Volume 75 — Arkansas Reports

George M. Chapeine, Judge. STATEMENT BY THE COURT. In 1893 A. H. Johnson was the owner of a tract of land in Prairie County containing about ninety-one acres. Johnson was a nonresident of the State, and the land was in the possession of his tenant, G. W. Miller. E. B. Eldred also claimed title to this land, and in April, 1893, he brought an action of ejectment against Miller, the tenant, who was in possession of the land.

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

Edward D. Robertson, Judge. STATEMENT BY THE COURT. The tract of land in controversy owned by appellants, who were nonresidents of the State, was embraced in a suit brought by the Board of Directors of St. Francis Levee District, in the Chancery Court of Mississippi County, to condemn lands for sale for payment of unpaid levee taxes, and a decree was duly entered in accordance with the prayer of the complaint condemning this and numerous other tracts of land to be sold by…

Frederick D. Fuekerson, Judge. statement by the court. Johnson and Adams were neighbors in Independence County, -■and, while hunting together, Johnson accidentally killed Adams. Johnson was childless, and took an infant daughter of Adams to rear as his own after her father’s death.

George M. Chapline, Judge. STATEMENT BY THE COURT. J. M. Wheelock made a will, in which he made devises to Ida Belle Wheelock, whom he described as his adopted daughter. There was no legal adoption of her. The following clause presents the issues of this case: “Item III.

Jesse c. Hart, Judge. STATEMENT BY THE COURT. Mrs. Horton brought suit against her husband for divorce, alimony and custody of the minor children. Horton denied all the material allegations of the complaint, and the issues were tried before the chancellor upon the evidence adduced by the respective parties. The chancellor found that Mrs. Horton failed to sustain her charges against her husband, and denied her the divorce prayed.

Chas. W. Smith, Judge. statement by tiie court. On the 25th of June, 1900, the appellant insurance company issued a policy of $1,000 upon the life of John T. Bussell, payable to his father, Thomas P. Bussell, the appellee. The premium was $50.40, payable on the 25th of June, 1900, and every year thereafter for twenty years.

Felix G. Taylor, Judge. STATEMENT BY THE COURT. . On the 16th day of February, 1902, and for some time prior thereto, W. O. McFall was employed by the St Louis & San Francisco Railroad Company as a conductor, and on that day had charge of fast freight train 25,201, with William Adams as his engineer, and was running from Thayer, Mo., to Memphis. Tenn.

Jesse C. Hart, Chancellor. STATEMENT BY THE COURT. Mary Ellen Owens, Catherine M.- Owens and Margaret Owens were the owners of three lots in the city of Eittle Rock, worth about $8,000. Their father, E. J. Owens, also claimed to own a life estate in these lots as tenant by curtesy. He was guardian of his children named above, and had secured an order of the probate court authorizing him to mortgage the lots for the sum of $3,000 for the purpose of educating his wards.

LEEAND Leattierman, Judge. STATEMENT BY THE COURT. John J. Sumpter was in 1895 the owner of a one-third interest in lots 4 and 5 of block 112, of the city of Hot Springs, Garland County. On the 26th of June, 1895, one William Cameron recovered a judgment agdinst Sumpter. On December 5, 1895, execution was issued on this judgment. On January 14, 1896, Sumpter gave a stay bond, staying this execution for six months.

Marcus E. Hawkins, Chancellor. Suit by Fannie R. Norman against one Easter, administrator of T. O. Rodgers, deceased, and G. B. Pugh and another. From the decree rendered plaintiff appeals. Affirmed. STATEMENT BY THE COURT. One T. O. Rodgers died in Ashley County, seized and possessed of a house and lot in the town of Hamburg, and Dr. Easter, who claimed to be a creditor of the estate, was appointed administrator, and probated his claim.

Alexander M. Dueeie, Judge. STATEMENT BY THE COURT. ' This is an action by appellee to recover for work performed for .appellant under a written contract, the material portions of which are as follows: “Said John Kelly * * * agrees to and with Charles Dugan * * * that he will to the best of his ability perform the following work, viz: excavate in the rear of the Southern Club, Hot Springs, Ark., 34 feet deep, running back from rear line of present building, 55 feet parallel…

Cross appeals from Howard Chancery Court. James D. Shaver, Chancellor. STATEMENT BY THE COURT. On June 19, 1899, appellant brought a suit in the Howard Chancery Court to enforce a mortgage lien upon certain lands, and on January 29, 1900, he brought suit in the circuit court in ejectment for the possession of the land, to the end that the rents and profits might be applied to the payment of the mortgage debt sued on in the chancery court.

Aeren Hughes, Judge. statement by the court. The complaint alleged that the defendant’s servants in Crittenden County, on May 29, 1902, negligently -ran over a horse belonging to the plaintiff, valued at $250. The answer denied that the plaintiff was the owner; denied that it was killed by the train on a line of the defendant’s railway; denied that it was negligently and recklessly done.

Aeren Hughes, Judge. statement by the court. This suit was before a justice of the peace, in Clay County, upon the following complaint: “The plaintiff for his cause of action against the defendant states that the defendant is a corporation organized and existing under the law of the State of Missouri, and owning and operating a railroad through the county of Clay, in the State of Arkansas; that on the 15th of July, 1901, this plaintiff placed upon the sidetrack of the.said…

Alexander M. DuEEie, Judge. The-confessions of a prisoner out of court and in the custody of officers are a doubtful species of evidence, and should be received with great caution. 1 Greenleaf, Ev. § 214; 34 Ark: 649; Sackett, Inst. Jur. 642. The argument of counsel and cross-examination of appellant was prejudicial. 62 Ark. 126; 61 Ark. 130; 156 IE S. 361; 58 Ark. 473; 75 Ind. 220; 46 L. R. A. 641; 69 Ark. 657. Section 2321 of Kirbyjs Digest is directory. 53 Ark. 67.

Edward D. Robertson, Judge. The written contract must govern. 71 Ark. 614; 66 Ark. 155; 24 Am. & Eng. Enc. Raw, 650. One who asks a court of ■equity to reform a writing must show that he has been free from carelessness in the matter. 70 Ark. 512; 24 Am. & Eng. Enc. Raw, 656; 162 Mó. 424; 93 Va. 349. A chancellor’s findings will not be reversed unless they are against the preponderance of the evidence. 44 Ark. 216; 71 Ark. 614.

Styles T. Rowe, Judge. J. F, Jones sued the Western Coal & Mining Company, a corporation engaged in operating a coal mine. The complaint alleged that plaintiff was working in defendant’s mine, and was injured in an explosion caused by defendant’s neglect and failure to ventilate the mine. The answer denied the charges of negligence. The evidence is sufficiently stated in the opinion of the court.

George M. Chaprine, Judge. STATEMENT BY THE COURT. J. W. Walker executed the following deed: “Know all men by these presents that whereas J. W. Walker, an unmarried man, owns the life estate in the property now occupied by him as homestead, and which is a part of Private Survey No. 2391, and James A. Walls owns the fee to said lands; whereas a part of said lands which lies on and east of Second street, town of Clarendon, which is called Walker’s Addition to the town of…

John N. Tierman, Judge. STATEMENT BY THE COURT. The appellant railroad company was contemplating building from Eureka Springs east into Boone County, and the citizens of Harrison were seeking to induce it to build to .that town.

