Volume 73 — Arkansas Reports

Alexander M. Duffie, Judge. STATEMENT BY THE COURT. Z. T. Raulston was the owner of certain town lots in the city of Hot Springs and a tract of land in the country upon .which he lived.

<p>Appear — rehearing—practice.—Where an appeal was dismissed under rule ten for failure of the appellant to file an abstract and brief as required by rule nine, and the defendant delayed five months before asking the reinstatement of the cause, a petition for rehearing which fails to allege illness, unavoidable accident, mistake, or any other matter rendering the enforcement of the rule a hardship, will be denied.</p>

Geo. M. Chaplin®, Judge. STATEMENT BY THE COURT. Dan Eagle died in 1874, seized and possessed of certain lands, and left surviving him E. M. Eagle, his widow, and Bettie Foster, born Eagle, E. F. Fewell, born Eagle, W. C. Eagle and Eettie Eagle, his heirs. Since then his widow married E. F. Solomon. His heirs are his children.

<p>Appeal from Boone Circuit Court.</p> <p>Egbridge G. Mitchegg, Judge.</p> <p>A compromise of a disputed claim is binding. 46 Ark. 217; 56 Ark. 43; 45-N. Y. 635; 75 N. Y. 498; 4 N. Y. 594; 6 J. R. 31; 32 N. E. 273; 91 N, Y. 329; 49 Vt. 327; 3 W. Va. 393; Jaggard, Torts, 344; 3 Wall. 132. A party receiving an injury is entitled to but one satisfaction. 8 Cow. m ; 1 Hill, 185; 45 N. Y. 638; 75 N. Y. 495; Coke, Litt. 232; 3 Johns. 175; 24 Ark. 540.</p>

Marcus L. Hawkins, Chancellor. Suit by J. A. Lesh and J. A. Summerland, composing the firm of J. A. Lesh & Company v. E. S. Richards and the F. E. Creelman Lumber Company. Judgment for plaintiffs, from which defendants appealed.

Edward D. Robertson, Chancellor.. Fraud is proved. 33 Ark. 425. If one makes use of an official act to perpetrate a fraud upon another, he will be deprived of any benefit to himself to another’s prejudice. 24 Ark. 40; 34 Árk. 220; 34 Ark. 291; 33 Ark. 575, 727. The testimony as to contents of the lost will was not admissible.*75 111. 315; 6 Wait, Actions & Def. 386; 4 Bibb, 553; 4 Wend, 543; 2 Hare & J. 112; 38 L. R. A. 448.

Hal L. Norwood, Special Judge. Ejectment by Walter Hopson, as administrator of the estate of James Morris, deceased, against Moses Franklin. ■ Defendant had judgment, from which plaintiff appealed. Hopson’s death being suggested, the cause was revived in the name of John N. Cook as special administrator. STATEMENT BY THE COURT.

Edward D. Robertson. Chancellor. Mrs. Eula J. Arbuckle brought suit against Matthews & Whittaker to quiet the title to section 36, township 15 north, range 6 east.

Hance N. Hutton, Judge. An agent’s authority can not be proved by the declarations of such agent. 31 Ark. 312; 33 Ark. 251, 316; 44 Ark. 213; 43 Ark. 293. The ownership of the property alleged to have been stolen was not properly alleged in the indictment. 58 Ark. 17; 36 Cal. 248; 1 Am. & Eng. Enc. Law (2d Ed.), 944; 1 Story, Part. § 1. The ownership of the property alleged to have been stolen was properly charged in the indictment. 42 Ark. 73.

<p>Appeal from Prairie Chancery Court.</p> <p>John M. Elliott, Chancellor.</p>

Eeeand LEatherman, Chancellor. John H. Ryan brought suit in equity against Francis A. Cooper and W. T. Cooper to foreclose a mortgage on lot xo and west half of lot 11 in block 3 in Keith’s addition to the town of Malvern.

Joer D. Conway, Judge. J. R. Brown sued the St. Louis, Iron Mountain & Southern Railway Company for injuries received by him as a passenger in a collision. Defendant answered,- denying negligence and setting up a release. Plaintiff recovered a verdict in the sum of $50, from which defendant has appealed. The facts are .stated in the opinion.

<p>1. Statute oe limitations — suspension by death. — Upon the death of the maker of a note not yet barred the statute of limitations of five years ceases to run. (Page 48.)</p> <p>2. Statute oe nonclaim — running.—The 'statute of nonclaim begins to run on a demand against the estate of a deceased person from the grant of letters of administration thereon. (Page 48.)</p> <p>3. Tax title — purchase—by mortgagee. — While a mortgagee may pay the taxes on the mortgaged land and claim reimbursement therefor, he may not permit the land to be sold for taxes and acquire title under the sale. (Page 48.)</p>

Charles W. Smith, Judge. An employee is entitled to all the information his employer has in regard to the danger of the employment. 14 Am. & Eng. Ene. Law, 800; 44 Cal. 187. Instruction No. 14 should have been given. 39 Ark. 17; 53 Ark. 1x7; 48 S. W. 1005. A servant can not voluntarily and unnecessarily expose himself to danger. 41 Ark. 542; 46 Ark. 388.

John M. Elliott, Chancellor. statement by the court. Abraham Strauss, a resident of Jefferson County, Arkansas, died in 1894, possessed of certain' real and personal property, the rental value of which was about $1,000 or $1,500.

Petition by Reese and others for a writ of prohibition against James S. Steel, Circuit Judge of the Ninth Judicial District. The county court is a superior court, and its judgment can not be collaterally attacked. 38 Ark. 157; 53 Ark. 478. It has exclusive jurisdiction over county seat contests. 33 Ark. 192; 43 Ark. 62; 61 Ark. 252; 5 Ark. 21.

