Volume 101 — Arkansas Reports

<p>Appeal from Garland Circuit Court; C. T. Colham, Judge;</p>

Guy Fulk, Judge; Where a creditor draws upon his debtor an instrument payable to order, and the instrument so drawn falls, without indorsement of the payee, into the hands of one not authorized to receive the same, who indorses it and collects from the debtor, delivering to him the instrument, such payment is at the peril of the debtor, and his obligation is not discharged. Daniel on Neg.

V. Bourland, Chancellor; 1. The chancellor can not arbitrarily disregard the findings of fact by the master. The conclusions reached by a master upon conflicting testimony have every reasonable presumption in their favor, and will not be set aside or modified unless there clearly appears to have been error or mistake on his part. 125 U. S. 136; 92 Ark. 361-363.

Appellant’s motion to strike from the files the answer filed by the defendant on the day of the trial] should have been sustained. In the order continuing the case made at the former term, the court having limited defendant’s time for filing answer to thirty days from that date, it had ho discretion to permit the answer to be filed at the succeeding term, without a showing of good cause for failing to comply with the former order. Kirby’s Digest, § § 6111, 6116. 2.

Francis Circuit Court; J. S. Thomas, Special Judge; The county court is vested with exclusive original jurisdiction to “audit, settle and direct the payment of all demands against the county.” Art. 28, section 7, Const. 1874; Kirby’s Digest, § 1375. The use of the word “audit,” both in the Constitution and the statute, plainly implies judicial discretion, and in its nature requires the exercise of judgment. 1 Words & Phrases, 641.

Grace, Judge; STATEMENT BY THE COURT. J. B. Avery brought suit against the Newhouse Mill & Lumber Company for timber, alleging that said company wilfully, unlawfully and wrongfully cut 85,000 feet of timber from his land, of the value of $885, and asks treble damages for the cutting of same. • The company denied that the timber was wilfully, unlawfully or wrongfully cut, and that it was worth the amount alleged.

This suit was brought by J. P. Harper against J. W. Dare for an alleged malicious prosecution of him before a justice of the peace of Pope County.

Hutton, Judge; There is no direct or circumstantial evidence corroborating the prosecuting witness as to the 'sexual intercourse. 77 Ark. 16; Id. 472; 86 Ark. 30.

• The railroad company filed a petition in the Southern District of Prairie Circuit Court, to condemn a right of way through one hundred and sixty acres of land in Prairie County, the property of Frank and Anna Kocourek.

The court erred in permitting the warrant issued for Bill Smith to be read, when there was no information connecting appellant with Bill Smith. 153 U. S. 78; Fourth Amendment, Const. U. S.; 8 Cyc. 1082-1086. 2. The case should be reversed for improper conduct of the jurors, Hayes, Wood and Mathews. 34 Ark. 341; 26 Ark. 334; Id. 332; 66 Ark. 545; 52 S. W. 276; 17 S. W. 3; 35 Ark. 639; 20 Ark. 53; 13 Ark. 317. ■ 1.

Martineau, Chancellor; 1. Corporations possess only such powers as are expressly or impliedly granted. To this may be added: that such acts as are not by implication prohibited, and are beneficial and necessary to carry into effect the powers conferred, may be exercised. The powers are measured by the grant. Thompson on Corp. (2 ed.), § § 2101-2106; 4 Wheat. (U. S.), 518; 118 S. W. 390; 130 S. W. 162; 125 Id. 1001; 128 Id. 348; 139 U. S. 24; 73 Pac. 79.

The appellant sued appellee on an alleged contract for the sale of onion sets, as follows: “Contract for onion sets between Vaughan’s Seed Store, of the city of Chicago, State of Illinois, party of the first part, and Arthur G. Lee, of the city of Fort Smith, State of Arkansas, party of the second part.

■ Though the complaint sounded in tort, yet, by his election, before going to the jury, in terms “that his cause of action is one of bailment,” plaintiff in effect elected to recover on an implied assumpsit. The character of the action elected is to be determined by the object sought to be attained and not by what it is called. 53 Ark. 468; 36 Ark. 331; 73 Ark. 183; 74 Ark. 93.

<p>Bill op exceptions — effect op qualified approval. — Where the judge signed a bill of exceptions but immediately following his signature a'dded the words: “Proper corrections to be made if any necessary,” and attested the latter by his initials, the certificate was a qualified one and insufficient to bring up the matters therein contained for review.</p>

Martineau, Chancellor; 1. The chancery court was without jurisdiction to allow temporary alimony after the decree for divorce was rendered and while same was still standing in full force and effect. Tb ere was then no ‘‘pendency of an action for divorce.” Kirby’s Digest, § 2679; 102 Ala. 353; 34 Minn. 441. 2.