<p>Appeal from Yell Circuit Court, Danville District.</p> <p>William B. Moose, Judge.</p> <p>The French & American Importing Company sued the Belle-ville Drug Company oh a contract for the sale of merchandise amounting to $69.93. Defendant filed an answer containing three paragraphs, as follows:</p> <p>“1. Comes the defendant, the Belleville Drug Company, and * * * says that the signature of the Belleville Drug Company •to the order sued on in this action was obtained by fraud, in that the agent making the sale of the goods mentioned in said order, by way of inducement to the procurement of said signature of said Belleville Drug Company to said order, contracted and agreed with the manager of said Belleville Drug Company that hé had not (sold) and would not sell goods like those being offered to said Belleville Drug Company to any other dealer in town of Belleville in the State of Arkansas, the town in which-the business of said Belleville Drug Company was being carried on: that but for said agreement the Belleville Drug Company would not have given or executed said order for said goods, and so stated to said agent of the French & American Importing Company; that said agent, at the time of making said sale to the said Belleville Drug Company, had sold the same class of goods to one J. H. Harris, a resident of and doing business in the said town of Belleville, Ark.; that, by virtue of the said false and fraudulent representation so made by the agent of the said French & American Importing Company to the manager of the Belleville Drug Company, he fraudulently obtained the signature of the said Belleville Drug Company to the said order for said goods. Wherefore defendant says that, by reason of said false and fraudulent representations in the procurement of said contract, the same is void, and should-not be enforced.</p> <p>“2. Defendant, further answering, says that the goods for which the order sued on herein was given was a lot of cologne, was a large order for a town and trade the size of the town of Belleville; that the sale of said goods to two parties in said town would result in the delay of sales for a long period of time, to the damage of the vendee, and in all probability to the loss in value and quality of said cologne; that said goods would not have been purchased but for the agreement entered into by said agent as hereinbefore stated; that, by reason of the sale of similar goods to the said J. H. Harris contrary to said agreement, the defendant, in case -it should be compelled to accept said goods, would be damaged in the sum of $50, for which amount defendant asks a counterclaim for said sum of $50.</p> <p>“3. Defendant, further answering, says that plaintiff failed to ship out the goods within a reasonable time; that the goods shipped to said J. H. Harris were received and opened up by said Harris; that defendant’s manager saw said goods; that he countermanded said order; that, notwithstanding said countermand, plaintiff sent said goods on; that defendant refused to receive same, and notified plaintiff thereof. Wherefore defendant says that he is in no way liable for the purchase price of said goods.</p> <p>“Wherefore it asks to be discharged herefrom with its costs.”</p> <p>Plaintiff demurred to the answer on the ground that plaintiff’s action was based upon a written contract executed and delivered to this plaintiff by said defendant, and that defendant’s answer set up as defenses to plaintiff’s action contemporaneous parol agreements which tend to add to, vary and contradict the written contract sued on. Wherefore plaintiff prayed that defendant’s answer herein be stricken from the files, and dismissed.</p> <p>The demurrer was overruled by the court-; appellant excepted, and prayed an appeal, which was granted.</p> <p>A verbal contract contradictory of the written agreement is void. 29 Ark. 544; 49 Ark. 285; 55 Ark. 347; 50 Ark. 393.</p> <p>Fraud vitiates every contract. 22 Ark. 521; 24 Ark. 222. The fraud of an agent avoids a contract made by him for his principal. 42 Ark. 97; 69 S. W. 1021; 48 Ark. 138; 49 Ark. 320; 53 Ark. 222. The representations of plaintiff’s agent justibed appellee in avoiding the contract. 69 S. W. 1021; 48 Ark. 138.</p>

Styles T. Rowe, Judge. A void policy of insurance can only be revived by a new agreement, supported by a new consideration. Ostrander, Fire Ins. 396, 563, 573, 578; 123 N. Y. 6; 118 N. Y. App. 518; 124 Ind. 490; 90 Tenn. 412; 5 Ind. App. 82; 70 N. Y. 593; 62 Ark. 348. Evidence of custom should have been presented. Ostrander, Eire Ins.-99, 128.

Antonio B. Grace, Judge. The court erred in excluding the testimony of H. E- Martin, as to whose land the spur track was on. Hutch, Car. § 94. The delivery must have been complete. ' 56 Ark. 288; Hutch. Car, § 82. Usage is legal evidence of custom. 17 Ark. 428; 58 Ark. 129; 29 Am. & Eng. Enc. Raw, 412. Delivery to appellant was complete. Hutch. Car. § § 99, 100; 42 Tex. 467; 29 Am. & Eng. Enc. Raw, 410.

James S. Steel, Judge. STATEMENT BY THE COURT. This action was commenced before a justice of the peace, where a judgment was rendered in favor of the plaintiff, and the defendants appealed to the circuit court, where plaintiff filed the following amended affidavit which sets out his cause' of action.

Joi-in N. Tirrman, Judge. There is no lien for the claim of appellee unde'r the statutes. 3 Elliott, Railroads, § § 1067, 1074. The finding of fact by the' court is as conclusive as the findings of a jury. 40 Ark. 208; 58 Ark. 621. Bright was not a necessary party. 43 Ark. 220; 50 Ark. 215; 61 Ark. 515.

Joee D. Conway, Judge. STATEMENT BY THE COURT. P. J. Ahern, during the year 1898 was president of the Little River Lumber Company, whose place of business was in Little River County, Arkansas. On the 18th day of April, 1898, there was filed in the office of the clerk and recorder of Little River County a statement showing .the financial condition of the company with lists of the stockholders, which statement was signed by the president and secretary of the company.

George M.. Ci-iapeine, Judge. STATEMENT BY THE COURT. McClintock & Lankford sued Frohlich for $100 for professional services which they alleged they had rendered him under employment by him in the spring of 1900. The defendant answered, denying the employment, and saying that, if plaintiffs rendered any service, it was without being employed, and it.was without his knowledge or consent.

Edward D. Robertson, Judge. statement by the court. Appellee sued the Riverside Lumber Company, a corporation, before a justice of the peace of Woodruff County to enforce his claim for laborers’ lien on a lot of lumber. An attachment was issued, as provided by law, and levied upon the lumber upon which the lien was claimed. Judgment was rendered in his favor for the amount of debt claimed, and the lumber was ordered to be sold to satisfy same.

Cross appeals from Miller Circuit Court. Joel D. Conway, Judge. STATEMENT BY THE COURT. This is an action brought by appellee in the circuit court of Miller County against the Texarkana Street Railway Company, the Texarkana Telephone Company, and Harrison Construction Company, to recover damages for personal injuries alleged to have been caused by the concurring negligence of the defendants.

Petition for mandamus to Marcus L. Hawkins, Chancellor. The act is void because it denies to accused parties now in jail a speedy trial. Const., art. V, § 25. The act is void because the notice required by the Constitution was not given. 123 Mo. 399; Const, art. III., § 57; 1 Ark. 219. The court cannot inquire into the publication of notice. 48 Ark. 370. The bill is plain and certain in its terms. 66 Ark. 466; Suth. Stat. Const. § 332.

William L. Moose, Judge. statement by ti-ie court. This is an action by R. A. Dowdle and others as heirs at law of Juliette E. Hannaford, in the Conway .

Edward W. WjnEield, Judge. This was an action of tort against a street railway company for negligently severing a line of hose laid across defendant’s track in Tittle Rock, and thereby cutting off in part the supply of water from, a fire which was consuming plaintiff’s furniture in the house which he was occupying, and which could have been saved if the hose had not been severed. The substance of the evidence is stated in the opinion of the court.

Joee D. Conway, Judge. STATEMENT BY THE COURT. Appellee Brown was a day laborer, working for appellant railroad company. He was discharged on the 27th of August, 1902, and there was due him, after deducting amounts he owed, the sum of $3.25. The foreman sent Brown to the timer keeper to get an identification certificate.

LkUAND Leatherman, Chancellor. The land in question was the homestead of appellant. Kirby’s Dig. § 3901. -The deed of trust was void. 57 Ark. 242; 62 Ark. 431; 64 Ark. 492; 71 Ark. 283. No ratification is alleged or shown. 58 Ark. 20; 64 Ark. 217; 56 Ark. 532; 11 Ark. 205.

Appeals from Monroe Circuit Court. George M. Chapline, Judge. The impeachment of the State’s own witnesses by the State was error. 18 Ark. 593; 3 Rice, Ev. § 2185. It was error to refuse to instruct on the question of threats. 69 Ark.' 148; McClain, Crim. Law, § § 307, 418, 423. Leading questions were improperly asked in rebuttal. 20 Wend. 235; 1 Hill, 301; 2 Car. & P. 415. The charge as to the credibility of witnesses was improper. 68 Ark. 336.

Gustav® Jon®s, Special Judge. The alleged will was not admissible for any purpose. 13 Am. & Eng. Enc. Law, 1038; Kirby’s Dig. § § 8033-8047. . The will was properly admitted in evidence. Kirby’s Dig. § 8030; 51 Ark. 281; 66 Ark. 623; 64 Ark. 150. There were no allegations as to improvements made, and evidence of the same was properly excluded. 1 Greenleaf, Ev. c. x; 2 Ark. 513; 31 Ark. 203; 46 Ark. 132; 70 Ark. 505; 71 Ark. 484.

<p>1. Sale of bank stock — good Faith. — Where a stockholder in a bank corporation in due course of trade sold his stock to the cashier of the bank without having any reason to believe that the bank was insolvent, or that the cashier was using the money of the bank in purchasing his stock, the sale was valid, and the money paid therefor became the property of the seller. (Page 152.)</p> <p>2. Same — notice OF insolvency. — Where stockholders of a bank corporation, knowing that the bank was insolvent, sold their stock to the cashier, and were paid out of the bank’s assets, the effect of the transaction was a withdrawal of their stock 'from the bank on account of its insolvency, in fraud of its creditors, and such payments may be recovered by the receiver of the bank for the benefit of its creditors. (Page 153.)</p> <p>3. Insolvent corporation — stock dividend — recovery.—A stock dividend received by the stockholders in an insolvent corporation, which was paid out of the capital stock of the corporation, may be recovered from them by the receiver for the benefit of the creditors. (Page 154.)</p>

Robert J. Lea, Judge. STATEMENT BY THE COURT. This appeal is from a judgment denying a petition for prohibition under the three-mile law. The petition was in due form, and had 337 signers. It was filed with the clerk of the county court December 31, 1904. On January 2, 1905, appellee was made a party to the proceeding, and through his counsel presented the applications of fifty-one of the signers to the petition asking to be allowed to withdraw their names.