<p>Appeal from Garland Chancery Court.</p> <p>Lixand Lsathbrman, Chancellor.</p> <p>Reb Houpt, H. D. Hill and N. C. Roster Lumber Company brought suit in equity against Ed Hogaboom, Arkansas National Bank, State Exchange Bank, Park Hotel Company, W. T. Joyce, E. F. Klein, George C. Ball, Moses P. Hays, John West, Adolph-us Busch, Abner Gile, M. A. Lynch, F. J. Allen, R. C. Brown, Phillip Riley, R. E. Jackson, Graeme Stuart, Mrs. A. W. Green-way, John Knickerbocker, James H. Weed, John J. Lawrence, Fannie Eisele, John Martin Lumber Co., and all others interested. The complaint alleged the institution of attachment suits by plaintiffs and by the Arkansas National Bank and State Exchange Bank against Hogaboom and the recovery of judgments therein. That plaintiffs sued out attachments, and had them levied on the stock of Hogaboom in the Park Plotel Company, a corporation; that Hogaboom was the owner of 5,889 shares of the stock of said company, and in addition thereto was entitled to 1,480 shares which had not been issued to him; that 5,285 of the shares alleged to belong to Hogaboom appeared on the books of the hotel company to have been transferred to defendants; that 604 shares appeared on the books in the name of Hogaboom; that the transferees of the aforesaid shares failed to deposit certificates of transfer with the county clerk of Garland County, as required by Sandéis & Hill’s Digest, section 1338; that they were claiming title to the stock, and had combined together to assert title thereto and object to its sale, and to deter persons from bidding therefor; that the priorities between the attaching creditors were undetermined. The bill prayed that the prior transfers of the stock made by Hogaboom be declared void, and that the stock be sold and the proceeds distributed among the creditors according to their priorities.</p> <p>By an amendment to the complaint plaintiffs alleged that the 604 shares of the Park Hotel Company, standing in Hogaboom’s name, had been sold, and were bid in by judgment creditors for $606; that the original capital stock of the hotel company was $200,000; that Hogaboom subscribed for 7,984 shares of $25 each; that the stock was afterwards increased to $400,000, and that Hogaboom subscribed for the increase; that it was uncertain how much of said stock had been issued to Hogaboom. The prayer of the original complaint was repeated.</p> <p>The Arkansas National Bank, the State Exchange Bank and D. H. Kochersperger, judgment creditors of Hogaboom, joined in the prayer of the complaint.</p> <p>The defendant stockholders, whose stock was involved in the controversy, filed answers, respectively, in which they severally set out the stock owned by them. They denied that any valid order of attachment was issued or levied upon the shares of stock owned by them in the Park Hotel Company.</p> <p>M. P. Hays, John West, M. A. Lynch, F. J. Allen, R. E. Jackson, Graeme Stuart, John Knickerbocker, A. Gile’s executors, the appellants, and other stockholders of the Park Hotel Company, further answered that they severally acquired the stock held by them in the Park Hotel Company long prior to the issuance of the orders of attachment against the defendant Hogaboom; that they had severally paid full and valuable consideration therefor; that the stock held by them was never owned by Hogaboom, or held by him'for them; that he had no title thereto or claim thereon at the date of the institution of said proceedings, and that said, stock never stood on the books of the company in the name of Hogaboom.</p> <p>The defendant, R. E. Jackson, alleges that the stock owned by him in the Park Hotel Company was by him sent to the office of the county clerk for the purpose of having the transfer recorded, and the same was, through mistake of the officer, l'ecorded in the office of the circuit clerk, without fault on his part, prior to the issuance of the attachment.</p> <p>The Park Hotel Company for further and separate answer denied that Hogaboom was at the time alleged in the complaint the owner of 5889 shares of the stock of the Park Hotel Company, or that he was the owner of any shares of stock that had not been issued to him.</p> <p>In the attachment suit by Reb Houpt against Hogaboom, the process was directed to the coroner, Houpt being at the time sheriff of Garland County. The order of attachment was issued on the 1st day of May 1896, and was returnable at the succeeding June term of the court. The return as to the levy upon the stock of the Park Hotel Company- was in the following words:</p> <p>“I have this 1st day of May, 1896, at 3 o’clock p. m., duly served the within writ of attachment by delivering a true copy of the same, together with -a written notice specifying the property attached, which notice is as follows:</p> <p>“'Park Hotel Company: You are hereby notified that I hereby levy on all the shares of stock of said company owned by Ed Hogaboom, R. H. Moore, Coroner,’ to E. E. Klein, secretary of the Park Plotel Company, Ed Hogaboom, the president of said company, being absent from said Garland County, and by summoning said Park Hotel Company to answer in this action, the levy under this order being upon 7961 shares of stock in said Park Plotel Company subscribed by Ed Hogaboom and not transferred by him, as appears from the records of Garland County, Arkansas.”</p> <p>In the attachment cases of the Arkansas National Bank and of the State Exchange Bank against Plogaboom the sheriff’s return -to the attachment showed that he levied upon the entire amount of stock of the Park Hotel Company to which Plogaboom was entitled, and gave written notice of such levy, similar to the above, to E. E. Klein, secretary of the company, in the absence of the president.</p> <p>During the pendency of the various attachment proceedings against Plogaboom, the plaintiffs therein filed petitions in their respective cases, stating that they had applied to the secretary of the Park Hotel Company for permission to examine the stock books of the company, but that he refused to permit them to make the examination. They asked that the secretary of the Park Hotel Company be required to produce in court the stock books of the company. This petition was granted, and the sheriff and coroner were permitted to amend their returns to the writs of attachment so as to describe specifically, the shares of stock upon which the levy was made. Thereupon the court sustained the attachment in each case.</p> <p>The finding of the chancellor in the consolidated suit, so far as is material to this appeal, was as follows:</p> <p>“Certain creditors of Ed Hogaboom seek to subject to the payment of their respective debts the stock held by said Hogaboom as a stockholder in the Park Hotel Company which had not been transferred by him, and a certificate of the transfer of the same filed for record, as provided by section 1338 of Sandels & Hill’s Digest of the statutes of Arkansas; and attachment proceedings were instituted by certain creditors of Ed Hogaboom, as appears herein, to subject such stock to the payment of their respective demands, and judgments were obtained for amount due and sustaining the attachment in each respective suit, and the stock ordered sold.”</p> <p>After reciting upon what specific stock the attachments were levied, the court continued:</p> <p>“In determining the rights of parties herein to such stock, the court finds the facts to be as follows: The company was incorporated -and articles filed in the office of the county clerk of Garland County on May 8, 1889; that the capital stock of said company was fixed at $200,000, of which amount,, the articles of incorporation show that $50,000 was paid into the treasury of the company; that the shareholders appearing from the articles of incorporation were as follows: Ed Hogaboom, • 7,984 shares; E. P. Klein, 4 shares; M. A. Eisele, 4 shares; George W. Baxter, 4 shares; R. B. Bancroft, 4 shares; that at a meeting of the stockholders on September 6, 1890, the capital stock of the company was increased $100,000, making the stock of the company $300,000. The certificate showing such increase was filed for record September 19, 1890, and on April 18, 1891, the capital stock of the company was again increased from $300,000 to $400,000, and the number of shares were increased from 12,000 to 16,000 shares. The certificate of increase was filed for record May 29, 1891; it appears from the certificate showing such increasethat Ed Hogaboom subscribed and paid for all of said increase of stock.</p> <p>“The court finds that certain shares of stock which had been subscribed for prior to filing the articles of incorporation were paid for by the subscribers direct to the company, to whom certificates therefor were-issued after the organization of the company. That the shares of stock originally issued to Ed Hogaboom and by him transferred to others, who failed to have their certificates deposited for record prior to the attachment herein, are as follows, towit: Certificates Nos. 54 and 55, for.200 shares each, issued to Abner Giles May 12, 1891, in lieu of certificate No. 51, which was originally issued to Ed Hogaboom April 20, 1891; certificate No. 77, for 40 shares, issued to Graeme Stuart March 23, 1892, in lieu of certificate No. 69, for 40 shares, originally issued to Ed Hogaboom July 27, 1889; certificate No. 99, for 160 shares issued May 1, 1895, to R. E. Jackson, 120 shares of which were issued in lieu of certificates Nos. 70, 72 and 73, originally issued to Ed Hogaboom on July 27, 1891, and the other 40 shares comprising a part of certificate No. 99, were issued in lieu of certificate No. 82, issued to Ed Hogaboom on April 13, 1892, which certificate No. 82, being in lieu of certificate No. 79, issued to J. J. Sumpter, Jr., on April 6, 1889; certificate No. 72 was issued in lieu of original certificate No. 75, which was issued to Ed Hogaboom on July 27, 1891; that a certificate of transfer of such stock from Ed Hogaboom to R. E. Jackson was filed for record in the office of the circuit clerk of Garland County February 8, 1896, but that the same was not filed in the office of the county clerk of said county until May 2, 1896, after the levy of attachments in the said first two suits in favor of the Arkansas National Bank, and the suit in favor of Reb Houpt against Ed Hogaboom; certificate No. 83, for 40 shares, issued to J. J. Knickerbocker May 23, 1892, in lieu of certificate No. 78, issued to D. S. Place, and assigned to J. J. Knickerbocker; No. 78 being issued in lieu of certificate No. 74, which was originally issued to Ed Hogaboom, and was transferred to D. S.' Place.</p> <p>“The court finds the stock which was not subscribed for before the organization of the company, and which was paid for to Ed Hogaboom, but issued direct to parties now holding the same, as follows, towit: Certificate, No. 41, for 440 shares, issued to Abner Gile March 23, 1891.