Volume 100 — Arkansas Reports

Grace, Judge; 1. Due diligence was used, and the delay was not occasioned by any neglect. The claim that if appellant had notified appellee of the fact that the lines were not working the damage would have been averted is not borne out by the testimony. The result of using other means of communication is too remote and speculative. 91 S. W. 257; 54 Id. 825; 26 Id. 490; 27 Id. 52; 90 Ky. 265; 30 S. W. 880; 78 Me. 97; 79 Miss. 58; 94 Ga. 202; 39 Kans. 580; 18 Pac. 719; 30 Oh.

Wells, Judge; STATEMENT BY THE COURT. The plaintiff brought an action against the insurance company and the sureties on its bond upon a policy of insurance issued upon his dwelling house in the sum of seven hundred dollars,' and its contents in the sum of one hundred dollars, claiming a total destruction of the house and sixty-four dollars, value of the contents, and asked judgment for seven hundred and sixty-four dollars, with interest from the twenty-seventh day of August,…

WeUs, Judge; A contract is to be construed as a whole, and the different sections thereof referring to the same subject-matter are to be read together. 93 Ark. 497. The intention of the parties is to be gathered from the whole instrument. 53 Ark. 58, 65; 23 Ark. 582.

Meek, Judge; A railway compány is not bound by a misquotation of interstate rates occurring through mistake of its agent.

T. Wood, Chancellor; STATEMENT BY THE COURT. This action grew out of an exchange of Missouri lands for lands situated in Drew County, Arkansas, the trade having been promoted, the negotiations made, and the exchange agreed upon, in Nebraska.

Carter, Judge; The milling company, being draymen and engaged in the transportation of goods for hire, are common carriers. 2 Dana 430; 26 Am. Dec. 466; 116 Ky. 907; Hutch, on Car., 61. McMillan & McMillan, for the Arkadelphia Milling Company. This court will take that view of the evidence most favorable to the party against whom the verdict was directed. 89 Ark. 372.

This suit was brought by appellants against appellee for damages resulting from the destruction by fire of their property situated in the city of Newport, Ark., alleged to have been caused by the negligent failure of said company to furnish water and pressure sufficient to extinguish the fire as it was bound to do by its contract with the city.

Hudgins, Judge; STATEMENT BY THE COURT. This is the second hearing of this case on appeal. The first appeal was from the judgment sustaining a general demurrer to the complaint, and is reported in 94 Ark. 370 (Henderson v. Doniphan Lbr. Co.). The suit was brought by the administratrix for damages for the wrongful death of her husband and ^intestate, alleged to have been caused by the negligence of the lumber company.

Martineau, Chancellor; The decree for divorce is void for the reason that the record fails to show that the plaintiff had resided in the State for one year next before the bringing of the suit. Kirby’s Dig., § 2678; 24 Ark. 522: 54 Ark. 172: 59 Ark. 441: 78 N. W. 108: 68 S. W. 971; 41 Pac. 369; 12 S. W. 90; 47 Pac. 21; 83 N. W. 1088; 12 Fla. 449; 36 Fla. 372; 3 Mo. App. 571; 8 S. W. 440; 59 Ark. 487; 55 Ark. 30; 42 Am. St. R. 395.

Carter, Judge; STATEMENT BY THE COURT. This is an ejectment suit brought by the railway company against appellee for a strip of land 100 feet in length east and west and 10 feet wide north and south, in the town of Lewis-ville, Arkansas, lying between a lot purchased by W. G. Wadley from John Ingram on February 6, 1906, the description in the deed conveying only a tract of land of certain dimensions which does not include this strip.

Steel, Judge; STATEMENT BY THE COURT. Appellant owned and operated a box factory in the town of Nashville, Arkansas. It is situated within 200 feet of one of the public streets and in close proximity to one of the residence sections of said town.

Robertson, Chancellor; STATEMENT BY THE COURT. This suit was brought by the appellee for timber claimed to have been wrongfully cut from some “unsurveyed” lands in St. Francis Basin lying along the right hand chute of Little River in Poinsett County in township 12 north, range 7 east, the levee board alleging that it was the owner of sections 14, 15, 22, 23 in said township outside of the original survey, and claiming title thereto under the Swamp Land Grant of 1850, and the…

H. Evans, Judge; STATEMENT BY THE COURT. This suit was brought by appellee for personal injuries alleged to have been caused by the negligence of the railway company. He was a brakeman, 22 years of age, in the service of the railway company, and injured while making a flying switch at Ozark.