Aeren Hughes, Judge. STATEMENT BY THE COURT. The appellee on the nth day of September, 1902, instituted this action, and alleged that his merchant in St. Louis, Mo., delivered to the appellant a carload of potatoes destined to Jonesboro, Ark., and that they were negligently loaded into a car out of repair; that the car leaked, and when the potatoes arrived at Jonesboro a large portion, of them were frozen, and rendered .worthless, and damaged to the plaintiff in the sum of…

Alexander M. DuEEiE, Judge. STATEMENT BY THE COURT. This case was begun in the Saline Circuit Court by appellee bringing suit against appellant on two orders for $200 each, executed by appellee, Simms, and -conditionally accepted by appellant.

James S. Steer, Judge. STATEMENT BY THE COURT. The allegations of appellant’s complaint, omitting merely formal parts, are as follows : That on the 6th day of February, 1903, appellant purchased a ticket entitling him to first-class passage upon appellee’s railway from DeQueen to Ashdown, Ark., and boarded one of the appellee’s regular passenger trains for said station of Ashdown, paying for his said ticket the regular fare required by appellee, and that he was accepted ■ by…

Joel D. Conway, Judge. statement by the court. On the date therein named J. J. Hyatt & Company, of Ozan, Ark., executed the following note to the Howard County Bank, of Nashville, Ark., towit: “$1,435.85. , Nashville, Ark'., Nov. '5, 1902. “Three months after date, for value received, we promise to pay to the order of Howard County Bank fourteen hundred thirty-five and 85-100 dollars, at Howard County Bank, with interest at maturity at the rate of ten per cent, per annum…

John M. Feeiott, Chancellor. statement by the court. The southeast quarter of section 35, township 3 south, range 5 west, 160 acres, lying in Arkansas County, was granted by act of Congress to the State of Arkansas as swamp and overflowed land, and was afterwards in 1861 entered by one H. Howard, and the title thereto transferred by the State to him. This land was forfeited and sold to the State in 1869 for nonpayment of taxes in 1868.

Styles T. Rowe, Judge. STATEMENT BY THE COURT. Appellant, D. J. Young, having a judgment against the appellee, caused execution to be issued thereon, and levied upon a stock of liquors which appellee was selling at retail. The saloon in which appellee did business was taken charge of under the execution and closed by the sheriff, and appellee brought this-suit against appellants, Young and the' sheriff, and the sureties on a bond of indemnity executed by Young to the sheriff.

<p>Appeal from Monroe Chancery Court.</p> <p>John M. Erriott, Judge.</p> <p>statement by the court.</p> <p>This is a suit in chancery brought by appellees, John S. Black as one of the heirs and as creditor of S. E. Black, deceased, and Mallory, Crawford & Co., creditors of said S. E. Black, to set aside the sale of the lands in controversy made to Polk Montgomery, one of the appellants, by the sheriff of Monroe County, under orders of sale rendered by the circuit court and special execution issued thereupon. Montgomery, the purchaser of the lands, E. J. Robinson, administrator' of the estate of S. L. Black, deceased, and T. H. Jackson, sheriff, were made defendants. It is alleged in the complaint that in 1893, one Charles Adams, then a resident of the State and owner of the lands in controversy, being indebted to defendant Robinson in the sum of $300 and to the firm of M. D. & J. W. Martin in the sum of about $1,200, delivered possession of said lands to his said creditors to secure said debts, and authorized them to rent said lands and apply the rents pro rata to the payment of their debts. That, pursuant to that arrangement, defendant Robinson took possession of the lands, and rented the same out, collected rents, etc. That after said lands had been delivered to them by Adams, who immediately removed from the State, it was agreed between Robinson and the Martins that neither of them would institute any suit against Adams affecting their respective rights in the premises, without notice to the other, and that whatever sums might be realized from the lands, either as rent or from sale of the land, should be shared between them in proportion to their respective claims against Adams. That, in violation of the agreement, Robinson, without notice to the Martins, brought suit against Adams, and caused an attachment to be levied on the lands, and obtained judgment at the April term, 1898, of the circuit court for the amount of his debt, $410.71; and the Martins, after receiving information of that suit, also sued Adams, and attached the lands, and obtained judgment against Adams at the November term, 1898, for the amount of their debt $1,710.25. That, after the rendition of these judgments, the Martins assigned their said judgment and conveyed certain other property to Robinson as administrator of the Black estate in settlement of a debt owing by them to that estate,, which settlement was confirmed by the probate court. That thereafter Robinson caused the Adams land to be sold under said two judgments, and purchased them in the name of defendant Montgomery, who is his uncle, and applied the proceeds of the sale first to the satisfaction of his own debt, and the balance upon the Martin judgment. That the price for which the lands were sold, $664, was grossly inadequate, and that the lands were worth a great deal more than that amount. That on the day before the sale Robinson agreed with plaintiff, J. S. Black, that he, Robinson, would buy the lands for the Black estate, and that Black was thereby induced not to attend the sale.</p> <p>The defendants filed separate answers, in which they both deny -that the lands were bought for Robinson, and allege that, on the contrary, the purchase was made by Montgomery for his own benefit. Defendant, Robinson, in his answer also denied that he had made any agreement with the Martins concerning a division of the rents or proceeds of sale of the Adams land, or that he had agreed.with plaintiff, Black, to buy the lands at the sheriff’s sale for the benefit of the estate of S. B. Black. He admits, however, that on the day before the sale he promised Black that'he would buy the land for the benefit of the estate if he could do so legally, and would submit the question to his attorney, but that on the morning of the sale day his attorney' advised him that he could not buy for the estate, and that he immediately sent word to that effect to plaintiff, J. S. Black, by a messenger, and caused the sale to be postponed until the arrival of a train upon which Black could have reached Clarendon, the place of sale.</p> <p>The court, upon final hearing of the cause, rendered a decree in accordance with the prayer of the complaint, cancelling the. sale of the land to Montgomery, and requiring defendant Robinson to account for the rents and profits of the land, giving credit to the Black estate for a pro rata share thereof in accordance with the relative amounts of the two judgments against Adams.</p> <p>The objection that a sale of land was sold en masse can be raised by the defendant only. 34 Ark. 399; 51 Ark. 84; 64 Ark. 126. The same is true with reference to the bond required under section 5877 of Sandels & Hill’s Digest. 66 Ark. 1; 62 Ark. 42 x. If a sale is fair in every respect, the court will not set it aside before confirmation; if the price is grossly inadequate, after confirmation it will not be set aside except for fraud. 44 Ark. 502; 47 Ark. 93; 53 Ark. 110; Rorer, Jud. Sales, § § 180-182; 65 Ark. 152; 56 Ark. 240; 66 Ark. 490; 64 Ark. 126; 55 Ark. 233. An administrator has no right to purchase. 26 Ark. 445; 28 Ark. 290; 23 Ark. 622. The sale cannot be collaterally attacked. 49 Ark. 397; Black, Judg. 245, 271; Crawford’s Dig. 150. The attachments against the Adams property were regular. 66 Ark. 1.</p> <p>The chancellor’s findings will not be disturbed, unless against the preponderance of the evidence. 44 Ark. 216; 41 Ark. 294; 50 Ark. 185; 55 Ark. 112; 71 Ark. 605; 73 Ark. 489. A beneficiary cannot become the purchaser of property . under his control. 33 Ark. 587. The judgment in the' case of Robinson v. Adams, was rendered without notice. Kirby’s Dig. § § 4424, 6042, 6058, 6111. The statute must be substantially and strictly complied with. 30 Ark. 723. A sale made without the bond under the statute is void. 40 Ark. 130.</p> <p>If the purchaser pays to the creditor, whose recovery is sufficient to absorb the whole of the proceeds, the purchaser will be discharged unless the officer holds paramount claims upon such proceeds. 47 N. H. 341; 1 Doug. (Mich.) 417.</p>

Hance N. Hutton, Judge. Appellant’s claim should have been allowed as one of the second class. Kirby’s Dig. § no. The doctrine of implied contracts applies. 29 Pa. St. 465; 26 Ark. 360; 56 Ark. 382.

Thomas B. Martin, Judge. The father is entitled to the custody of the children. 37 Ark. 30. In the absence of evidence that he or she is an unfit person, custody of children is usually awarded to the prevailing party. 14 Cyc. 807.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. W. S. Jackson, Sr., entered the lands in controversy, and died without disposing of them, and leaving the appellants his heirs at law. They filed a complaint in Ashley Chancery Court, alleging that the appellees, defendants therein, had a title based on an overdue tax decree which was void for reasons stated in the complaint.