</p> <p>“The court finds the shares of stock not transferred by Ed Hogaboom, but isued directly by the Park Hotel Company to parties who paid for same in cash direct to the company, but who were not subscribers, to be as follows, towit: Certificate No. 18, for 200 shares, issued directly to Moses-P. Hays July ig, 1890, and that he had purchased the same direct from the Park Hotel Company and paid for the same in cash at par to the said Park Hotel Company. Certificate No. 39, for 200 shares, issued direct to F. J. Allen, February 23, 189T; that the said Allen was not an original subscriber for the stock, but paid for the same direct to the company for $5,000; that he purchased the stock direct from the company.</p> <p>>fc i¡C íjc íjí >\i Í¡í</p> <p>“Whereupon, it is by the court ordered, adjudged and decreed that the following stock in the Park Plotel Company, towit: — Certificate No. 54, for 200 shares; certificate No. 55 for 200 shares; certificate No. 41, for 440 shares, standing on the books of the Park Plotel Company in the name of Abner Gile; certificate No. 77, for 40 shares, standing on the books of said corporation in the name of Graeme Stuart; certificate No. 83, for 40 shares, standing on the books of said corporation in the name of J. J. Knickerbocker; certificate No. 18, for 200 shares, standing on the books of said corporation in the name of Moses P. Hays; certificate No. 39, for 200 shares, standing on the books of said corporation in the name of F. J. Allen — was, at the time of the institution of the several suits by attachment mentioned and set out in the pleadings in this cause, subject to the debts of Ed Hogaboom, by reason of the failure of the persons in whose name said stock stands upon the books of said corporation to file certificates of such transfers in the office of the county clerk of Garland County, in compliance with the provisions of section 1338 of Sandels & Hill’s Digest of the statutes.</p> <p>“And that certificate No. 99, for 160 shares, standing in the name of R. E. 'Jackson, was and is subject to the lien of the attachments in the cases of the Arkansas National Bank v. Ed Hogaboom, numbered 3211 on the docket of the Garland circuit court; the Arkansas National Bank v. Ed Hogaboom, Reb Houpt, A. C. Houpt, Henry Houpt and Jake Houpt, numbered 32x4 on the docket of said circuit court, and in the case of Reb Houpt v. Ed Hogaboom, numbered.... on the docket of the Garland Chancery Court.</p> <p>“It is further ordered and decreed that the following stock of the Park Hotel Company, towit: 200 shares represented by .certificate No. 54, 200 shares represented by certificate No. 55, 40 shares represented by certificate No. 77, 160 shares represented by certificate No. 99, 40 shares represented by certificate No. 83, 440 shares represented by certificate No. 41, 200 shares represented by certificate No. 18, and 200 shares represented by certificate No. 39 — -be sold by R. S. Dean, who is hereby appointed a commissioner for the purpose of making said sale,” etc.</p> <p>The defendants, Elsie G. Scott, John J. Paul and F. G. Tiffany as executors of Abner Gile, deceased, and Graeme Stuart, R. E. Jackson, John Knickerbocker, Moses P. Hays and E. J. Allen appealed from so much of the decree as held that the stock Owned.by them severally in the Park Hotel Company was subject to the claims of attaching creditors of Hogaboom.</p> <p>The plaintiffs, Reb Houpt, H. D. Hill and N. C. Foster Lumber Company, and the defendants Arkansas National Bank, D.H. Kochersperger and the State Exchange Bank appeal from so much of the decree as held that certain stock of Park Plotel Company was not subject to attachment.</p> <p>There was no valid levy on the stock in controversy, in the manner contemplated by the provisions of our statute. Cf. Sand. & H. Dig. § § 336, 337, 3057, 3058, 3059. A strict compliance with the provisions of the statute is essential to the validity o'f a levy, -i Ark. 338; 17 Mass. 243. The certificate of purchase should contain the number of shares sold. Sand. & H. Dig. § § 3058, 3059; 83 Tex. 471, 472; 18 S. W. 798; 17 Conn, 268, 269; 33 Mich. 419; 2 Thomp. Corp. § 2793. The notice should be served on the president, or such other officer as is designated by statute Sand. & H. Dig. § 2697.; 64 Ark. 114; 81 la. 164, s. c. 46 N. W. 750. The right of a bona ñde transferee of stock, even though his transfer be not registered in the county clerk’s office, will not be defeated by an attaching creditor with notice prior to the sale under his judgment; and, so long as a levy is in ñeri and incomplete, it will not defeat the claim of such transferee. Cf. Sand. & H. Dig. § 1338; 58 Ark. 252, 256. Sand.. & H. Dig. § 728; 16 Ark. 543; 93 Fed. 603; 2 Cook, Corp. § §486, 490; 9 Ark. 112; 25 Ark. 152; 61 Ark. 127; 28 Ark. 85. When a grantee or transferee of real or personal property tries, in good faith, to comply with the provisions of the registry act, and fails, without fault, to do so, he will be treated as having complied with the law. 28 Ark. 244; 31 Pac. 185; 31 Conn. 25; 6 Mo. App. 464, 465. The court erred in holding that the stock represented by certificates Nos. 41, 18 and 39 was subject to the debts of Hogaboom. 61 Ark 127; 18 Atl. 784; 26 Atl, 882. Further, upon the comparative rights of the transferee and the levying creditor, see: 15 Fed. 501; 11 Wall. 369; 30 Conn. 270; 31 Conn. 25; 3 How. 483; 5 Cal. 186; 68 Cal. 600; 50 N. C. 584; 62 lb. 413; 52 Vt. 73; 52 N. W. 268; 35 N. W. 578; 86 Ivy. 408; 78 S. W. 298; 6 Mo. App. 454; 74 Mo. 77; 71 la. 270; 81 la. 46; 61 Tex. 114; 12 So. 6; 40 Am. & Eng. Corp. Cas. 122; 3 Daly, 219; 48 N. Y. 585; 132 N. Y. 251; 46 N. Y. 332; 34 N. Y. 79-85; 22 Wend 350; 4 Holt’s Ch. 167; 6 Whart. 135; 29 Pa. St. 146; 13 Atl. 382; 84 Ala. 382; 1 Am. & Eng. Corp. Cás. (N. S.) 36; 14 Cal. 321; 19 Cal. 213; 71 la. 240; 63 Fed. 898; Cook, Corp. § § 487, 489, 404; 160 U. S. 389.</p> <p>The statute (Sand. & H. Dig. § 1338) requiring' that certificates of transfers of stock be deposited with and registered by the county clerk controls this case, and no transfer is valid without such steps being taken. The case in 16 Ark. 546 and others cited by appellants upon this point, while they are authority for a proper construction of Sandels & Hill’s Digest, § 728, do not apply to the construction of § 1338. If the legislature had intended to except purchasers of stock with actual notice from the provisions of § 1338 supra, it should have done so expressly, as in § 728 supra. And, no such exception being expressed, none will be implied. For construction of the statute as to filing of mortgages to perfect their lien (Sand. & H. Dig. § 5091), see: 9 Ark. 112; 18 Ark. 85; 20 Ark. 190; 22 Ark. 136; 32 Ark. 598; 33 Ark. 63; 35 Ark. 62; 39 Ark. 377; 40 Ark. 540; 41 Ark. 191; 42 Ark. 140.; 49 Ark. 83; 51 Ark. 417; 54 Ark. 179; 55 Ark. 542; 59 Ark. 280, 293; 61 Ark. 123. See also construing similar statutes in other States as mandatory; 14 Col. 30; 7 Col. App. 129; 51 Wis. 519; 38 Pac. 253; 71 la. 270; 103 la. 437; 49 Me. 315; 138 Mass. 240; 138 Mass. 244; 3 Allen, 342; 92 Ala. 382; 87 Ala. 582; 42 N. H. 446; 134 U. S. 401; 91 111. 464. The. act of February 28, 1891, repealed Sand. & H. Dig. § § 336, 337, and they should not have been included in the Digest, xx Wall, 88; 107 U. S. 445; 134 U. S. 206; 143 U S. 18.</p> <p>Hogaboom owned the 7984 shares of stock, subject to the lien of the corporation, as provided in Sand. & H. Dig. § 1342. 37 Me. 76-83; 46 Mo. 248. As to what is necessary to constitute a stockholder, see: 46 Barb. 432; 1 N. Y. 423; 25 111. 393; 72 111. 397; 105 111. 578; 14 Bush, 429; 80 N. Y. 219; 139 Mass. 5; 24 N. E. 112; 17 S. E. 305; 17 Atl. 840. The claimants of this stock are charged with the knowledge of the requirements of the law and the contents of the certificate filed with the articles of incorporation. 16 B. Mon. 4; 35 S. W. 643; 105 U. S. 143; 3 Mich. 91; 29 S. W. 768; 26 N. W. 311; 13 C. C. A. 410; 36 Miss. 572; 15 Gray, 494; Big, Estop. 526, 527; 53 Vt. 130, 143; 77 111. 296; 40 111. 303; 34 Pa. St. 358; 1 Beach, Priv. Corp. 67. Further as to what constitutes a subscription and creates a stockholder, see: 25 111. 293; Clark, Corp. 273, 278; 116 Mass. 471; 40 Me. 172; 18 Barb. 297; 1 N. W. 827; 70 N. W. 302; Thompson, Corp. § 1158; 43 Ind. 265; 24 Md. 563, 599; 27 Pa. St. 261; 6 MÍass. 40; 126 Mass. 155; 29 N. E. 218. As to whether it is necessary that certificates be in fact issued see: 3 Wall. 573, 598; 10 Allen,-245 ; Cook, Corp., etc. 374, 383. The notice and return were sufficiently definite. 8 Pac. 556; 13 S. W. 25; 62 S. W. 270; 11 Pick. 341; 64 Ark. 96; 72 N. W. 576; 56 N. Y. 52. See, as to resulting trusts: 1 Beach, Tr. § 178; .13 S. E. 63; 29 Ark. 612; 30 Ark. 230, 245; 50 Ark. 71.</p> <p>Notice of transfer, prior to sale, is equivalent to registration, under our statute, and counsel have erred in their construction of Sand. & H. Dig. § 728. Cf. 16 Ark. 543; 59 Ark. 293; 22 Ark. 580; 27 Ark. 164; 28 Ark. 85; Id. 528; 29 Ark. 561; 30 Ark. 115; Id. 267; 33 Ark. 336; 34 Ark. 92; 47 Ark. 540; 54 Ark. 508; 58 Ark. 258. The rule in Main v. Alexander will not be extended or applied to any cases not falling within the letter of the act. 60 Ark. 595; 42 Ark. 69; 49 Ark. 279; 52 Ark. 385; 39 Ark. 386; 42 Ark. 148; 37 Ark. 94; 41 Ark. 192; 36 Ark. 68. Sand. & H. Dig. § 1338 does not apply to purchasers of stock with actual notice. 58 Ark.. 258; 48 Ark. 305. ' A plaintiff who purchases under his own attachment or execution sale, crediting the bid on his judgment, is not an innocent purchaser, and an unrecorded mortgage is good as against him. 34 Ark. 92; 58 Ark. 252; 63 Ark. 87; 47 Ark. 247; 67 Ark. 80; 33 Ark. 626. As to rulings in other jurisdictions, see: 7 Fed. 369; 15 Fed. 494; 1 Sumn. 123, s. c. F. C. No. 745; rr8 U. S. 9; 52 Fed. 521; 26 Fed. 94; 87 Fed. 58; Dowell, Transí. Stocks, § § 91, 96, 105; 2 Fr. Ex. § 348; 1 Morawetz, Corp. § 196; Cook, Corp. § 489; 2 Thompson, Corp. § 2410; 50 N. H. 571; 52 Vt. 73; 52 N. W. 268; 35 Id. 578; 3 Daly, 219; 22 Wend. 362; 3 Paige, 350; 14 N. Y. 560; 34 Id. 79, 85; 46 Id. 332; 48 N. Y. 585; 49 Id. 222; 52 Id. 203 ; 76 Id. 371; 132 Id. 251; 30 N. E. 644; 4 Halst. Chy. 167; 13 N. J. Eq. 24; 17 N. J. Eq. 119; 3 Binney, 401; 6 Whart. 116; 29 Pa. St. 146; 59 Id. 398; 137 Id. 147, 148; 146 Id. 356; 1 Oh. St. 305; 6 Cal. 425; 35 Id. 655; 40 Id. 614; 58 Id. 603; 64 Id. 388; 45 Pac. 329:31 Conn. 33; 18 Atl. 784; 50 Conn. 472; 26 Atl. 882; 44 Ind. 5; 10 Mo. 388; 29 Mo. App. 492; 108 Mo. 588; 78 S. W. 295; 6 Mo. App. 454; 30 Da. Ann. 714; 31 Id. 149; 33 Id. 1286 ; 11 S. C. 520; 103 Mass. 306; 34 Atl. 1127; 34 S. W. 209; 18 Id. 549; 10 Bush. 54; 33 N. W. 897; 6 Wash. 597.</p>

