trell had ordered the work done, and to him they looked for a settlement of the repair bill. Without further ado, Boling & Bro. then replevied the cylinder, without having paid or tendered the repair charges to appellant.

"Upon the measure of damages, R. S. Boling testified that he was kept out of the use of the cylinder eight days by reason of appellant's action; that the only attempt he ever made to pay the repair charges was to offer the railroad company's agent $15. He likewise testified that he was engaged in running a sawmill; that the engine of which the cylinder was a part was the motive power of the mill; that his mill was necessarily shut down while the cylinder was delayed. All of this testimony was objected to by defendant, and exceptions duly saved. He was further asked, over defendant's objection, this question:

"What was the usable value of that piece of machinery a day to you?'

"W. E. Kittrell was asked and permitted to answer similar questions, and gave similar testimony. The court instructed witness Kittrell, on this part of his testimony, as follows:

"You may take into consideration the purpose for which it was used, and say what the cash value of that cylinder was to that mill per day.'

"The witness answered, 'Not less than $10 nor more than $20 per day.'

"R. S. Boling, in answer to similar question, and under similar instructions from the court, likewise testified that the value of the cylinder per day to the mill was $12 to $15.

"On cross-examination both of these witnesses (Kittrell and Boling) testified that the cylinder was worth about $40, and that $40 per year would be a big rental value for it.

"The two Bolings and Kittrell were also permitted to testify, over appellant's objection, as to the character of the mill operated by plaintiffs.

"John L. Mills, witness for the defendant, testified that the rental value of the piece of machinery was not over $2.50 per month.".

The jury returned a verdict in favor of the plaintiffs for the cylinder, and $75 damages, and the defendant appealed.

The testimony of Boling and Kittrell as to the value of the cylinder to plaintiffs, as a part of their sawmill, was incompetent, and should not have been admitted. There is nothing in the record to show that appellant had any notice or knowledge that it was a part of an engine used in running a sawmill, or how it was used. Appellees were not, therefore, entitled to special damages on that account. Hooks Smelting Company v. Planters' Compress Company, 72 Ark. 275, 79 S. W. 1052.

Appellant had a lien on the cylinder for work and labor performed thereon, and was

entitled to possession of it until such lien was satisfied by payment or tender. 1 Jones on Liens (2d Ed.) §§ 731, 732, 745, and cases cited.

Reverse, and remand for a new trial.

CHURCH v. GALLIC.

(Supreme Court of Arkansas. May 27, 1905.) 1. INJUNCTION-RESTRAINING EXECUTION OF JUDGMENT-Loss OF RIGHT OF APPEAL.

The mere fact that one against whom a judgment has been rendered has lost his right of appeal through the loss by unavoidable accident of a bill of exceptions is no ground for enjoining the execution of a judgment.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 773.]

2. SAME-JUDGMENT AGAINST MARRIED WO

MEN.

The fact that defendant was a married woman when the action was instituted against her, and that her husband was not made a party, is no ground for enjoining the execution of the judgment against her.

Appeal from Garland Chancery Court; Alonzo Curl, Chancellor.

Bill by Mahala Church against Gus Gallic. From a decree for defendant, plaintiff appeals. Affirmed.

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. The writ of possession was issued upon a judgment rendered in a suit in ejectment for the possession of the land, the title to which is being litigated in case No. 5,254, now pending in this court on appeal. The complaint alleged that the said Gus Gallic, on the 5th day of May, 1902, filed a complaint at law against the appellant for the possession of certain land therein described, and made a copy of the complaint at law an exhibit to her complaint; that the appellant answered said complaint, and that upon a trial of the cause judgment was rendered against the appellant for possession of the property; that in due time appellant filed a motion for a new trial, which was overruled, and that she saved her exceptions, and prayed an appeal to this court, which was granted, and the appellant given until the 3d of August, 1903, to tender and file her bill of exceptions; that the appellant lost her right of appeal from said judgment, which was unjust and inequitable, by the loss of the bill of exceptions, an accident unavoidable on her part; that the appellant was, at the time said suit at law was filed against her, and had ever since been, a married woman, and that her husband was not made a party to said suit; that the appellee, Gus Gallic, had caused a writ of possession to be issued against the appellant, Mahala Church, upon said judgment, and that the

appellee R. L. Williams, as sheriff, was threatening to eject her from said premises. The prayer was for an injunction, and for the judgment at law to be annulled, or that appellee be required to submit to a new trial, and for other and further relief. The appellee filed a demurrer and answer. In his answer he denied that appellant filed a motion for a new trial, and denied all of the allegations as to the time given in which to file a bill of exceptions and the loss of same, and alleged negligence in the appellant.

