Volume 72 — Arkansas Reports

Geo. M. Chaprine, Judge. If the child was old enough to be sui juris and capable of taking care of itself, it was guilty of contributory negligence; and it was error for the court to assume that the child was not so capable and use such expressions in regard to him as “a person of tender years” and “of imperfect judgment and discretion.” The parent was guilty of contributory negligence.

Joseph W. Martin, Judge. The right to use a well on the premises of another is an easement, and must be conferred by writing. 19 Ark. 23; 54 Ark. 519549 Ark. 503, The measure of damages for failure'to furnish water, as specified in appellant’s contract, would be the cost of deepening the well so as to secure the requisite supply of water. 47 Ark. 168; 22 Ark. 455; 53 Ark. 1555 19 Ark. 115; 13 Ark. 9; 5 Ark. 146; 39 Ark 344.

Geo. M. Chapline, Judge. The ordinance was not invalid. Acts 1899, 218, 219. The act of 1899 repealed that of 1895. Ordinances have no force beyond the corporate limits. 17 Am. & Eng. Ene. Raw, 254; 7 Lea, 441. The act of 1899 being a general act for the purpose of regulating the “impounding of animals in cities or towns,” and that of 1895 being a special act to “protect stock raising,” the former does not repeal the latter. 50 Ark. 137; 53 Ark. 417; 69 Ark. 517.

William S. Curran, Special Judge. The act of April 1, 1901, must be strictly construed. 6 Ark. 131; 13 Ark. 405; 43 Ark. 413; 59 Ark. 341; 53 Ark. 334. The court erred in commenting upon the evidence. 38 Ark. 509; 89 '111. 90; 51 Mo. 160. It was error to allow the prosecuting attorney to read in evidence the report of the secretary of state to prove that defendant was a corporation. 23 Ark. 730; 14 Ark. 502.

Wileiam C. Rodgers, Special Judge. statement by the court. Bill Whitmore, the defendant, was indicted for selling intoxicating liquors without license. On the trial there was evidence tending to prove that he sold whiskey without license.

Hance N. Hutton, Judge. The evidence does not show and the court will not presume that the beer referred to was an intoxicating liquor. Black, Intox. Liq.; Rice, Ev. 97; 20 Arle 17; 6 Ark. 258; 69 Ark. 360; 39 Ark. 216; 13 R. I. 211; 43 Am. St. Rep. 56; 116 Mass. 7;. 34 Me. 165; 24 Ela. 363, s. c. 1 L. R. A. 823; 116 N. Y. 450, s. c. 6 L. R. A. 699; 120 111. 21, s. c. 60 Am. Rep. 349.

Jno. M. Eeeiott, Chancellor. The complaint sets up a cause of action, and the evidence .fully sustains its allegations. The defendant had the right to return the property and be discharged from liability, no damages being assessed for detention of the property. 20 Ark. 283; 14 Ark. 427; 50 Ark. 303. Judgment in replevin must be in the alternative, but it is not optional with either party to demand, a money satisfaction of the judgment.

Antonio B. Grace, Judge. The evidence shows conclusively that the accident was not due to any negligence on the part of appellant, and the judgment must therefore be reversed. 67 Ark. 514; 66 Ark. 439; 53 Ark. 96; 62 Ark. 182; 43 Ark. 225; 66 Ark. 248; 14 Am. & Eng. R. Cas. (N. S.) 30; 83 Ga. 393. The same degree of care is not required of trainmen in avoiding the running over of dogs as of other animals. 3 Ell. Rds., § 1190; 40 Fed. 281; 95 Tenn. 413.

Blbridge G. Mitchell, Judge. County warrants are receivable for taxes (Const, art 16, § 10), and have various other commercial values. See also Sand. & H. Dig., § § 1002, 1243. It was the duty of the county to issue ■ the warrants, regardless of the state of its finances. But for the fact that the county court, in addition to refusing to issue the warrants, disallowed the claim and dismissed the petition, mandamus, instead of appeal,- would be the proper remedy. 103 Fed. 418.

Wirr P. Eeazer, Judge. Action by E. O. Bagley, as administrator of the estate of Paul Bagley, deceased, against Sarah Weaver and two others. The facts are stated by the court as follows: statement BY THE COURT.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. The Southern Cotton Oil Company of Tittle Rock, Arkansas,, agreed with the partnership firm of Hartgrove & Clegg that the cotton oil company would furnish to the firm cotton seed hulls, and also a quantity of prime cotton seed meal,, sufficient to feed a large number of cattle which Hartgrove & Clegg agreed to bring from Texas and to feed at the cattle pens of the company near Tittle Rock.

Felix G. Taylor, Judge. An officer is entitled only to such fees as the law expressly prescribes. 25 Ark. 234; 32 Ark. 32; 31 Ark. 266; 44 Ark. 31147 Ark. 442; 55 Ark. 387; 56 Ark. 249; 57 Ark. 489; 38 S. W. 518. The provisions of Sand. & H. Dig., § 3550, do not apply to cases where a fee is sought to be charged against a county. 32 Ark. 45.- See also 38 S. W. 518, construing § 3309, Sand. & H. Dig.

Styles T. Rowe, Judge. To authorize set-off, debts must be mutual. 27 Ark. 478; 23 Ark. 333; 7 Ark. 333; 7 Ark. 520. It was error to allow an individual indebtedness to be set-off against a firm indebtedness. The evidence does not sustain the theory that appellee owned the claim, or that appellant was indebted to appellee. Appellant failed to except to Hollenbeck’s deposition, as required by law. Sand. & H. Dig., § 3011.

<p>Appeal from Howard Circuit Court.</p> <p>Wide P. Feazel, Judge.</p> <p>The court erred in admitting parol evidence to vary the terms of the written contract. 4 Ark. 179, 182, 183; 5 Ark. 651, 655: 13 Ark. 496, 499; 5 Ark. 672, 675; 15 Ark. 543, 548; 24 Ark. 210, 212; 29 Ark. 544, 547; 30 Ark. 186, 197; 31 Ark. 411, 420; 35 Ark. 156; 45 Ark. 177, 198. This rule has been expressly applied to contracts of insurance. 51 Ark. 441; 58 Ark. 277, 281; 62 Ark. 43, 47. A contract cannot rest partly in writing and partly in parol. 29 Ark. 544, 547. The court erred in allowing secondary evidence as to the contents oí the proofs of loss, with-* out a foundation first laid therefor by a showing that they were lost or destroyed. 1 Ark. 232; 4 Ark. 574; 7 Ark. 112; 14 Ark. 141; 65 Ark. 475; 68 Ark. 606. The stipulations in the policy as to proofs of loss are binding, and must be complied with. 6 T. R. 710; 13 Me. 265; 49 Me. 282; 7 Cow. 462; 85 Me. 289; 20 Wis. 217; 48 Kan. 239; 96 la. 39; 64 Ark. 590; 87 Fed. 118; 60 Ark. 532, 584; 57 N. E. 577; 65 Ark. 54; 43 Ind. 418; 91 Md. 596; s. c. 46 Atl. 1010; 78 Cal. 468. The court erred in refusing the twelfth instruction asked by appellant, upon the right of one person to insure the property of another. 15 Wall. 643; 104 U. S. 775; 97 Va. 74; 92 Mich. 584; 76 Tex. 400; 9 Fed. 249; 46 Mich. 473; 104 Ga. 446; 51 S. W. 312. The conditional character of appellee’s title destroyed the validity of the policy. 63 Ark. 187; 86 N. Y. 423 ; 116 N. Y. 106-116. Acceptance of the policy was tantamount to a representation that the assured was the sole and unconditional owner of the property as mentioned in the contract of insurance. 68 Mo. 127; 86 N. Y. 123. The failure to furnish the required proofs of loss avoided the policy. 1 Mo. App. 269; 62 Fed. 222, 226. The misrepresentation as to title avoided the policy from the beginning. 116 N. Y. 100, 116. Ostrander, Fire Ins., § 57, p. 202; 7 Cow. 462. Adjustment does not waive any rights. 2 Wood. Ins., § 450; 68 Minn. 373.</p> <p>It was not incumbent upon the plaintiff to allege specific performance of all the requirements of the policy. Sand. & H. Dig., § 5757- The whole policy was part of the complaint. 33 Ark. 722. It was the duty of defendant to.set out specifically all acts relied upon as violations of the policy. Newman, Code PI. 541-2; 22 Wis. 412. The answer of appellant does not raise the defenses here argued, as to insufficiency of proofs of loss. These denials must be specific. 32 Ark. 97; 35 Ark. 104; 54 Ark. 525; Maxw. Pldg. 96; Newman, Pldg. 511; Pomeroy, Code Rem. 618, 620. The rule forbidding the use of copies of a paper in evidence when the original can be procured applies only to cases where the issues turn upon the language of the writing. 1 Greenl. Ev., § 278. The company, by its subsequent dealings with appellee, waived any defects in the proofs of loss. 65 Ark. 61; 66 Ark. 588. Failure to object to the proofs of loss in time for their amendment waived any defect therein. 134 Pa. St. 570; 151 Pa. St. 607; 84 la. 135; 53 Ark. 494; 68 Wis. 519; 12 Gray, 265; Kerr, Ins., 573, 580. By demanding corrected proofs of loss all defenses founded upon misrepresentations as to title were waived, 53 Ark. 494. Appellee had an insurable interest in the property, and, the company being informed of his title, the policy is not void because his title was not absolute and unconditional. 52 Ark. 17; Wood. Ins., § § 256, 260-1, pp. 480, 487. Further, that appellee’s title in this case was sufficient, see 48 Ark. 165; 70 Wis. 200 ; 117 Pa. St. 474; 112 Ala. 128.</p> <p>Upon the sufficiency of the answer see, generally, Sand. & II. Dig., § § 5604, 5717, 5722; 50 Ark. 466, 475. The sufficiency of said denials cannot be questioned, for the first time, upon appeal. 70 Ark. 558, 563.</p>