Jeptha H. Evans, Judge. STATEMENT BY TRIE COURT. Albert Johnson was indicted by the grand jury of Crawford County for the crime of grand larceny.

John N. Tieeman, Judge. The findings of a chancellor upon disputed facts will be sustained only when supported by a preponderance of evidence. 41 Ark. 292; 42 Ark. 246; 42 Ark. 521; 43 Ark. 308; 44 Ark. 216; 50 Ark. 358; 55 Ark. 112; 34 Ark. 212. Appellee must show, before he can enjoin an encroachment upon public grounds, that he is an abutter on such public grounds. 50 Ark. 466; 156 Mo. 344; 153 Mo. 560; 65 Barb. 460; 31 N. Y. 289; 14 Q. B. 849; 35 Pa. St. 75.

PIance N. Hutton, Judge. Action by Coolidge against the St. Louis, Iron Mountain & Southern Railway Company to recover for damages to freight injured in transit. Judgment for plaintiff, from which defendant has appealed. The verdict is unsupported by the evidence. At common law a carrier was not liable for loss by decay, where such loss is the result of nature, vice or defect, inherent in the goods carried, and in no sense the result of his own negligence.

John N. Tillman, Judge. The court erred in instructing a verdict. 37 Ark. 193. As to the constitutional provisions as to (he province of juries, see: 36 Ark. 451; 37. Ark. 164; lb. 239; lb. 580; 36 Ark. 146; 33 A-dc. 350: 34 Ark 469; lb. 743: 57 :Yrk. 461. The preliminary-contract was binding on the company, until the application was rejected. 16 Am. & Eng. Enc. Law (2d Ed.), 851; 7 Nev. 116, s. c. 8 Am. Rep. 705.

Styles T. Rowe, Judge. The signature of McClain “as agent,” no principal- being-disclosed, binds him individually, to Ark. 428, 446; Bish. Cont. § § 1070, 1077; 1 Pars. Cont. 59 (*57). McClain was the sole legal owner of the contract. 25 Ark. 20; 1 Ark. 59; 1 Pars. Cont. *55, note x. Property is bound from service of writ._ 39 Ark. 97, 101; 40 Ark. 531, 535.

Juptha H. Evans, Judge. Appeal from a conviction of manslaughter. The facts are stated in the opinion. The instructions mentioned in the opinion as having been given by the trial court were as follows: “5.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. Finding the statement by the chancellor to be accurate (with one slight exception), and the facts so well digested, his statement is incorporated here as the statement of the court as far as it goes: “Without giving the details of the analysis I have made of the pleadings and evidence in this cause, it is sufficient, for the purpose of a correct comprehension of the conclusion I have reached, to say that I find the facts…

Frederick D. Fueicerson, Judge. STATEMENT BY THE COURT. Lee Caldwell was in 1899 indicted by the grand juryof Independence County for the crime of seduction.

<p>1. Appeal — presumption as to instructions. — The presumption, where the record does not set out the instructions given to the jury, that the court properly directed the jury not to consider certain evidence in determining the guilt of one of the defendants will not be indulged where the record recites that the court instructed the jury by reading from the statutes the definition of the crime charged and all the law pertaining thereto. (Page 147.)</p> <p>2. Evidence — confession.—A confession by one of two defendants, made in the other’s absence, is inadmissible against the latter. (Page 147.)</p> <p>3. Appeal — reversal—incompetent evidence. — Where evidence admissible against one of two defendants and inadmissible against the other was admitted over the latter’s objection, though he failed to ask the court to instruct the jury not to consider it in passing upon his guilt, such admission will be ground for reversal as to him if, without such evidence, there was insufficient testimony to support a verdict against him. (Page 147.)</p>

James S. Steer, Judge. statement by the court. The defendant, J. S. Lee, was indicted by the grand jury of Little River County for grand larceny, it being alleged that he took, stole and carried away about nine head of cattle, the property of one Clem Scott. On the application of the defendant the circuit court entered an order changing the venue to the Polk Circuit Court.

Francis Circuit Court. Hance N. Hutton, Judge. statement by the court.

Joee D. Conway, Judge. It was error to admit in evidence the written statement of the evidence of John Haynes. Appellant was entitled to be confronted with the witness, especially when no sufficient predicate was laid for the use of the statement in lieu of an oral examination. 33 Ark. 541; 40 Ark. 461; 47 Ark. 185; 60 Ark. 407. The court erred in telling the jury to “agree on an offense, and he would fix the punishment.” Sand. & H. Dig. § 2279.

Petition for writ of mandamus. The issuance of the writ of search and seizure was not a matter of absolute discretion of the court, and the parties are entitled to a hearing thereon. Cf. Acts 1889, 11. The first ward is prohibited territory, and no license therein could be issued until January 1, 1905. Sand. & H. Dig. § 4868. Color of license does not change the situation. 70 Ark. 312.

<p>Appeal from Nevada Circuit Court.</p> <p>Joee D. Conway, Judge.</p>

James D. 'Shaver, Chancellor. The evidefi&e shows that Mrs. Alexander was not in mental condition to make a binding deed at the time of its execution, and it should not be allowed to stand. 26 Ark. 604; 6 Ves. 266; 4 Barb. 379; 5 Black. 509; 12 How. 200; 1 St Eq. § 249; 2 Pom. Eq. Jur. § 928; 1 St. Eq. § § 244-250. The evidence totally fails to show lack of mental capacity or any such circumstances of fraud as would demand that it be set aside.

John N. Tirrman, Judge. STATEMENT BY THE COURT. W. J. Sanders, a brother-in-law of appellee G. W. Vaughan and son-in-law of appellee A. Sanders, was engaged in running a grist mill, blacksmith shop and mercantile business in Madison County about 1895 or 1896. He secured his father-in-law and brother-in-law and appellant Wilks to become his sureties upon a note.

Appeals from Washington Circuit Court. John N. Tillman, Judge. • The first instruction was erroneous because it in effect told the jury that the evidence would justify them in finding for the plaintiff in the amount sued for. Const. Ark. art. 7, § 23. The second instruction was erroneous because not hypothetical. 14 Ark. 530; 31 Ark. 684-9; 52 Ark. 45; 33 Ark. 350; 24 Ark. 540; 61 Ark. 155, 156.

Chas. W. Smith, Judge, on exchange of circuits. The evidence does not support the judgment. Amendment No. 2 to the Constitution, fixing the qualifications of voters, does not make a poll tax receipt the sole evidence of payment of said tax, but allows such fact to be established by “other evidence.” See Act Jan. 12, 1893. Cf. Act April 10, 1893; Sand. & H. Dig. § § 2605-12 as amended March 18, 1895.

James D. Shaver, Chancellor. A director must have written notice of a special meeting. 64 Ark. 489; 69 Ark. 159; 52 Ark. 511. This notice cannot be waived orally. 36 Ark. 545. Director Corbell did not forfeit his office merely because his oath of office was not filed in the clerk’s office or could not be found there. Cf. Sand. & H. Dig. § § 7°35> 7°3*51 52 Ark. 511.

Thomas B. Martin, Judge. , Argued the facts at length, and that the evidence does not sustain the decree. The land in controversy is an island, and not an accretion to appellee’s property. A riparian owner upon a navigable stream, deriving title from the United States, takes only to the high-water mark and not to the middle of the stream, the title and the bed being in the State. 53 Ark. 314. As to meaning of “high water” see: 53 Ark. 322; 61 Ark. 435; 143 U. S. 359.

Hance N. Hutton, Judge. The court erred in leaving to the jury the question whether the office hours were reasonable. The company had the right to fix its own reasonable office hours. Crosw. Electr. § § 421, 422; 103 Ind. 505; 54 S. W. 563; Id. 829; 47 Atl. 881; 62 S. W. 136; 31 S. W. 211; 66 S. W. 17; 66 Id. 592; 25 Id. 760; 43 Id. 1053; 54 S. W. 827; 52 Ark. 406; 55 Ark. 138; 58 Ark. 334; 54 S. W. 963; 92 Am. Dec. 141.

<p>Appeal from White Chancery Court.</p> <p>D. H. CantrERR, Special Chancellor.</p> <p>The court erred in admitting parol evidence as to the terms and conditions upon which the property was sold to defendants. 21 Ark. 440; 170 U. S. 397; 129 Fed. 84; 47 S. E. 287; Browne, St. Fr. § 5x1; 1 Perry, Tr. § 85; 19 Ark. 23; 42 Ark. 503; 50 Ark. 76 and cases cited; 69 Ind. 419; 57 Ark. 637; 94 la. 239 and cases cited; 4 W. & S. (Pa.) 149; 7 Casey (Pa.) 371; 1 W. & S. 376; 102 Mass. 35. Part performance does not take such a case out of the statute of frauds. 46 Ark. 80; 54 Fed. 924-5. Nor does the fact that this particular section of the statute of frauds is not pleaded in the answer prevent objection to the testimony. 1 Perry, Tr. § 85; 19-Ark. 23; Browne, St. Fr. § § 5IO> S11 i 34 Minn. 274; 32 Minn. 482; 19 Ark. 34; 164 U. S, 418; 94 U. S. 404. Fraudulent representations to avoid a contract must have induced the party alleging same to part with his property or have in some way influenced him to his detriment. 43 Pa. Co. Rep. *570; Pom. Eq. § 921; 96 Ala. 289; 86 Ga. 38; 3 Story, 181, 290-293; 20 Ind. 62; 6 Mon. 24. Subsequent fraud will not raise a trust. 42 Ark. 503; 8 Cas. 371; 1 Perry, Tr. § § 6, 126; Browne, St F. § 89; 2 Wash. C. C. 398, s. c. 1 Am. & Eng. Dec. Eq. 529; 4 Russ. 345; 150 U. S. 524. The defendants, by carrying on the school until its destruction by fire, fully performed their contract, for the agreement to carry on the college was a condition subsequent. 64 la. 152-3; 2 N. Y. 389; 31 Mich. 43; 69 Mass. 516; 16 Pick. 183; X36 U. S. 393; 7 Wall. 290; 28 la. 360; 89 Mass. (7 Allen) 129; 3 Gray, 516; 2 Mete.' 180. Appellees had no right to recover the insurance money. 1 May, Ins. § 6; 2 Cush. 412; 4 Red. (Me.) 496; 1 Jones, Mortg. § § 396, 397, 420, 421; 90 111. 121; 12 How. 139, 157; 5 Gray, 549; 103 Mass. 219, 221; 80 111. 532; 70 N. Y. 19; 71 Me. 507; 45 S. W. 462; 7 Cush. 1; 5 Gray, 401; 9 Allen, 123; 17 Am. & Eng.‘ Ry. Cas. 35; 1 May, Ins. § 83; 32 111. 221; 107 Mass. 377. Parol evidence was not admissible to show the consideration of the purchase; and the court erred in decreeing a resulting trust. 1 Perry, Tr. § § 76, 134-5; 45 Ark. 481; 4 Fed. 446; 17 Wall. 44; Br. St. Fr. § § 89, 94, 96; 3 Pom. Eq. § 1212; 1 Perry, Tr. § 171; 2 Jb. § § 554> 485) 486; 98 Pa. St. 351. There was no charitable trust. 1 Perry. Tr. § § 88-9; 9 Allen, 283; 2 Perry, Tr. 709, 710, 711; 3 Gray, 1; 19 N. E. 572.</p> <p>Opinion of special chancellor quoted upon the following points:</p> <p>(1.) A resulting trust should be declared in favor of appellees. 19 N. E- 586; 26 Ark. 250; Bisp. Eq. § § 63, 91, 121, ■ 122, 124.</p> <p>(2.) The property in controversy must be governed by the rules applicable to charitable trusts, and treated as such. 19 N. E. 586; 17 How. 384; 107 U. S. 163; 2 Perry, Tr. 687, 6".</p> <p>_ (3.) The obligation to maintain and operate the school was a condition precedent, and the following cases cited by defendants are not applicable against .this theory: 136 U. S. 403; 7 Wall. 390; 100 U. S. 548; 86 Ind. 375.</p> <p>(4) Parol evidence as to the consideration was admissible. 55 Ark. 112; 20 Ark. 216; 13 Ark. 112; 46 Ark. 128; Bisp. Eq. 91; 9 Ark. 518; 54 Ark. 195; 11 Ark. 82; 40 Ark. 106; 48 Ark. 169.</p> <p>Further, upon the proposition that appellants were trustees, see: 29 N. W. 352; 1 Perry, Tr. § 166; 130 U. S. 880; 26 Ark. 249; 13 N. E. 840; 29 N. W. 358; 19 N. E. 572; Perry, Tr. § § 186, 202, 218; 91 111. 295; Kerr, Fr. & Mist. 150; 93 111. 295; 59 111. 240. The statute of frauds has no application to resulting trusts, and they may be proved by parol. 21 N. E. 18; Bisp. Eq. § 231; L. R. 7 Ch. App. 469; 48 Ark. 169; 40 Ark. xo6. Trustees are not bound to insure the trust property, but if they do the insurance inures to the cestui que trust. 1 Wood, Eire Ins. 685; 2 Perry, Tr. 11; 44 Am. Dec. 721; 47 Ark. 539.</p> <p>See further'on the question-of trust: Perry, Tr. § § 151, 162; 103 Mass. 487; 1 Paige, 494; Hill, Trustees, 112; 2 St. Eq. 1197; 29 Me. 410; 36 N. H. 86; 9 Post. 129; 5 Cush. 90; 3 Cush. 191; 14 Gray, 277; 10 Allen, 15; 104 Mass. 274; 113 Mass. 372; 2 Pom. Eq. § 1036.</p>