Hudgins, Judge; 1. By Ms own testimony the appellee was negligent in attempting to board the moving train, and is not entitled to recover. 2 Hutchinson on Carriers, § 1111; 2 White, Pers. Inj. 687, 692; 1 Fetter on Carriers of Passengers, 378, § 149; 67 Miss. 601, 7 So. 401; 122 Ga. 226, 50 S. E. 99; 100 Ala. 506; 145 S. E. 268; 108 N. C. 34, 12 S. E. 958; 69 S. C. 445, 48 S. E. 466. 2. The verdict is not supported by any evidence that the train did not stop.

Lea, Judge; 1. When two parties have executed a written instrument which expresses the terms of their contract, neither of them can introduce parol testimony tending to vary, change, add to or subtract from the terms of the written instrument. 94 Ark. 130; 88 Ark. 213; 86 Ark. 162, 164 ; 83 Ark. 163; 80 Ark. 505, 508, 509; 67 Ark. 62; 30 Ark. 186, 197. 2.

Shaver, Chancellor; A wife can not be deprived of her homestead except in the way pointed out by the statute. Kirby’s Digest, § 3901. The statutes declaring and vesting homestead rights are remedial, and should be liberally construed. 25 Ark. 101; 57 Ark. 242; 60 Ark. 269; 62 Ark. 431; 64 Ark. 492; 71. Ark. 283.

Carter, Judge; STATEMENT BY THE COURT. This was an application by appellant to the circuit court of Clark County for a writ of prohibition against appellee, as county judge of said county, to prohibit him from proceeding further in the cause of Terre Noir Drainage District v. Thornton.

'Guy Fulk, Judge; STATEMENT BY THE COURT. This was a suit for the usurpation of the office of justice of the peace of Eagle Township, Pulaski County, Arkansas, upon the following complaint: “Plaintiff for cause of action states that he was, on the 12th day of September, 1910, duly and legally elected to the office of justice of the peace for Eagle Township, in the county of Pulaski and State of Arkansas.

S. Staples, Judge; 1. There is no allegation in the complaint, neither is there any evidence, that the company had any knowledge of any dangerous condition of the rock, nor that it was negligently ignorant of such dangerous condition, nor that an inspection by the company would have disclosed that it was about to fall. There is no testimony whatever to show how the rock fell what caused it to fall, whence it came, nor any evidence from which any such inference may be drawn.

Where exceptions to an instruction are not preserved by making them a ground of the motion for a new trial, they are thereby waived, and will not be considered bn appeal. 67 Ark. 541; 1 Crawford’s Dig. Appeal and Error,” IV, b. 2. There was no error in refusing to give instruction 1 requested by appellant. The court in other instructions construed the lease and told them its legal effect upon the parties as influenced by their finding of facts.

Guy Fulk, Judge; 1. Where one has a cause of action cognizable before a justice of the peace against two defendants living in different counties, he may bring suit before a justice in the township of the county in which one of the defendants resides, takes _ summons directed to constable of the county in which the other defendant resides, and when that summons is served the justice before whom the suit is brought has the same jurisdiction as if both defendants resided in his…

Maples, Judge; Objections to instructions will not be considered where all the instructions are not set out in the abstract; and where the abstract fails to set out the evidence adduced at the trial, the instructions given will be presumed to have been correct. 92. Ark. 143.

Cowling, Judge; 1. As a matter of law, there was neither allegation nor proof of any negligence on the part of appellant proximately causing the injury. The complaint itself fails to state a cause of action, in that its allegations are such as to leave it a matter of conjecture whether the injury was due to plaintiff’s own negligence or to the negligence of the defendant.

Maples, Judge; 1. When F. A. Sanders, after the note of November 25, 1907, was signed, changed it without the knowledge and consent of appellants by writing after his name the word “Sec.,” this was a material alteration to the injury of appellants, being in effect a forgery, and not binding upon them; and the court erred in ignoring this defense in its instructions. 4 Pac. 1022; 17 Am. Rep. 92; Joyce, Def. to Com. Paper, § 138; 2 Cyc. 151-154. 2.

Robertson, Chancellor; 1. A judgment or decree rendered against one who has not been properly served with process, and who has not entered an appearance, is void. 95 U. S. 714.

E. Jeffery, Judge; STATEMENT BY THE COURT. On the night, of November Í9, 1910, between 9 and 10 o’clock, Dave Brock killed James Parsons in Jackson County, Arkansas, by shooting him with a pistol, and Brock was convicted on sufficient indictment of the crime of murder in the first degree, and appeals to this court. Brock was indebted to Parsons in the sum of six dollars, and went to Parsons’s home, and called him out of bed.