Arexander M. DuEEir, Judge. statement by ti-ie court. This is an action by the Hot Springs Railroad Company against C. S. Williamson and Fannie G. Williamson to recover damages on account of a breach of a covenant for quiet enjoyment. The plaintiff alleged in its complaint as follows: “Par. 1.

Charles W. Smith, Judge. statement by ti-ie court. Appellee filed its complaint in the Columbia circuit court, against A. J. Dennis, J. M. Dennis and D. J. Dennis, alleging that on the 23d day of October, 1893, the defendant, A. J. Dennis, executed a deed to lot 73, block 1, in the town of Magnolia, Arkansas, to his co-defendant, J. M. Dennis, for the consideration of $850, and that on November 28, 1894, he executed a deed to lot 3. block A, in same place, to D. J. Dennis,…

Antonio B. Grace, Judge. statement by the court. D. C. Hill brought an action against the J. I. Porter Lumber Company and George Jordan to recover damages for trespass upon land and for conversion of timber and logs. He alleged in his complaint that “he is and has been for ten years last past the owner and in constructive possession” of certain lands in Jefferson county described in the complaint.

Jno. M. EruoTT, Chancellor. The taking of the bonus of $407.09, over the legal rate of interest,, constituted usury. Const, art. 19, § 13; Sand. & H. Dig., §§ 5077, 5084, S085, 5086; 55 Ark. 143; 51 Ark. 534; 51 Ark. 346; 54 Ark. 155; 64 Ark. 249; Webb, Usury, 93.

Thomas B. Martin, Chancellor. The fee of twenty-five cents to the collector for making a certificate of purchase is properly taxable as costs. Sand. & H. Dig., § 6613 ; 63 Ark. 475. There was a sufficient compliance with Sandels & Hill’s Digest, § 630. 68 Ark. 211. The record entries arc- conclusive, and cannot be contradicted or explained by parol. 61 Ark. 636; 61 Ark. 414. The action of appellees was barred. Sand. & H. Dig., § § 6634, 4819; 25 A. & E- Enc. Law 739, 740.

Francis Circuit Court. Hance N. Hutton, Judge. STATEMENT BY THE COURT. Pettus & Buford, a mercantile firm, on January 1, 1900, presented to the probate court a claim against the estate of D. S. Cook for $512.57 for balance due on account. Gorman, as administrator of the estate, resisted the claim on the ground that the debt was barred by statute of limitations. The probate court found in favor of the plaintiffs, and allowed the claim.

Marcus L. Hawkins, Chancellor. Suit by W. L,. Blanks against R. E. Craig, as executor, etc., and others. From a decree in favor of defendants plaintiff has appealed. statement by the court. Mary A. Sumner died in 1891. At the time of her death she was the owner of certain lands in Ashley county.

Weland Weatherman, Chancellor. Suit by B. C. Whitlock against Henry Cohn, Charlotte Cohn, George Belding, Henry Belding and W. Mitchell, administrator of the estate of Albert Belding, deceased. Decree was for defendants, and plaintiff appeals. Intent is an essential element of usury. 9 Ark. 258; 25 Ark. 258. This intent must be averred and proved. 25 Ark. 19. In equity the borrower alleging usury must pay or tender the principal with legal interest. 32 Ark. 346; 46 Ark. 50.

Wm. L. Moose, Judge. The demurrer to the indictment should have been sustained. Cf. Sand. & PI. Dig., § 4877; Act April 1, 1895; Act June 26, 1897; Act March 29, 1899. The later act repealed the provision of the Digest, supra, as to sales of native wine. Endl. Int. Stat., § § 184-186; lb. § § 198, 199. The court erred in refusing to give the first instruction prayed by defendant. 23 Am. & Eng. Enc. Daw, 512. The demurrer to the indictment was properly overruled.

Edward W. Wineieed, Judge. statement by the court. The General Assembly of 1903 passed an act for the purpose of completing the state capítol. Act 1903, p. 248.

John M. Erriott, Chancellor. The court acquired no jurisdiction by the warning order. 65 Ark. 90; 61 S. W. 918. The proof of the publication of the warning order was insufficient. 65 Ark. 142. A judgment or decree rendered without notice is absolutely void. Sand. & H. Dig., § 4190; 49 Ark. 411. The decree does not bind anyone, because the parties are not named. 38 Ark. 438.

Jeptha H. Evans, Judge. STATEMENT BY THE COURT. Simon Harrison was indicted for forgery and uttering a forged instrument at the June term, *1903, of the Crawford circuit court. He was acquitted of the forgery, and convicted of uttering a forged instrument. He filed a motion for a new trial, which was overruled, to which he excepted and appealed to this court.

Edward D. Robertson, Chancellor. Suit by the St. Louis Southwestern Railway Company against Addison Grayson, collector of taxes. The facts- are stated by the court as follows: STATEMENT BY THE COURT. The General Assembly of the State of Arkansas, at its session held in 1901, page 27 of Acts of 1901, passed an act establishing a drainage and levee district. The first section is as follows: “Section 1.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. Letitia Stephens is the owner of 80 acres of land in Craig-head county, upon which is her dwelling house and farm. The land lies east of the railroad track of the St. Louis, Iron Mountain & Southern Railway Company, the nearest point of the land being one-eighth of a mile distant from the railroad. A creek running in a southeasterly direction by her land is crossed by the-railroad a short distance west of her land.

John W. Meeks, Judge. STATEMENT BY THE COURT. Lee Bevers was indicted by the grand jury of Baxter county for the crime of an assault with the intent to rape.

Marcus L. Hawkins, Chancellor.- Suit by John Sabine Smith against J. J. Judge and F. P. Poston, trustees, and others. Plaintiff dying before decree, the suit was revived in the names of William E. Curtis and Alice C. Smith, his executors. From a decree in plaintiff’s favor defendants have appealed. The attachment was wrongfully issued, and the court erred in sustaining it. 40 Ark. 132; Sand. & H. Dig. § 325.

<p>Error to Boone Circuit Court.</p> <p>Elbridge G. Mitchell, Judge.</p> <p>An attorney can be disbarred only by the procedure prescribed in Sand. & H. Dig., § § 430-446. 22 Ark. 149, 155; 4 Wall. 333.</p>

Styles T. Rowe, Judge. It was error for the prosecuting attorney, to refer to what occurred in a former trial. 62 Ark. 126; 58 Ark. 473. As to error in other remarks of prosecuting attorney, see: 75 S. W. 584; 66 Ark. 16.

<p>New trial — surprise.—A party who is surprised by the testimony of a witness, but fails to move for a continuance, cannot complain of the surprise on appeal.</p>

Hance N. Hutton, Judge. The sale was complete, and the title passed, when the lumber was delivered and appellant had offered to inspect and pay for same. Generally speaking, the time of transfer of title is dependent upon the intention of the parties. Tied. Sales, § 84; 111 Mass. 10; 1 Mechem, Sales, § 511.

Aelen N. Hughes, Judge. statement by the court. The defendant, H. N. Brewer, was indicted by the grand jury of the Eastern District of Clay county, for the murder of Bud Dortch. Dortch was a bachelor, who lived in a cabin on a small farm in that county. On the night of the 19th of last August, J. L. Dortch, a cousin, went over to spend the night with him.

Jeptha H. Evans, Judge. The demurrer to the indictment should have been sustained. Bish. Crim. Pro. § § 356, 357, 358, and cases cited; lb. § 373; Bish. Cr. Law, 535; 13 Ired. 491; 58 Mo. 256; 58 Ark. 248. The indictment should have alleged the change to have been made without the knowledge or consent of the party making the original instrument. 62 Ark. 459; 59 Ark. 165; 55 Ark. 389. The offense of uttering was not complete. 21 Wend. 509.