<p>Appeal from Garland Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p> <p>STATEMENT BY THE COURT.</p> <p>This was an action on a fire insurance policy, and the insured, the Misses O’Bryan, recovered. The company, after the fire, called into operation the appraisement clause of the policy. The insured selected T. W. Gibbs as appraiser, and the company selected Beattie, and an agreement was drawn and signed by the company, but it was not consummated. Gibbs made an estimate of the injury to the building, at the instance of Charles O’Bryan, the brother and representative of the Misses O’Bryan, and was paid for his services. This was prior to his selection as appraiser. Beattie, the other appraiser in the unconsummated written submission, had made a similar estimate at the instance of the company which differed in amount but slightly from Gibbs’s. After the failure of this agreement the insured, when called upon to name an appraiser under the terms of the policy, again named Gibbs, and then the company objected to him as not being “competent and disinterested.” The insured insisted on Gibbs, and the company would not accept him. Gibbs was a bidder with several other contractors for the erection of four houses to be built by Charles O’Bryan, and was the lowest bidder, and got the contract, and built the houses. At the time he was nominated as appraiser, he was a prospective bidder. He was an experienced contractor and builder.</p> <p>The clause in the policy in question is as follows: “In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss, the parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.” ’</p> <p>The court instructed the jury as follows:</p> <p>“1. If you find from the evidence that the plaintiffs, upon the demand of the defendant for an appraisement of the loss under the provisions of the policy, notified defendant that they would comply with said demand, and thereupon named T. W. Gibbs as the appraiser for them, and that said Gibbs was compe'tent and disinterested, and that the plaintiffs were at all times ready to proceed with the appraisement with Gibbs as such appraiser, and defendant refused to proceed with such appraiser, then you will find that plaintiffs have complied with the provisions of the policy as to the appraisement.</p> <p>“2. The mere fact that T. W. Gibbs knew the premises, and had made an estimate of its value, did not of itself render him incompetent or disqualified to act as an appraiser, under the provisions of the policy.”</p> <p>The court refused to give the following instruction requested by the company:</p> <p>“7. If you believe from the evidence that T. W. Gibbs, the person offered as an appraiser, had already made a computation of the loss at the request of the assured, then the court tells you that he was not a disinterested person within the meaning of the policy, and that the defendant had the right to decline to agree to said person as one of the appraisers.”</p> <p>The court gave, at the request of the company, the following instruction:</p> <p>“2. You are instructed that defendant had the right to insist upon a competent and disinterested appraiser being chosen by plaintiffs, and to object to one if he was incompetent or interested; and that it .devolved upon plaintiffs to appoint some person who was competent and disinterested. If, therefore, you find from the evidence that plaintiffs offered as their appraiser a person who was incompetent or interested within the meaning of those terms explained to you, and you find that defendant objected to him on either of those grounds, and that plaintiffs refused or failed to choose another person as an appraiser who was competent and disinterested, and thus proceed to comply with said provision as to appraisal, you will find for the defendant.”</p> <p>Gibbs was not disqualified to act as an appraiser under the provisions of the policy. 129 Mass. 345; 30 So. 257; 4 N. E. 745; 51 S. W. 123. If indeed he was, the appellant waived his disqualification. 32 R. R. A. 172; 26 R. R. A. 623; 51 N. W. 123; 21 S. W. 207; 62 N. W. 423; 21 S. E. 303; 20 S. E. 477; 29 N. E. 844; 8 Atl. 586.</p>

Jesse C. Hart, Judge. . There can be no fraudulent conveyance of a homestead. 43 Ark. 429; 57 Ark. 242; 52 Ark. 493; 52 Ark. 102; 33 Ark. 454, 762. The appellant is not entitled to have the conveyance set aside. 11 Ark. 411, 716; 52 Ark. 171, 389; Kirby’s Dig. § 3898; 65 Ark. 373; 66 Ark. 382; 71 Ark. 207; 21 111. 445; 68 Mo. 388; 14 How. 519; 69 Mo. 415; 48 Ark. 539.

Hance N. Hutton, Judge, on exchange of circuits. The representations of the salesman were not fraudulent, and did not entitle Meyer to rescind the contract. 14 Am. & Eng. Enc. Law, 34, 118; x Ark. 31; 2 Mech. Sales. § 870; 38 Ark. 351; 6 Ark. 513; 7 Ark. 167; 11 Ark. 58; 19 Ark. 522; 27 Ark. 244; 47 Ark. 165; 38 Ark. 342; 26 Ark. 28; 31 Ark. 170; 22 Ark. 459; 23 Ark. 289; 14 Am. & Eng. Enc. Law, 85; 98 N. W. 923.

Edward W. Winfieed, Judge. The evidence' does not sustain the verdict. 40 Ark. 168; 'll Ark. 630; 46 Ark. 141; 34 Ark. 632; 70 Ark. 386. Instruction No. 1, given by the court, was error, since it took from the jury the defense of contributory negligence. 65 Ark. 98; 65 Ark. 64 ; 59 Ark. 98; 58 Ark. 473; 57 Ark. 207, 393; 70 Ark. 79. The law as to the effect of contributory negligence was improperly declared.

John N. Tillman, Judge. STATEMENT BY THE COURT. The appellee filed his complaint against appellant, in the Washington Circuit Court for the April term, 1903, alleging that “said defendant in the fall of 1902 employed plaintiff as an architect to prepare and furnish for him sketches, plans, and specifications for a certain residence which defendant proposed to erect in Fayetteville, Ark.,” and that, “in pursuance of such employment, plaintiff first drew a general outline or…

Samuee H. Mann, Special Judge. The evidence shows that there was a conditional offer and an acceptance conditional upon good title; and appellant was not bound under such state of facts. 57 Am. Rep. 858. An acceptance of an offer, to constitute a contract, must be unconditional and without modification. 31 N. W. 690; 22 Fed. 596; 101 U. S. 43, 50; 37 la. 186, 189; 12 Mo. App. 378.

Appeal 'from Jefferson Circuit Court. Antonio B. Grace, Judge. STATEMENT BY THE COURT. A. A. Le Laurin and Arthur Murray were both members of the Elks Lodge at Pine Bluff. Some differences arising between them, Murray made charges which resulted in Le Laurin severing his connection with the lodge. Le Laurin became angry at Murray, and at different times during several years in speaking of him applied to him very obscene and offensive epithets.

Cross appeals from Franklin Circuit Court, Ozark District. Jeptha H. Evans, Judge. STATEMENT BY TPIE COURT. This is an action in equity to set aside an agreement for the division of property belonging to the estate of plaintiff’s former husband. Plaintiff was the wife of Marion F. Terry, who afterwards died without children, leaving the plaintiff, Mary P. Terry, as his widow, who afterwards married one Logue.

Joel D. Conway, Judge. STATEMENT BY THE COURT. This is an action brought in the circuit court of Miller County on behalf of appellant, a minor, by his father as next friend, against appellee for damages. It is alleged in the complaint, and shown by proof, that appellant resided at Texarkana, Ark., and was a student in school at Annapolis, Md., preparatory to entering the United States Naval Academy.

Jeptha H. Evans, Judge. statement by the court. Appellee, J. R. Brown, as surviving partner of the firm of McKibben & Brown, composed of appellee and F. R. McKibben, deceased, brought separate suits against appellants upon policies of insurance issued by each in the sum of $2,000 upon a stock of merchandise situated at Duncan, Ind. Ter.

Jopin N. Tillman, Judge. Instruction No. 1 was misleading, since it required a higher degree of care on the part of appellant than the law demands. 57 Ark. 287; 60 Ark. 550; 1 Street Rv. Rep. 157, 238. Instruction No. 1 was proper. 34 Ark. 614; 40 Ark. 298 ■51 Ark. 459; 57 Ark. 418; 57 Ark. 287; 81 Mo. 325; 90 Ala. 8, 60; 68 Ark. 610. The verdict is right upon the whole case, and will not be reversed. 64 Ark. 238; 62 Ark. 228.

Eldridge G. Mitchell, Judge. Wynne and appellee were fellow-servants. 63 Ark. 486. The injury was the result'of the risk assumed by appellee. 126 Eed. 3. The case should have been withdrawn from the jury. 149 U. S. 368; 155 Mo. 346; 63 N. Y. 499; 116 N. Y. 628; 120 N. Y. 323; 122 N. Y. 618; 29 Conn. 548; 138 Mass. 390; 66 Mich. 277; 10 Ind. 354.

