. 366. The testimony as to the tracks and the kind of night was proper to go to the jury. 41 Ark. 157.

Joel D. Conway, Judge. J. H. Beidler held the lands in trust for his grantor. 33 Ark. 762. A resulting trust may be proved by parol. 45 Ark. 472; 48 Ark. 169; 11 Ark. 82; 40 Ark. 146. The same rule applies to deeds intended as a mortgage. 5 Ark. 321; 3 Ark. 364; 7 Ark. 502; 18 Ark. 34; 23 Ark. 479; 40 Ark. 146. Resulting trusts, or trusts created by operation of law, are excluded from the effect of our statute of fraud. Sand. & H. Dig. § 4381; 9 Ark. 518; 30 Ark. 239.

John M. Elliott, Chancellor. The statute of frauds must be specially pleaded. 32 Ark. 116; 19 Ark. 34. Full performance takes the contract out of the statute of frauds. 49 Ark. 507. The constructive trusts are not within the statute of frauds. Bispham, Eq. § 95. The statute of fraud can not be set up by a party infected with fraud. 19 Ark. 39; Hill, Trustees, 166; .5 Ga. 346; 26 Ark. 351; 41 Ark. 264; 20 Ark. 273; Sand. & H. Dig. § 3481.

Will P. Feazel, Judge.' The plaintiffs, McPhetrige & Johnson, sued S. W. Fordyce and Webster Withers, as receivers of the Kansas City, Pittsburg & Gulf Railroad Company, and Joseph Gudgel, and allege in substance : That plaintiffs, engaged in the practice of law, were employed bjr Joseph Gudgel to prosecute a claim for personal injuries received by said Gudgel in the employ of the railroad company; that by reason of the said employment the said McPhetrige & Johnson filed a…