Arren Hughes, Judge. The court erred in excluding the evidence of Sudie Vowell and Pearl Keller, as to statements made by Russell Williams. The ■court also erred in not granting a new trial because of the incompetency of Kirby as a juror. 66 Ark. 53; 64 Mo. 358; 37 Mo. 347; 64 Pac. 356; 84 N. W. 541; 50 Mo. 309; 19 Oh. 198; 3 S. E. 277; 26 So. 985; 2 Bond. 147; 3 Scam. 412; 32 Pac. 166; 3 Dali. 515; 9 Cal. 299; 8 la. 477; 6 Eed. 844; 15 Pac. 182; 4 Oh. St. 234; 1 Whart. Cr.

Robert J. Rea, Judge. This was a proceeding in rem to obtain the seizure and destruction of certain gaming devices. R. A. Furth intervened as their owner, and has appealed from an adverse judgment. The' facts are stated by the court as follows: STATEMENT BY THE COURT.

<p>Sabbath breaking — work of necessity. — Where a belt in a saw mill employing 200 men was broken on a Saturday through an unforeseen defect, and could not be repaired until Sunday, for lack of gasoline, which could not be procured earlier, the repairing of the belt on Sunday, without which the mill would have to be shut down on Mondáy, as it required 18 hours for the belt to dry after it was glued, was a work of necessity within the exception in the statute against Sabbath breaking (Sand. & H. Dig. § 1887).</p>

Frederick D. Fulkerson, Judge. The right conferred under the act of 1899 (P-12) to a day in court before the destruction of the property contemplates that a day shall be fixed for hearing the cause, of which defendant shall have notice, at which time he shall have the right to be heard by himself or counsel, and to make his defense. 58 Ala. 599; 43 Am.

Antonio B. Grace, Judge. The office of town recorder is a part of the judicial branch of the government, and cannot be held by the county judge. Const. Ark. art. 19, § 6; Sand. & H. Dig. § 5256. As to judicial functions of town recorder,- see Sand. & H. Dig. § 5253. Dual office holding, even in separate departments of the government, is prohibited. Const. Ark., art 4, § 2.

John M. Elliott, Chancellor. No sufficient evidence of adverse possession, was offered. 43 Ark. 81; 57 Ark. 97; 27 Ark. 77; 30 Ark. 640. Appellees cannot redeem. 71 S. W. 255. Appellant wás not guilty of laches. 152 U. S. 413; 173 U. S. 131; hi 111. 328; 24 S. W. 638. Mere delay, not operating to the prejudice of the adverse party, is immáterial. 14 Ga. 238; 136 Mass. 273 ; 152 Mo. 398. The facts upon which a decree is amenable nunc pro tunc should be of record. 21 Am. & Eng.

Joel D. Conway, Judge. The statute (Sand. & H. Dig. § 4877) providing that, upon petition of a majority of the adult inhabitants of certain districts, the county court should prohibit the sale of liquors within such districts, is sufficiently complied with if petitions are filed, though separately, presenting such majority in the aggregate.

Edward D. Robertson, Chancellor. Suit by Sue M. Grider and others against the Three States Lumber Company and another. The facts are stated by the court as follows: STATEMENT BY The COURT. This was a suit in equity brought by the appellants against the appellees to restrain them from subletting certain premises and from tearing up and removing a tramway.

Jesse C. Hart, Chancellor. Suit by the city of Little Rock and others against the town of North Little Rock and others, to restrain… Held: and that the town would assume jurisdiction over the Eighth Ward of the city of Little Rock; that the result would be that both the city and the town would be attempting to exercise jurisdiction over the same territory ; and that great confusion and uncertainty as to the validity of licenses, privileges, and franchises granted by…

Frederick D. Furkerson, Judge. statement by the court. The appellant filed a hill in 'equity in the court below against ~W. W. Brooks, to which the other appellee made himself a party, wherein it alleged that said Brooks, as its agent, had received $200 from it with which to buy the following school lands, towit: The southeast quarter of’ the northeast quarter, and the west half of the southeast quarter, and the northeast quarter of the southwest ¡quarter of section sixteen…

Cross appeals from Newton Circuit Court. Eldridge G. Mitci-iell, Judge. Action by W. B. Worthen and others against H. T. Sidway and others. Plaintiffs have appealed. In an adverse title each party must prove his own title. 17 Col. 243 ; 2 Pac. 920. Title to mining claims on the public domain may be acquired by the statute of limitations.

John N. Tirrman, Judge. statement by the court. Complaint was filed December 26, 1900, wherein it is alleged that the plaintiff is the duly appointed and qualified guardian of Field Kindley, a minor; that said minor is the sole heir at law of Ella Kindley, deceased; that W. W. Spraker died about the year 1896, leaving him surviving said Ella Kindley, his daughter, and other children; that this ward, who is a grandchild of said deceased, W. W. Spraker, is entitled to an…

Antonio B. Grace, Judge. Action by J. F. Culpepper against the city of Pine Bluff, to which E. A. Peterson was made a party defendant also. Judgment for plaintiff, from which defendant appeals. STATEMENT BY THE COURT.

James M. Pittman, Judge. Suit by Whitlow, Lake & Co. against Robert Fletcher. Judgment for plaintiffs, from which defendant appeals. STATEMENT BY THE COURT. Robert Fletcher was in 1897 the owner of two sawmills, which he operated near Combs, Madison county. Pie resided at Combs, and carried on also a small mercantile business at that place.

Robert J. Lea, Judge. Because of the unity of persons a man cannot steal from his wife. 48 Ind. 197; 70 Ind. 317; 43 Tex. 616; 51 111. 162; 26 Mich. 106; 95 N. Car. 693; 82 Cal. 107; 2 Bish. M. W. 24, 152. The common law upon this question is unchanged by the married women’s act of 1875 and article 9, § 7 of Constitution of 1874. 61 Ark. 381 and cases cited; 49 Ark. 430; 30 Ark. 17; 56 Ark. 277; 43 Ark. 212. As to whether same worked a repeal by implication see: Black, Int.

<p>1. Railroad company — liability por acts op receiver. — -Where the trains of a railroad company were in the exclusive possession of a receiver, the railroad company will not be liable for the failure of the receiver’s employees to signal at a public crossing, as required by Sand. & H. Dig., § 6196. (Page 231.)</p> <p>2. Appeal — mode oe bringing motion into record. — Where a motion to require the plaintiff to make its complaint more definite and certain was not made part of the record by bill of exceptions, and the overruling of it was not made a ground of the motion for a new trial, it will not be considered on appeal. (Page 231.)</p>

Styres T. Rowe, Judge. The indictment did not lie against the railroad in the hands of a receiver. The same rules of pleading are applicable to this as to a civil cause, and the court erred in denying the motion to make more specific. 55 Ark. 200; 63 Ark. 135; 59 Ark. 168. The proof was fatally at variance with the indictment. Pomeroy, Rem. & Rights, § 554; 2 Rice, Ev. 661; Newman, PL 723; Maxwell, Code Pl. 583; Green, Pl. & Pr. § 475; 16 N. Y. 255.

Thomas B. Martin, Chancellor. statement by the court. The appellee, Cherry, bought lots 4, 5 and 6, block 17, in Garland’s addition to the city of Little Rock, Ark., at a sale by a commissioner in chancery on June 19, 1899. He found after-wards that these lots had been sold on June 13, 1898, for the taxes of 1896 and 1897.

Thomas B. Martin, Chancellor. Equity has jurisdiction to remove a cloud from title where the owner has only an equitable title. 37 Ark. 645; 44 Ark. 437; 29 Ark. 619; Sed. & W. Tr. Tit. § 154; Pom. Eq'. § 1399; 63 Ark. 412. Even if plaintiff was in possession, he could go into equity to clear his title. 17 How. 47; 94 U. S. 812; no U. S. 15; 3 Pet. 447; Sedg. Const. & Stat Law, § § 488, 548; 44 Ark. 436; 43 Ark. 28; 3 Pom.

John N. Tirrman, Judge. statement by the court. The appellee brought this suit against the appellant, and alleged that he was the owner in fee simple and in possession of the following real estate, in Benton county, Arkansas, to-wit, the west half of the northeast quarter of section 30, west half of (he northeast quarter of section 32, in township 21 north, range 28 west, containing 80 acres more or less; that the defendant claimed title to said land under a deed issued by…

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

Marcus L. Hawkins, Judge. The court had no jurisdiction. 1 Ark. 376; 20 Ark. 12; 25 Ark. 270; 30 Ark. 435. There was no service. 38 Ark. 435; 2 Ark. 14; 6 Ark. 451. The execution sale was void. Sand. & H. Dig. § 3095. The decree is binding on defendants until set aside, 49 Ark. 397; 7 Ind. 385; 1 Ind. 13C; it Ark. 519; 55 Ark. 30. This court will presume that the chancellor had satisfactory evidence before him. 10 Pet. (U. S.) 449.