John M. Elliott, Chancellor. The quitclaim deed from appellant only conveyed the title held, by him. 44 Ark. 160. Held: by him. 44 Ark. 160. And was notice of all imperfections of title. 13' Ark. 298, 741; 3 How. 410; 34 Ark. 590; 44 Ark. 154; 12. Pet. 199; 137 U. S. 78; 132 U. S. 318; 137 U. S. 565; 69 Tex. 271; 15 Ark. 275.

Marcus L. Hawkins, Chancellor. statement by the court. H. L. and Frame W. Henry were brothers and partners in business, and failed in 1891. They owned as tenants in common the land in controversy. They mortgaged other lands to one Harris, a creditor, and it seems they both thought for a time that the land in controversy was included in that mortgage, but it was not, and the other lands were sold under foreclosure.

Court. Aeren Hughes, Judge. The ordinance under which defendant was convicted is void. Const, art 12, § 4; Sand. & H. Dig. § § 5145, 5132, 5139. The ordinance undertakes to regulate the conduct of people. 45 Ark. 336; 49 Ark. 160. Authority to pass an ordinance must plainly appear from the statute. 45 Ark. 454; Dill. Mun. Corp. § § 89, 319, 330. There could be no such officer as police judge, appellee not being a city of the first class. 74 S. W. 748; 63 Ark. 1; 48 Ark. 227.

Styles T. Rowe, Judge. The indictment was not sufficient. 68 Ark. ¿51. Penal statutes are to be strictly construed. 40 Ark. 97; 38 Ark. 511. The appellant was guilty of no offense. 61 Ark. 9; 79 S. W. 714. A verdict should have been instructed for defendant. 5 Am. & Eng. R. Cas. (N. S.) 645. ' The indictment sufficiently charged the offense. 18 Ark. 363; 19 Ark. 171, 587; 33 Ark. 140; 39 Ark. 216; 43 Ark. 178; 45 Ark; 173; 47 Ark. 188, 458.

Charles W. Smith, Judge. statement by the court. This suit was brought by appellant in the circuit court of Columbia County, August 7, 1897, alleging that it was the owner of a right of way through and across the northwest quarter of the northeast quarter of section 15, township 16 south, range 23 west, fifty feet wide on either side from the center of its track, and that defendant has fenced up a part of said right of way on either side by fences parallel with the track,…

G. T. Humphries, Chancellor. statement by the court. The appellee brought suit in Jackson Chancery Court, alleging in its complaint that it claimed title to certain lands, which are described. “That on the 19th day of March, 1903, the Bank of Newport, a corporation, conveyed said land by a bond for title of that date to George R. Hays.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. On the 1st day of May, 1893, the appellant, Isaac Less, applied to Michael English for a loan of $4,500, and on that date, in order to secure the same, executed and delivered to English nine notes, each in the sum of $500, payable two years after date, with interest at the rate of 10 per cent, per annum, and a deed of trust to M. D. Baber on lot 1 and north half of lot 2, in block 26, and lot 7, in block 17, in the town…

Zachariah T. Wood, Judge. The testimony of Mrs. Gee was improperly admitted. 69 Ark. 468; 64 Ark. 123. A person under arrest is not called upon to deny a criminal charge, and no admissions will be implied from silence. 32 Ala. 560; 13 Allen. 570; 1 Sm. & M. 560; 12 R. I. 557. Evidence of good character of deceased was not admissible. 2 Bish. Cr. Pro. § 612; 53 Am. St. 705. The testimony of Mrs. Rogers was incompetent.- 38 Ark. 221, 498; 45 Ark. 165; 39 Ark. 278.

John M. Eeliott, Judge. STATEMENT BY THE COURT. • In 1883 H. G. Cady sold a tract of land in Jefferson County to G. W. Davis for $6,200. Davis paid a small amount of the purchase money, but failed to pay the balance, and in 1884 Cady brought an action in equity to recover the same. One R. G. Atkinson was appointed a receiver to take charge of the land sold to Davis, with directions to rent the same and apply the proceeds thereof to the payment of the debt due Cady. .

James D. Shaver, Chancellor. STATEMENT BY THE COURT. This is an action brought by Eliza W. Smith and others to redeem a tract of land sold for taxes. This land had been forfeited to the State for nonpayment of taxes, and the State in 1871 conveyed it by donation deed to Willis S. Smith, Jr. Smith died in 1873, leaving surviving him as his- sole heir at law his father, William Y. Smith, who died in 1894, leaving a daughter and two sons surviving him.

<p>Timber cutting — requirement oe prior survey. — Under Kirby’s Digest, § § 1988, 1989, providing, in effect, that before any person shall cut and remove timber from land he shall, unless the same has been surveyed and the boundaries thereof ascertained, cause such land to be surveyed by the county surveyor, and the bounds plainly established, and imposing a punishment for failure sq to do, a conviction under the act will be Set aside where the evidence showed that an unofficial surveyor had surveyed the land and plainly marked the boundaries, even though a subsequent official survey showed that the unofficial survey was less favorable to defendant than the official.</p>

John M. Elliott, Judge. The affidavit not having been filed as required by law, the attachment was improperly issued. 40 Ark. 124; Waples, Att. 76; 70 Ark. 409. The sale made under it was never confirmed, and was void. 52 Ark. 446. In actions against a non-resident, the statute must be strictly construed. 40 Ark. 124; 11 Ark. 120; 65 Ark. 90; 50 Ark. 439; 55 Ark. 135; 155 U. S. 313.

<p>Deed — reservation of life estate in grantor. — A deed reserving a life estate in the grantor, and providing that it shall not take effect until the grantor’s death, is valid.</p>

The court should have directed a verdict for appellant. 126 Mass. 377; 9 Atl. 790; 65 Pa. St. 276; 23 Kan. 347; 129 Mass. 440; 57 Ark. 18; 64 N. H. 220; 23 N. E. 231; 10 S. W. 593; 19 S. W. 216; 27 N. E. 773; 35 Ark. 615; 60 Ark. 549; 75 N. W. 735; The landowner is not liable for injuries to children trespassing, by reason of open and unguarded ponds, etc. 93 Mo. 422; 45 Neb. 467; 72 N. W. 316; 47 Pa. 113; 32 N. W. 223; 25 Mich. 1; 100 Pa.

Edward W. Winfield, Judge. statement by the court. Appellants sued appellee to recover upon a negotiable promissory note executed by the latter to the Human Gas Company, and which said payee, for a valuable consideration, assigned to appellants before maturity.

Jeptha H. Evans, Judge. The strawberry plants, after they were sold, became chattels, and were subject of replevin. 87 Cal. 313; 41 111. 466; 32 Kan. 167; 26 Me. 126; 20 Mo. 457; 9 Cow. 40; 8 Am. & Eng. Enc. Law, 303; Cobbey, Replevin, § 353; 1 Met. 27; 1 N. J. Eq. 562; 3 Ohio St. 438; 33 Pa. St. 251; 15 Ind. 483; 36 Barb. 415; 33 Pa. St. 251; I Warvelle, Vendors, § 163; 16 Ark. 511.

William L. Moose, Judge. When plaintiff demanded the hog just after it had been impounded, it was the duty of the marshal to let him have it without pay. Kirby’s -Dig. § 5451. Incorporated towns have no authority to impound stock of persons living out of its limits. Kirby’s Dig. § 5450. The ordinance was not properly passed. Kirby’s Dig. § § 5471, 5473, 5481; 40 Ark. 105; 61 Ark. 402. The marshal had no authority to impound the stock. Kirby’s Dig. § 5474; 5 Am. & Eng. Enc.

John N. Tillman, Judge. Jefferson’s relation to the lot in controversy is that of a bona fide purchaser for value. Kirby’s Dig. § 5396; 61 Ark. 123; 1 Jones, Mortg. 550; 49 N. Y. 286; 66 N. Y. 113; 44 N. Y. 371; 37 N. Y. 375. Appellee was guilty of laches. 162 Mo. 424; 93 Va. 349; 34 Ark. 212. The record of the deed of trust was constructive notice to Jefferson. 24 Am. & Eng. Enc. Daw, 103.

<p>1. Appeal — question not 'raised. — Where, in a suit against a carrier for conversion of bales of cotton, evidence was admitted without objection as to the value of middling cotton, but no evidence was introduced as to the grade of the cotton converted, the defect of proof was not raised by assignments in the motion for new trial to the effect that the verdict was not supported by the evidence, and that there was no proof of the value. (Page 346.)</p> <p>2. Same — waiver op errors. — The excessiveness of the damages awarded is waived by failure to assign it as one of the grounds in the motion for new trial. (Page 347.)</p>

George M. Chaprine, Judge. Agents cannot act for parties1 whose interest in the least interferes with that of their principal. Evans, Ag. 212; 39 Mich.. 511; 59 N. W. 27; 93 Am. Dec. 718. If the agent acts adversely to his agreement, it amounts to a fraud on the principal. 59 N. Y. 97; 102 N. Y. 505; ri R. I. 311; 66 Pa. St. 332; 34 Ark. 332.