<p>Appeal from Garland Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p> <p>On the 13th of October, 1896, J. C. Bohl, through his attornejq C. Y. Teague, filed in the Garland circuit court his complaint against Beb Houpt and nine others, alleging that he loaned to the defendants two thousand dollars, and that they agreed in writing to confess judgment for said amount. On the same day said court rendered a judgment in favor of plaintiff against defendants on said complaint as follows:</p> <p>J. C. Bohl,* plaintiff, v. Beb Houpt, Joe Mazzia, C. S. Bell, John J. Sumpter, T. F. Teague, J. B. Yarnadore, B. Murray, H. MeCafferty, W. W. Waters, Wm. J. Little, defendants.</p> <p>“Comes the plaintiff by C. Y. Teague, Esq., his attorney, and moves the court for judgment herein, and the defendants each confess judgment herein by their written agreement duly filed herein and marked Exhibit A, which is in words as follows, to-wit:</p> <p>“ ‘EXHIBIT A.</p> <p>“ ‘Know all men by these presents, that we, the undersigned, being indebted to J. C. Bohl in the sum of two thousand dollars for borrowed money, do hereby agree to confess judgment at once in the circuit court of Garland county for said sum of money with a stay of execution for sixty days on one thousand dollars and ninety days on one thousand dollars, and we hereby appoint C. Y. Teague, our attorney irrevocably, with full power to enter our appearance in said court and waive all service of summons and consent to the rendition of said judgment.</p> <p>“ ‘Witness our hands this 12th day of October, 1896. Reb Houpt, C. S. Bell, T. F. Teague, John B. Yarnadore, John J. Sumpter, Joe Mazzia, H. McCafllerty, R. Murray, W. W. Waters, Wm. J. Little/”</p> <p>“And, the court being well and sufficiently advised in the premises, it is therefore considered, ordered and adjudged by the court that the plaintiff recover of the defendants the sum of two thousand dollars. And it is further ordered that execution issue on one thousand dollars at the expiration of sixty days from this date, and on the sum of one thousand dollars at the expiration of ninety days from this date.”</p> <p>On May 20, 1899, plaintiff procured an execution to be issued on the above judgment, and placed same in the hands of the sheriff for collection. On June 6, 1899, defendants filed a petition to quash said execution on the ground that the judgment was erroneous and void because the defendants did not appear in court in person and confess judgment, and because no summons was issued and served on them in the case. To this petition to quash the execution appellee demurred in short on the record, which demurrer was sustained because the petition did not show or allege a meritorious defense ‘to the action.</p> <p>On August 12, 1899, appellants filed an amendment to said petition, alleging that it was agreed between Bohl and themselves that Ed Hogaboom, W. W. Wright, John D. Ware, William Sumpter, Jake Houpt and A. C. Houpt should sign said obligation jointly with them before it was to be an executed and binding contract, and with this understanding they signed said obligation and delivered it to C. Y. Teague, as attorney for Bohl, with the distinct understanding that it was not to be delivered to Bohl until Hogaboom, Wright, Ware, Sumpter and the two Houpts also signed the same. And that in violation of said agreement said obligation was turned over to Bohl without the signatures of these persons.</p> <p>On November 11, 1899, appellee filed his answer to said petition denying the allegation of said petition.</p> <p>Subsequently the issues raised by the petition and response came on for trial. Whereupon appellants demanded a jury to try said issues, which demand the court refused.</p> <p>The court,-upon hearing the evidence and the case, rendered judgment dismissing the petition, and defendants below appealed.</p> <p>Power’ in a court to render judgment by confession before action is brought is derived alone from statutory law. Sand. & H. Dig. § 5872; 11 Enc. PI. & Pr. 975; 17 Am. & Eng. Enc. Law (2d ed.) 765; 1 Black, Judg. §§ 51-2; Sand. & H. Dig. § 5761. A judgment rendered without jurisdiction is a nullity. 3 Ark. 532; 5 Ark. 424; 48 Ark.'151;'55 Ark. 30; 18 Wall. 373; 19 Atl. 899; 30 Conn. 198. A presumption that the judgment of a court of general jurisdiction was within the. court's jurisdiction will not arise when the face of the record shows that the court did not have jurisdiction. 44 Ark. 426, 270; 47 Ark. 419; 61 Ark. 474; 55 Ark. 216; 54 Ark. 643; 59 Ark. 487; 62 Ark. 439. The judgment was void. 52 Ark. 373; 35 Ohio St. 107.</p> <p>The judgment was not void. 11 Ark. 519; 11 Ark. 705; 12 Ark. 218; 28 Ark. 171; 34 Ark. 642. Equity will not interfere to set aside a judgment without service unless a meritorious defense is shown. 50 Ark. 458; 52 Ark. 80; 54 Ark. 539; 56 Ark. 544; 13 Ark. 253; 49 Ark. 397. The application to quash came too late. 1 Ark. 497; 10 Ark. 241; 27 Ark. 202; 39 Ark. 485; 14 Ark. 203; 25 Ark. 212; 46 Ark. 552. Questions of fact on the motion to quash should be tried by the court. 52 Ark. 445.</p> <p>The judgment affirmatively shows jurisdiction against collateral attack. Black, Judg. §§ 271, 283. An execution on it cannot be quashed on the ground of error or informality in the judgment. Black, Judg. § 253. The jurisdictional facts will be presumed. 61 Ark. 474; 44 Ark. 426. The judgment was a valid common law judgment. Sand. & H. Dig. § 5872; 34 Ark. 642; Black, Judg. §§ 50, 54, 67, 68, 77. A judgment can be attacked directly only for fraud. 50 Ark. 458.</p>

Will P. Feazbl, Judge. STATEMENT BY THE COURT. The Long Pine Lumber Company in 1898 owned and operated a saw mill in Little River county for the purpose of making lumber. This company made a contract with the firm of Williams Bros., composed of J. M. and A. D. Williams, to cut and deliver logs on the skidway at their mills. To carry out this contract, Williams Bros, employed a number of persons to assist in cutting and hauling the lumber to the mill.

Will P. Feazel, Judge. statement by the court. This is an action of replevin brought by the Klondike Lumber Company against the Bender Wagon Company to recover certain lumber. For a history of the main facts out of which this controversy about the possession of the lumber arose we refer to the statement of facts in the case of Klondike Lumber Company v. Williams, ante, p. 334.

Joel D. Conway, Judge. The burden was upon appellee to show that the contract was made in good faith. 46 Ark. 550; 19 Am. St. 322; 42 Am. Rep. 661; 69 Am. St. 941; 72 Am. St. 838; 75 Am. St. 664. Transactions between husband and wife are open to suspicion. 6 Am. St. 667; Bump. Fr. Con. 57-59; 67 Ark. 110. See also upon the facts of this case, 64 Ark. 377. The court erred in refusing the appellant’s fourth and fifth prayers for instructions. 50 Ark. 46; 62 Ark. 32; 25 Am.

J. S. Lake, Special Judge. The court erred in giving the second instruction for appellee. Tied. Sales § 329; 116 H. S. 610. It was also error to give the third instruction for appellee. 27 111. App. 573; 52 Ark. 458; 5 L. E. A. 693; 102 N. Y. 69; 59 Mich. 180; 50 L. E. A. 714; 59 Md. 427.