<p>Appeal from Lafayette Circuit Court; Jacob M. Garter, Judge;</p>

The offense of which appellant had been convicted being identical with, and the same transaction as, that alleged in the indictment, the plea of former conviction should have been sustained. 2. The court erred in not sustaining the demurrer to the evidence because it did not support the material allegations in the indictment.

Barker, Chancellor; 1. The proof shows that Smith was the agent of the Building & Loan Association only for the purpose of collecting dues of existing mortgagees. He was never held out as being the agent for any other purpose, and Warren should have inquired into Smith’s authority. 114 Am. St. Rep. 801; 88 N. Y. 925, 37 S. E. 555.

Judge; statement by the court. This suit was instituted by the plaintiff, R. C. Cumbie, and others, against the defendant, the St. Louis, Iron Mountain & Southern Railway Company, to recover damages to a shipment of peaches. It was alleged that R. C. Cumbie was the duly selected, appointed and acting agent for all of the plaintiffs, and as such made and entered into the contract for such shipment for their use and benefit.

Maples, Judge; STATEMENT OF FACTS. Appellee brought this suit in the Benton Circuit Court, alleging that he was engaged in the real estate business, and that appellant had listed certain land with him for sale; that he introduced to appellant one John T. Six, who purchased the land for the consideration of fourteen thousand, nine hundred and sixty dollars ($14,960); that the sale was consummated through the efforts of appellee; that appellant was due appellee, as a…

E. Jeffery, Judge; STATEMENT BY THE COURT. Ada Trotter, seventeen years of age, brought this suit by her next friend and stepfather, S. H. McCullough, for damages for a personal injury alleged to have been received, while debarking from a train at Minturn, Arkansas.

W. Meeks, Judge; 1. An order made by a justice of the peace in a summary proceeding after judgment is but an order, and not a final judgment. Kirby’s Digest, § § 4665, 6228, 4226, 6265. 2.

Reed, Judge; Instructions 3 and 9 are in conflict with one another. The courts uniformly hold that the giving of conflicting instructions is reversible error. 74 Ark. 441; 77 Ark. 203; 24 Cal. 226; 23 Col. 314; 35 Pac. 39; 128 111. 173; 79 Ind. 432; 94 Mo. 475; 69 Miss. 319; 6 How. 212. Instruction 9 and also 21 misstate the law in making it the duty of plaintiff to look for defects. 95 Ark. 295; 89 Ark. 428; 92 Ark. 109; 70 Ark. 299.

<p>Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon, Judge;</p>

<p>Appeal from Ashley Chancery Court; Zachariah T. Wood, Chancellor;</p>

Guy Fulk, Judge; STATEMENT BY THE COURT. This is an appeal prosecuted by Henry G. Wernimont from a judgment of the Pulaski Circuit Court revoking his license to practice law in that court, and striking his name from the roll of its attorneys.

Martineau, Chancellor; 1. Appellee as a mail carrier was divested of no vested right by the passage of the amendment to the original ordinance. Cooley, Const. Lim. 437, 471; Black, Const. Law, 429; 8 Cyc. 895; Id. 904; Id. 938; 68 Ark. 368; 65 Ark. 30; 69 N. Y. 282; 135 N. Y. 222; 76 Fed. 130.

Curl, Chancellor; The plea of laches should have been sustained, for that plea is conclusive in this court. Appellants purchased for a valuable consideration without any actual knowledge of appellee’s rights.

Martineau, Chancellor; STATEMENT BY THE COURT. J. W. Carpenter instituted an action in the Pulaski Chancery Court against the city of Little Rock, in which he sought to enjoin the enforcement of a milk ordinance. His complaint alleges in substance that he is a citizen and taxpayer of Pulaski County, and is a dairyman selling milk in the city of Little Rock from his own cows.

Hays, Judge; Since the adoption of the Constitution of 1874, any citizen ' or resident may, within six months from the date of an allowance made by a county court against the county, appeal to the circuit court from the order of allowance, with or without supersedeas, by complying with the law with reference to taking appeals from the county court to the circuit court, whether he was a party to or had any previous connection with the proceeding or not.

Art. 7, § 40, Const. 1874; 7 Ark. 305; 81 Ark. 192. The suit is not by a landlord to recover rents from a tenant, but an action in replevin against one who has taken possession of a crop from a tenant, claiming ownership of same as the tenant’s landlord. The mere introduction of a deed or a lease contract in order to establish some collateral fact does not involve the title to the lands.