Hance N. Hutton; Judge. The motion for continuance should have been granted. 71 Ark. 180; 60 Ark. 564; 62 Ark. 286; 57 Ark. 165. The closing remarks of counsel for the State were improper. 70 Ark. 305, 183; 61 Ark. 138; 71 Ark. 183; 62 Ark. 516; 58 Ark. 473; 65 Ark. 389; 22 S. W. 369; 58 Ark. 353; 58 Ark. 368; 76 N. W. 462.

Charles W. Smith, Judge. S. J. Roberts brought suit in equity against S. G. Dreyfus & Company, and R. L- Searcy, their attorney, and W. H. Baker, the sheriff of Lafayette County, to enjoin them from proceeding to sell certain personal property levied upon and advertised for sale, •under a certain execution issued on a judgment in favor of S. G. Dreyfus & Company against plaintiff, claiming that said judgment had been settled.

Styles T. Rowe, Judge. On principles of comity a receiver appointed in one State may take charge of property of the estate in another State, or institute suits therefor in the courts of another State. 38 Oh. St. 174; 41 N. J. Law, 1; 65 Me. 297; Gluck & Becker, Rec. Corp. 43. When the garnishment was served, the bank no longer owed the Choctaw Coal & Mining Company any sum of money.

Styles T. Rowe, Judge. Defendant’s notion to quash summons and its demurrer to the indictment should have been sustained. Failure of a railroad company to sound a whistle or ring a bell at a crossing is not a public offense. 55 Ark. 200; 56 Ark. 166; 63 Ark. 134; 68 Ark. 561. The grand jury had no authority to indict. 63 Ark. 140; Kirby’s Dig. § 2197.

James S. Steee, Judge. statement by the court. R. R. Vasser was jointly indicted at the January term, 1904, -of the Sevier Circuit Court, with Will Taylor and others, for murder in the first degree for the killing of one John Forshee. Appellant severed, was tried, convicted of murder in the second degree, and sentenced to five years in the penitentiary. The proof tended to show that appellant and others killed John and Dave Forshee.

Jrptha H. Evans, Judge, on exchange of circuits. Appellee was never the purchaser of the lands in controversy. Nor was he entitled to a reformation of his contract, there being no mutual mistake. 24 Am. & Eng. Enc. Law (2d Ed.), 648-9 650; 39 Ark. 304; 80 Fed. 46; 43 N. E. 259, s. c. 146 Ind. 322; 50 S. W. 62; Bish. Cont. § § 707-8; 142 U. S. 417; 66 Ark. 155; 50 S. W. 62. Laches would bar any such relief if appellee was really entitled to it. 24 Am. & Eng. Enc.

This is a suit in chancery brought by appellee to foreclose a mortgage on certain real estate situated in the city of Hot Springs, and appellants pleaded usury. Appellant A. C. Aldrich applied to appellee for a loan of $850, to be, in part, used in payment of certain debts owing by him represented by his note to one Burrough for $200, and notes to Mrs. Starbuck stated at the time to be for $475, including interest.

■ Appeal from Columbia Circuit Court. Charles W. Smith, Judge. STATEMENT BY THE COURT. Appellees, Gross and Ravencraft, commenced this action for debt against appellant before a justice of the peace, and sued out a writ of general attachment, which was levied upon six mules and horses, one wagon and a lot of tools, the property of appellant. Before the return day of the writ, appellant filed his schedule, claiming the attached property as exempt.

James W. Butler, Judge. 1. Mrs. McDonald’s deposition should have been suppressed. No commission was issued. The statute must be complied with. Sand. & H. Dig. secs. 2997, 2999, 3001; 5 Am. & Eng Enc. Eaw, 582-3 and notes. Four material interrogatories were not answered. 38 Am. Dec. 639; 19 Wend. 437; 5 A. & E. Enc. Eaw, 596-7 and notes. 2. The evidence of Jamison as to the survey made by him was inadmissible. No notice was given to the owners.

John M. Erriott, Chancellor. STATEMENT BY THE COURT. Appellants and appellee are the respective owners of two coterminous lots in the city of Pine Bluff, appellants of lot number one, and appellee of lot number four, of block number seventy-four of Tannehill & Owen’s Addition to said city.

John B. McCarEb, Judge. The court erred in directing a verdict for plaintiff. 33 Fed. 415; Under Ev. § 190; 105 U. S. 49; 4 Mo. 107; 78 Mo. 298; 108 Mo. 336. The proofs of loss are not evidence of values. 33 Ins. L. Jour. 957; 25 Pac. 331; 2 May, Ins. 1063. There was no sufficient title or ownership in plaintiff. 17 Pac. 927; 30 N. E. 7; 30 Atl. 808; 22 N. E. 428; 46 N. E. 95; 10 S. W. 470.

John Feetcher, Special Judge. It is the duty of the court to inquire into the facts and merits of each case, and decide it as they may direct. 3 Par. Contr. 351; 48 Ark. 413; 56 Miss. 670; 54 Ark. 16; 61 Ark. 266. Equity will not lend its aid to enforce a forfeiture. 33 Ark. 151; 66 Ark. 167; 27 Ark. 61; 32 Ark. 377; Bisp. Eq. 238; Pom. Eq. Jur. § 459; 4 Kent, 130; 59 Ark. 408; 4 Johns, 415.

<p>1. Public lands — collateral attack on state’s deed. — A conveyance from the State may be attacked in equity for fraud or mistake or other equitable ground showing that the State had onny a naked legal title, and not the substantial title, when she conveyed. (Page 418.)</p> <p>2. Same — conflicting deeds — presumption.—Upon proof that the State has executed two conveyances of the same tract of swamp land at different times to two persons, the presumption is in favor of the validity of the conveyance that is senior in point of time, and this presumption is not rebutted by proof merely that the junior conveyance recites that it was executed pursuant to a certificate of purchase issued prior to the date of the senior conveyance, which was not produced in evidence, as it will be presumed that the grantee in the senior conveyance surrendered a certificate of purchase that was prior to that on which the junior conveyance was based. (Page 418.)</p> <p>3. Consent decree — entry in vacation. — A decree which shows on its face that it was rendered by consent in vacation is a nullity. (Page 420.)</p> <p>4. Same — validity.—A consent decree which was void because rendered in vacation was not cured by a subsequent order, entered in term time, purporting to correct an error in the description of one of the parties. (Page 421.)</p> <p>5. Limitation — adverse possession. — The exercise of fitful and disconnected acts of ownership, such as cutting timber and fire wood, do not evidence the continuity of possession and the hostile and notorious holding which was necessary to create title by adverse possession. (Page 421.)</p> <p>6. Evidence — transcript from land office. — A certified transcript of the record of the Commissioner of State Lands is admissible to show that the State deeded certain land to a person named only after a proper foundation has been laid for the introduction of secondary evidence. (Page 423.)</p> <p>7. Appeal — affirmance—case not fully developed. — Á case will not be affirmed on appeal for insufficiency of the evidence, if it appears that the case was not fully developed on account of an error of the court or mistake of the party, when the interests of justice require the whole case to be more fully developed. (Page 423.)</p> <p>8. Judgment — jurisdiction to cancel. — Cancellation of a judgment or decree on account of fraud may be granted by the court which rendered it or by a court of equity. (Page 425.) .</p> <p>9. Same — cancellation, for fraud. — The fraud on account of which a judgment will be canceled must consist in the procurement of the judgment, and not merely in the original cause of action upon which the judgment is based. (Page 426.)</p> <p>10. Same.- — In order to cancel a decree confirming a tax sale on the ground of fraud, it is not sufficient to show that the court reached its conclusion upon false or incompetent evidence or without any evidence at all; it must be shown that the petitioner or his attorney practiced some fraud or imposition upon the court in procuring the decree before it can be set aside. (Page 426.)</p> <p>11. Decree confirming tax sale — validity.—A decree of confirmation is not void on its face because it recites that the lands were sold for taxes on a day not authorized by law. (Page 427.)</p>