Joel D. Conway, Judge. STATEMENT BY THE COURT. The defendants were indicted jointly for campdrunting in violation of the special act of the legislature, to be found on page 26, Acts of 1897, regular session, which makes it unlawful for any person or persons to engage in what is commonly known as camp-hunting and fire-hunting in the counties of Lafayette, Miller and Desha, of this state.” The indictment was returned December 30, 1901, and charges that they did unlawfully…

Hance N. Hutton, Judge. STATEMENT BY THE COURT. At the September term, 1901, of the St. Francis circuit court, the grand jury returned against appellee an indictment in the following terms (omitting caption): “The grand jury of St. Francis county, in the name and by the authority of the state of Arkansas, accuse Tweed Sherman of the crime of grand larceny, committed as follows, to-wit: The said Tweed Sherman on the 1st day of June, 1901, in the county of St. Francis…

Styles T. Rowe, Judge. ■The court erred in excluding the evidence offered by appellant. 4 Wend. 591; 4 Cush. 217; Newell, Mal. Pros. 303; 3 Esp. 7; 63 la. 529. The court adopted the wrong definition of probable cause in the third, sixth and seventh instructions. 32 Ark. 166; 32 Ark. 605; II. 763; 33 Ark. 317; 63 Ark. 387; 64 S. W. 219; 41 Eed. 898, 910. Diligence is not the test. 24 111. App. 289; 58 Mo.

Appeal, from Chicot Chancery Court. Marcus L. Hawkins, Chancellor. There had been a sufficient part performance to take the case out of the statute of frauds. 40 Ark. 391; 55 Ark. 583; 1 Ark. 391; 9 Pa. St. 79. The memorandum was sufficient, under the statute of frauds. 9 U..S. 142; 66 Cal. 69; 3 G. Gr. (Ia.) 430; 13 Mass. 87; 165 Mass. 328; 11 N. J. Eq. 349; 2 Phill. Ev. 96, 182; 131 Pa. St. 230; 12 Pet. 161.

William L. Moose, Judge. A teacher’s license is not tbe subject of forgery and uttering. Sand. & II. Dig. § 1593; 6 Am. & Eng. Enc. Law (2d ed.), 288; 87 Ga. 429, 431. The act charged was harmless. 13 Am. & Eng. Enc. Law (2d ed.), 1102. The court should have given written instructions. Const, art. 7, § 23; 47 Ark. 410; 51 Ark. 184; 11 Am. & Eng. Enc. Law (2d ed.), 261; 28 Ind. 394.

Joi-in N. Tillman, Judge. The burden of proof is upon the party alleging a resulting trust, and the evidence thereon must be clear, full, satisfactory and convincing. 15 Am. & Eng. Enc. Law (2d ed.), 1174-5; 11 Ark. 82; 27 Ark. 88; 48 Ark. 169; 45 Ark. 481; 44 Ark. 365; 64 Ark. 173; 57 S. W. 125; 51 Mo. 268; 57 Mo. 73; 70 Mo. 505; 118 Mo. 506; 129 Mo. 674; 148 Mo. 82; Pom. Eq. Jur. § 1040; 35 Fed. 238; 96 Mo. 361; 33 N. J. Eq. 384; 82 Ya. 376.

Joel L. Conway, Judge. STATEMENT BY THE COURT. On the 5th day of February, 1895, the firm of Lester & Haltom recovered a judgment in Bowie county, Texas, against the Bemis Lumber Company, a Texas corporation, for the sum of $232.75 and $10 for costs. An execution was issued on the judgment, which was never returned.

James S. Thomas, Judge. The lands were exempt from taxation under the act of January 6, 1851. 19 Ark. 360; Abbott’s N. D. vol. 4, p. 364, § 48; 4 Wall. 143; 71 TJ. S. 314; 3 Blackwell, Tax Titles, § 801 et seq. On this account, and also because the sale by the auditor was for an amount in excess of the amount due for taxes, the sale is void. 3 Blackwell, Tax Titles, §§ 807-3; 56 Ark. 93.

George M. Chaplins, Judge. Crill and wife sued Hudson for trespass for cutting timber from the northeast fractional quarter of section 18,… Held: .... “1. That at the said tax sale made on the 13th day of June, 1892, for the non-payment of the taxes for the year 1891, only the 10.88 acres of land, as shown by the original survey of the Hnited States, were sold and purchased by the said Edgar J. Crill, and that he acquired, no right, claim or title to the 148.91 acres of the…

Robert J. Lea, Judge. STATEMENT BY THE COURT. The complaint alleged that on the 28th day of June, 1900, in Perry county, Arkansas, the defendant’s west-bound passenger train was so negligently and carelessly run that it ran over and killed one horse, of the value of $125, the property of the plaintiff, and prayed judgment for that amount.