James E. Hogue, for appellant.

The

WOOD, J. (after stating the facts). complaint was defective. It did not state a cause of action. The general allegation that appellant lost her right of appeal by the loss of a bill of exceptions-an accident unavoidable on her part-states no ground for equitable interposition under Kansas & Arkansas Valley Ry. Co. v. Fitzhugh, 61 Ark. 341, 33 S. W. 960, 54 Am. St. Rep. 211. This defect in statement, however, might have been reached by motion to make more specific. But the complaint, even if treated as sufficient on demurrer in this particular, did not state any ground for relief on the merits. The fact that appellant was a married woman at the time a suit at law was filed against her, and that her husband was not made a party to such suit at law, presents no reason whatever why a judgment should not have been rendered against her at law, and no reason for the intervention of chancery to prevent the enforcement of such judgment. It does not appear that the demurrer was insisted upon in the lower court. The cause was heard by the chancellor upon depositions concerning the failure to obtain bill of exceptions. The testimony of the circuit judge before whom the case at law was tried, shows conclusively that appellant was entitled to no relief under the rule announced by this court in Ry. Co. v. Fitzhugh, supra, "that when a party who is himself free from fault, and against whom an unjust and inequitable judgment has been rendered, has lost his right of appeal by unavoidable accident, a court of equity in this state has the power

to grant relief." No unavoidable accident and no unjust and inequitable judgment were shown.

The decree of the chancellor dismissing appellant's bill is therefore affirmed.

MISSOURI, K. & T. RY. CO. v. KIDD.* (Court of Appeals of Indian Territory. Oct. 19, 1904.)

APPEAL-BRIEFS-FAILURE TO FILE-DISMIS

SAL.

Where, after submission of a case on appeal, by agreement of counsel, appellant was given 30 days in which to file a brief, and ap

Rehearing denied June 16, 1905.

pellee was given a similar time to reply, but no briefs were filed, the appeal would be dismissed. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3108.]

Appeal from the United States Court for the Northern District of the Indian Territory; before Justice John R. Thomas, March 15, 1901.

Action by Erby Kidd, by Henry Kidd, his father and next friend, against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, defendant appeals. Dismissed.

Clifford L. Jackson, for appellant. Hutchings & West and Wells & Bonner, for appellee.

RAYMOND, C. J. This is an action for personal injury brought by plaintiff against the defendant. The record was filed in this court on the 15th day of May, 1901. The case was submitted October 1, 1901, by agreement of counsel, and the appellant was given until November 1, 1901, in which to file brief. The appellee was to file his brief under the same rule of court in 30 days thereafter, and appellant was given leave to reply. No briefs by either party have been filed.

The appeal is therefore dismissed for want of compliance with the rule.

CLAYTON, TOWNSEND, and GILL, JJ.,

concur.

WALLACE et al. v. ADAMS et al. (Court of Appeals of Indian Territory. 16, 1905.)

June

COURTS-ESTAB

INDIANS CITIZENSHIP LISHMENT STATUTES-CONSTITUTIONALITY. Act Cong. July 1, 1902, c. 1362, pars. 3133, 32 Stat. 646-648, establishing a Choctaw and Chickasaw citizenship court for the purpose of determining citizenship in such tribes, and providing the procedure therein, is constitutional.

Appeal from the United States Court for the Southern District of the Indian Territory; before Justice Hosea Townsend, April 8, 1905.

Action by Ella Adams and others against Hugh Wallace and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

Cruce, Cruce & Bleakmore, for appellants. H. H. Brown, for appellees.