<p>Appeal from Saline Circuit Court.</p> <p>Alexander M. Dueeie, Judge.</p> <p>Appellant was not guilty of larceny. 2 Bish. Cr. Law, § 75^; 3 Green. Ev. § § 150, 160; 18 Am. Eng, Enc. Law, 459; Russell, Crimes, 200; 45 N. Y. 392. Where the property is voluntarily parted with, there is no larceny. 17 111. 399; 2 Phila. 385; 94 N. Y. 90; 23 N. Y. 61; 53 N. Y. 11; 13 Atl. 422; 25 L. R. A. 346; 43 Pac. 2; 2 Q. B. 312; 59 Pac. 593; 36 Ps. 506; 22 So. 378; 49 Ark. 147; 87 S. W. 836; 178 Pa. St. 23. The evidence of Cobb as to the circumstances of a race run a month after the Doucette race was inadmissible. Under. Cr. Ev. 107, 584; 20 Ark. 225; 32 Ark. 220; 45 Ark. 132; 59 Ark. 422; 52 Ark. 516; 50. Ark. 287; 39 Ark. 278, 626; 2 Ark. 242; 4 Ark. 59; 81 S. W. 450; 61 N. E. 293.</p> <p>Appellant was guilty of larceny. 2 Bish. Cr. Pro. § 813; 2 Bish. Cr. L. 824; 6 T. B. Mon. (Ky.) 130; 1 Den. 120; 11 Q. B. 920; 1 Den. Cr. Cases, 584. Where possession is fraudulently obtained in pursuance of an intent formed at the time, it is larceny. 25 la. 561; 76 la. 85; 56 Mich. 548. This was a question for the jury to determine. 49 La. Ann. 1337. Proof of other offenses based upon the same general plan or scheme are admissible to show intent. 11 Am. & Eng. Enc. Law, 514; Under. Cr. Ev. hi ; 99 Pa. St. 388; 82 Wis. 580.</p>

Minor Wallace, Special Judge. STATEMENT BY THE COURT. This suit was brought under sections 6749-6751, Kirby’s Digest, which in original form was as follows: “Be it enacted by the General Assembly of the State of Arkansas: “Section 1.

Marcus D. Hawkins, Judge. There must be some evidence of fraud. 47 Ark. 93. The claim of appellees is a stale one. 34 Ark. 467; Bisph. Eq. § 148. The testimony as to fraud is vague and indefinite. • 15 Am. & Eng. Enc. Law, 1188. The trust, if any, in this case is an implied one. 1 Pom. Eq. § 152, 155; 4 Am. Dec. Eq. 191; 40 Ark. 68; 42 Ark. 511.

Felix G. Taylor, Judge. A board of supervisors cannot disfranchise voters by wholesale by establishing townships which human skill cannot locate; they have a right to vote somewhere in the county. 45 La. Ann. 333; 12 So. 508; 34 Neb. 372; 5 Oh. 573; 6 Am. Law Rev. 694. The testimony of John B. Driver upon this point was incompetent. 70 Ark. 240.

William L. Moose, Judge. A city of the second class has authority to pass and enforce an ordinance regulating the sale of native wine within its limits. 38 Ark. 641; 45 Ark. 356; 43 Ark. 364; 130 N. C. 223; 114 N. C. 860; 142 Ind. 168; 65 L. R. A. 902; Kirby’s Dig. § § 5593, 5461; no N. C. 529; 127 U. S. -684; 25 L. R. A. 283; 100 N. C. 525; 131 N. C. 820; Tied. Pol. Pow. 5, 593; Bish. Stat. Cr. § 985; 50 N. J. L. 55; 138 Ind. 335; 74 N. Y. 516; 145 Ind. 439; 26 Am. & Eng.

Allen Hughes, Judge. The judgment rendered by the circuit court of Monroe County, Miss., was not a valid judgment against the appellant, even under the Mississippi Code. Rev. Code, Miss. .(1890), § 3436; 62 Miss. 350; 41 Miss. 102; 1 How. (Miss.), 527. In the absence of a statute permitting suits against a partnership as such, the name of the members of a partnership should be set out in the summons as well as the complaint. 15 Enc.

Zachariah T. Wood, Judge. The manner in which plaintiff conducted his case was error. 1 Black, Judg. 14, 106, 142, 183, 186. The judgment must follow the verdict, and be in entirety. 1 Black, Judg. 211; 12 Am. & Eng. Enc. Law, 83; 37 Ark. 548. It was error to instruct the jury that there could be no dissolution of the partnership until actual notice had been given. 26 Am. Dec. 290; 18 Am. St. 907; Story, Part. §161.

<p>Appeal from Perry Circuit Court.</p> <p>Edward W. Wineield, Judge.</p> <p>The amendment to the complaint should not have been allowed. 51 Am. St. Rep. 414; 70 N. Y. 190; 96 N.. Y. 284; 132 N. Y. 22; Í08 N. Y. 152; 1 Enc. PI. & Pr. 583; 84 N. Y. 420; 59 Ark. 165; 88 N. C. 95; 63 N. H. 420; 96 N. C. 416; 26 Or. 449; 51 Atl. 1025; 82 Ga. 623; 59 Me. 398; 65 Wis. 554; 60 N. W. 253; 79 Mo. 88. - The joinder was improper. Sand. & H. Dig. § 5703; 38 Ark. 594; 198 111. 462; 52 Atl. 241; 35 S. E. 899; 1 Estee, PI. § 314. The claim was not affected by the amendment. 32 Ark. 134; 33 Ark. 543 The instructions were given upon a wrong theory of the case. 49 Am. St. 488; 5i lb. 555; 53 lb. 251; 10 L. R. A. 726; 23 S. W. 1117; 1 Estee, PI. § 205. A judgment cannot be sustained upon appeal when the case proved is not the case made by the proof. 45 Cal. 514; 56 tb. 262; 35 Mich. 274; 36 Miss. 458; 41 Miss. 256.</p>

Zachariah T. Wood, Judge- The elements of damages were speculative and too remote. 21 Ark. 431; 34 Ark. 184; 36 Ark. 260; 39 Ark. 387; 42 Ark. 97. Appellant had the right to hold the cylinder, under its lien; ■ until the repair charges were paid. Kirby’s Dig. -§ § 5011, 5017,' 5018.

Robert J. Lea, Judge. STATEMENT BY THE COURT. In February, 1900, one Robert Pearl was appointed a notary public for Perry County in this State, and gave bond in the sum of one thousand dollars for the faithful performance of the duties of the office. J. S. Smith and J. H. Yancey were sureties on his bond.

JoER D. Conway, Judge. J. F. Price was killed on the night of December 16, 1898, by falling from a passenger train of the St. Louis, Iron Mountain & Southern Railway. The “cause of fall unknown to jury” was the verdict of the jury of inquest.

John M. Eeliott, Judge. The Bank o’f Pine Bluff, holding 210 shares of the Park View Land Company in pledge to secure a promissory note for $2,000 executed to it by the firm of Rosenberg & Miller,.with-' out any transfer of same on the books of the land company, brought suit against the land company and certain execution creditors of Rosenberg & Miller, and E. M. Hudson, trustee for such, creditors, alleging that the creditors had procured execution's to be levied upon said…

Styles T. Rowe, Judge. STATEMENT BY THE COURT. In the 5th day of March, 1900, the Fort Smith Building Association No 2, Permanent, was declared insolvent by the Sebastian Chancery Court, and receivers were appointed to administer its assets under the orders of the court.

Charles W. Smith, Judge. STATEMENT BY THE COURT. This was a suit brought by the appellee, D. R. Smith, against the appellant, Magnolia Compress Company, for the recovery of the value óf a lot of lumber furnished the appellant by the appellee. The complaint alleged that appellee furnished the appellant 40,000 feet of rough lumber, worth $9 per thousand feet, towit: $360. That he also furnished defendant 44,000 feet dressed lumber, worth $10 per thousand feet, towit: $440.

Alphonso Curl, Judge. STATEMENT BY THg COURT. This was a bill to enjoin the execution of a writ of possession issued upon a judgment rendered against the appellant, in favor of the appellee, Gus Gallic, in the Garland Circuit Court, and to compel the appellee to submit to a new trial.

Petition for mandamus to St. Francis Probate Court. STATEMENT BY THE COURT.

Styles T. Rowe, Judge. Evidence as to an assault on Walker after the stabbing was inadmissible. 142 U. S. 450; 39 Ark. 278; 52 Ark. 303; 54 Ark. 489. The verdict is against the evidence. 68 Ark. 529. The verdict will be set aside when the evidence fails to prove the charge. 66 Ark. 120; 64 Ark. 188; 62 Ark. 459.

Edward D. Robertson, Chancellor. The confirmation decree was not subject to collateral attack. 52 Ark. 400; Freeman, Judg. § 118; Kirby’s Dig. § 673; 57 Ark. 49, 628; 62 Ark. 421; 66 Ark. 1. The proof is not sufficient to question the validity of the confirmation decree. 68 Ark. 211. The tax title under which appellee fails must fail. 32 Ark. 496; 58 Ark. 213 ; 42 Ark. 100; 56 Ark. 93 ; 69 Ark. 576.

Marcus L. Hawkins, Judge. STATEMENT BY THE COURT. In December, 1871, one Curtis Garrett died, leaving a farm near Lake Village, in Chicot County, on which he resided at the time of his death, and other lands in the same county, and leaving his wife, Elizabeth, but no children.

t. George M. Chapeine, Judge. The question as to where the sale was made should have been submitted to the jury. 41 Ark. 335; 42 Ark. 295; 50 Ark. 20.