Robert J. Lea, Judge. STATEMENT. BY THE COURT. The indictment is as follows (after omitting formal part) : “The said James Walton, in the county and state aforesaid, on the 15th day of May, 1901, being a single and unmarried man, unlawfully and feloniously did obtain carnal knowledge of one Julia .Robinson, a single and unmarried female, by virtue of a false expressed promise of marriage to her previously made by said James Walton, against the peace,” etc. Appellant demurred…

Will P. Feazel, Judge. It was error to deny the motion for continuance. Sand. & H. Dig. § 2157; 60 Ark. 564; 62; Ark. 286; 62 Ark. 543; 67 Ark. 290. The indictment was insufficient. 26 Ark. 324. It was error to exclude the testimony with reference to statements of the deceased before the killing. Sand. & H. Dig. §§2113, 2958; 42 Ark. 542. The remarks of counsel were improper. 62 Ark. 516. The indictment was sufficient. 1 McClain, Or. L. § 382; 60 Ark. 564; 29 Ark. 225.

<p>Appeal from Clark Circuit Court.</p> <p>Joel D. Conway, Judge.</p> <p>McNutt stands in the attitude of a trustee for the benefit of creditors, under a general assignment. 53 Ark. 567; 67 Ark. 346; 68 Ark. 75. *</p>

George M. Chapline, Judge. STATEMENT BY THE COURT. J. J. Ramsey & Brother commenced an action of replevin in the Monroe circuit court against W. A. Capshaw to recover the possession of certain sawmill machinery, of which they alleged he held unlawful possession.

Styles T. Rowe, Judge. Appellants E. J. Marshall and Ed Burdett were indicted for grand larceny.

' Styles T. Bo we, Judge. Yiefhaus and Bohenstehn were convicted of illegally selling intoxicating liquors and have appealed. A license to sell liquor is a contractual privilege. 5 Gray, 597; 1 Ohio St. 15; 119 Pa. St. 417; 46 Ala. 329; 9 Mo. 389; 8 Mo. 606, 697; 27 N. H. 289; 3 Har. (Del.) 441. Bights and privileges acquired from the state are protected against adverse legislation. 3 Wall. 51; 10 How. 511; 115 IT. S. 650; 41 Ark. 436; 30 Ark. 128.

Felix G. Taylor, Judge. The verdict is contrary to law, and not sustained by the evidence. 12 Ark. 87; 12 Am. & Eng. Enc. Law (2d ed.), 723; 6 Ohio, 444; 65 Mo. App. 431; 97 N. Y. 590; 12 Ark. 439. C. D. West was a witness of the state, and not the agent of the appellant. 50 S. W. 471; 1 Am. & Eng. Enc. Law (2d ed.), 899; Newell, Mal. Pros. 319; 1 Hilliard, Torts, 506; 15 Ark. 355; 33 Ark. 322; 3 Blackst. 126; 33 Ark. 322.

Wm. L. Moose, Judge. The crossing was not a public one. Sand. & H. Dig. § 6196. Liability of railway companies for injury occasioned by frightening of horses. 56 Ark. 387; 60 Ark. 409) Elliot, Railroads, § 1264; 81 Tex. 1; 85 Wis. 570; 74 Wis. 704; 89 Wis. 79; 134 Ind. 16; 98 3ST. C. 247. No negligence is shown in the use of the steam engine, cars or railroad. 51 Cal. 605; 14 S. E.'616; 69 Me. 208; 110 Mass. 222; 56 Conn. 44.

Charles W. Smith, Judge. The pretended deed of trust was a part of the scheme to defraud. Appellees could not profit by it. 33 Ark. 63; 21 Ark. 22. The directors were trustees of the property of the company for creditors. 33 Ark. 305; 38 Ark. 17. As a director, Albie could not be a bona fide purchaser. 130 U. S. 43. He was charged with notice of the fraud. 63 Eed. 496. The pretended mortgage was not authorized. 55 Ark. 473.

Jeptha H. Evans, Judge. STATEMENT BY THE COURT. George W. Tajdor was employed by the St. Louis, Iron Mountain & Southern Railway Company as a brakeman on one of its freight trains. On the 18th of January, 1899, the train upon which he worked left Yan Burén, Arkansas, for Coifeyville, Kansas. The train reached Salisaw, Indian Territory, about four o’clock in the afternoon, and had two cars to be left at that point.