Elliott, Chancellor; 1. It will not be denied that the lumber bought by appellee was used, and was in such shape that a mortgage lien could not be enforced against it. In such case the remedy is in equity to fix a lien on the proceeds of the property. 36 Ark. 575; 42 Ark. 314; 72 Ark. 131. 2. The evidence does not sustain the chancellor’s findings. 1.

<p>1. Jury — competency op juror. — Where in a personal injury case a juror stated on his voir dire that he had heard a certain physician who treated the plaintiffYor her injuries say that she was hurt, but that the remark made no impression on his mind, he was a competent juror (Page 255.)</p> <p>2. Witnesses — joint action by husband and wife — husband as witness. — Where a husband and wife sued jointly for personal injuries to the wife, the husband was a competent witness in his own behalf, and a general objection to his testimony was insufficient to call attention to the fact that he was incompetent to testify in his wife’s behalf. (Page 256.)</p> <p>3. Same — competency op husband as witness por wife. — Where objection was taken to a husband testifying in a joint action in favor of himself and his wife, the error of permitting him to testify for his wife was cured by an instruction that the testimony offered by the husband is not material, so far as she is concerned. (Page 256.)</p> <p>4. Damages — when not excessive. — Where, in a personal injury action by a husband and wife, the evidence shows that the wife was violently thrown down, had three of her ribs broken was in bed three weeks and suffered great pain, had a soreness in her side, breast and shoulder, and, seven months later, continued to suffer, that her injuries disabled her from doing farm work, and that the husband had expended $40 in doctor’s bill, a verdict for $1,000 damages wasnot excessive. (Page 256.)</p>

S. Thomas, Special Judge; In holding the juror, Marsh, competent, the court deprived appellant of an inalienable right. The question is not whether a juror can try a negro for .killing a negro, or a white man for killing a white man, with the same degree of impartiality, but it is, “Can you give the defendant a fair and impartial trial according to the law and the evidence, and not allow any prejudice you might have against his race to influence your verdict?” 26 Am. St. Rep.

Barker, Chancellor; 1. To render a sale under a mortgage or deed of trust valid, appraisers must be appointed, as provided by statute, and they must take and subscribe an oath as therein required. Kirby’s Digest, § 5417. And they must make a written report of their appraisement and deliver it to the person making the sale. Id. § 5418.

Guy Fulk, Judge; STATEMENT BY THE COURT. Plaintiff (appellee) brought suit against the defendant, alleging it was indebted to it in the sum of $530.21, with interest upon a check, as follows: “Helena, Ark., July 13, 1910. No. 2. “The Southern Trust Company, of Little Rock, Ark. “Pay to Helena Ship Yard and D. D. Co. or bearer ($530.21) five hundred and thirty and 21-100 dollars. “Sou. Sand & Matl.

Cowling, Judge; statement by the court. Appellants were corporations engaged in the lumber business at Nashville, Arkansas. They maintained a log train, by which they transported logs on cars to their mill. Appellee was a conductor and brakeman on such train. It was-his duty to place cars, after they were loaded with logs, on appellants’ siding at their mill pond, and, when so placed, to unload the logs from the cars into the pond.

Frank Smith, Judge; 1. In the absence of necessities existing for unloading stock for feed and rest, to which the carrier’s attention has been called, it is under no legal obligation to do so under a period of twenty-eight hours from the time the stock was loaded into the cars.

<p>Appeal from Garland Circuit Court; W. H. Evans, Judge;</p>

Humphries, Chancellor; 1. The widow is not entitled to homestead in the land conveyed by Towle. C. E. Spaulding held the lands under contract of purchase only. The word “owner” used in the statute, Kirby’s Digest, § 3882, means one holding an absolute title in fee simple. 21 Ore. 339; 201 111. 292; 30 N. Y. 1040; 112 Ala. 539; 113 Ga. 357; 116 Ga. 942; 106 Cal. 355; 6 Words & Phrases, 5151; 6 Hun (N. Y.)- 553; 88 Wis. 672; 6 Tex. 303; 25 Pac. 415; 2 O. Dec. 391. 2.

<p>Appeal from White Chancery Court; John E. Martineau, Chancellor,</p>

Hutton, Judge; STATEMENT BY THE COURT. On May 6, 1893, J. P. Bradford conveyed by warranty deed to J. R. B. Moore and E. E. Reed among other tracts the following land: NEJ4 of section 28, township 6 north, range 5 west, in White County, Arkansas. Moore and Reed afterwards conveyed the same land by a deed that was, in form, if not in fact, a warranty, to the appellant.