. William L. Moose, Judge. The action was barred. Sand. & H. Dig. § 5094; 64 Ark. 305; 66 Ark. 204. The power in a mortgage to make a sale must be strictly followed. 73 Mass. 243; 4 Kent, 372; 55 Ark. 326; 56 Ark. 134; 8 S. W. 523. The appointment of the substituted trustee was without authority. Story, Ag. 13; Hill, Trustees, 279, 734; 28 Tex. 169; 2 Perry, Trusts, 495. There was no appraisement. Sand. & H. Dig. § § 5112-5113.

John N. Tirrman, Judge. O’Connor was a necessary party to the action. 59 Tex. 587; 62 Tex. 70. The act of 1889 is in derogation of the common law, and creates a charge against property without the assent of the owner, and must be strictly construed. 54 Ark. 522; 51 Ark. • 315; 59 Ark. 84; 65 Ark. 183; 42 Fed. 475; 65 Md. 99; 23 Fed. 703; 3 Elliott, Railroads, 1068. O’Connor was not a necessary party. 1 Foster, Fed. Pr. § § 50, 52, 59; 62 Tex. 70; 54 Fed. 598; 81 Va. 125.

Wide P. Feazee, Judge. STATEMENT BY THE COURT. This suit was an action in ejectment instituted by the appellees against Walter S. Hopson in his lifetime for the recovery of the fractional section 18, township 13 south, range 32 west, and the rents, issues and profits thereof for the year 1900, which lands they alleged they owned.

Hance N. Hutton, Judge. statement by the court. The Planters’ Compress Company was the owner of a cotton compress at Helena in this state. In this compress there is what is called a “worm” and a “sector,” each of which are necessary to the operation of the compress.

Edward D. Robsrtson, Chancellor. Suit by E. J. Hysmith and others against T. J. Patton, executor of Jane Hysmith, and others. Both parties have appealed. The will gave Jane Hysmith a life estate. 53 N. Y. 351; 95 U. S. 594; 51 Ark. 61. Plaintiffs are not barred. 60 Ark. 70; 58 Ark. 510; 53 Ark. 400; Wood, Him. 528. There was no fraud in the sale ordered by the probate court. Sand. & H. Dig. § 197. The statute of limitations applies. Sand. & H. Dig. § 4818.

Styles T. Rowe, Judge. The order removing the minor’s disabilities did not give him power to make a valid conveyance. 48 Ark. 642; 32 Me. 102; 4 Johns. Ch. 549; 9 Tex. 109. The recital of notice does not appear of record. 55 Ark. 35; 52 Ark. 376; 6 How. Pr. 161. A domestic judgment entered upon the unauthorized appearance of an attorney is void. 30 Kans. 106; 12 Cal. 46; 28 la. 196. The want of jurisdiction may be set up at any time. 48 Ark. 156; 62 Ark. 143.

Will P. Teazel, Judge. The consent of the company for additional insurance was not obtained as required by the stipulation in the policy. Ostrander, Ins. 555 ; 46 N. W. 481; 49 N. W. 246; 6 Gray, 173; 11 Cush. 264; 60 Miss. 313; 98 Pa. St. 41; 73 N. Y. 5. Appellee failed to establish a waiver of the stipulation. 63 Ark. 202; 65 Ark. 250; 62 N. W. 897; 23 Am. R. 701; 130 N. Y. 264; 73 N. Y. 5; s Nev. 273; 14 N. Y. 418; 51 Pa. St. 402; 13 Gray, 79; 8 Gray, 37.

Wirijam L. Moosk, Judge. Declarations are competent to determine the character of the transaction.- 14 Am. & Eng. Enc. Law (2d Ed.), 1051. The transaction was not a gift. 74 Miss. 549. There must be a complete delivery, and the gift fully executed. 59 Ark. 191; 14 Am. & Eng. Enc. Law, 1056. In gifts inter vivos the transfer must be immediate and absolute. 14 Am. & Eng. Enc. Law, 1014; 1 Ark. 83; ii- Ark. 249 ; 60 Ark. 169; 59 Ark. 93, 191.

James D. Shaver, Chancellor. Suit by W. W. Carloss and others against Charles E. Oxford and others. Plaintiffs have appealed from a decree in defendants’ favor. No loan was obtained, and there could be no delivery until that condition was complied with. Tied. Real Property, § § 813-Si 5; 69 Tex. 517; 30 Ark. 61. The loan was a condition precedent. 26 Ark. 617; 28 Ark. 48; 3 Ark. 252; 21 Ark. 238; 3 Ark. 334; Tied. Real Property, 273-7; 4 Kent, 124; 2 Blackstone, 152.

Wirr P. Frazer, Judge. Action by Gilliam & Lyon against C. V. Loewenberg. STATEMENT BY THE COURT. In this case the firm of Gilliam & Lyon held a mortgage executed by T. E. Jones on a crop to be raised by him to secure supplies to be furnished. Jones raised a bale of cotton, and Gilliam & Lyon claim to have furnished him supplies to the amount of $23.60.

Flbridge G. Mitchell, Judge. Action by R. E. R. Flowers against Frank Ramsey and others. From a judgment for plaintiff defendants have appealed. It was error to allow Flowers, as a witness, to testify as to what amount of damage he estimated he had sustained in reputation. 47 Ark. 497. Proceedings before a United States commissioner are not court proceedings. 158 U. S. 278.

Joee D. Conway, Judge. Action by H. R. Asman against the Arkadelphia Lumber Company. The case was formerly on appeal, and is reported in 68 Ark. 526. From a second1 judgment in favor of plaintiff, defendant has appealed. The motion for new trial, upon the merely general ground that the verdict was contrary to law, was sufficient. 5 Ark. 702; 32 Ark. 154. Appellant complied with the law in presenting the bill of exceptions to the presiding judge and requesting him to sign it.

Styles T. Rowe, Judge. The court acquired jurisdiction of the garnishee by service had in a county other than that of his residence. Sand. & H. Dig. § 5696. A garnishee is a defendant, within the meaning of the aforesaid section. 66 Ark. 582; 70 Ark. 127.

Geo. M. Chaprine, Judge. E. L. Chaney, as administrator of the estate of M. L-Chaney, deceased, brought suit against Robert Bonner and another, and procured an attachment upon certain timber. The Sutherland-Innes -Company, Limited, intervened, and appealed from a judgment for plaintiff. Appellant had complied with the legal requirements as to foreign corporations, and was entitled to do business in this state. Acts 1899, 18, 305.

Styles T. Rowe, Judge. Action by Martha A. James against W. P. James and others. From a judgment of the circuit court reversing a judgment of dismissal rendered by the probate court defendants have appealed. If appellee was wrongfully dispossessed of her homestead, ejectment was her remedy. 29 Ark. 633; 37 Ark. 316. The probate court had no jurisdiction. 15 Ark. 381; 55 Ark. 222.

Wile P. Feazee, Judge. STATEMENT BY THE COURT. This action was begun in the county court of Howard county by A. C. Lambright and others against the county to recover a claim of $337.50, for the building of a bridge known as the “Woodside Bridge.” The bridge was constructed across Saline river where it forms the boundary line between the counties of Sevier and Howard.

<p>Circuit court — jurisdiction.—Under Const. 1874, art. 7, § 40, the circuit court has no original jurisdiction of a claim on contract for an amount not exceeding $100.</p>

James A. Rice, Special Judge. Action by Webb and others against Black and another. Plaintiffs had judgment, and defendants appeal. In case of a devise of land without words of limitation the devisee takes an estate for life only, but the intent of the testator to give a fee may be gathered from any part of the will. 49 Ark. 128; 2 Black, 408; 1 Sumn. 242; 58 Ark. 312; 2 Wash. Real Prop. (5th Ed.) 653. The deed conveyed a life estate only.

Marcus F. Hawkins, Chancellor. Suit by D. N. Ousler and others against James F. Robinson and others. From a judgment in favor of defendants plaintiffs have appealed. statement by the court. David K. Ousler died intestate in Chicot county in the year 1869, leaving a widow and several children. At the time of his death he owned a tract of 480 acres--of land upon which he resided. His widow, Mary F. Ousler, was appointed administratrix of the estate.

Joseph W. Martin, Judge. Action by Weil Bros. & Bauer against T. H. Bunch. Judgment for plaintiffs, from which defendant has appealed. A mere representation of a chattel sold is not a warranty. 45 Ark. 284; 14 Ark. 21. One who professes to be an agent cannot, by any statement made unknown to the principal, establish the fact of the agency. 46 Ark. 222; 29 Ark. 512; 24 Ark. 12; Mechem, Agency, § 100.