Citarles W. Smith, Judge. Foreign corporations may do business as the law directs. Const., art. 12, § 11; Sand. & H. Dig. § 6326; Acts 1889, 43, 46; 13 Pet., 519; 10 Iiow. 376; 28 Conn. 289. No particular form of words is essential to the creation of a corporation. Aug. & S., Corp., § 76; 22 Wend., 69; 73 Ala. 325; 25 S. E. 982. Foreign corporations for the purpose of jurisdiction are domestic. 41 S. E. 963; 161 TJ.

Zaciiariai-i T. Wood, Justice. The indictment is insufficient. 2 Bish., Cr. Pro., § 527-534; 55 Ark. 558 ; 70 Ark. 523; 65 S. W. 249. The argument of counsel was prejudicial. 62 Ark. 133; 58 Ark. 473. It was error to take the pistol to the jury room. 51 Ark. 553. A new trial should have been granted on the ground'of surprise. 18 Ark. 570; 20 Ark. 53; 26 Ark. 496. The testimony of the'jurors to support the'motion for new trial was improper. Sand. & PI. Dig., § 2269.

Leland Leatherman, Chancellor. The complaint does not state a cause of action. Sand. & H. Dig., § 5131; 88 111. 221. The legislature may empower a municipality to tax privileges. 11 S. C. 228; 22 Mo. 105; 49 Mo. 504; 3 Allen, 407; 19 Mo. 13. The ordinance was fully authorized. 59 Pa. St. 253 ; 67 Ark. 152. The court had no jurisdiction of the subject matter. 39 Ark. 412; 27 Ark. 625.

Styles T. Eowe, Judge. The execution of a note and mortgage to secure payment of fine and cost does not bar the right of appeal. 32 Ark. 200; 38 Ark. 522; Act, 1893, 50.

Appeal- from Crawford Circuit Court. Jeptha H. Evans, Judge. STATEMENT BY THE COURT. The appellant was jointly indicted with Ed Shaw for grand larceny, charged with having stolen $20.00 in money from Jim Bryant. He pleaded “Not guilty,” was tried and convicted, filed a motion for a new. trial, which being overruled he excepted and appealed to this court.

Jeptiia H. Evans, Judge. The offense was barred by statute. 14 Ark. 549; 45 Ark. 355. There was no proof that Little Rock & Fort Smith Railway was a corporation. 20 Ark. 204; 58 Ark. 98; 5 S. W. 157; 32 S. W. 698; 4 Denio, 364; 12 Wend., 547; 58 Ark. 17. There was no proof that the railway company had title to. the lands. 42 Ark. 73; 53 Ark. 244. The demurrer should have been sustained. Sand. & H. Dig. §§ 2074-5; 1 Bish., Cr. Law, 566, 576.

<p>Indictment — -Sabbath Breaking — Negativing Exceptions. — Under Sand. & H. Dig., § 1887, providing that “every person who shall, on the Sabhath or Sunday, he found laboring, or shall compel his apprentice or servant to labor or to perform other services than customary household duties, of daily necessity, comfort or charity, on conviction thereof shall he fined,” etc., an indictment which fails to negative the exceptions in the statute is had.</p>

Jeptha H. Evans, Judge, on exchange of circuits. It was error to give abstract instructions. 54 Ark. 336; 41 Ark. 382; 42 Ark. 57; 22 S. W. 160; 2 Ark. 308; 16 Ark. 651; 69 Ark. 380; 63 Ark. 108, 177. The instructions deprived the appellant of the benefit of a reasonable doubt. 66 S. W. 184, 1101; 66 Ark. 449; 64 S. W. 270, 965; 36 S. W. 645; 55 S. W. 896; 20 Ark. 166; 38 S. W. 488; 62 Ark. 478; 58 Pac. 860; 56 Pac. 848;' 57 Pac. 647; 33 Am.

Charles A. Phillips, Special Judge. STATEMENT BY THE COURT. At the September term, 1902, of the Baxter circuit court, the grand jury returned against appellee and Polk Hall the following indictment, omitting the caption: “The grand jury of Baxter county, in the name and by the authority of the state of Arkansas, accuse Will Smith and Polk Hall of the crime of violating the stock laws, committed as follows, to-wit: The said Will Smith and Polk Hall, in the county and state…

Francis circuit court. Hanoe N. Hutton, Judge. There may be constructive fraud compatible with the most honest and honorable intentions. 34 Ark. 466; 12 Am. & Eng. Enc. Law, 99; 140 Mass. 488. A court of equity can interpose to correct fraud in confirmed settlements. 48 Ark. 547; 40 Ark. 402; 33 Ark. 729. The settlement of an administrator’s account will be reopened in equity at the instance of sureties to let in defenses. 57 Ark. 532.