<p>1. Reformation — mortgage—interest conveyed. — Where it was a question whether a mortgagor owned only a fourth interest or the entire interest in a tract of land, a bill to reform the mortgage so as’to describe properly the land intended to be conveyed was improperly dismissed on the ground that it failed to allege the extent of the interest of the mortgagor, as a sale-of the land under foreclosure would convey only such interest as the mortgagor had. (Page 524.)</p> <p>2. Attorney ad litem — FEE.—Where an attorney ad litem, appointed to represent a nonresident defendant in a suit involving only $50, reported that he could not be found, it would seem that an allowance to him of an attorney’s fee of $25 was excessive. (Page 525.)</p>

Eubridg® G. Mitchixi,, Judge.. Delivery of possession of land to the vendee under a parol contract of purchase takes the case out of the statute of frauds, and possession for the statutory period is sufficient. 42 Ark. 246; 30 Ark. 340; 39 Conn. 98; 85 Ky. 666; 93 Ky. 435; 55 Miss. 68-i; 6 Met. 337; 33 L. R. A. 835. A parol gift or sale will constitute color of title. 1 Am. & Eng. Enc. Law, 279; Acts 1899, p. 135.

Edward W. Winfield, Judge. The plaintiff was properly ejected if he did not take the first Highland Park car after receiving his transfer ticket. Booth, St. Rys. § 237; Nellis, do. 441. Punitive damages were improperly allowed. 53 Ark. 10; 65 Ark. 182; 67 Ark. 124; 69 Ark. 402; 70 Ark. 137; 147 U. S. 101; 63 Ark. 387. Damages which with due diligence he might have avoided are not recoverable. 47 Am. & Eng. R. Cas. 636; 4 Ry.

Aeren N. Hughes, Judge. STATEMENT BY THE COURT. The appellees in 1902 filed a petition in the county court of Clay County, asking the court to appoint viewers to lay out a public road. The viewers were appointed, and afterwards made a report recommending that the road be established.

John N. Tillman, Judge. A city has no right to condemn a right of way across a railroad track. Sandels & Hill’s Dig. § § 2737, 2747, 2749. Such authority must be given expressly or by clear implication, Lewis, Em. Dom. § § 240, 267, 276; Elliott, Roads & Streets, § 219; Dill. Mun. Co'rp. § 588. Such power is not contained in our statute. 14 Am. & Eng. R. Cas. 34; 10 Fed. 497; 53 Fed. 687; 103 N. Y. 10; Elliott, Roads & Streets, § 779; 37 N. J. L. 77.

Stysbs T. Rows, Judge. Corroboration as to the burglary was necessary. Kirby’s Dig. § 2384; 36 Ark. 117; 58 Ark. 353; 43 Ark. 367. The verdict was against the evidence, and should be reversed. 68 Ark. 499; 1 Bish. Cr. Pro. § § 1273-1278.

Jeremiah G. Wallace, Chancellor. Petitioner discharged from custody. The discrimination in favor of resident merchants renders the act unconstitutional.’ 148 Pa. St. 482; 91 U. S. 275; 12 Otto, 123; 10 Otto, 434, 676. The act is class legislation. Black, Const. & Tnt. Stat, 278; 27 N. J. D. 80; 7 Heisk. 518; 1 Blackstone, Com. 89; 1 Kent, 463; 128 U. S. 174; 17 Wall. 177. When objectionable features may be stricken out of an act. 30 S. C. 360; 68 Am. St. 155; Cooley, Con.

Edward W. Wineield, Judge. STATEMENT BY THE COURT. This is a suit brought by appellee, Etta Robinson, against appellant for damages for the conversion of a buggy. Appellant had sold her the buggy for $125, part cash paid and balance evidenced by her note, in which the title to the buggy was retained in appellant until payment of the note.

Charees W. Smith, Judge. STATEMENT BY THE COURT. >■ This was an unlawful detainer suit, brought by appellee against David Hays in the circuit court of Columbia County for recovery of possession of certain lands described.

James'S. Steel, Judge. statement by the court. S. C. Sharp & Company, a firm composed of appellant, S. C. Sharp, and one Manning, were indebted to appellee in the sum of $390 on account for goods, wares and merchandise sold to them, and on January 22, 1902, gave appellee their check on the Howard County Bank, of Nashville, Ark., for that amount in payment of the debt.

John N. Tirrman, Judge. The plaintiff was not entitled to recover. 67 Ark. 514; 66 Ark. 439; 53 Ark. 96; 47 Ark. 321; 41 Ark. 161; 40 Ark. 336; 39 Ark. 413. The jury should have been instructed that there was no negligence on the part- of appellant. 13 Oh. St. 66; 77 Mich. 591; 106 N. C. 272; 1 S. W. 790. The question of negligence was properly submitted to the jury. 43 Ark. 229.

J. Virgii, Bourland, Chancellor. statement by the court. This is a suit brought in the chancery court of Crawford County by H. L. Fitzhugh, as trustee of the estate of John Sharp, a bankrupt, against said John Sharp and his wife, Ella Sharp, and others, to subject certain property, real and personal, held in the name of Ella Sharp, to the payment of the debts of said bankrupt.

Edward W. WinEieed, Judge. The finding of the jury will not be disturbed where there . is evidence to support it. 57 Ark. 577; 25 Ark. 474; 31 Ark. 163; 23 Ark. 131. The question of service cannot be raised here for the first time. 35 Ark. 95; 38 Ark. 102; 25 Ark. 164; 33 Ark. 107; 14 Ark. 235. A defective complaint will be considered as amended where both parties without objection directed their evidence to the same issue. 54 Ark. 289; 59 Ark. 215.

Wieeiam I». Moose, Judge. Appellant could not properly be convicted of carnal abuse. 11 Ark. 406; 50 Ark. 330; 54 Ark. 663. The indictment shows that the finding of the indictment was prior to the commission of the offense. Kirby’s Dig. § 2228; 65 Ark. 564.

<p>Appeal from Sharp Circuit Court, Western District.</p> <p>John W. Meeks, Judge.</p> <p>The remarks of counsel for appellee were highly improper. 44 Wis. 282; 48 Ark. 106; 58 Ark. 368, 473; 61 Ark. 130; 63 Ark. 174; 6 Ark. 626; 70 Ark. 179, 305; 67 Ark. 366, 516; 74 Ark. 256.</p>

Edward W'. Winfipld, Judge. STATEMENT BY THE COURT. The appellee, Grant, brought suit in Pulaski Circuit Court against the appellant railway company for personal injuries received from an assault and battery of one C. W. Burke, a “special agent” or detective of the appellant railway company. He suerd for both compensatory and exemplary damages.

John N. Tillman, Judge. Only nominal damages could be recovered. 8 Am. & Eng. Enc. Law, 557, 593; 3 Suth. Dam. 165, 148. Profits, unless an element of contract, are not recoverable. 53 L. R. A. 97; 48 111. 308; 106 Wis. 78. All exceptions to the testimony were waived. 62 Ark. 254; 70 Ark. 197; 45 Ark. 524; 55 Ark. 376; 70 Ark. 427. The bill of exceptions is insufficient. 38 Ark. 102; 35 Ark. 220; 32 Ark. 529.

Hance N. Hutton, Judge. A -nonsuit will not prevent another cause of action. 47 Ark. 120; 36 Ark. 383. A sheriffs deed relates back to the date of the judgment. 50 Ark. 109. The right of homestead is a personal privilege. 55 Ark. 139; 53 Ark. 182; 67 Ark. 232; 70 Ark. 69. And must be exercised as the law directs. 41 Ark. 249; 34 Ark. in ; 53 Ark. 182. The transfer of Jones and wife was fraudulent as to creditors. 29 Ark. 409; 24 Ark. 410.

<p>1. Adverse possession — interruption.—One who has been in the open and adverse possession of a tract of land for six years under color of title will not be presumed to have abandoned it in the seventh year, where he was obliged to discontinue cultivation of it temporarily on account of an overflow which rendered it impossible to secure a tenant. (Page 593.)</p> <p>2. Same — title by limitation. — One who together with his privies in title, has held open and adverse possession of land for seven years under color of title acquires title by adverse possession. (Page 593.)</p>

Antonio B. Grace, Judge. Appellee was- guilty of contributory negligence. 10 Am. & .Eng. Enc. Law, 272; 14 Cyc. 1087; 66 la. 708; 94 la. 656, 14 Am. & Eng. Enc. Law, 115, 117; 2 Bibb, 605; I Ark. 31. If means of knowledge are alike accessible to both, they must be deemed to have relied on their own knowledge. 11 Ark. 58; 16 Ark. 528; 26 Ark. 28; 30 Ark. 686; 31 Ark. 170; 47 Ark. 148; 27 Ark. 250; 40 Mass. 256.