PER CURIAM. The main question presented by this appeal is one involving the constitutionality of paragraphs 31, 32, and 33 of the act of Congress of July 1, 1902 (32 Stat. 646-648, c. 1362). These paragraphs are as follows:

"(31) It being claimed and insisted by the Choctaw and Chickasaw Nations that the United States courts in the Indian Territory, acting under the act of Congress approved June 10, 1896, have admitted persons to citizenship or to enrollment as such citizens in

the Choctaw and Chickasaw Nations, respectively, without notice of the proceedings in such courts being given to each of said nations; and it being insisted by said nations that, in such proceedings, notice to each of said nations was indispensable; and it being claimed and insisted by said nations that the proceedings in the United States courts in the Indian Territory, under the said act of June 10, 1896, should have been confined to a review of the action of the Commission to the Five Civilized Tribes, upon the papers and evidence submitted to such commission, and should not have extended to a trial de novo of the question of citizenship; and it being desirable to finally determine these questions, the two nations, jointly, or either of said nations acting separately and making the other a party defendant, may, within 90 days after this agreement becomes effective, by a bill in equity filed in the Choctaw and Chickasaw citizenship court hereinafter named, seek the annulment and vacation of all such decisions by said courts. Ten persons so admitted to citizenship or enrollment by said courts, with notice to one but not to both of said nations, shall be made defendants to said suit as representatives of the entire class of persons similarly situated, the number of such persons being too numerous to require all of them to be made individual parties to the suit; but any person so situated may, upon his application, be made a party defendant to the suit. Notice of the institution of said suit shall be personally served upon the chief executive of the defendant nation, if either nation be made a party defendant as aforesaid, and upon each of said ten representative defendants, and shall also be published for a period of four weeks in at least two weekly newspapers having general circulation in the Choctaw and Chickasaw Nations. Such notice shall set forth the nature and prayer of the bill, with the time for answering the same, which shall not be less than thirty days after the last publication. Said suit shall be determined at the earliest practicable time, shall be confined to a final determination of the questions of law here named, and shall be without prejudice to the determination of any charge or claim that the admission of such persons to citizenship or enrollment by said United States courts in the Indian Territory was wrongfully obtained as provided in the next section. In the event said citizenship judgments or decisions are annulled or vacated in the test suit hereinbefore authorized, because of either or both of the irregularities claimed and insisted upon by said nations as aforesaid, then the files, papers and proceedings in any citizenship case in which the judgment or decision is so annulled or vacated, shall, upon written application therefor, made within ninety days thereafter by any party thereto, who is thus deprived of a favorable judgment upon his

claimed citizenship, be transferred and certified to said citizenship court by the court having custody and control of such files, papers and proceedings, and, upon the filing in such citizenship court of the files, papers and proceedings in any such citizenship case, accompanied by due proof that notice in writing of the transfer and certification thereof has been given to the chief executive officer of each of said nations, said citizenship case shall be docketed in said citizenship court, and such further proceedings shall be had therein in that court as ought to have been had in the court to which the same was taken on appeal from the Commission to the Five Civilized Tribes and as if no judgment or decision had been rendered therein.

"(32) Said citizenship court shall also have appellate jurisdiction over all judgments of the courts in Indian Territory rendered under said act of Congress of June tenth, eighteen hundred and ninety six, admitting persons to citizenship or to enrollment as citizens in either of said nations. The right of appeal may be exercised by the said nations jointly or by either of them acting separately at any time within six months after this agreement is finally ratified. In the exercise of such appellate jurisdiction said citizenship court shall be authorized to consider, review and revise all such judgments, both as to findings of fact and conclusions of law, and may, wherever in its judgment substantial justice will thereby be subserved, per mit either party to any appeal to take and present such further evidence as may be necessary to enable said court to determine the very right of the controversy. And said court shall have power to make all needful rules and regulations prescribing the manner of taking and conducting said appeals and of taking additional evidence therein. Such citizenship court shall also have like appellate jurisdiction and authority over judgments rendered by such courts under the said act denying claims to citizenship or to enrollment as citizens in either of said nations. Such appeals shall be taken within the time hereinbefore specified and shall be taken, conducted and disposed of in the same manner as appeals by the said nations, save that notice of appeals by citizenship claimants shall be served upon the chief executive officer of both nations. Provided, that paragraphs thirty one, thirty-two and thirty-three hereof shall go into effect immediately after the passage of this act by Congress.