T. Cowling, Judge; 1. Where a defendant has fully complied with the law with reference to procuring the attendance of witnesses whose testimony is material to his defense, and the. same facts cannot be proved by other witnesses, and there is no showing that their testimony, if given,-is not probably untrue, and it is probable that their attendance can be procured at another term, then, if the defendant presents a motion for a continuance embodying all the elements required…

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellant, George Johnson) was indicted by the grand jury of Jackson County for the crime of murder in the second degree, the indictment charging him, in proper form, with the killing of one John Duncan. The appellant himself testified as follows: “Was out in Richwoods looking for some fellows that had been doing some fighting, and had a bench warrant for Horace Luster, charging him with the crime of carrying a pistol.

V. Bourland, Chancellor; STATEMENT BY THE COURT. On the 16th day of August, 1904, D. K. Dill and his wife, Permelia Dill, executed their bond for title to J. L. Pamplin, upon the condition that, “Whereas, the said J. L. Pamplin has this day purchased of the said D. K. Dill and Permelia Dill the following described real estate, situated in the county of Sebastian, State of Arkansas, and described in the public surveys as the east half of the southwest quarter and the…

Where the record does not show that an appeal was prayed for and granted by the lower court, this court is without jurisdiction.

S. Maples, Judge; 1. The indictment charges two separate offenses, and the demurrer should have been sustained. 48 Ark. 94, 104; 97 Ark. 176. The words and figures in the two counts descriptive of the instruments are material, and show in the second count the uttering of a different instrument from the one charged in the first count to have been forged. 58 Ark. 248.

H. Evans, Judge; STATEMENT BY THE COURT. This is a suit brought by appellee against appellant to recover damages on account of fatal injuries received by G. E. Baker, while working in the boiler shop of appellant in the city of Argenta. Baker was employed by appellant as a carpenter, and, in company with a fellow workman named Vernon, was sent to make some repairs on the windows of the boiler shop.

Appellants sued appellee to recover an amount alleged to be due for the building of six culverts. Appellee defended on the ground that the work was not done according to the contract, and that the work as done was defective.

160 Mo. 190; 60 S. W. 1098. The act will be construed as though it had been originally adopted in the amended form. 36 111. 161; 15 Ct. Cl. 453. Each part-of a section should be construed in connection with every other part. 95 Tenn. 22; 64 S. W. 927; 75 Miss. 275; 71 Yt. 493; 45 Atl. 1051; 161 111. 223. The act will not be so construed as to lead to absurd consequences. 100 Ga. 305; 28 S. E. 43; Lewis’ Suth. Stat. Const. 926.

The discretion of the trial court in a matter of continuance is not unlimited, but is subject to review in this court. Where, as in this case, the motion for continuance complies with every requirement of the statute, and the evidence is material and due diligence shown, it is an abuse of discretion to refuse the continuance. 99 Ark. 394; 71 Ark. 180; 60 Ark. 564; 144 Ind. 16; 50 Ark. 161; 135 Ind. 393. 2.

S. Maples, Judge; 1. An indictment which alleges that the stolen property was the “property of J. R. Stockburger, E. P. Pearson and the estate of C. E. Miller, deceased, a partnership doing business at Winslow under the firm name and style of Stockburger, Miller & Company, ” is not supported by proof that the partnership was composed of Stockburger, Pearson and A. E. Miller. The variance is fatal. 6 S. W. 200; 225 111. 610; 73 Ark. 32. 2.

S. Maples, Judge; STATEMENT BY THE COURT. W. D. Martin was indicted, tried before a jury and convicted of the crime of bigamy. Sophia Lottá, the principal witness for the State, testified substantially as follows: “I first met the defendant about four years ago, when he came to our house to sell spectacles, and have seen him several times since. On the 11th day of August, 1911, I saw the defendant at Westville, Oklahoma, and he wanted me to go on a trip with him.