Martineau, Chancellor; The basis used by the court in arriving at the amount fixed by the decree is erroneous. Appellee had the right to connect with the sewer upon reasonable terms, and the courts can determine what is a reasonable charge. There being but one connection for a residence enclosed by three lots only, the charge should be based on what would be reasonable for the three lots only, and not the twelve lots owned by appellant. 95 Ark. 264.

Acts 1907, p. 557, § § 1 and 2; 3 L. R. A. 129; Id. 392; 110 N. W. 718; 80 S. W. 488; 36 S. W. 18; 38 S. W. 862. The clause of the contract in question is reasonable and valid, and is not a limitation upon the common-law or statutory liability of the carrier. The court was therefore right in instructing a verdict for the defendant. 82 Ark. 339; 68 Tex. 314; 180 U. S. 49; 108 Pac. 480; 87 Ky. 626, 9 S. W. 698; 90 Ark. 308; 89 Ark. 404; 93 Ark. 537; 95 Ark. 412; 115 U. S. 620.

Carter, Judge; 1. Appellant’s own testimony convicts him of contributory negligence. Before driving upon the track on which the injury occurred, a view of which, he says, was obstructed from the time he came upon the first track by the string of dead cars extending up to the street crossing, he should at least have checked his team and looked up and down the track which had been shut off from view.

Robertson, Chancellor; The tax title held by appellees is void: 1. Because of the failure of the clerk to attach to the tax books his warrant authorizing the collection of the taxes. Kirby’s Digest, § 7026; 19 Ark. 602; 30 Ark. 274; 43 Ark. 296. A warrant attached to a tax book which is not signed by the clerk confers no power upon the collector; and a seal attached to the warrant, unaccompanied by the signature of the clerk, is no evidence of its having been executed.

Cowling, Judge; The vendee of personal property, while he remains in possession and has not been evicted by paramount title, can not defend against an action for the purchase money on the ground that the vendor had no title. 4 Ark. 467; 21 Ark. 71; 25 Ark. 174; 19 Ark. 460; 35 Cyc. 541; 50 Fed. 778.

Humphries, Chancellor; 1. The testimony of Joe Helterbrandt that his mother had $1,200 in money at the time she married Rasdon and that he appropriated to his own use is so unreasonable and improbable, and is contradicted by competent testimony to the effect that she had at the time only a small amount of personal property, that his testimony can not be taken as true.

Taken as a whole, it is meaningless and misleading. The entry being admitted, the jury should have been instructed specifically on the question of intent, and the court’s refusal so to instruct them at appellant’s request was reversible error. 92 Ark. 216. 1.

Reed, Judge; 1. The judgment was appealable. There is no exception in the statute authorizing appeals from judgments of justices of the peace except “a dismissal for want of prosecution.” Kirby’s Digest, § 4665. If it had been the intention of the lawmakers to exclude judgments by consent, by confession or by default from appealable judgments, they would have expressed that intention in the statute.

Meeks, Judge; This being a general demurrer, it should have been overruled if the complaint as a whole states facts sufficient to entitle appellant to some kind of relief. Appellees presented their claim to the county court, which heard and allowed it. The decision of the county court as to who was entitled to the reward is conclusive of this controversy. Art 7, .sec. 28, Const.; Kirby’s Digest, § 1375; Id. §1487; 55 Ark. 275.

Hays, Judge; The constitution of the association fixes the benefit fund absolutely in the legal representatives of the insured, with the power in him to designate any one he might desire who is in the class designated in the contract. “Legal representatives” has no fixed judicial meaning, but is construed in each case to mean that which is justified by the contract. 4 L. R. A. (N. 5. ) 939; 117 U. S. 879.

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. This suit was brought by the prosecuting attorney in the name of the State for the use of the county and the various school districts therein to set aside a judgment and order of the county court of Marion County of July 15, 1903, confirming the settlement of the defendant as the collector of the county, on account of fraud, and recover a balance claimed to be due from him, it being alleged that certain sums of money were…

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. On the 15th day of October, 1903, Laura and Fred Boles executed to Peter Lane their promissory note for the sum of $850, due one year from date, and also executed a mortgage on certain town lots in the city of Eureka Springs to secure same. Peter Lane died in April, 1906, and by his last will and testament his widow, Ida V. Lane, became the owner of said mortgage.

V. Bourland, Chancellor; STATEMENT BY THE COURT. Held: just as when a contract is made “for” another the courts will take judicial notice that the real beneficiary is the person for whom the contract is made. 12 Mass. 237; 90 N. W. 262 ; 98 Mass. 901; 2 Devlin on Deeds, 738-A; 1 Beach on Trusts & Trustees, § 53.