"(33) A court is hereby created, to be known as the Choctaw and Chickasaw Citfzenship Court, the existence of which shall terminate upon the final determination of the suits and proceedings named in the last two preceding sections, but in no event later than the thirty-first day of December, nineteen hundred and three. Said court shall have all authority and power necessary to the hearing and determination of the suits

and proceedings so committed to its jurisdiction, including the authority to issue and enforce all requisite writs, process and orders, and to prescribe rules and regulations for the transaction of its business. It shall also have all the powers of a Circuit Court of the United States in compelling the production of books, papers and documents, the attendance of witnesses and in punishing contempt. Except where herein otherwise expressly provided, the pleadings, practice and proceedings in said court shall conform, as near as may be, to the pleadings, practice and proceedings in equity cases in the Circuit Courts of the United States. The testimony shall be taken in court or before one of the judges, so far as practicable. Each judge shall be authorized to grant, in vacation or recess, interlocutory orders and to hear and dispose of interlocutory motions not affecting the substantial merits of the case. Said court shall have a chief judge and two associate judges, a clerk, a stenographer, who shall be deputy clerk, and a bailiff. The judges shall be appointed by the President, by and with the advice and consent of the Senate, and shall each receive a compensation of five thousand dollars per annum, and his necessary and actual traveling and personal expenses while engaged in the performance of his duties. The clerk, stenographer and bailiff shall be appointed by the judges, or a majority of them, and shall receive the following yearly compensation: Clerk, two thousand four hundred dollars; stenographer, twelve hundred dollars; bailiff, nine hundred dollars. The compensation of all these officers shall be paid by the United States in monthly installments. The moneys to pay said compensations are hereby appropriated, and there is also hereby appropriated the sum of five thousand dollars, or so much thereof as may be necessary, to be expended under the direc tion of the Secretary of the Interior, to pay such contingent expenses of said court and its officers as to such Secretary may seem proper. Said court shall have a seal, shall sit at such place or places in the Choctaw and Chickasaw Nations as the judges may

designate, and shall hold public sessions, beginning the first Monday in each month, so far as may be practicable or necessary. Each judge and the clerk and deputy clerk shall be authorized to administer oaths. All writs and processes issued by said court shall be served by the United States marshal for the district in which the service is to be had. The fees for serving process and the fees of witnesses shall be paid by the party at whose instance such process is issued or such witnesses are subpoenaed, and the rate or amount of such fees shall be the same as is allowed in civil causes in the Circuit Court of the United States for the Western District of Arkansas. No fees shall be charged by the clerk or other officers of said court. The clerk of the United States Court in Indian Territory having custody and control of the files, papers and proceedings in the original citizenship cases, shall receive a fee of two dollars and fifty cents for transferring and certifying to the citizenship court the files, papers and proceedings in each case, without regard to the number of persons whose citizenship is involved therein, and said fee shall be paid by the person applying for such transfer and certification. The judgment of the citizenship court in any or all of the suits or proceedings so committed to its jurisdiction shall be final. All expenses necessary to the proper conduct, on behalf of the nations, of the suits and proceedings provided for in this and the two preceding sections shall be incurred under the direction of the executives of the two nations, and the Secretary of the Interior is hereby authorized, upon certificate of said executives, to pay such expenses as in his judgment are reasonable and necessary out of any of the joint funds of said nations in the Treasury of the United States."

This court, after examination of the record, is of opinion Congress had the power to enact the provisions above set out, and that they are not in conflict with the Constitution of the United States; and the opinion of the court below is therefore affirmed.

TOWNSEND, J., did not sit in the cause.

WHITNEY v. WHITNEY (two cases). (Court of Appeals of Kentucky. June 17,

1905.)

1. PARTNERSHIP-SUIT BETWEEN PARTNERSSALE OF ASSETS.

In a suit to settle a fire insurance partnership, the book showing expirations of policies should have been sold with the other property and effects of the firm.