W. Wells, Judge; Under an indictment for assault with intent to kill, there can be no conviction of an assault and battery, unless the indictment alleges a battery as well as an assault. 15 Ark. 204'; 19 Ark. 305; 13 Ark. 712; 38 Ark. 550; 41 Ark. 359; 45 Ark. 464, 470; Kirby’s Dig., § 2413; 12 Cyc. 767. See also Kirby’s Dig., § 2427; 29 Ark. 69. 1. Under the Code, Kirby’s Dig., §§ 2413, 2414, a conviction for assault and battery may be had upon an indictment such as this.

Carter, Judge; 1. Whether or not it was proper for the prosecuting attorney to ask the witness at the beginning of his testimony if he had been convicted of petit larceny, it was certainly within the discretion of the court to allow it at -that time; and, without a showing to the contrary, this court will not presume that the trial court abused its discretion. 2.

Grace, Judge; 1. The venue in a criminal case is jurisdictional and must be proved, and without such proof a conviction cannot be had. 77 Ark. 19; 58 Ark. 390; 68 Ark. 242; 91 Ark. 492; 67 Ark. 512. 2. The alleged confession detailed to the jury by the witness Forrest was a complete surprise to the defendant.

Carter, Judge; 1. The evidence does not support the verdict, in that it is not shown that any of appellant’s engines were throwing sparks. While under the statute, Acts 1907, p. 336, it is no longer necessary to prove that the company was negligent in the equipment or operation of its trains, it is necessary, in order to maintain an action of this character, to prove that it actually set out the fire.

W. Hays, Judge; STATEMENT BY THE COURT. This suit was instituted by appellee against appellant to recover on a fire insurance policy. The appellee alleged the issuance of the policy, the payment of the premium, and the loss by fire on the 1st day of January, 1909, while the policy was in force. He alleged that he had no other insurance on the merchandise and household goods insured by the policy.

Lea, Judge; 1. The proper application of the rule allowing the examination of supporting witnesses to a motion for a continuance depends upon the particular facts in the case.. The notoriety given to this case by newspaper accounts, all of which were unfavorable to the defendant, and by discussion of the same on the streets, etc., necessarily resulted in many expressions of opinion unfavorable to the defendant.

E. Jeffrey, Judge; STATEMENT BY THE COURT. This is an application for certiorari to the Jackson Circuit Court and to set aside and quash its judgment on a habeas corpus proceeding, taking Eunice Jones from the custody of the county convict contractor and remanding him to jail because said court was without jurisdiction to make such order and judgment.

Lea, Judge; STATEMENT BY THE COURT. The appellant was indicted for the crime of involuntary manslaughter, the indictment charging that he did unlawfully, wilfully, feloniously, carelessly, recklessly, wantonly, and negligently kill Ethel Sherill by then and there striking her with an automobile, he (the appellant) being then and there running, driving and guiding said automobile in an unlawful, wilful, careless, reckless, wanton, and negligent manner, etc. The appellant was…

M'artineau, Chancellor; STATEMENT BY THE COURT. This suit was instituted in the chancery court by appellee against appellant to compel it to issue to him twenty-seven shares of its capital stock.

Carter, Judge; Where a skeleton bill of exceptions containing a direction to “insert testimony” without further identification of the testimony to be inserted, shows on its face that it was signed by the trial judge ten days before the stenographer's transcript of the evidence was filed with the clerk, it is patent that the stenographer’s transcript was not presented to the judge with the skeleton bill, and was not approved by him as the evidence adduced at the trial.

Lea, Judge; STATEMENT BY THE COURT. This suit was brought before a justice of the peace for one hundred and fifty dollars, attorney’s fee, allowed by section 4457, Kirby’s Digest, it being alleged that the appellee compromised a suit in which appellant was an attorney for one of the parties, and had a written transfer of a part of the cause of action for his fee, which was contingent, and that, having settled said suit, knowing his fee was contingent and unpaid, defendant…

<p>Appeal from Pike Circuit Court; James S. Steel, Judge;</p>

Martineau, Chancellor; 1. Appellant Morris acquired the funds with .which he purchased the land on which the orphanage was built, and the funds with which it was built, as trust funds, in accordance with the discipline and canons of the Catholic Church. In equity, the property belongs to the Catholic Church, notwithstanding the fee is at law in the bishop. Any attempt to divert it from the uses and purposes of the Church would be corrected or restrained by a court of equity.