<p>Appeal from Johnson Circuit Court.</p> <p>William L,. Moose, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>T. B. Blakely, a practicing physician, was indicted, tried and convicted in the Johnson Circuit Court for selling whisky without license, and fined accordingly. Afterwards he filed a motion for a new trial, and, among other things, set up that previous to the sale of the whisky he had filed in the office of the county clerk the affidavit required by the statute in order to authorize him to prescribe and furnish alcoholic stimulants to patients under his charge. He further stated that previous to the trial his counsel had made search for such affidavit in the office of the county clerk, but that it could not then be found, and fpr that reason it was not produced on trial, but that the affidavit had ben found since the trial. The court overruled the motion, and the defendant appealed.</p>

Antonio B. Grace, Judge. STATEMENT BY THE COURT. Mrs.-Douglass brought this action of ejectment in the Lincoln Circuit Court against the appellees, Harvey, Woods and Atkinson, alleging that she was the owner and entitled to the immediate possession of the real estate therein described, set forth her title, and that the defendants had been in the unlawful possession of it for the past two years, claiming under some sort of title emanating from Thomas E. Douglass.

Appeals from Franklin Chancery and Circuit Courts. Jjíptha H. Evans, Judge. Two suits by the incorporated town of Ozark against W. W. Adams, one in equity to restrain defendant, as plaintiff’s tenant, from removing certain machinery from the leased premises; the other at law, to declare a forfeiture of the lease, and to recover the leased premises and machinery thereon.

<p>Former conviction — sufficiency of plea. — A plea of former conviction in a misdemeanor case before a justice of the peace .which alleges that the pleader was formerly convicted of the same offense and on the same testimony before a mayor acting as ex-officio justice of the peace, and appealed to the circuit court, where on his motion the cause was dismissed for want of jurisdiction because no affidavit or information was filed before the mayor, is insufficient.</p>

Arren Hughes, Judge. The act contains no exceptions, and applies alike to all nonresidents of the State. Cf., Acts 1903, 306, § 4. The property in game is in the State, and it has full power to regulate or prohibit the killing thereof. 161 U. S. 524; 2 Bl. Comm. § § 395, 410, 411; 56 Ark. 251; 29 Ind. 409; xox Mich. 98; 103 Mass. 452; 160 Mass. 157; 97 111. 320; 61 Conn. 144; 103 Cal. 476; 133 111. 649; ¿8 Minn. 593 ; 1 Halst. 71; 48 N. J. L. 90.

George M. Chapuine, Judge. STATEMENT by the court. This suit was brought by appellee in the court of common pleas of Arkansas. County against áppellant on a note executed by him in. favor of appellee for $75. The defense was payment to one L. C. Smith, appellee’s attorney.'On appeal to the circuit court the case was tried by jury.

<p>J. HomicidS' — instruction.—Where, in a prosecution for murder, there was evidence that deceased was defendant’s child; that she stole apples, and sought to lay this misconduct on others; that the father sought to correct her by whipping her with a piece of board; that he whipped her more severely than he intended, and used more force than he should have used, and killed her; that the killing was done in the prosecution of a lawful act, without due caution and circumspection, and without malice or intent to kill, it was error to refuse to instruct that if “the defendant killed the deceased in the commission of an unlawful act, without malice and without means calculated to produce death, or in the prosecution of a lawful act done without due caution or circumspection, it would only be manslaughter.” (Page 263.)</p> <p>2. Same — evidence oe former crimes. — In a prosecution for murder of a child, evidence that witnesses had heard that defendant had previously killed another child, and had inflicted cruel and unusual punishment upon his children, was inadmissible. (Page 263.)</p>

<p>Appeal from Monroe Circuit Court.</p> <p>George M. ChaplinE, Judge.</p>

<p>1. Seduction — corroboration op prosecution. — In a prosecution for seduction it was error for the court, when requested, to refuse to instruct the jury specifically that the prosecutrix must be’ corroborated both as to the promise of marriage and the intercourse, although a general charge was given to the effect that her testimony must be corroborated by other testimony. (Page 265.)</p> <p>2. Same — EEEECT op marriage and abandonment. — Where, after the commencement of a prosecution for seduction, the defendant married the prosecutrix, and then abandoned her, whereupon the prosecution was renewed, he cannot complain because the court did not instruct the jury as to what constituted a cause for divorce, if the undisputed evidence shows that he deserted her without cause, (Page 266.)</p>

<p>Appeal from Independence Circuit Court.</p> <p>Frederick D. Fulkerson, Judge.</p>

Wright Pricicett, Special Judge. H. C. Williamson and others, on January 4, 1904, filed a petition in the 'county court of Sevier County, asking that it make an order directing an election to be held for the purpose of voting upon the question whether or not the county seat of said county should be removed from Lockesburg to De Qugen.

Zaci-iariah T. Wood, Judge. STATEMENT BY THE COURT. On January, 1901, at the entrance of the courthouse in'1 Hamburg, Charles O. Morscheimer shot and killed Charles H. Bradley. The appellee is the widow of Bradley and the beneficiary in a policy for $1,000 in the appellant’s order, a fraternal insurance association.

Jeptha H. Evans, Judge. statement by the court. The defendant, B. S. Perrymore, was indicted by the grand jury of Logan County for the Northern District for the crime of voluntary manslaughter. The indictment alleged in substance that defendant unlawfully, feloniously and willfully killed Houston Taylor by striking him on the head and body with a board and stick.

<p>7. Indictment — failure to name county in caption. — A11 indictment, otherwise perfect in form, is not defective because it omits to name the county in its caption. (Page 281.)</p> <p>2. Homicide — instruction—harmless error. — Error in an instruction as to murder in the first degree is not prejudicial if defendant was convicted of murder in the second degree. (Page 281.)</p>

Leeand Leatherman, Chancellor. Suit by Mrs. J. E. Womack against her husband, D. H. Womack, to set aside a decree of divorce, and to annul a conveyance of land from her to him. Judgment below for defendant, from which plaintiff has appealed. STATEMENT BY THE COURT. The appellee was married to appellant, in Tennessee, in 1872. Each was of small means, but some few hundred dollars came to the wife (appellant). They moved to Missouri after a few years.