Hance N. Hutton, Judge. The right to foreclose a mortgage is created by the power contained in the instrument. 55 Ark. 227; 109 111. 442. The substituted trustee may act. 2 Jones, Mortg., 1774; 26 Am. & Eng. Enc. Law, 887. The power to appoint a new trustee can only be given by the author of the trust. 1 Perry, Trusts, 287; 48 S. W. 127. Unless the trust deed requires it, the reason for the substitution need not be given. 26 Am. & Eng. Enc.

Joel D. Conway, Judge. STATEMENT BY THE COURT. Ada Cowling, the appellant, brought this suit in ejectment against Joe Muldrow to recover possession of the northeast quarter of section 11, township 11 south, range 26 west, under a tax deed made June 11, 1900, by the county clerk of Hempstead county, on a sale made on the 13th day of Jube, 1898, for taxes of 1897.

Will P. Feazel, Judge. The grant of swamp lands made to the several states by the act of September 28, 1850, was a grant in praesenti, and conferred a present vested right. 20 Ark. 100; 24 Ark. 431; 29 Ark. 56; 32 Ark. 833; 54 Ark. 251; 121 TJ. S. 488; 9 Wall., 95; 57 N. W. 23. The recitals in the deed are sufficient. Sand. & H. Dig. § 4658.

Elbridge G. Mitchell, Judge. Parol evidence will not be admitted to prove that the consideration in the deed was never paid, for the purpose of invalidating the deed. Tied. Real Prop. § 801; Perry, Trusts, §§ 162, 95. A devise of real estate to an unincorporated society for charitable uses is valid. 9 Mete., 280; 4 Mete., 379. Courts will not construe an estate to be upon condition if the language of the deed will admit of any other reasonable interpretation. 2 Dev.

Alexander M. Dueeie, Judge. STATEMENT OE THE COURT. One of the defendants, A. E. Bailey, was, in December, 1899, arrested and brought before the mayor of Malvern charged with having committed an assault and resisted an officer in said town. He was permitted to give bail for his appearance at the trial in the sum of three hundred dollars.

John N. Tillman, Judge. Bill by W. S. Wadsworth ■ and another against G. B. Bugg, From an order sustaining a demurrer to the bill plaintiffs have appealed. Under the testimony plaintiff was not entitled to recover. 5 Ark. 640; 8 Ark. 155; 13 Ark. 71; 26 Ark. 309; 34 Ark. 632. Appellants were not insurers of plaintiff’s safety. Ordinary care was the full measure of their duty. 35 Ark. 602; 46 Ark. 555; 44 Ark. 524; 51 Ark. 467; 59 Ark. 98; 41 Atl. 680.

Charles W. Smith, Judge. A contract, good in the state or county of its inception, is so in every other. Bish. Cont. §§ 1370-73; Clark, Cont., 502; Lawson, Cont., § 347; Jones, Chat. Mort., 299; Cobb, Chat. Mort., § 475; 91 TJ. S. 406.

Styles T. Bowe, Judge. STATEMENT BY THE COURT. W. F. Chandler was employed to work as a miner in a coal mine owned by the Kansas & Texas Coal Company. He commenced work about the 18th of January, 1900, and continued in the mine until the 19th-day of February, when he was injured by the fall of a rock from the roof of the room in which he was at-work mining coal. Chandler sued the company for damages.

Edward W. Winfield, Judge. STATEMENT BY THE COURT. This was a petition by B. W. Green and others to the circuit court of Pulaski county for a writ of mandamus to T. C. Monroe, as auditor of the state of Arkansas, to command him to audit a claim for sixty dollars, and issue to the petitioners a warrant on the treasury of the state for said amount, to be paid out of an appropriation made by an act of the General Assembly at the session of 1903, authorizing the plaintiffs, as…

Joel D. Conway, Judge. STATEMENT BY THE COURT. Barbara Franklin brought this action in the circuit court to obtain a decree for partition of certain lands described in the complaint, and which the complaint alleged were owned by the plaintiff and defendant as tenants in common. The answer of the defendant set up that he was in the actual possession of the land under claim of title to the whole tract.

Will P. Feazel, Judge. In case of mutual debits and credits between an estate of a bankrupt and creditor, the accounts shall be stated, and offsets against each other allowed. Acts of Bankruptcy § 68-a; Brad. Bankruptcy 676, 677, 681; 6 N. B. R. 71; 12 Fed. 315; 37 F. C. 2519; 3 Biss. 273.