Heland Leatherman, Chancellor. One who lends another money to pay a debt, and takes his note for its payment, is not entitled to be subrogated to the rights of the creditor. 24 Am.. & Eng. Enc. Law, 283; 50 Ark. 108. Appellee was not entitled to an equitable assignment of the creditor’s right. Sand. & H. Dig., § 490; 53 Ark. 523; 47 Ark. 293.

<p>Appeal from Monroe' Circuit Court.</p> <p>Geo. M. Chapline, Judge.</p> <p>Action by J. J. Farrell against the Brinkley Car Works Manufacturing Company. A judgment for plaintiff was affirmed orally on defendant’s appeal.</p>

Eebridge G. Mitcheee, Judge. Suit by C. R. McGee against his wife, Sarah McGee. Decree for defendant, from which plaintiff appeals. The evidence showed such facts as to warrant a decree for divorce. Sand. & IT. Dig. § 2505; 9 Ark. 5x6; 33 Ark. 156; 34 Ark. 43; 38 Ark. 119; 44 Ark. 429.

<p>Costs — attorney’s fee — railroad.—Under Acts 1887, p. 225, providing that in all actions against railway companies “for the violation of any law regulating the. transportation of freight and passengers,” the plaintiff, if successful, shall also recover a reasonable attorney’s fee, to be taxed as part of the costs, one who has recovered for injury from negligence of a railroad employee, received while riding as a passenger, is not entitled to recover an attorney’s fee, where no statute was violated; the fee being in the nature of a penalty imposed for failure to comply with the police regulations of the State.</p>

Elbridge G. Mitchell, Judge. Action by A. J. Vance against John R. Newman and others. Judgment for defendants, from which plaintiff has appealed. statement by the court. The plaintiff in November, 1900, brought an action for the specific performance of a contract in reference to land owned by defendants, which contract had for valuable consideration been duly assigned to plaintiff before the commencement of the action.

<p>Appeal from Ouachita Circuit Court.</p> <p>Charles W. Smith, Judge.</p> <p>There was no denial of liability. 60 Miss. 302. There was no waiver of proof of loss. 83 Tex. 113; 75 Wis. 198; 106 Mich. 204; 134 Pa. 570; 60 Mo. 673; 66 Pa. 9; 40 Pa. 311; 40 Mo. App. 276; 101 111. 621; 8 Bosw. 503; 40 Pa. 324; 2 Pet. 53; 67 Ark. 589. The fact that plaintiff’s attorney was not at home is no excuse for his failure to furnish proof of loss. 22 Ind. 73; 35 La. Ann. 353; 10 Hun, 593; Ostr. Ins. § 230; 23 Or. 576; 10' Fed. 347.</p> <p>Objections to proof of loss must be made in a reasonable time. Ostr. Ins. 224. The objections to proof of loss should have been specific. 13 Am. & Eng. Enc. Law (2d Ed.), 339; 53 Ark. 494; 40 S. W. 831.; 176 Pa. St. 579; 72 la. 176. If the only difference was the value or quantity of property, defects in the proofs are waived. 31 Conn. 194; 62 Mo. App. 520. No proof of loss was required. 10 So. Dak. 271; 35 L. R. A. 227; 3 L. R. A. 21;</p>

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. The appellant was indicted (with others) for the crime of Sabbath breaking, by keeping open a dramshop. S. R. Henderson testified that about the 28th of September, 1902, he saw Benton Collie and another man go into the saloon at Sylamore, Stone county, Arkansas; didn’t know whether he sold any whisky or not; just saw them enter.

Will P. Feazel, Judge. STATEMENT BY THE COURT. John H. Arnold brought this action of ejectment against W. A. Wagner in the Little River circuit court to recover the north half of the northwest quarter of section 25, township 13 south, range 32 west, containing 80 acres. Arnold introduced deeds showing a chain of title extending from the United States to himself.

William L. Moose, Judge. The evidence fails to show jurisdiction. 38 Ark. 205; 55 Ark. 283; 70 Ark. 346. It was error not to make H. L. Buford a party plaintiff upon demand of the defendant. 30 Ark. 401; 32 Ark. 304; 36 Ark. 207; 37 Ark. 593; 39 Ark. 413. The record shows jurisdiction in the trial court. 67 Ark. 512; 70 Ark. 346; 68 S. W. 153; 29 Ark. 293; 53 Ark. 46; 17 Am. & Eng. Enc. 904, 905, 912. The statute of limitations must be pleaded. 19 Am. & Eng. Enc.

<p>Appeal from Clark Circuit Court.</p> <p>Joee D. Conway, Judge.</p> <p>It was error for the judge to go into the jury room. Sand. & H. Dig. § 2339, 2241; 70 Ark. 244; 76 Am. Dec. 694; 11 Am. Dec. 185; x Cow. 258; 8 Ind. 439; 45 Vt. 308; 14 Ohio, 511 S. & H. Dig. § 2555. The statute requires the personal presence of the defendant. Sand. & H. Dig. § 2185, 2187; 24 Ark. 620; 44 Ark. 331; 50 Ark. 472; 30 Ark. 349; 19 Ark. 209; 24 Ark. 635; 5 Ark. 431; 62 Ark. 537; 52 Ark. 4; 146 U. S. 374; 1 Bl. Com. 133, 372.</p>

Charles W. Smith, Judge. The.chancery court was without jurisdiction. Sand. & H. Dig. § 6121. The declarations of a testator should be received with great caution. 11 Ark. 596; 13 Vesey, 313; Wharton, Ev. 992; 60 Ark. 303. The facts that one learned in the law drew the will, and that there was a full attestation clause, are not of themselves sufficient to prove its execution. 84 Am. Dec. 619.

<p>Appeal from Phillips Circuit Court.</p> <p>Hance N. Hutton, Judge.</p> <p>The demurrer should have been overruled. 66 Ark. 65.</p>

Jas. S. Steele, Judge. The court erred in overruling the demurrer. Sand. & H. Dig. § 1858. The court erred in refusing instruction No. 9 and in modifying same. 32 Ark. 753; 1 Greenleaf, Fv. § 34.

WiEE P. Eeazee, Judge. statement by the court. This was an action originally brought in the Sevier circuit court, on the law side, by H. C. and E. Y. Williamson against R. H. Coleman, AJ West and D. T. Morton to recover of the said defendant, D. T. Morton, the value of certain lumber appropriated by the said Morton, upon which the said Williamson Bros, had a mortgage. Thereafter the action was transferred to the equity docket.

Jour D. Conway, Judge. The county and judge thereof cannot be sued. 44 Ark. 227; Acts 1879, p. 13; 25 Am. Rep. 688; 54 Am. Rep. 65; 29 Am. Rep. 80. The circuit court cannot acquire jurisdiction of the county court’s record without certiorari. Sand. & H. Dig. § 1125; 30 Ark. 148; 21 Ark. 264; 23 Ark. 107, 228; 33 Ark. 117. The order made on the 22d of October, 1900, did not affect appellee. 33 Ark. 740; 54 Ark. 372; 43 Ark. 226; 52 Ark. 213; 54 Ark. 168; 10 Fed. 888.

Oscar L. Mires, Special Judge: STATEMENT BY THE COURT. The defendant, Ira Burnett, was prosecuted for the crime of seduction, it being charged against him that in April, 1899, by virtue of a false promise of marriage, he seduced and obtained carnal knowledge of Fannie Burton, an unmarried woman of previous chaste character. After this prosecution was commenced against him, he and the prosecuting witness, Fannie Burton, were married, and the prosecution was suspended.

<p>New trial — newly discovered evidence. — Newly discovered evidence that goes only to impeach the credit of a witness is no ground for a new trial.</p>

<p>Landlord and tenant — repairs.—A landlord is not liable to a tenant for repair of a fence, the necessity for which was caused by rains, where ' there was no agreement to pay therefor.</p>

Robert J. Dea, Judge. A valid seal does not mean that an impression be made. 21 Am. & Eng. Ene.. Daw, 882. Usage is to be considered in the interpretation of a statute. Black, Int. Daw, 216; End. Int. Stat. .31.

Jeptha H. Evans, Judge. statement by the court. At the January term, 1902, of the Logan circuit court for the Northern District the grand jury returned an indictment against the appellant for carnal abuse, charging that he, on the 10th of April, 1901, in the Northern district of Logan county, Arkansas, unlawfully and feloniously did carnally know one Annie E. Walker, a female, under the age of 16 years, they, “the said Wesley Plunkett and Annie E. Walker, not being then and…

John M. Elkiott, Chancellor. Suit in equity for specific performance and marshaling of assets by Malvina A. Gibson against A. S. Honnett and others. Demurrer to the bill was sustained, and plaintiff appealed.