Lea, Judge; STATEMENT BY THE COURT. Appellant was engaged in operating log trains on its railway, and appellee was a brakeman on one of its trains. The log train consisted of an engine and tender, a string of log cars, and then a trailer and passenger coach. Appellee testified that he was the rear brakeman, and that his duties were, when coming down hill, to help set and take off brakes. It was his duty to make the uncoupling from fihe passenger and log cars.

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. The affidavit of nonresidence, the foundation of the issuance and publication of a warning order, is jurisdictional. 70 Ark. 409;' 68 S. W. 242; 147 Fed. 133, 219, 225; 66 Ark. 282; 50 S. W. 503.

Shaver, Chancellor; The evidence unquestionably shows that the lands belonged in fact to Bowling, and that Pitts had promised Bowling to convey the lands to him at once. It is also in evidence that the trade between Stough and Pitts was not concluded when Stough came to Arkansas to investigate the title to the land and had paid no money, but he had the right to rescind if the title was not good.

P. Henderson, Chancellor; STATEMENT BY THE COURT. This was a proceeding in the Garland Chancery Court to enjoin the sale of a certain lot in the city of Hot Springs, alleged to be the property of appellant. The facts are substantially as follows: The appellees, on the 30th day of June, 1904, recovered judgment against Nettie W. Brooks in the Garland Circuit Court. On the 1st day of June, 1907, they sued out a writ of scire facias to revive the lien of the judgment.

<p>Appeal from Lee Circuit court; Hance N. Hutton, Judge;</p> <p>I. Where land belonging to coterminous proprietors is inclosed, the intention with which the possession was taken and held is controlling, because no title could be gained against the owner by mere possession. To bar an action for the recovery of land so held, the possession must be actual, open, notorious, hostile and exclusive, and accompanied by an intention to hold adversely to and in derogation of the rights of the true owner. The court should have given instruction 3 requested by appellant. 59 Ark, 626, 628; 80 Ark. 444; Id. 575.</p> <p>2. The court in its charge to the jury made an erroneous application of the principle that one can not by a verbal declaration divest himself of a title already acquired. This, is illustrated by instructions 3, 4, 5 and 6. The gist and substance of adverse possession is the intent with which the parties hold; yet, under these instructions, one who has remained in possession for over seven years might with impunity declare that he intended only to claim to the true line, yet such declaration would not be admissible as evidence against him to show the intention with which he had held. The signed statements made by Lynch, together with his verbal statements, were admissible for the purpose of showing that his holding was not adverse.- 131 S. W. (Ark.) 456.</p> <p>1. From the undisputed facts in the case it appears that some twenty-one years before this suit was brought Lynch and Brown, owning adjoining tracts of land, caused a dividing line to be run by the county surveyor, and it was agreed between them at the time that this survey should mark the boundaries of their land. Pursuant thereto, Lynch at once put a fence on this line, cleared the land, built houses thereon and occupied the property as his own until his sale to Hines, and the latter occupied it for a year after his purchase until Hughes took possession.</p> <p>The line having been established by agreement between Lynch and Brown, and acquiesced in by the parties all these years, and valuable improvements made with reference thereto, the correctness of the line can not now be questioned. 75 Ark. 400; 36 S. W. (Ark.) 184. Such an agreement is not prohibited by the statute of frauds. 23 Ark. 704; 5 Cyc. 931.</p> <p>Without reference to the correctness of the instructions, the judgment, being right upon the facts of the case, should be affirmed. 91 Ark. 97; 64 Ark. 236.</p> <p>2.. Instruction 3 requested by appellant was properly refused because it did not embrace the principle that possession of land may be adverse if it is inclosed and held under the belief and claim that it is the property of the holder in possession, even though the claim of title was the result of a mistake as to the boundaries. 59 Ark. 462. Moreover, the jury was fully instructed on the law.of adverse possession, and the court was not required to repeat instructions. 93 Ark. 548; Id. 313.</p> <p>3. The court correctly charged the jury that the alleged statement made by Lynch as to the character of his possession could only go to his credit. 16 Cyc. 1167. If it be conceded that the surveyed line was not correct, Lynch’s title matured by adverse possession several years before this suit was brought. Any statements tending to a recognition to title in another, made by him thereafter, would not have the effect of divesting him of title previously acquired. • 80 Ark. 444; Id. 575.</p>

Court; Henry W. Wells, Judge; Where money has been paid over to one under a judgment which is afterwards reversed on appeal, the repayment thereof can not be compelled by contempt proceedings, but only by civil action against the one who received it. Kirby’s Digest, § 1240; Rev. Stat. 1838, ch. 117, § 42; 13 Ark. 332. It is a condition precedent to the enforcement of rights by summary or extraordinary proceedings that the civil remedy be exhausted.