Carter, Judge; HI 1. In so far as the verdict was based on the theory that the fire was started by a spark or sparks from one of the locomotives, it is wholly unsupported by the evidence and contrary to the physical probabilities. 2.

Robertson, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellees, the commissioners of Sewer District No. 1, of the city of Marianna, against the appellants, Nick Peay Construction Company, and bondsmen, for damages for failure to construct and complete by January 1, 1907, a system of sanitary sewers in said city, in accordance with the contract made with the commissioners of said district on July 14, 1906.

J. Lamb, Special Judge; STATEMENT BY' THE COURT. This is a suit by appellee to recover of appellant damages for mental anguish alleged to have been caused appellee through the negligence of appellant' in failing to deliver a telegraph message informing appellee of the death of his child at Campbell, Missouri.

H. Evans, Judge; 1. While the human voice is recognized as a means of identification, and is not regarded as opinion evidence, yet it is so recognized and regarded only when the recognition is immediate at the time of utterance. The voice itself must be recognized by the hearer.

<p>1. Appeal — insufficiency of abstract. — A cause will not be affirmed for failure to file an abstract in accordance with Rule 9 of this court where appellant attempted in good faith to make a correct abstract of the record, though there was a material error in such abstract. (Page 313.)</p> <p>2. Same — motion to advance and affirm. — Where, on a motion to advance and affirm a case for noncompliance with Rule 9, it appears, on consideration of the merits of the case, that there was no error. the cause will be affirmed, though the motion was not sustainable, as no useful purpose would be served by awaiting the regular submission of the cause. (Page 314.)</p>

There is no evidence tending to show that the man who inflicted the injury to the plaintiff was a brakeman in the service of the defendant. 48 Ark. 177. • 2. If a brakeman did the shooting, he was not acting within the real or apparent scope of his employment, and defendant was therefore not liable. 75 Ark. 579. The evidence is sufficient to identify the man who did the shooting as a brakeman in the employ of the defendant, and the facts establish its liability.

S. Maples, Judge on Exchange; 1. The court, on appellant’s request, should have given a peremptory instruction to find for the defendant.

That it was error, prejudicial to the defendant, to admit testimony showing that he had been arrested in Oklahoma on a warrant for horse stealing and had resisted being brought back to this State on that charge, is elementary. 2.

46 Ark. 210. When the appellant at the inception of the contract received a part payment on the order through a collection by the agent, it thereby clothed the agent with apparent authority to make collection therefor, especially in view of the fact that the agent in making the contract was virtually to make delivery by setting up the outfit-purchased, and show appellee flow to run it.

H. Evans, Judge; Where an appellant fails to furnish an abstract sufficient to show the issues raised by the pleadings, the evidence introduced in support of the contentions of the parties and the instructions given by the court, this court will not explore the transcript, but will affirm the judgment of the lower court.

Lea, Judge; STATEMENT BY THE COURT. Earl Gilchrist was indicted for murder in the first degree, charged to have been committed by killing Will Longley in Pulaski County, Arkansas. He was tried by a jury, and convicted as charged. By this appeal he seeks to reverse the judgment rendered.

H. Evans, Judge; STATEMENT BY THE COURT. Fred McElroy was convicted of murder in the second degree in the Grant Circuit Court, upon an indictment charging him with killing Henry Spears, and sentenced to a term of twenty-one years in the penitentiary. His motion for a new trial was overruled, and he appealed.

The evidence is insufficient to establish a cause of action. There is no liability for damages against a railroad company arising from a passenger’s being carried beyond his destination while asleep in his seat. 71 Ga. 710, 51 Am. Rep. 284; 32 S. W. 42; 61 Miss. 8, 10; 2 Hutchinson, Carriers, 1128; 1 Fetter, Carriers, 761 § 301.

Reed, Judge; 1. The contract being clear and unambiguous and the signing thereof admitted, appellee’s testimony that the goods in question were delivered to him upon 30 days’ trial was inadmissible. 94 Ark. 130. 2.

M. Barker, Chancellor; 1. Property cannot be confiscated by an act of the Legislature through the agency of a special improvement or taxing district. 172 U. S. 269; 181 Id. 324,394; Gray, Limitation of Taxing Power and Public Indebtedness, p. 1017; Hamilton on Special Assessments, 58, 61, 182, 234-5-6-7-8-9, 464, 477; 96 Ga. 381; 23 S. E. Rep. 408; 42 Neb, 120; 60 N. W. 368; 61 O. St. 15; 55 N. E. 164; 63 N. J. L., 202; 42 Atl. 733; 42 L. R. A. 641; 53 Id. 421. 2.