Aeeen Hughes, Judge. A former conviction was a bar to this indictment. 43 Ark. 68. The prima facie case made by defendant was conclusive. 43 Ark. 372; 65 Ark. 38; 9 Ark. 389. There is nothing in the record to prove the identity of the offense. 48 Ark. 34.

Wm. L. Moose, Judge. statement by the court. The plaintiff, John Patton, and the defendant, C. E. Cruce, live in the town of Morrilton. The defendant is the editor of a weekly newspaper, the Morrilton Democrat, published in that town.

Joee D. Conway, Judge. Appellant’s motion for certiorari should have been granted. 19 Ark. 178; 15 Ark. 395; 13 Ark. 720. A witness is protected from testifying as to any communication he may have made to his attorneys in confidence. 21 Ark. 387; 33 Ark. 771; 65 Ark. 389. The defendant’s silence is not subject of comment. Sand. & H. Dig. § 2910.

Edward D. Robertson, Chancellor. Appellee had no lien, and was not subrogated to the vendor’s lien. 44 Ark. 504; 25 Ark. 129. The lien, if it ever existed, had been waived and abandoned, and the giving of the new note could not revive it. 2 Jones, Eiens, 1098; 4 Ball. L. Real P. 871; 25 Ark. 515; 55 Ark. 542; 51 Ark. 285; 46 Ark. 270 ; 33 Ark. 240; Tied. R. P. 293; 3 Pom. Eq. Jur. 1252; 94 Ala. 536; 99 Ala. 616.

Gibson Witt, Special Judge. The court had no jurisdiction. Sand. & H. Dig. § 2173; 48 Ark. 94. It was error to ask appellant if he had been indicted for stealing cattle. 60 Ark. 450; 70 Ark. 107. The argument of the prosecuting attorne)' upon this point was prejudicial. 58 Ark. 140; 62 Ark. 537; 69 Ark. 657; 70 Ark. 305. It was proper to show that the case was the result of malice on the part of McGough. 55 Ark. 303. Instruction No. 4 was erroneous. 69 Ark. 655.

Elbridge G. Mitchell, Judge. Action by J. W-. Reynolds against W. S. Maddox. Plaintiff recovered judgment, from which defendant appealed. STATEMENT BY THE COURT. During and prior to the month of November, 1896, one Rucy Neeley, as surviving partner of the firm of J. M. Bradford & Co., was doing a mercantile business at Cleveland, in Conway county. At that time her stock of goods was worth about $800, and the firm’s liabilities were about $1,800.

<p>Fish — seines.—Under Acts 1897, p. 112, Lee county is exempted from the operation of the general act prohibiting any person from placing any :seine in any of the waters of the state.</p>

John N. Tileman, Judge. Action by J. G. McAndrew, as administrator of the estate of Seth Hollingsworth, deceased, against Deborah Hollingsworth and others. Defendants had! judgment, and plaintiff appealed. STATEMENT BY THE COURT. We adopt the following statement of facts, made by appellant, as correct: “Seth Hollingsworth died in Benton county, Arkansas, January 27, 1894.

Marcus L. Hawkins, Chancellor. Suit by John Griffin and others against Albert S. Caldwell and others. Judgment • was for defendants, and plaintiffs appealed. The complaint presented a cause of action, and the demurrer should have been overruled. 33 Ark. 586; 30 Ark. 44; 34 Ark. 585 5 33 Ark. 295; 86; 33 Vt. 247; 42 Ark. 28; 54 Ark. 627; 55 Ark. 91. The question of staleness can be raised by demurrer. 21 Wall. 178; 55 Ark. 85; 46 Ark. 25; 19 Ark. 16; 94 U. S. 806.

Styles T. Rowe, Judge. statement by the court. H. H. Brown died intestate in 1891, being at that time the owner of a tract of land of 520 acres, upon which was his homestead. He had purchased 440 acres of this land from Mrs. Ullery in 1887, taking a bond for title. The other 80 acres, upon which his house was located, was acquired from another source.

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. On the 2d day of October, 1903, as W. W. Rieblin was returning from Hot Springs to his home in the country, he was shot by some one who lay in wait with evident intention of taking his life. The shot was fired seemingly from a pistol or rifle, and took effect in the side of his head. Rieblin was stunned and rendered unconscious from the wound.

WiEE P. Feazee, Judge. statement by the court. O. S. Moore brought this action against C. A. & M. G. King to recover the sum of $264.13, which he claimed that the defendants were due him for work and labor performed for them by him and his minor son.

Chas. W. Smith, Judge. STATEMENT BY THE COURT. Dempsey & Beasley were in April, 1889, operating a sawmill at a place on the St. Douis, Arkansas & Texas Railway, known as Warren’s or Dempsey’s switch. They ordered a carload of corn through Curley, Rowley & Co., a firm of grain brokers at Texarkana, who in turn ordered it from Hunter & Co., of La Forge, Missouri.

<p>Account — remedy at law — former suit pending. — Where a defendant in an action at law upon an account pleaded a set-off, and asked judgment therefor, the dismissal of a subsequent suit in equity, setting up the same matter and asking the same relief, together with an injunction to restrain the plaintiff in the action at law from proceeding therein, was not prejudicial.</p>

(1) Appeal from Lonoke Chancery Court. Thomas B. Martin, Chancellor. (2) Appeal from Hot Spring Chancery Court. Leeand Leatherman, Chancellor. The first case was a bill of review by H. E. Robinson against Arkansas Loan & Trust Company. Judgment for defendant, from which plaintiff appeals. The second case was a suit by Lon Calhoun against E. H. Vance, Jr. ' Judgment for plaintiff, from which defendant appeals. Motion to dismiss the appeal in each case.

•Joseph W. Martin, Judge. Action by D. L. Phillips against Southwestern Telegraph & Telephone Company. Judgment for defendant. Plaintiff appeals. STATEMENT BY THE COURT. The appellant brought this action against the appellee, and filed the following complaint, which, omitting, formal parts, is as follows: “Plaintiff alleges that he is a citizen of the city of Little Rock, and resides at Sixth and Battery streets, in said city.

Edward D. Robertson, Chancellor. The policy was forfeited for failure to give notice and make proofs of loss within sixty days, as required by its conditions.' 13 Am. & Eng. Enc. Law (2d Ed.), 327, 328, 335; 64 Ark. 593; 2 May, Ins. § 463; 7 Am. & Eng. Enc. Law, § 1043; 8 Wait’s Act. & Def. 795; Wood, Eire Ins. § § 412, 437.

Felix G. Taylor, Judge. John Bard sued G. B. Meiser, administrator of Gib Ford, deceased, and G. H. Van Etten Company, a partnership composed of G. H. Van Etten and D. S. Waters. It was agreed at the trial that “this action is brought and based on account for work and labor done by plaintiff in hauling shingles for Gib Ford, deceased, under said Ford’s direction and employment. The amount of said account is $204.85.

Joseph W. Martin, Judge. A subsequent particular description of lands controls a former general one. 3 Ark. 18; 11 Mass. 167; 4 Mass. 205 ; 19 Ark. 108; 21 Ark. 327; 30 Ark. 645; Devlin, Deeds, §. 1035, P- 355* The deed to “the J. J. Martin plantation” conveyed the four acres in controversy, though same did not lie within the subdivisions mentioned in the deed following said general description. 2 Dev.

Joseph W. Martin, Judge. Murdock brought ejectment against Stillman ta recover a narrow strip of land on the east side of lot No. 1 in block No. 1 in Capitol Hill Extension Addition to Little Rock, being five feet and one inch at the north and four feet at the south side of the lot.

Hance N. Hutton, Judge. Tenniswood sued Smith in replevin to recover a cotton press. Defendant answered, denying that he held the press unlawfully and claiming ownership by virtue of purchase of the land on which the press was located from Edwin Moore & Sons. Plaintiff testified that he was owner of the press in controversy ; that he leased the press to Edwin Moore & Sons, but did not sell it to them.

Felix G. Taylor, Judge. statement by the court. In January, 1901, V. S., Birdwell delivered to the St. Louis Southwestern Railway Compaq of Texas, at Bassett’s station on its line, four boxes of household goods and a barrel of molasses for shipment to Marmaduke, Arkansas, a station on the line of the defendant He received from the company a through bill of lading for the shipment of the goods, which were consigned to himself.

Erbridge G. Mitcherr, Judge. STATEMENT BY THE COURT. In June, 1901, C. M. Greene was the cashier of the Citizens’ Bank of Harrison, Arkansas. In that month J. H. Kuder, while in Harrison, delivered to H. E. Cole two checks drawn by Kuder on a bank in Kansas.

James D. Shaver, Chancellor. statement by the court. In 1885 Sam Hutchinson purchased fifty acres of land from one Parker, the owner thereof, who executed a deed for the same. Sam Hutchinson and his wife, Eliza, moved upon the land, and have since resided thereon. Will Scoggins, a stepson of Sam Hutchinson, assisted them by paying part of the purchase price.. Afterwards he threatened to bring suit against them to recover the amount due him.