E. Jeffery, Judge; STATEMENT BY THE COURT. This suit was brought by Mrs. T. Hutchinson, for herself, as widow of the deceased and as next friend for the appellees, his children and heirs, for damages for the wrongful death of the deceased, alleged to have been caused by the negligence of the railway company.

This is a reasonable requirement, and failure to comply with it precludes recovery. 67 Ark. 407; Hutchinson on Carriers, (3 ed.), § 442 ; 90 Ark. 308. And such stipulation is not invalidated by the “Hepburn Act.” 89 Ark. 404. It is not necessary to give the written notice of claim for loss or damage where the carrier already had all the information possible to obtain concerning it. 63 Ark. 336. Appellant waived its right to insist on the enforcement of the clause relied on.

W. Wells, Judge; 1. Counsel contend from the evidence, particularly the conflicting statements of the prosecuting witness and Marvin McGeogh, from the circumstances of the case, the time, place and manner of the alleged assault and the fact that appellant continued to reside as usual with his family for several weeks after the alleged assault before anything was said or done about it, although the prosecuting witness claimed that she at once notified her mother, that the…

There is no prejudicial error in any of the instructions of the court. Moreover, no objection was raised to any of them in the lower court, and they are not before this court fpr review. 94 Ark. 65. 2. The testimony shows that none of the jurors challenged for cause were disqualified.

Humphries, Chancellor; 1. The demurrer should have been sustained for want of jurisdiction in the chancery court to grant relief to the holder of the equitable title against the holder of the legal title who is in adverse possession. 72 Ark. 256.

Robertson, Chancellor; 1. The court erred in entering a decree reforming the contract. Mere preponderance of evidence is not sufficient for the reformation of a written contract, but the mistake must appear beyond reasonable controversy. 94 Ark. 206; 71 Ark. 617; 85 Ark. 62. Reformation will be denied where the evidence for and against it is evenly balanced. 75 Ark. 72; 79 Ark. 262.

W. Hardy, Special Judge; Construing the contract in its most favorable light to the appellee, it is nothing more than a deed of trust. The agreement of Parker to turn over the lumber and the proceeds thereof to J. W. Boyd, authorizing him to pay F. N. Boyd the amount due him by Parker for the purchase price of the logs, and to turn the residue over to Parker, was for the purpose of securing F. N. Boyd in the collection of his debt, or as security for his debt.

Grace Judge; 1. The evidence does not show either a clandestine taking, or any attempt at concealment, or that the possession by the appellant was other than a mere trespass. To constitute larceny, there must be simultaneously an unlawful taking, asportation and felonious intent. The court erred in refusing to direct a verdict for the defendant. 110 Ky. 123, 60 S. W. 938; 62 Kan. 469, 84 Am. St. Rep. 411; 2 Bishop’s New Crim. Law (8 ed.), § 842; 41 Fla. 291; 79 Am.

The appellee lived at Altoona, Ala., and had a son, Dr. H. S. Garlington, who lived at Marked Tree, Ark., and another son, Dr. Joe Garlington, who lived at Crawfordsville, Ark. For some time prior to his death Dr. Joe Garlington had been afflicted with consumption, and in December, 1910, realizing that he could not live long, had returned to Altoona, his old home, to spend his last days.

Elliott, Chancellor; STATEMENT BY THE COURT. This is an action in replevin, brought by appellee against appellant, to recover certain machinery, alleging that it was the owner thereof under a contract retaining title until the purchase money was paid. The value of the machinery was alleged to be $600; that there was remaining past due and unpaid of the purchase price $217, with interest, which appellant, after demand, refused to pay.

Cowling, Judge; STATEMENT BY THE COURT. On or about the 15th day of August, 1910, the Fair Association and the citizens of Mena, in Polk County, Arkansas, were collecting an exhibit of fruits for that county at the Arkansas State Fair to be held at Hot Springs, Arkansas.