Curl, Chancellor; STATEMENT BY THE COURT. This suit was-brought by appellee against appellant for divorce and to have certain real estate described in the complaint declared to be held in trust for appellee.

W. Hays, Judge; . The special term of court was not called nor ordered according to law. Kirby’s Digest, § § 1532 to 1537; Dunn v. State, 2 Ark. 229. The proceedings were coram non judice and void. 29 Ark. 170; 45 Id. 450; 62 Id. 543-551. The meeting of the court must be at a time authorized by law. 48 Ark. 229; 22 Id. 369; 60 Id. 158. Consent does not confer jurisdiction. 48 Ark. 151. The indictment should be quashed. 32 Ark. 117; 20 Id. 77; Kirby’s Dig. § 2279.

Guy Fulk, Judge; 1. It was the engineer’s duty to keep a lookout for appellant, and his failure to obey the rule as to ringing the bell was negligence. 123 S. W. 792; 62 Ark. 235; 127 S. W. 19; 101 S. W. 439; 43 L. R. A. 375.

Robertson, Chancellor; C. F. Greenlee, Special Chancellor; 1. The law does not authorize the filing of a mandate and taking an order on it on the same day, in the absence of consent; nor is there any way to take an order on a mandate without notice or an appearance, even when it has been filed before the term.

V. Bourland, Chancellor; STATEMENT BY THE COURT. On the 28th day of October, 1907, appellant obtained judgment in a justice’s court of Crawford County against B. H. Hanna and W. B. Hanna for the sum of $159.53. On that day a writ of garnishment was issued against appellee, and on the 1st day of November, 1907, the deputy sheriff of Crawford County delivered a true copy of the. writ to appellee’s station agent at Rudy, in Crawford County, Arkansas’.

Wood, Chancellor; STATEMENT BY THE COURT. Appellees instituted this suit in the chancery court against appellant to cancel a tax deed from the State to the appellant as a cloud on their title, to confirm their title and for a writ of possession. In 1864, William A. Leslie died intestate, owning and occupying the lands in controversy as a homestead.

Lea, Judge; STATEMENT BY THE COURT. This suit was begun before a justice of the peace by the Hollenberg Music Company against Claude Barron and others to recover the possession of a piano. On October 7, 1909, judgment by default was rendered in favor of the plaintiff, the judgment being in the alternative for the return of the piano or the recovery of the sum of $300, and the defendant appealed. In the circuit court the case was tried before the court sitting as a jury.

Gotham, Judge; To sustain the charge in the indictment, the evidence must show that Murray escaped, went at large, and that, too, by appellant’s volition. It does not show this, but that appellant removed Murray from the jail and put him in the keeping of guards with strict injunctions not to permit him to escape. While some evidence tends to show that the guards were sometimes lax, yet it does not show that appellant was aware of this laxity.

Martineau, Chancellor; 1. The chancellor had no jurisdiction to' issue, hear and determine the writ of habeas corpus in the Rhea case. Acts 1871 p. 260; art. 7, sec. 37, Const. 1874; Kirby’s Dig. § § 3834,3836,3856, 3839, 3840; 133 S. W. (Ark.) 1017; 45 Ark. 162; 20 Ark. 498; 8 Cur. Law, 1989; 6-Id. 1538; 88 S. W. 250; 104 S. W. 731; 29 Ark. 354, 356. The jurisdiction of the court in that case is essential to the validity of the judgment in this proceeding.

Appeal'from Howard Circuit Court, JeffT. Cowling, Judge; STATEMENT BY THE COURT. Appellees brought this suit against the appellant to recover damages on account of the death of J. R. Whitesell, which it is alleged occurred while he was conductor and brakeman of a logging train on appellant’s line of railroad. At the time the accident occurred, the train was going at a slow rate, some two or two and a half miles an hour. Chas.

Shaver, Chancellor; STATEMENT BY THE COURT. Georgia W. Anders and Mary, D. Cornelius instituted this action against W. M. Stroud, Lucy D. Battle and Ella Knotts in chancery court, alleging that both plaintiffs and defendants are the children and heirs-at-law of Isaac B. Stroud, deceased. That he had lived in Hempstead County, Arkansas, and was the owner of about two hundred and fifty acres of land on which he resided.