Chas. W. Smith, Judge. Appellee is bound by the acts of its agent within the scope of his apparent authority. 55 Ark. 629; Meeh. Ag. §§ 86, 283, 289; 42 Ark. 99; 25 Ark. 262. The non-production of evidence within the power of a party creates a strong presumption that, if produced, it would be against him. 32 Ark. 346; Brad. Ev. 602; 33 N. Y. 508; 92 N. Y. 554; 17 Tex. App. 452. There is no presumption in favor of private laws. Brad. Ev. 598.

Jesse C. Hart, Chancellor. STATEMENT BY THE COURT. This action was instituted by the appellant, as plaintiff in the court below, for the purpose of collecting certain assessments which it alleged were due and remained unpaid by the appellee.

Thomas P. McGovern, Special Judge. STATEMENT BY THE COURT. This is an action against sureties on a constable’s bond. The complaint alleges that the plaintiffs, Wm.

Apeal from Sebastian Circuit Court in Chancery.' Styles T. Eowe, Judge. STATEMENT BY THE COURT. In the year 1876 Wilhelmina Clements, the plaintiff in this action, was married in Sebastian county to John C. Grober, a farmer, living in that county. At the time of the marriage she was about thirty-five, and he was nearly eighty years of age.

Geo. M. Ghapline, Judge. The court erred in failing to require plaintiff to set out in his complaint upon which road the loss occurred. Hutch, Car. § 760. The plaintiff should have shown that the goods were delivered to appellant. Hutch. Car. §§ 102, 103; 5 Am. & Eng. Enc. Law (2d ed.) 190.

<p>1. Indictment- — Election Between Counts. — It was not error to refuse to compel the state to elect between two counts of an indictment for the unlawful sale of intoxicating liquors where the second count recites that it relates to the same offense charged in the first count. (Page 575.)</p> <p>2. Instruction — ■'When Harmless. — On a trial of one charged with selling intoxicating liquors in prohibited territory, an instruction which included the giving away of liquors is harmless if there was no evidence as to the giving away of liquors. (Page 575.)</p> <p>3. Special Act — Proof.—The fact that a special act of the legislature was printed by public authority is prima facie proof that it is a law as it purports to be. (Page 576.)</p> <p>4. Statute — Recitals as Proof. — A recital in an act of the legislature as to the exact location of a certain college in a town is prima facie proof that the college is located within the town. (Page 576.)</p> <p>5. Same. — Where a special act prohibited the sale of intoxicating liquors within a radius of ten miles of a certain college in a town named, proof of a sale thereof on the outskirts of the town will sustain a conviction, as it will be inferred that the sale was made within a radius of ten miles of the college. (Page 576.)</p>

<p>Appeal from Arkansas Circuit Court.</p> <p>James S. Thomas, Judge.</p> <p>Where a note is given to cover supplies and money to be furnished, a failure to furnish a part thereof is a partial failure of consideration. 49 Ark. 430; 62 Ala. 443; 87 Ala. 409; 13 S. W. 521; 3 Pin. (Wis.) 78; 23 How. 14; 64 Ark. 39; 1 Jones, Mortg., § 374. Between a maker and payee of a note, the consideration is open to inquiry. 1 Dan. Neg. Inst. § 174; Smith, Merc. Law, 338. And defendant may set up a partial or total failure of consideration. 1 Dan. Neg. Inst. §§ 201, 203. The account stated is in the nature of a new promise or undertaking. 2 Green. Ev. § 127. Any errors may be shown or corrected under the general issue. 8 M. & W. 140; 1 Wait, Actions & Def. 192; 11 Wheat, 237, 255; 1 Johns, 36; 107 H. S., 325. A settled account is only prima facie evidence of its correctness. 13 Ark. 609; 41 Ark. 502; 53 Ark. 155; 55 Ark. 376; 68 Ark. 534; 1 Dan. Neg. Inst. § 201; 14 Bush, 172; 13 N. Y. 542; Kerr, Fraud & Mist., 396. - It was error to deny the motion to transfer to equity. Story, Eq. Jur., § 523; Story, Eq. Jur., § 525; 31 Ark. 345; 49 Ark. 575; 51 Ark. 198; Sand. & H. Dig. § 572.</p> <p>A plea of nil debet is bad. 60 Ark. 611; 35 Ark. 106; 39 Ark. 147; 32 Ark. 105; Bliss, Code PL, 334; 40 Ark. 360; 43 Ark. 452; 44 Ark. 524. Appellant was bound by the stated account. Sand. & H. Dig. § 2972.</p> <p>Where an act is to be performed within a specified period from or after a day named, the day thus designated is excluded, and the last day of the period included. Sand. & H. Dig. § 5849; 49 L. E. A. 202; 42 Ark. 491; 39 Ark. 558; 35 Ark. 386; 38 Ark. 216; 14 S. W. 946; 56 Ark. 594; 21 N. E. 781; 91 111. 91; 105 111. 264; 48 N. E. 992.</p> <p>The judge allowed the bill of exceptions presented. 56 Ark. 600. Section 5849 of Sandels & Hilhs Digest is constitutional. 9 Ark. 133; 13 Ark. 676; 33 Ark. 568; 56 Ark. 594; 57 Ark. 1, 60; 64 Ark. 597. The signing of the bill of exceptions does not cut off all inquiry into its truthfulness. 43 Ark. 230, 17; 21 Am. Dig. §§ 80. 89; 44 Ark. 524.</p>