<p>1. Instruction — reasonable doubt. — The defendant in a murder case asked the court to instruct the jury that “the defendant is entitled to the benefit of every reasonable doubt, and by a reasonable doubt is meant that, unless you have a firm and abiding conviction, to a moral certainty, of the truth of the charge, you must acquit the defendant. This benefit of a reasonable doubt is a substantial right of the defendant, and applies to the whole case, and also to each and every phase of the case; and if you have such reasonable doubt, you should ñnd the defendant not guilty." The court struck out the italicized clauses and gave the remainder. Other portions of the court’s charge were not set out in the bill of exceptions. Held, that the modification was not erroneous; and that, if it were, it would be presumed that it was covered by other portions of the court’s charge. (Page 293.)</p> <p>2. Homicide — instruction—reading the statute. — In a murder case it was not error to read as instructions to the jury sections 1643-5 and 1676 of Sandels & Hill’s Digest. (Page 294.)</p> <p>3. Remarks oe counsel — presumption as to prejudice. — Where defendant, accused of murder, sought to establish the plea of self-defense, and the transcript shows that the prosecuting attorney argued to the jury “that the burden of proof was on defendant to establish his defense,” but fails to set out the language used, it will not be presumed that it was prejudicial to defendant, as the prosecuting attorney may have only asserted in argument the substance of Sandels & Hill’s Digest, section 1643, providing that, “the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused,” efc. (Page 294.)</p> <p>4. Homicide — evidence—harmless error. — Error of the court in refusing to permit the defendant in a murder case to prove that deceased was in the habit of carrying a pistol was not prejudicial where defendant was permitted to prove the bad reputation of deceased as a quarrelsome, turbulent and dangerous man, and there was undisputed testimoney that he had drawn a pistol on defendant at the time he was killed. (Page 294.)</p> <p>5. Witness — impeachment.—Where a witness admitted the contents of a paper and denied its correctness, there was no error in refusing to permit the paper to be read in order to impeach him. (Page 295.)</p>

Charles W. Smith, Judge. STATEMENT BY THE COURT. John H. Morgan, Charles D. Gee and T. J. Moore being each the owner of a certain lot in the city of Camden, and being also the owners as tenants in common of a certain other lot, and being desirous of erecting upon said property a brick building, they entered into a contract, the parts of which that are material here being as follows : “This indenture, made and entered into on the 29th day of April, A. D. 1889, by and between…

Styles T. Rowe, Judge. statement by the court. This cause was submitted to the court on the following agreed statement of facts: “1. That during the period of time from the 1st day of July, 1899, to the 31st day of October, 1900, the defendant and appellant earned and collected and retained as circuit clerk, exclusive of recorder’s fees, the full amount due him as salary at the rate of $3,500 per year, for said period of time. “2.

Joel D. Conway, Judge. STATEMENT BY THE COURT. In 1890 Rebecca Ammonette was the owner of certain lands lying partly in Hempstead and partly in Nevada counties. In 1890 she conveyed by two deeds these lands to her'son, B. F. Ammonette, Sr. Mrs. Ammonette died in 1891, and her son died in 1898. He left a will by which he devised the lands in question to his niece, Mary E. Black, a granddaughter of Mrs. Ammonette, and to Annie Pearl Black, a daughter of Mary E. Black.

George M. Chapline, Judge. The accused must be present at every substantive step in the proceedings after indictment for felony. 62 Ark. 516, 537; 5 Ark. 431; 44 Ark. 331; 50 Ark. 492. This right can not be waived by counsel. 24 Ark. 635; lb. 629; 62 Ark. 537; 50 Ark. 492. The court erred in giving instruction No. 1, upon the presumption of malice from the use of a deadly weapon.

James D. Shaver, Chancellor. STATEMENT BY THE COURT. On the 4th day of February, 1903, one Joe Winter of Nashville, Ark., wds indebted to the Oswego Milling Company of Oswego, Kan., in the sum of $516.13, and on that day Winter remitted the amount of his debt to the milling company by a check on the Planters’ Bank of Nashville, Ark.

<p>Indictment — signature to indorsement. — The statutory provision that the indorsement of “A true bill” on indictments shall be signed by the foreman of the grand jury is directory; an'd where such signature is omitted, the- irregularity is waived unless objection is made before defendant pleads to the indictment.</p>

<p>Homestead — alienation—sale or timber. — While a sale of growing trees, authorizing the grantee to cut and remove the same within a specified time, conveys an interest in the land, the question whether it is an “alienation” of a part of the land, within Rev. Stat. U. S-, § 2291, requiring a homesteader of government land to make affidavit that no part of the land entered by him as a homestead has been alienated, depends upon whether or not the sale was made for the purpose of carrying out in good faith his object in the acquisition and enjoyment of a homestead, even though a profit should result to him incidentally from such sale.</p>

James D. Spiaver, Chancellor. STATEMENT BY THE COURT. In 1898 F. W. Mullins and others, partners doing business under the firm name of the Texas Produce Company, brought an action in the Little River Circuit Court against J. H. Hall and B. T. Collins, who were partners under the firm name of Hall & Collins, to recover a debt amounting to about $2,000. The plaintiffs in, that action filed an affidavit, and obtained a writ of attachment and garnishment.

<p>Contract — construction.—A contract will be construed as unfavorably as its terms will admit against the party who proposed and prepared it. (Page 342.)</p> <p>Same — case stated. — Where L drew up a contract with B whereby L obligated himself to set aside a sale of lands under a judgment, and in the event of doing so was to retain a part of the lands and convey the residue to B, and, failing to set aside the sale, L redeemed the lands, he will be held to have done so under the contract, and required to reconvey to B, as stipulated therein. (Page 342.)</p> <p>3. Husband and wife — resuming trust. — Where a husband bought land with his wife’s funds, and took title to himself, but treated the land as hers by joining with her in a schedule declaring it her property, and otherwise speaking o’f it as hers, a trust resulted in favor of the wife, and-after her death in favor of her heir. (Page 342.)</p>

Felix G. Taylor, Judge. The cause was erroneously transferred. Sand. & H. Dig. § § 5618, 5889',-55 S. W. 548; 32 S. W. 599. Plaintiffs’ exceptions to the title of defendants should have been sustained. The possession of a mere squatter, who' neither claims through any one else, nor on his own account, is the possession of the real owner; and the court erred in refusing the instructions prayed upon the point. 2 Blackw. Tax Tit. § 895.

Thomas B. Martin, Chancellor. STATEMENT BY THE COURT. Held: respectively, by them in their names.” The Cypress Lumber Company took possession under the sale and order of the court, and afterwards in December filed a petition alleging that the parties named above had not executed deeds as ordered, and asking that the court compel them to do so.

Petition for certiorari to Garland Chancery Court. In some jurisdictions the writ of certiorari is used in the nature of a writ of error, and then it lies to revive and correct a judgment of the lower court for all errors of law appearing therein, 4 Enc. PL & Pr. 125, 126; 35 Ark. 458 ;■ 54 N. Car. 202; 24 N. Y. 74; 101 N. Y. 245; 1 Grant’s Cases, 453; 6 la. 245; 2 Utah, 560.

Edward W. Wineieed, Judge. In January, 1904, R. A. Furth applied to the county court for license to sell liquors.' A. A. Whissen and others filed a written protest, alleging (1) that applicant was -not a person of good moral character^ and (2) that during the year 1903 he kept a gambling room in connection with his dramshop. A license was granted to applicant, and Whissen and others appealed to the circuit court.

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

Joel Dr Conway, Judge. ■ Suit by Rosa E. Beasley against the St. Louis Southwestern Railway Company. Plaintiff recovered judgment, from which defendant appealed. Pending the appeal plaintiff died, whereupon the cause was revived in the name of Lawrence A. Byrne, administrator ad litem. STATEMENT BY THE COURT. Appellant seeks by this appeal to reverse a judgment of $5,000 in favor of appéllee for personal injuries.

<p>Appeal from Lafayette Circuit Court.</p> <p>Charles W. Smith, Judge.</p>

Marcus L. Hawkins, Judge. Exclusive original jurisdiction of this suit is vested in the county court. 44 Ark. 225; 47 Ark. 80; Const., art. 7, § 28. Limitation does not run while there is no one capable of suing. 48 Ark. 386; 42 Ark. 491; 38 Ark. 243; 16 Am. Dec. 290; 94 N. C. 231; 84 Tenn. 697; 76 Wis. 598; 37 Pac. 349; 26 Kan. 181; 93 Ky. 33; 42 Ark. 54; 33 Ark. 690.

Antonio B. Grace, Judge. The court erred in setting aside the indictment for manslaughter and referring the case to the grand jury of the February term, 1903, in the absence of the defendant. 71 Ark. 47; 24 Ark. 620; 10 Ark. 318; s Ark. 431; Sand. & H. Dig. § 2067; So Ark. 542.

Wieeiam L. Moose, Judge. The court erred in refusing to have the sheriff summon twice the number of jurors to fill the panel. Sand. & H. Dig. § 2194. The testimony of John Jones was incompetent. 65 Ark. 482; 67 Ark. 281; Sand. & H. Dig. § 2916. Statements made to alleged accomplices should have been admitted as part of the res gestae. 43 Ark. 103, 289; 65 Ark. 261; 8 Wall. 397; 18 Ga. 635 ; 66 Ark. 501; 1 Greenleaf, Ev. 108.

Joel D. Conway, Judge. Carroll sued the railway company for damages to himself and to his team and wagon, received at a crossing of defendant’s railroad and a public street in the city of Texarkana. He alleged and proved that the injuries were received by reason of defendant’s employees sending a flying box car over this crossing with no one in charge of it just at a time when plaintiff was invited by another employee of defendant to cross with his wagon.

John M. Euuiott, Chancellor. In the absence of fraud, the recitals of the deed cannot be varied by parol. 28 Ark. 48-54; lb. 638; 28 Id. 361; 56 Tex. 72; 5 Wall. 166; 10 Cal. 106; 63 Conn. 388. Estates upon condition can only be created by deed or grant, and do not lie in parol. Coke, Litt. 325. As to what are estates upon condition and their legal effect, see: 3 Kent’s Comm. 120; 2 Gr. Cruise, R. Prop. 2.

Frederick D. Fuekerson, Judge. The county judge was without authority to call a special term of court. Sand. & H. Dig. § 1165; 2 Ark. 342; 9 Ark. 326. The purported petitions were filed prematurely, and the court was without jurisdiction. 70 Ark. 175; 69 Ala. 569; 64 Ala. 244; 51 Ark. 164; 56 Ark. no. Statutory provisions as to time of. elections are mandatory: 15 Am. & Eng. Enc. Law, 497; 17 Id. 552; 19 Id. 502.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. John P. Brackville died December 6, 1877, left surviving him his widow and nine children.

<p>Carrying weapon AETER return Erom journey. — One who has been on a journey can not, after return to his accustomed haunts, continue to carry a pistol, and still claim the benefit of the exception in the statute.</p>

John W. Muuks, Judge. STATUMUNT BY THU COURT. George Beattie, a resident of Missouri, was arrested, tried and convicted on a charge that, being a resident of the State of Missouri, he did, in the county of Sharp and State of Arkansas, in May, 1904, herd, graze and permit to run at large about nineteen head of cattle. He was convicted, and fined $100 before a justice of the peace.