George M. Chaprine, Judge. Parker & Parker, attorneys, sued R. D. Mayo, executor of W. M. Mayo, deceased, in the probate court to recover the sum of $200 for professional services rendered by them on behalf of the estate under employment by such executor. From a judgment of allowance the executor appealed to the circuit court, where a motion to dismiss for want of jurisdiction was sustained, and plaintiffs appealed. The probate court had no jurisdiction. Const.

George M. Chapline, Judge. On the 9th day of August, 1899, B. H. Cozart brought suit against George W. Moore for $426.83 for money due upon account and upon contract. At the February term, 1900, the death of Moore was suggested, and the cause was continued to be revived in the name of such administrator of Moore’s estate as might be appointed by the probate court.

Alexander M. Dueeie, Judge. statement by the court. Appellant was indicted by the grand jury of Garland county, at the May term, 1903, of the circuit court of said county, for the crime of grand larceny, and was convicted of said crime upon trial in said court on the 10th day of June, 1903. Judgment and sentence was pronounced against him in said court on the 20th day of July, 1903, and he has duly presented an appeal to this court.

<p>1. Assault to rob — indictment..—An indictment for assault with intent to rob, which alleges that defendant, on a certain day, did unlawfully, feloniously, willfully and of his malice aforethought assault M. with the felonious intent him “to forcefully and violently rob, against, the peace and dignity of the state,” etc., is sufficient; the same particularity not being required in charging attempted acts as in charging completed crimes. (Page 524.)</p> <p>2. Same — form of allegation. — Robbery being larceny by force or intimidation, it is sufficient to charge it in either form. (Page 525.)</p> <p>3. Same — particularity of allegations — ownership.—A11 indictment for assault with intent to rob need not state what accused intended to take, nor that he intended to deprive the owner of its value; nor is it necessary > allege ownership in the party assaulted, mere possession in him being sufficient. (Page 525-)</p>

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. The county court of Lawrence county in January, 1900, appointed three commissioners to contract for and superintend the erection of a courthouse for the Eastern district of that county.

Allen N. Hughes, Judge. The indictment-was fatal on demurrer. Sand. & H. Dig. § 1883; 33 Ark. 563; 50 Ark. 501; Rapalje. Larceny, 446, 648; Hughes, Cr. L. § § 774, 792. To constitute robbery, the taking must be from the person or in the presence of the person robbed. Hughes, Cr. L- 566, 782; Rapalje, Larceny, 444; Hughes, Cr. L. § § 766, 782. The defendant had a right to a full and correct statement of the law, which was omitted in this case. Hughes, Cr.

Wieeiam L. Moose, Judge. STATEMENT BY THE COURT. Appellant was tried and convicted of the crime of murder in the second degree on the charge of having murdered his wife. His defense was insanity. The jury returned a verdict fixing his punishment at twenty-one years in the penitentiary.

Edward D. Robertson, Chancellor. Lee Mills and Cleveland Meadows, by his next friend, as heirs, and W. F. Meadows, as husband of Canada F. Meadows, deceased, brought suit in 1901 against J. D. Driver, Abner Driver, trustee of J. D. Driver, John B. Driver and W. L. Seegars. The court sustained a demurrer to the complaint, and plaintiffs appealed.

Frederick D. Fulkerson, Judge. Action by James M. Clark, Allie Bradley, Homer P. Clark, A. W. Clark, as heirs of Emily Clark, deceased, and Loyd W. Clark, heir of A. W. Clark, Jr., deceased, one of the children of Emily Clark, deceased, against A. W. Shirey. Plaintiffs had judgment, and defendant appealed. STATEMENT BY THE COURT.

Aeren N. Hughes, Judge. To constitute larceny there must be a wrongful taking and a felonious asportation or conversion. 13 Ark. 168; 32 Ark. 238; 2 Bish. New Cr. Law, § § 839, 882; 75 S. W. 1080. No larceny was committed. 2 Bish. New Cr. Law, 837, 882. The intent must exist at the time of the taking. 13 Ark. 168; 32 Ark. 238. The court properly charged the jury, i Clark, Cr. Law, § 57i-

John N. Tirrman, Judge. statement by trie court. In 1890 J. M. Denny executed and delivered to Maxfield Barber a promissory note for money borrowed of him, in words and figures as follows, towit: “$250.

<p>Appeal from Sebastian Circuit Court.</p> <p>Styres T. Rowe, Judge.</p> <p>The claim was not properly presented to the probate court. Sand. & H. Dig. § ill; 14 Ark. 471; 16 Ark. 647. An administrator cannot waive a defect in the affidavit. 19 Ark. 224; 30 Ark. 756. The affidavit cannot be supplied after the presentation. 48 Ark. 304; 25 Ark. 326. The objection to the affidavit may be taken at any time before final judgment. 14 Ark. 237; 7 Ark. 78; 66 Ark. 327. The note was barred by the statute of limitations. 70 Fed. 529; 3 Mason, 329; 1 Paige, 239; 19 How. 69; 38 Miss. 503; 2 Munf. 511; 23 Ark. 510; 65 S. W. 103, 425; 14 B. Mon. (Ky.) 307; Sand. & H. Dig. § 5717. The plea of res judicata should have been sustained. 11 Hun, 325; 6 Mo. App. 200; 18 Ark. 329; 19 Ark. 420; 41 Ark. 75; 53 Ark. 307. The case was improperly revived. Sand. & H. Dig. § 5936; 63 S. W. 65; 24 Ark. 562; 33 Ark. 824; 38 Ark. 245; 67 S. W. 310; 36 Pac. 1059; 26 Ind. 477; 1 Woerner, Admr. § § 268, 274. A suit abandoned by plaintiff cannot affect the operation of the statute. 29 Ark. 80; 45 Ark. 373; 1 Van Vleet, Former Adjudication, 87; 63 Tex. 576; 23 Minn. 442; 33 N. E. 619; 52 N. W. 685.</p>

Styees T. Rowe, Judge. Action by J. H. Larrimer and others, who succeeded to the rights of the Arkansas Central Railroad Company, against W. J. Murphy and a large number of others. Judgment for defendants, from which Larrimer and others have appealed. STATEMENT BY THE COURT.

Styles T. Rowe, Judge. Private interests are always made subservient to those of the public. 144 Mass. 523; 59 Am. Rep. 113; Cooley, Const. Lim. 137; 27 Ark. 467; Sand. & H. Dig. § § 5145-6; 1 Dillon, Mun. Corp. § 89. A city may pass such laws as are reasonably within the scope of its authority not repugnant to the constitution. 31 Ark. 462; 1 Dill. Mun.. Corp. § 316; 172 Mass.; 42 D. R. A. 403.

Alexander M. DueEie, Judge. The bill was not legally passed in the senate, because it was not read at length three times as required by the constitution. Const, art. 5; 40 Ark. 200; 54 Cal. in; 2 Minn. 330. The act is void because the same bill was not passed by the house and senate and approved by the governor. Const. 1874, art. 5, § 12. Extrinsic evidence which does not contradict the journal may be received to aid or explain it. 26 Am. & Eng. Enc.

Antonio B. Grace, Judge. STATEMENT BY THE COURT. The appellant was indicted for assault with intent to kill Henry Jones, pleaded not guilty, was tried, convicted, and sentenced to confinement in the penitentiary for one year. He filed a motion for new trial, which was overruled, and he excepted and appealed to the supreme court.