John B. McCaleb, Circuit Judge. statement by the court. John Eady, a merchant of Hardy, Ark., was, in August, 1900, indebted to Stewart, Gwynne & Co., of Memphis, Tenn., in the sum of $114.66, on account for goods and merchandise sold and delivered.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. L. W. Krumm lived at Bald Knob, and owned a farm and sawmill on the railroad near Fakes station in Woodruff county. In September, 1900, he got on the caboose of the local freight train at Bald Knob to go to his place at Fakes. When the train had gone about four miles, it stopped to unload some cinders. The point at which it stopped was between one and two miles east of the station Rio Vista.

<p>1. Widow — Homestead.—The fact that a widow at her husband’s death owned land in her own right, upon which she and her husband formerly lived, will not preclude her from claiming a homestead in his land which they had occupied as such for many years preceding and up to his death. (Page 596.)</p> <p>2. Same — Sep abate Homestead. — Const. 1874, art. 9, § 6, providing that “if the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt,” etc., refers to a homestead selected by the widow in her land after her husband’s death, and not to a former homestead on her land which she and her husband had abandoned prior to his death. (Page 598.)</p>

Joel D. Conway, Judge. The equity of redemption was an asset in the hands of the administrator, and it was his duty to sell it for the best advantages of the estate. Sand. & H. Dig. § 183; 18 Ark. 85. The administrator was a trustee for creditors. 39 Ark. 524; 54 Ark. 627; 41 Ark. 264. ■ Probate courts are courts of record, and their judgments are not open to collateral attack. 11 Ark. 519.

William L. Moose, Judge. Equity may enforce against lands descended a claim against the decedent’s estate, when the amount of such claim was not fully determined until after administration closed. 56 Ark. 474; 14 Ark. 246; 31 Ark. 229; 53 Ark. 291; 14 Ark. 309; 40 Ark. 433; 32 Ark. 714.

<p>1. Appeal and Error — Chancellor’s Finding — Concltjsiveness.— Though a chancellor’s findings are not conclusive, they will not be disturbed unless they appear to be clearly against the evidence. (Page 608.)</p> <p>2. Ejectment — Improvements—Measure oe Value. — The measure of value of the improvements for which Sand. & H. Dig., § 2590, authorizes compensation to be made to one holding under color of title before possession is transferred to the owner of the land in ejectment is the enhanced value of the land, and not their actual cost. (Page 608.)</p>

Antonio B. Grace, Judge. The description of the lands being uncertain, the measure of damages was unascertainable, and for this the judgment should be reversed. 12 Ark. 399; 41 Ark. 42; 58 Ark. 39; 66 Ark. 113; 68 Ark. 263. The complaint should have been verified. Sand. & Ii. Dig. §§ 5744, 5775, 5776.

Thomas B. Martin, Chancellor. Appellants had not abandoned their homestead. 37 Ark. 283; 48 Ark. 539; 55 Ark. 55; 56 Ark. 621. The lien of a judgment does not attach to the homestead. 56 Ark. 158; 52 Ark. 101. There are no creditors as to exempt property. 31 Ark. 546; 43 Ark. 434; 52 Ark. 101; 57 Ark. 242; 67 Ark. 133. No presumption of fraud arises from payment of money for support of family. 57 Ark. 331; 67 Ark. 110.

A. Curl, Special Chancellor. STATEMENT BY THE COURT. On the 9th day of February, 1891, W. H. Gaines and others executed and delivered to Wm. McGuigan a deed conveying to him certain land in Garland county, for which land McGuigan paid the sum of $4,600.