<p>Appeal from Cleveland Chancery Court.</p> <p>John M. Elliott, Chancellor.</p>

George M. Chapeine, Judge. statement by the court. Appellant, who was the owner of a tract of timber land, entered into a written contract with appellee’s assignor, the Speer-Box Lumber Company, for the sale of all the cottonwood timber of certain size suitable for saw logs.

George M. Chapuine, Judge. The appellees cannot recover. Cooley, Torts, 207. No malice is shown. 61 N. W. 359; 98 U. S. 494. Appellants are not subject to the penalties sought to be enforced. Cooley, Torts, 21 x; 34 Ala. 91; 4 Fed. 602; 61 N. W. 359; 98 U. S. 192; 50 Pac. 606. An attachment against the property of a npnresident is an action in personam. 25 Ark. 144.

Edward D. Robertson, Chancellor. statement by the court. Dr. D. E. Gibson, Sr., a citizen and resident of Shelby County, Tennessee, died in November, 1878, leaving a will devising all of his property, after the payment of his debts, to his wife, Emma M. Gibson, for life, with remainder; one-half to his nephew, D. E. Gibson, one of the appellees, and the other half to the appellants, children of the testator’s brother, Addison Gibson, and naming the said Emma M. Gibson and D.…

Styres T. Rowe, Judge. A city is liable in damages for injuries occasioned by a negligent obstruction in its streets. 9 Am. & Eng. Enc. Law, 378, note 1; 2 Dill, Mun. Corp. § 1024, note 1; 122 Mass. 344. The cases in 49 Ark. 139 and 52 Ark. 84 are not applicable to the case at bar.

Felix G. Taylor, Judge. The court erred in refusing the second declaration of law asked by appellants. 44 Ark. 178; 52 Ark. 340. No judgment for the value of the lumber could have been entered on the inter-plea. 53 Ark. 133. The suit in conversion, though afterwards dismissed, was an election. 21 N. E. 172; 20 So. 890; 22 N. E. 346; 52 Mo. App. 407; 62 N. W. 346; 26 S. W. 360; 18 Am. Dec. 719; 73 N. W. 1079; 94 N. W. 859.

Wieeiam L. Moose, Judge. STATEMENT BY THE COURT. The statute under which appellant was indicted and convicted provides that “it shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with intent to produce an abortion or premature delivery of any foetus before the period of quickening.” Sand. & H. Dig. § 1459.

Hance N. Hutton, Judge. STATEMENT BY THE COURT. At a former day of this term a judgment convicting appellant of violating the “blind tiger act” was affirmed. Appellant now moves to have the clerk retax costs and eliminate the fee of $25 for the deputy prosecuting attorney.

Iceland Leatherman, Chancellor. It was error to transfer to equity; also to refuse to remand to the law court for a trial by jury. Const. 1874, art. 7. § 15; Const. 1836, art. 6, § 6; Acts 1893, p. 12; Sand. & H. Dig. § 5622; 6 Ark. 79; lb., 317; Story, Eq.

John N. Tireman, Judge. statement by the court. Futrall loaned Nix $300, and Nix gave him his notes, and secured them by a chattel mortgage on a soda fountain and other personal property. The chattel mortgage was filed, and Futrall went to Europe, and during his absence Nix traded the soda fountain to appellant in part payment of a new one.

Alexander M. Dueeie, Judge. 1. A defendant can only be held liable for damages where he is advised of a contemplated sale at the time of making the principal contract. 57 Ark. 265; 48 Id. 509; 54 Id. 22; Suth. on Dam. Vol. 3, § 2045, P- 2045, (2d Ed.). The same rule is applied as to a carrier to deliver. S'uth. on Dam. (2d Ed.), § 666, p. 1488. 2. The rule as to damages resulting from loss of telephone rents is said to be the rental value during the delay.

John N. Tirrman, Judge. STATRMRNT BY Tl-IR COURT. W. F. Main & Company, who claimed to be “manufacturing jewelers,” and to have the “largest jewelry factory in the world,” sold to Dearing & Wallace, merchants, at Prairie Grove, Ark., a varied assortment of jewelry. The contract contained an invoice thereof, stating what each article was and its price. The bill aggregated $180.

Joseph W. Martin, Judge. STATEMENT BY THE COURT. In July, 1900, W. C. S'ims entered into a contract with W. J. Lawhon to build a storehouse for Lawhon.

Appeals from Lonoke Circuit Court. George M. Chaprine, Judge. statement by the court. In the year 1898 W. S. Blakemore was engaged in raising cotton and other farm products on his plantation in Lonoke County, having about 1,800 acres in cultivation.

Styles T. Rowe, Judge. It was error to admit testimony to explain the terms of the notes of Stevenson and Munder or the judgment rendered against them. 25 Ark. 606; 26 Ark. 231; 2 Black, Judg. § § 625, 626; 11 Fed. 657; Bates, Partnership, § 453a. The discharge granted to' Stevenson and Munder did not release the former from his personal debts.' Bump, Bankr. 66, 67; 3 Am. Bank. R. 1, 91, 66.

Alexander M. Dueeie, Judge. The venue is not proved, and the verdict is not supported by the evidence. 58 Ark. 390; 56 Ark. 242; 25 Ark. 435. The court erred in permitting the confession of Henry Moore in evidence. 1 Greenleaf, Ev. § 223; Underhill, Cr. Ev. § § 139,, 295 ; 41 N. W. 459. The prosecuting attorney erred in his closing remarks. 82 S. W. 190.

Alexander M. Dueeie, Judge. The indictment was insufficient. Whar. Cr. PI. § 241.-When the negative is descriptive of the offense, it must be alleged in the indictment. Bish. Cr. .Pro. § § 633-637; 17 Wall. 168; 47 L. R. A. 144; 37 Ark. 96; 19 Ark. 143, 566; 16 Ark. 567- The indictment, being substantially in the words of the statute, is sufficient. 1 »Bish. New Cr. Pro. .§ 613; 108 Ind. 47; 48 Ark. 66; 64 Ark. 467; 61 Ark. 62.

Frederick D. Fuekerson, Judge. statement by the court. Under the act of April 19, 1895, John A. Hinkle, as administrator of Thomas J. Broadwater, deceased, filed a bill in the Independence Chancery Court against John T. Broadwater, asking the court to set aside a certain conveyance made by defendant’s father, Thomas J. Broadwater, to defendant on the 6th day of October, 1882.

John M. Ereiott, Chancellor. statement by the court. This is an action for specific performance by Victoria Mason to require Peter Smith to make her a deed to a certain fifty-acre tract of land for which she held bond for title. For this land she was to pay Peter Smith the sum of $1,000.. She paid $400, and executed four notes for the remainder of the purchase money in the sum of $150 each, bearing 10 per cent, interest.

<p>1. Evidence — voluntary statement. — Statements of the accused made to the sheriff voluntarily, and not through any inducements held out by the latter are admissible. (Page 497.)</p> <p>2. Same — LETTER To wife — PRIVILEGE.—An incriminatory letter written by the accused to his wife, but which accidentally fell into the hands of another without the wife’s connivance, is admissible against him. (Page 498.)</p>

Zachariah T. Wood, Judge. statement by the court. At the March term, 1904, of the Chicot Circuit Court, the grand jury returned against appellant an indictment, charging that he, in the county of Chicot, and State of Arkansas, -on the nth day of March, 1904, did willfully, feloniously, and of his malice aforethought, and with deliberation and premeditation, kill and murder John Palmer, by shooting him with a pistol, against the peace and dignity of the State of Arkansas.

George M. Chapeine, Judge. Mandates of the Supreme Court are to be. construed in the light of their surroundings. 13 Ark. 253; 16 Wall. 468; 94 U. S. 498; 13- Pet. 359. The finding of guilt or liability will not be disturbed when the only error has been one affecting the degree of punishment or the measure of damages. 57 Ark. 349; 65 Ark. 619. When the amount due on a mortgage is tendered and refused, the mortgage is no longer enforcible. 1 Jones, Mort. § § 886-903.

<p>Taxation — assessment oe bank — Equality.—Where part of the capital stock of a bank has been invested in real estate, which is separately-taxed, the value of such real estate should be deducted from the capital stock in assessing the latter for taxation.</p>

. John B. McCaueb, Judge. The wife could not testify in the husband’s defense. ■ 37 Ark. 298. The mortgage was only an incident to the debt. 67 Ark. 260. The written contract must govern. 68 Ark. 30. The defendant must abide the consequences of his own inattention and carelessness. 11 Ark. 1058; 27 Ark. 244; 8 Am. & Fng. Enc. T.aw, 643; 31 Ark. 170. A fraudulent misrepresentation must be relied upon. 8 Am. & Eng. Enc. Law, 636.

John M. Elliott, Chancellor. The county court had no power to make the contract in this case. 54 Miss. 670; 61 Ark. 74; 44 Pac. 324. The county pourt had no power to let a contract to repair the court house, in excess of the appropriation. 34 Ark. 369; 36 Ark. 641; 53 Ark. 287; Sand. & H. Dig. § 848. As to the distinction between power to build a court house and jail and to make other contracts. Cf. Sand. & H. Dig. § § 839-884 and 1271-1284.

Antonio B. Grace, Judge. The court erred in overruling the motion for a new trial. 29 Ark. 365; 174 Mass. 43; 44 Ark. 39. A new trial should have been ordered on account of newly discovered evidence. S- & H. Dig. § 5839; 20 Ark. 330. After property has been converted, and a tender of same has been made to- the owner, such tender is no bar to the recovery of the value of the property so converted. 29 Ark. 365; 38 N. Y. 423; 17 Wend. 91; 24 Wend. 379.