<p>Appeal from Garland Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p> <p>statement by the court.</p> <p>This is a suit to recover damages from the appellant for personal injuries to appellee in a collision between appellant’s car and the wagon in which appellee was riding when the injuries occurred.</p> <p>The company denied negligence, and set up contributory negligence on the part of appellee and the driver of the wagon.</p> <p>The facts, stated most strongly for appellee, are as follows:</p> <p>Appellee, a boy 9 years of age, was on a delivery wagon for a ride with the driver, and while the wagon was being driven by the driver along Ouachita avenue, one of the streets of the city of Hot Springs, upon which the street car company had a double track, a car approaching from the rear overtook the wagon, collided with it, and threw appellee to the ground under the wheel of the wagon, and inflicted on him severe and permanent personal injuries. His arm was fractured near the shoulder, his wrist of the same arm was crushed, one of the fingers of his hand was mashed off, the arm from his hand almost to the elbow was mashed and bruised to the extent that the flesh sloughed off of the back of the hand up to above the wrist joint, and there was a deep lacerated wound under the arm about the arm pit. The arm and hand were left permanently deformed, and their use almost completely destroyed. The appellee at the time had no control of the driver or the team. The street on which the collision occurred was narrow, the space on either side of the street car track being about fifteen feet, and was, at the place of collision, very much used by vehicles. The wagon on which appellee was riding came on to Ouachita avenue from a cross street, and the driver took a position near the center of the street and near the track on which the car was running, a'nd drove along the street parallel to the track, and so close to it that a car could not pass the wagon without striking it. The driver continued to drive along about the same distance from the track for a distance of 75 or 100 yards after coming on to Ouachita avenue, and until the collision. While so driving, he did not look back to see whether any car was approaching until attracted by the noise of the running of the car, when the car was within twenty-five feét of the wagon, and so close that he could not get out of the way of the car before the collision. The driver immediately after seeing the car turned his horses to the left in an effort to pull away from the track, but before he could do so the car struck the back end of the wagon and knocked it to the left from the track, thereby throwing the front of the wagon to the right and the horses partially across the track. The motorman did not sound the gong at all, and made no effort to check the speed of his car until about the time the car struck the back end of the wagon, when he then put on the brake by turning the crank, and stopped the car within eight or ten feet and as quick as he could. The driver and appellee were Sitting on the same seat in the front of the wagon, with their backs to the car, and the motorman was all the time on the front end of the car looking down the track in front of him and towards the wagon. The car was going at its usual rate of speed, and the schedule time required them to make a trip of two and a half miles in twenty minutes, including all stops.</p> <p>On the other hand, the motorman stated that he saw the wagon, and gave ample warning by ringing his gong; that the wagon as it was going was out of danger from the car, and that, if it had continued along the same distance from the track, the car would have passed without striking the wagon; that he took up the slack in his brake chain, and had the car in condition that he could stop at once; that he was running the car at its usual speed; that about the time he got within six or eight feet of the wagon the horses turned suddenly across the track in front of the car, and he then stopped as quick as he could within eight or ten feet; that he had instructions to always sound the gong when wagons were on or near the track in front of the cars; that he sounded the gong in this case in order to apprise the driver that the car was coming, because he considered it his duty to do so under his instructions; that he did all he could to prevent the collision after he discovered the wagon in a dangerous position. There was other evidence which corroborated the statement of the motorman.</p> <p>It was error to charge that if the motorman failed either to slow up the car or ring his gong, it was negligence. 60 N. Y. 616; 60 N. Y. Supp. 477; 46 S. W. 116; 2 Am. Neg. Rep. 61. The rule that requires one who goes on a railroad track to look and listen applies to electric street railroads. 148 Ind. 54; 49 La. Ann. 1302. Instruction No. 14 asked by defendant should have been given. 13 So. 615; 23 So. 604; 63 N. Y. Supp. 315; 60 Id. 477; 82 N. W. 197; 52 Atl. 1090. The defendant is required to observe only ordinary care to avoid the injury. 62 Ark. 164; 64 Ark. 420. Before the plaintiff is entitled to recover, he must prove that the negligence of defendant caused the injury. 4 Am. Neg. Cas. 158; 2 Id. 61; 40 S. E. 239; 79 Ga. 463. The court has no right to tell the jury what facts constitute negligence. 34 Ga. 330; 18 S. E. 18; 22 S. E. 709; 25 S. E. 484; 34 S. E. 350; 30 S. E. 433 5 61 Ark. 555; 49 Ark. 182; 52 Ark. 368; 54 Ark. 159, 122, 215; 62 Ark. 109.</p> <p>The rule in regard to persons going on a railroad track does not apply to street railways in this state. 69 Ark. 289. If facts are such that all reasonable men would reach the conclusion that a certain duty was required, then the failure to perform that duty would be negligence, and the court may so charge the jury. 144 U. S. 408; 117 Eed. 127; 79 Eed. 744; 139 U. S. 469; 64 Ark. 336.</p>

<p>Appeals from Lafayette Circuit Court.</p> <p>Charees W. Smith, Judge.</p>

Joed D. Conway, Judge. If the confession is fairly traceable to the prohibited influence, the trial judge should exclude it. 50 Ark. 307; 66 Ark. 506; 70 Ark. 24. Evidence upon which confessions were admitted will be reviewed. 22 Ark. 336; 69 Ark. 506; 70 Ark. 24. The confession should have been excluded. 66 Ark. 64; 69 Ark. 599. The testimony taken in the examining court should have been excluded. Sand. & H. Dig. § 2230.

Auden N. Hughes, Judge. W. D, Howard, county clerk of Mississippi county, was convicted of unlawfully issuing a county warrant, and has prosecuted an appeal. The indictment was bad. 43 Tex. 525; 51 Ala. 25; 91 Ala. 16. It was improper to admit evidence of other offenses. 39 Ark. 279; 37 Ark. 262; 36 Am. St. 887; 15 Am. Rep. 428; 55 N. Y. 81; 30 Ala. 542; 1 Wyo. 78; 142 U. S. 450; 33 Mo. 524. Section 1753 of Sand. & H. Dig. is unconstitutional. 45 Ark. 164; 139 U. S. 288.

<p>Appeal from Mississippi Circuit Court.</p> <p>Allen N. Hughes, Judge.</p>

Antonio B. Grace, Judge. Appellee was bound to depend upon the strength of his own titie. 47 Ark. 215, 413; 65 Ark. 610. There was no complaint upon which judgment could be rendered. 56 Ark. 419; 68 Ark. 211. The act of 1891 must be strictly followed. 56 Ark. 30; 65 Ark. 90; 70 Ark. 207. The deed of the commissioner was void. 53 Ark. 445; 59 Ark. 5. Absolute certainty is required to work an estoppel. 24 Conn. 547; 95 Ga. 142; 11 Mass. 350; 11 Am. & Eng. Enc.

James S. Steele, Judge. The transcript, in the change of venue, was defective, and the court had no jurisdiction. Sand. & H. Dig. § 2173; 9 Ark. 472; lb. 497; 36 Ark. 237; 49 Ark. 94. It was error to permit the clerk of the circuit court of Sevier county to appear and amend the transcript. 36 Ark. 241; 36 S. W. 856; 65 How. Pr. 239; 28 Mich. 215; 23 Am. & Eng. Enc. Daw (2d Ed.), 365. The copy of the indictment in the transcript must be correct. 36 111. 290.

Tayror, Judge. The policy is avoided for breach of the warranties in application. 58 Ark. 528; 77 N. W. 690; 20 Fed. 482; 47 S. W. 614. The court erred in instructing the jury that appellant must make out its defense “by a clear preponderance of all the testimony.” 37 Ark. 580; 58 Ark. 125; 52 Ark. 517; 53 Id. 381. The burden of proving compliance with express warranties is on the warrantor.' 100 Mass. 472; 36 Atl. 9; 61 Am. Rep. 752; 1 Bidd, Ins. § 557.

Moose, Judge. Appellant was indicted for murder in the first degree, and convicted of murder in the second. Without setting out the facts at large, it is sufficient to say that the alleged errors relied upon to secure a reversal consist of errors in giving and refusing instructions, in permitting improper testimony to be introduced, and in permitting the prosecuting attorney and his associated counsel to indulge in an improper line of argument.

Edward D. Robertson, Chancellor. The trustee’s sale was void because the land was sold for less than two-thirds of its appraised value. Sand. & H. Dig. § 5111; 55 Ark. 268. The recitals of the deed are conclusive on the trustee. 44 Ark. 180; 30 Ark. 418; 29 Ark. 489. Said deed of trust had been satisfied in full at the time of the foreclosure, and the account after August 1, 1897, was not secured by the trust deed. 1 Greenlf. Ev. '§ § 128, 295; 2 Greenlf.

Styles T. Rowe, Judge. The instructions of the court on the matter of notice were erroneous. Taws of N. Y. 1892, ch. 690, § 92; 132 N. Y. 378; 42 N. Y. Supp. 973; 179 U. S. 262; Acts N. Y. 1897, 92. The claim of forfeiture obviated proof of death, which would otherwise have been required. 112 U. S. 696. If the New York statute as to notice is not complied with, the clause in regard to mailing of notices will not avail the company. 39 App. Div.

Edward D. Robertson, Chancellor. statement by the court. ' On the 26th day of November, 1887, Young Hobbs, a negro, purchased of T. B. Holloman 160 acres of land in Bee county, for which he agreed to pay the sum of $900. Holloman executed a deed conveying the land to Hobbs, and reciting that he had paid $100 of the purchase price, and had executed his notes for the remainder, one note for $200 and two] notes for $300 each. Some time afterwards Hobbs paid the; $200 note.

Hance N. Hutton, Judge. The variance between the indictment and proof is fatal. 61 Ark. 16; 18 Am. & Eng. Enc. Law (2d Ed.), 464; 55 Ala. 138; 63 Miss. 466; 112 Cal. 333; 94 Ga. 395. The indictment is void for failure to allege value. 13 Ark. 60; 33 Ark. 567; 44 Ark. 39; 50 Ark. 532. Error confessed.