2. SAME SETTLEMENT.

Where, in a suit to settle a fire insurance partnership, one of the parties moved the chancellor for sale of the book of expirations with the other property of the firm, which was overruled, and an order granting him an appeal from the ruling was subsequently set aside, and all the property was sold except the book-the purchaser at the sale not claiming to have been prejudiced by the court's error-and the book being almost valueless, it was no ground for setting aside the sale.

3. SAME-SALARY.

In a suit for the settlement of a fire insurance partnership, it appeared that plaintiff was taken into the firm by defendant as a partner when plaintiff was young and inexperienced, while defendant was a well-known and active business man, with an established insurance business, and that his position as assessor of the city gave him a wide acquaintance, and that he used his position to good effect in obtaining business, spending but little of his time in the office; the clerical work and other active work being done by plaintiff. Held, that the mere fact that plaintiff did the greater part of the clerical and other work did not justify the court in allowing him a salary.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partnership, § 131.]

4. SAME-CHARGE FOR SERVICES.

Partners are not entitled to charge each other or the firm for services in the firm business unless there is a special agreement to that effect, or the agreement can be implied from the course of business.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, § 131.] 5. SAME-LEGAL EXPENSES.

On a partnership accounting, one of the partners should have been charged with half of the attorney's fees and costs expended by the other partner in a suit brought by him in pursuance of firm business and in the name of the firin.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 132, 701.]

ty.

Appeals from Circuit Court, Kenton Coun

"Not to be officially reported."

Suit by H. A. Whitney against John Whitney, and suit by John Whitney against H. A. Whitney for a partnership accounting, and from the decree H. A. Whitney appeals in each case. Reversed.

See 74 S. W. 194.

B. F. Graziani and Greene & Van Winkle, for appellant. Wm. A. Byrne, for appellee.

SETTLE, J. Appellant is a nephew of appellee. In 1884 they became equal partners in the insurance business, and this partnership continued until March, 1902, and was then dissolved by act of the partners. Following the dissolution, each partner brought suit against the other for a settlement of the partnership business and affairs. The two actions, in effect the same, progressed

as one.

Before a settlement of the partnership was effected by the commissioner to whom the two causes were referred for that purpose, the chancellor entered a judgment directing the sale of the book of expirations owned by the firm, which contained entries showing the names of the persons holding policies issued by the insurance companies formerly represented by appellant and appellee as agents, and when such policies would expire. The chancellor soon thereafter entered a second judgment for a sale of all the partnership property and effects of the firm, except the book of expirations. An appeal was taken from the first judgment by appellee, and from the second by appellant. This court reversed the first and affirmed the second judgment. Upon the return of the cases to the court below appellant moved the chancellor for an order of sale of the book of expirations with the other property and effects of the firm directed by the second judgment (affirmed by this court [77 S. W. 206]) to be sold. His motion was overruled, and, from the judgment overruling same, appellant prayed and was granted an appeal, and he thereafter executed an appeal bond. Later the appeal thus granted by the lower court was by order set aside, over appellant's objection. But appellant thereafter renewed his motion for a sale of the book of expirations with the other property and effects of the firm, which was again overruled, and to this judgment overruling his motion for an order for the sale of the book of expirations with the property of the firm he excepted. In the meantime the commissioner sold all the property and effects of the firm, except the book of expirations, under the second judgment, after its affirmance by this court, and also made and reported to the court a settlement of the partnership. Appellant excepted to the report of sale, and both he and appellee excepted to the settlement, but the exceptions were all overruled and both reports confirmed by the chancellor; and, from the judgments confirming the sale and settlement, appellant also prayed and was granted an appeal.

We deem it unnecessary to decide whether or not the chancellor was in error in setting aside so much of the first judgment as granted appellant an appeal, though we think his motion for an order directing the sale of the book of expirations with the other property and effects of the firm should have been sustained, as it could have been sold to much better advantage with the other property than alone; and, besides, under the opinion and mandate of this court, it could not properly be sold alone. But we do not think the refusal to order the sale of the book of expirations with the other property of the firm, or the setting aside of the order granting appellant an appeal there from, will now authorize this court to direct the setting aside of the sale. Besides, all questions that