Wirriam L,. Moose, Judge. The court’s instruction on the question of safe appliances was abstract and misleading. 68 Ark. 316; 56 Ark. 237; 65 Ark. 98; 60 Ark. 442; 59 Ark. 98; 58 Ark. 324; 54 Ark. 389; 54 Ark. 483. The injury was the result of an assumed risk. 54 Ark. 289; 45 Ark. 318; 35 Ark. 602; 66 Ark. 237; 59 Ark. 465^48 Ark. 460; 46 Ark. 555; 44 Ark. 524. It was appellee’s duty to observe conditions and report any signs of danger observed. 42 111.

Edward D. Robertson, Chancellor. statement by the court. These are suits brought by the Board of Eevee and Drainage Commissioners and Inspectors of Clay and Greene Counties, against the treasurer and sheriff, respectively, of Clay County, for the purpose of recovering moneys received by these officers from the taxes levied and paid in that district.

Appeal- from Sebastian Circuit Court, Fort Smith District. Styles T. Rowe, Judge.

Joee D. Conway, Judge. STATEMENT BY THE COURT. The complaint alleges that appellant took passage on one of appellee’s passenger trains at Camden, Arkansas, for Whelen, Arkansas, on the 25th day of December, 1900; that the train was late, and'crowded with passengers; and when it arrived at Whelen, appellant promptly attempted to leave the train, but the appellee negligently failed to stop its train long enough to permit him to alight, and, while appellant was in the act of…

Appeal 'from Garland Chancery Court. Leland Leatherman, Chancellor. statement by the court. This is an action in equity to obtain a new trial in a court of law on the ground that the plaintiff had been misled, and his right to appeal had been lost by the act of the circuit judge.

George M. Chaplins, Judge. statement by the court. John McWilliams claimed title to the following land in Arkansas County, towit: Northeast quarter section 26, township 4 south, range 2 west, by virtue of a tax sale made by the collector for nonpayment of taxes in the year 1869. The clerk’s deed under said sale was not made until the year 1897.

Fort Smith District. Styles T. Rowe, Judge. statement by the court. LaFayette & Brother, merchants and dealers in live stock at Checotah, Ind. Ter., in June, 1898, entered into an agreement with one Boudinot Whitlock by which, under certain conditions, they were to advance money to Whitlock for the purchase of cattle.

Wieeiam L. Moose, Judge. The court’s instruction defining the theory of self-defense was improper. 62 Ark. 309; 64 Ark. 144. The court’s remarks to the jury when they had failed to reach a verdict was error. 58 Ark. 282; 51 Ark. 155; 104 111. App. 499; 131 N. Car. 73; 72 Pac. 670; 78 S. W. 930; 86 N. W. 98; 34 S. E. 1023; 34 S. E. 734. The court excluded appellant’s theory of self-defense. 60 Ark. 80; 28 Ark. 160; 50 Ark. 547; 78 Ky. 268; 14 So. 327; 2 Bish. Cr.

John M. Eeliott, Chancellor. On February 14, 1900, H. V. Freeman, executor of the will of O. H. Platt, filed a bill in equity against J. G. Thweatt, R. H. Sanders and S. A. Apple, alleging: That Thweatt is a lawyer and real estate dealer at Devall’s Bluff, and that he was on September 18, 1897, acting as agent and attorney of plaintiff.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. ’ The appellant, representing the Kelley Axe Manufacturing Co., sued appellee in a justice’s court at Fort Smith, on an account for axes delivered, for $132.50.

Robert J. Lea, Judge. If there is any evidence to uphold a theory, it is the right of the litigant to have the jury pass upon it. 50 Ark. 545; 33 Ark. 350; 35 Ark. 147; 36 Ark. 451; 39 Ark. 491; 62 Ark. 63. Assignment of a negotiable instrument cuts off all defenses by the maker. Sand. & H. Dig. § 492; 31 Ark. 20, 128; 40 Ark. 545; 36 Ark. 228; 41 Ark. 242, 418; 42 Ark. 22; 53 Ark. 523.

George M. Ci-iaprine, Judge. Suit by W. C. Bowen against St. Louis Sbuthwestern Railway Company to recover damages caused by the killing of plaintiff’s horse by engine and train of defendant at a highway crossing. Plaintiff recovered, and defendant appealed. The.third instruction was misleading.

Joee D. Conway, Judge. Sandels & Hill’s Digest, § § 6514, 6531, only allows $3 a day for attendance on the board while in the discharge of their duties as an equalizing board. Their labors as such cease before the October term of the court following, and they meet to show cause, in cases of complaint by taxpayers, why the valuations were raised.

Joel D. Conway, Judge. ■ i. No fee is allowed for recording indictments. 32 Ark. 45. Section 3306, Sandels & Hill’s Digest, allows no such fee. No constructive fees allowed. 56 Ark. 581; 57 Id. 487; 32 Ark. 45; 70 Id. 607. The county not liable for fee for entering order of appointment by special bailiffs and deputy sheriffs, the sheriff being liable. 57 Ark. 487. He is only allowed 50 cents for certifying cost to the county court. 57 Ark. 487.

<p>Certiorari to Howard Circuit Court.</p> <p>James S. Steer, Judge.</p> <p>Certiorari is the proper remedy. 60 Neb. 773, 775; 45 Ark. 158, 160, 161; 14 Ark. 337; 39 Ark. 126; 52 Ark. 213, 222; 9 Ark. 73; 50 la. 676, 679; 30 Ark. 435; 20 Ark. 573 ; 14 Ark. 237; 29 Ark. 173; 39 Ark. 126. The actions of a judge at chambers, requiring judicial determination, are the acts of a court within the law, so as to be subject to review by this court. 45 Ark. 158, 160, 161; 60 Neb. 773. The question of res judicata can have no place in this action, it being here sought, upon certiorari, by direct attack, to set aside a judgment. Mandamus was not the proper proceeding. Kirby’s Dig. § 5155; 8 Ark. 424; 14 Ark. 337; 61 Ark. 607; 6 Ala. (N. S.) 91. The contestants have no right to maintain their action, in this case, because the pleadings do not show that they are either residents or citizens of Howard County, or that they have any interest in the subject-matter. 57 Ark. 332; 43 Ark. 219, 220. The allegations in the notice of contest, if taken as true, do not entitle the contestants to any relief. Statutes concerning the manner of conducting elections are directory, unless a non-compliance is expressly declared to be fatal to the validity of the election or will render doubtful the result. 43 Ark, 62, 66; 50 Ark. 266. The allegation of fraud is merely a statement of a conclusion, and cannot serve as a foundation for a complaint. 1 Ark. Law Rep. 170. The record does not show that the contestants were entitled to any relief, and shows, moreover, that the judge, in vacation, had no jurisdiction. 9 Ark. 73; 45 Ark. 158; 34 Fla. 389; 50 la. 676.</p>

Jeremiah G. Waeeace, Chancellor. The copy of the record presented is sufficient for appeal. 26 Ark. 414; 47 Ark. 49. If the appeal is not taken in time, there is no appeal. 69 Ark. 283.- An appeal is granted as a matter of right, and may be granted by the clerk of this court at any time within one year from the rendition of the judgment. 14 Bush, 216; Kirby’s Dig. § 1196; 80 Ky. 216; 95 Ky. 342; 4 Ky. 449; 2 Cyc. 807.

<p>Appeal from Marion Circuit Court.</p> <p>Erbridge G. Mitci-ierr, Judge.</p> <p>The claim of Lock had been abandoned. Rev. Stat. U. S. § 2297; 3 L. L>. 526; 14 L. D. 49. Mineral lands can only be disposed of as the law directs. Rev. Stat. U. S. § 2258; 115 U. S. 392. A void patent may be attacked collaterally. 29 Pac. 9; 8 Fed. 865. In general, we apply to mines in public lands the rules applicable to real property. 42 Fed. 99; 18 How. 50; 144 U. S. 509. The location must be distinctly marked. 160 U. S. 318; Rev. Stat. U. S. § 2324. One cannot enter upon the possession of another and locate a mining claim. 10 Sawyer, 246; 2 Pac. 919; 160 U. S. 303; 24 Pac. 550. ■</p> <p>The question of marking boundaries not being in issue below, it cannot be here. 46 Ark. 96; 49 Ark. 293; 50 Ark. 97; 52 Ark. 318; 51 Ark. 351, 441; 54 Ark. 442; 55 Ark. 163, 213; 56 Ark. 444, 499; 56 Ark. 263. The statute points out plainly what lands are subject to appropriation. Rev. Stat. U. S. § 2319. The land department has absolute control of such lands, touching all questions concerning their charter. 132 U. S. 366. A homestead having been accepted and located, until avoided, is an entry, and segregates the tract from the public domain, precluding the claim of any one else to the land. 3 L- D. 447, 216, 218, 596; 92 U. S. 744; 101 U. S. 260. The timber culture entry was not void, but voidable, and, while of record, worked as a segregation of the land. 12 L. D. 346; 132 U. S. 357; 29 L. D. 279; 144 U. S. 279; 4 Wall. 210; 8 Otto, 118; 12 L. D. ¿1.88. Sunday contracts are void. Sand. & H. Dig. § 1887; 29 Ark. 386; 44 Ark. 74.</p>

John M. Elliott, Chancellor. The probate court had no power to make the sale. 52 Ark. 325; Woerner, Adm’n, 1035; 10 Paige, 366; Rorer, Jud. Sales, 268-273. All orders of the probate court, not authorized by the statute, are void. 27 Ark. 306; 33 Ark. 429; 22 Ark. 547; 44 Ark. 423; 57 Ark. 299; 29 Ark. 47; 48 Ark. 544; 15 Ark. 381; 20 Ark. 424;' 16 Ark. 474; 47 Ark. 307; 62 Ark. 223. The widow had no dower until the purchase money was paid.

<p>Appeal — when premature. — An appeal was prematurely allowed when the matter in respect of which the appeal was taken was pending and undetermined.</p>