Wells, ..Judge; STATEMENT BY THE COURT. Plaintiff sued the defendant for damages to a wagon and harness, alleging that it owned and operated a system of gravel trains,… Held: at a place which was customarily used by those coming to the camp for the sale and delivery of produce there. That he left the horse in charge of Bert Dumas, who was holding him while he delivered the meat. Returning, he saw that a car had gotten loose and started down the hill toward the horse.

<p>Appeal from Franklin. Circuit Court, Ozark District; Jeptha II. Evans, Judge;</p> <p>The court erred in refusing to permit appellant to continue the examination of talesman R. T. Patrick. 24 Cyc. 341, 342; 7 Cranch 290; 57 Cal. 102; 23 Cal. 375; 121 Pa. St. 455; 14 Ga. 22; 8 So. 838; 69 Tex. 650; 83 Mo. 589; 2 Dev. & B. 212; 3 Wis. 827; 69 111. 303; 1 Denio 308; 5 Cal. 347; 69 Ark. 139; Id. 594; 71 Ark. 367; 51 Ark. 177.</p> <p>The court should have directed a verdict for appellant, 91 Ark. 260; 86 Ark. 290; 91 U. S. 469; 105 Id. 249; 213 Id. 674. Appellant was entitled to an instruction defining “proximate cause.” 59 Ark. 134; 69 Ark. 632, The argument of counsel was improper and prejudicial. 70 Ark. 306; 61 Ark. 130; 74 Ark. 256; 58 Ark. 553; 52 Ark. 274; 53 Ark. 388; 93 Ark. 187; 45 Atl. 593; 55 N. E. 861; 115 111. 300; 39 111. App. 388; 71 Ark. 427; 89 Ark. 87; 70 Ark. 305; Id. 179; 63 Ark. 174; 87 Ark. 461; 30 N. W. 630.</p> <p>There was no error in the court exercising control over the examination of talesman R. T. Patrick. 139111. 418; 158 U. S. 413; 7 App. 451; 74 Mo. 271; 93 N. W. 286; 21 Ark.-329; 10 Ark. 428; 5 Ark. 208; 23 Ark. 32; 20 Ark. 619; 58 Ark. 353; 34 Ark. 649; 38 Ark. 304; 69 Ark. 558.</p> <p>The court properly refused to direct a verdict for appellant. White, Per. Inj., § 36. There was no error committed in the argument of the case that calls for its reversal. 74 Ark. 259; 90 Ark. 406; 89 Ark. 92; 77 Ark. 73; 91 Ark. 579; 78 Ark. 387; 93 Ark. 144; 75 Ark. 349; 48 Ark. 123; 76 Ark. 39; 87 Ark. 463; 63 Ark. 174; 61 Ark. 130; 70 Ark. 183; 65 Ark. 625; 93 Ark. 564.</p>

Reed, Judge; 1. There was no evidence of negligence. Negligence of the master, in cases of this character, will not be inferred merely from the happening of the accident, but the burden is on the plaintiff to prove it. 89 Ark. 50; 79 Ark. 437; 91 Ark. 388. 2. Plaintiff assumed the risk of injury. 97 Ark. 486. 1.

Cowling, Judge; 1. The amendatory act of April 5,1910, does not prohibit the removal of this cause. Whether or not the action arises under the act of Congress must be’ determined from the allegations in the complaint; and if there is any doubt on the question, it must be resolved against the plaintiff.

Guy Fullc, Judge; 1. The statements complained of in the letter to Powell & Doyle are libelous per ?e. 18 Am. & Eng. Enc. of L. 861; Kirby’s Dig., § 1850; 18 Am. & Eng. Enc. of L. 909; Id. 941-942; 9 L. R. A., 621, note, and cases cited; 4 Ark. 110; 72 Ark. 421; 98 Fed. 222. 2. Appellee is liable to the same extent as if it were the sole author of the statements. 18 Am. & Eng.