<p>1. Appeal and error — conclusiveness of chancellor’s findings.— A chancellor’s finding of facts will be sustained on appeal unless it is clearly against the preponderance of the testimony. (Page 512.)</p> <p>2. Homestead — when female child may abandon. — Under Const. 1874, art. 9, sec. 6, providing that if the owner of a homestead die leaving children said children shall be entitled to the rents and profits of the homestead “till each of them arrives at twenty-one years of age, each child’s right to cease at twenty-one years’ of age and the shares to go to the younger children, ” held that the homestead right of female children does not cease until they arrive at twenty-one years of age, so far as younger children are concerned, but when there are no younger children, a female child, may relinquish or abandon the homestead as soon as she reaches the age of eighteen years. (Page 512.)</p>

Hutton, Judge; STATEMENT BY THE COURT. This is an action brought by Joeanna Ford against the State Life Insurance Company of Indianapolis, Indiana, and its bond to recover on a policy of insurance, issued by said Life Insurance Company to her son, Samuel Edward Ford.

BY THE COURT. This is an action by appellee against appellant for divorce, the complaint alleging, among other things, adultery on the part of appellant with Pearl and Wretha Gilbert and Lillie Flowers; also indignities on the part of appellant towards appellee rendering her condition in life intolerable.

H. Evans, Judge; 1. The deceased was a trespasser and entitled to none of the rights of a traveller on the highway or at a crossing.

The uncontroverted facts show that there was no liability on the part of the appellant.

Martineau, Chancellor; STATEMENT BY THE COURT. The appellees brought this suit against Henry Green, W. A. Parker and J. P. Kerby to set aside a mortgage for alleged fraud, misrepresentation and deceit practiced upon appellee Wade in its execution.

This was a suit for damages growing out of an alleged breach of a contract for the sale of fifty bales of cotton linters. Held: or any notice that they would not be, and demanded the difference in price between the linters sold and the market of that day.

Guy Fulk, Judge; STATEMENT BY THE COURT. This is a suit on a policy of insurance issued by the appellant in favor of one Fannie Williams, in the sum of $250.

V. Bourland, Chancellor; Viewing the testimony in the light of the circumstances surrounding the transaction, it is apparent that appellant never intended to execute a deed to the property; that he was induced to sign the deed under the belief that he was signing a will; that his signature was obtained through fraud and misrepresentation and that said deed is without consideration. 33 Ark. 425; 26 Ark. 604..

Carter, Judge; 1. Appellee was negligent in running the hand car violently against the push car. It placed appellant in a position of peril by causing the posts on the push car to roll down and against appellant while the cars were in motion.

E. Jeffery, Judge; 1. The evidence does not show either that appellant sold the liquor, or had an interest in the sale of it or that he aided any one else to do so. The most it shows is that he aided the buyer in procuring it, and that, under the decision of’this court, is no offense. 68 Ark. 529; 85 Ark. 360. 2.

Humphries, Chancellor; This case hinges on the intention of Brady at the time he had the stock transferred to Mrs. Brady, and whether he was solvent at the time, or such transfer of stock woul d render him so. The evidence shows that at all times until .the Marcur judgment he considered himself solvent; the reason for having the stock issued to his wife is shown, and there is no evidence whatever of an intent to defraud.

<p>Garnishment — effect of prior assignment. — Where the tenant of a building sublet a portion of it, and assigned the rent due from the subtenant to the landlord to pay an arrearage of rent due by him, such rent in the hands of the sub-tenant is not subject to garnishment at the instance of a creditor of the tenant.</p>

This suit was brought by Walter Van Zant, a minor, by his next friend, for damages for personal injuries, alleged to have been caused by the wrongful conduct of defendant’s employees in assaulting, beating and robbing him, and throwing him from a local train, upon which he claimed to have been a passenger.

Evans, Judge; STATEMENT BY THE COURT. Appellee was charged with , a violation of the practice of medicine act, in the Franklin Circuit Court, upon the following indictment: “The grand jury of Franklin County and Charleston District, in the name and by the authority of the State of Arkansas, accuse one Doctor Gallagher of the crime of unlawful practice of medicine committed as follows: The said one Doctor Gallagher on the 6th day of September, 1911, in the county and district…

<p>Appeal from Union Circuit Court; George W, Hays, Judge;</p>

Maples, Judge; 1. It was not necessary to allege, under section 7946, Kirby’s Digest, nor prove, that the overcharge was “wilfulor intentional. ” 19 Ark. 6950; 30 Cyc. 1352; Id. 1340, note; 9 Enc. Ev. 751; 90 N. Y. App. 422. The cases, 76 Ark. 125, and 50 Ark. 78, are not in point. 2. It is no defense for a railway to plead that the overcharge was through mistake. 60 Ark. 221; 49 Id. 455: 62 Id. 453; 56 Id. 245; 54 Id. 101. 3.

Robertson, Chancellor; STATEMENT BY THE COURT. On the 4th day of April, 1910, H. T. Dennis instituted , this action in the chancery court of Cross County, against S. M. Carwell.