Kirby’s Dig. •§ § 6504, 6506, 6508. Even where there is no statutory provision for the substitution of lost or destroyed instruments, proceedings therefor must be instituted by motion or application to the court upon notice to the adverse party. 25 Ala. 551; 13 Fla. 574. And where there is statutory provision for such substitution, the statute must be followed. 86 Ky. 504; 6 S. W. 330.

Haden Humphreys, Chancellor; statement by the court. The appellant seeks to confirm a tax title to a certain tract of land in Boone County, Arkansas.

E. Jeffery, Judge; 1. Having obtained jurisdiction of this cause by regular appeal, the circuit court should have tried it de novo, and disposed of the case in its entirety, and rendered such judgment as the county court should have rendered. Kirby’s Dig. § 1492; 33 Ark. 508, 511; 34 Ark. 240, 243, 244; 43 Ark. 324; Id. 42; 79 Ark. 504. 2. It was not necessary, in order to submit the proposed annexation question to the voters, for the council to pass an ordinance.

Cowling, Judge; 1. Appellant, by permitting his cow to run at large within the city, committed an offense within the city, notwithstanding he resided without the city limits. The gist of the offense consists in his knowingly permitting the cow to run at large within the city, and the cause of her being there and the manner in which she got there is immaterial. 134 S. W. 890. 2.

By his representations and promises appellee induced appellant to change his condition and to take upon himself and his property a heavy burden, and this is a sufficient consideration for the contract. After the trade is made and appellant has changed his condition and assumed the burden, it is then too late for the appellee to •repudiate his offer or attempt to evade responsibility under his agreement. 107 Mass. 37; 1 Beach, Mod.

Meeks, Judge; When the defendant Phillips appeared in court at the August term, 1909, and a fine was assessed and judgment rendered against him, he was then in the custody of the court, and his bondsmen had no further control over him; . and the act of the court in suspending execution of the judgment until the next term did not continue the bond in force. 28 Ark. 346; 29 Ark. 127; 40 Ark. 432. 1. The appeal should be dismissed.

Guy Fulk, Judge; 1. Witnesses cannot draw conclusions from a given state of facts, and give such conclusions in evidence. They must state facts, and let the jury determine upon the facts, not upon their opinion of them. 66 Ark. 494; 24 Ark. 251. 2.

Appellee was on foot and- without impediment, in age he was in the prime of life, and in full possession of all his faculties. It was after sunset, but light enough to distinguish a man two or three blocks away and to recognize one a block away. The track was straight for miles in the direction from which the train came, almost perfectly level for a thousand feet, and there was no obstruction of any kind intervening to obstruct the view.

Reed, Judge; STATEMENT BY THE COURT. Plaintiff sued the defendant, alleging that on June 1, 1910, a check was drawn by Crisp & Burman upon the defendant for the sum of $117.07, which was on June 6, 1910, in due course of business presented to the bank for payment, at which time there was deposited in the bank in favor of the drawer of the check the sum of $300, sufficient to pay the check and discharge its obligation.

S. Map, 1. The record does not show that the affida: was filed or that an appeal was granted. 7 Ark, 2. The court erred in admitting appell to the effect that she had been sued, attachmi judgment rendered against her sustaining t' etc. If such testimony was admissible, then allow the schedule. 43 Ark. 43; 51 Ark. 87. 3.

Robertson, Chancellor; In cases of this kind the vendor may rescind if the vendee refuses to pay the balance of the purchase price. Page on Contracts, § 1432; 6 Pomeroy’s Equity Jur. 1331, 1339; 9 Ark. 561; 72 Ark. 360, 364; 70 Tex. 157; 87 Ark. 593; 76 Ark. 578; 76 U. S. 290, 19 L. Ed. 712; 1 Wall. 278, 17 L. .Ed. 536; 2 O. St. 326, 5 Am. Dec. 677; 47 Fed. 399; 53 Ga. 18; 80 111. 138; 16 Bar.

H. Evans, Judge; 1. This case should have been disposed of on the demurrer interposed by appellant. The complaint was bad because the facts alleged do not constitute discrimination. 72 Ark. 478. It is demurrable also because the act relied on is invalid for the reason that it imposes the penalty only upon telephone companies or corporations and exempts from its operation persons engaged in the same business, constituting an arbitrary classification. Art. 2, §, 18 Const.

Guy Fulk, Judge; 1. It was error to refuse to permit Gay to testify as to the terms, etc., of the contract. Greenleaf on Ev. vol. 1 (15 ed.) pp. 694-5-6, § 558; Wigmore on Ev. vol. 2, pp. 1403-8, § § 1192-4; Jones on Ev. pp. 262-5, § § 212-213, 252 ; 57 Ark. 153-158; 72 Id. 47-51; 72 Id. 601; 63 Id. 556-56-13; 47 Id. 120, 125. 2.

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. George W. O’Neal instituted an action of ejectment in the Boone Circuit Court against John C. Ross. The complaint alleges that he is the owner of lot 12 and the east half of lot 13 in block 10 in the town of Harrison, as originally platted, and that the defendant, Ross, is in the unlawful possession of a strip of land on the north side thereof five feet three inches wide at the east end, and four feet wide at the west end.

<p>1. Homicide — evidence.—Where, in a prosecution for murder, there was a conflict in the testimony as to whether the decedent had his pistol and had endeavored to draw it when defendant shot him-, it was competent for the State to show that immediately after the killing defendant had decedent’s pistol. (Page 563.)</p> <p>2. Same — evidence—statement by defendant. — It was competent, in a prosecution for murder, for the State to prove a declaration made by the defendant relative to the killing. (Page 563.)</p> <p>3. Appeal — harmless error. — The defendant in a murder case cannot complain of the introduction of improper evidence tending to show malice or an abandoned disposition on his part where he was found guilty of manslaughter. (Page 563.)</p> <p>4. Homicide — evidence.—Though it is competent, in a murder case, to prove decedent’s reputation for violence whenever there is a doubt as to who was the aggressor, it is not competent to prove that decedent-had said that he had been sentenced to the penitentiary,, or that he was “a desperate nigger.” (Page 563.)</p> <p>5. Same — self-defense—instruction.—It was not error, in a prosecution for murder, to instruct the jury that if they “believe from the evidence that the defendant could have at any time from the beginning of the difficulty, if you find that there was a prior difficulty, to the ending of the last meeting between himself and the deceased, when the deceased was killed, reasonably withdrawn from or avoided the difficulty with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.” (Page 564.)</p>

Poinsett Chancery Court; Benjamin Harris, Special Chancellor; Where the lessee is insolvent, and actual physical performance is the only substantial interest that the lessor has in the lease, and where irremediable mischief -will result from either imperfect or nonperformance, then it is proper to either require bond for performance, or in default of this to cancel the lease. 36 N. J. Eq. 66; Stockt.

Two suits were brought by the prosecuting attorney in the name of the State of Arkansas, for the use and benefit of Monroe County, one against W. L. Graham, treasurer of said county, and the sureties on his bond, naming them, for the term commencing October 31, 1906, and ending October 31, 1908, and the other against said Graham, treasurer of said county, and the sureties on his bond, naming them, for the term commencing October 31, 1908, and ending October 31, 1910.

Robertson, Chancellor; STATEMENT BY THE COURT. This was a suit by the Paragould Trust Company against the Paragould Abstract & Real Estate Company to foreclose a mortgage upon certain lands and against M. R. Coffman, alleging that he claimed some kind of an interest in the lands, of the exact nature of which plaintiff was not informed.

V. Bourland, Chancellor; ■ A city of the first class has power to purchase a cemetery within its limits. Kirby’s Dig., § § 5449,-5436-7-8; 58 Cal. 63; 71 S. W. 943; Dillon, Mun. Corp. (4 ed.) § 565. A city of the first class has no power conferred upon it by law to purchase land for a cemetery within its corporate limits. Kirby’s Digest, § 5449; 105 Cal. 151; 68 N. Y. 167-171; 3 Dillon, Mun. Corp. (5 ed.) § § 1975, 1557; 71 Ark. 4-8; 45 Ark. 524-527; 28 Fed.

<p>Appeal from White Chancery Court; John E: Martineau, Judge;</p>

Gotham, Judge; STATEMENT BY THE COURT. Appellant was convicted on five separate indictments for exhibiting certain gambling devices, each indictment being for the exhibition of a different one.

92 Ark. 557, 558. That is this case.' There is no substantial change in the evidence on the second trial from that adduced at the first trial, with this difference, however, that appellant's case has been materially strengthened by additional evidence, and that on the issue which this court on former appeal held should be submitted to the jury under proper instructions.