Volume 102 — Arkansas Reports

Carter, Judge; The evidence that there was a custom or usage among insurance companies that where policies were obtained by brokers notices were sent to the broker was sufficient to go to the jury. Upon it the court would have been justified in instructing a verdict for the appellant. 3 Brewst. (Pa.) 452-456; 46 Ark. 210, 215; Id. 222, 226; 58 Ark. 565, 574; 85 Ark. 568.

Hays, Judge; STATEMENT BY THE COURT. This quo warranto proceeding was begun by the State, at the relation of her Attorney General and the prosecuting attorney of the Thirteenth Judicial Circuit in the Union Circuit Court, to oust appellants, the mayor and aldermen of El Dorado, a city of the second class, from office, it being alleged that they had usurped said offices and were holding them without right and legal authority.

Wells,. Judge; STATEMENT BY THE COURT. The grand jury of Bradley County returned against the appellant and his brother, Fay, the following indictment: “The grand jury of Bradley County, in the name and by the authority of the State of Arkansas, accuse Fay Van Valkinburgh and Henry Van Valkinburgh of the crime of soliciting orders for intoxicating liquors in prohibition territory, committed as follows, to wit: The said Fay Van Valkinburgh and Henry Van Valkinburgh in the…

Cowling, Judge; 1. Appellee can not recover any damages, because, under his own proof, he was not entitled to possession of the property. The carrier has a lien on the goods transported for all charges due, and the right to possession until all charges are paid. Elliott on Railroads, § 1571; 42 Ark. 313; 67 Ark. 135; 37 Ark. 544; 16 Ark. 90. 2.

Wallace, Chancellor; STATEMENT BY THE COURT. Appellants brought this suit in the Perry Chancery Court on January 22, 1908, for partition of certain lands, which are described in the complaint, alleging that the parties were the joint owners and entitled to partition. Appellee answered, denying the joint ownership and joint possession of the lands, and alleging that she was the sole owner.

<p>1. Costs — recovery at common law. — No costs were recoverable at common law, either in civil or criminal cases. (Page 43.)</p> <p>2. Appeal and error — duty of clerk to furnish transcript in .felony cases. — In felony cases the clerk of the circuit court must furnish a transcript to the defendant on application therefor, and can not demand payment of his fees in advance; and if he refuses to do so, a rule -will be issued from this court requiring him to do so. (Page 44.)</p>

Wood, Chancellor; 1. The court erred in cancelling the Fred Hert mortgage. He, having taken the mortgage for a preexisting indebtedness and without notice of the alleged equities of the appellee, is in the position of an innocent purchaser for value without notice, and is protected. 96 Ark. 105. 2.

Humphries, Chancellor; 1. In contracts of the kind involved here, substantial compliance with its requirements is sufficient. 38 Ark. 199; 64 Ark. 34, 40; 79 Ark. 506; 133 S. W. 1032. 2.

Wood, Chancellor; STATEMENT BY THE COURT. This was a suit for divorce, instituted by the appellant against the appellee, in which the appellant, among other things, alleged in her complaint that defendant “charged her, while they were living together as husband and wife, with having taken provisions and groceries out of the commissary of the defendant and giving them to her married son.

M. Barker, Chancellor; 1. The plaintiff is barred by laches. 138 S. W. 880; 95 Ark. 6; 90 Id. 430; 81 Id. 352, 432; 93 Ark. 298; 72 Id. 101; 94 Id. 497; 92 Id. 497; 83 Id. 154; 81 Id. 296; 70 Id. 257. 2. It was error to hold that defendant was entitled only to a refund of the taxes paid. 62 Ark. 188; Kirby’s Digest, § § 4879-80, 4807. 3. This appellant is, at least, entitled to recover the taxes paid. 94 Ark. 221; 81 Id. 258, 84 Id. 587; 89 Id. 234. 1.

<p>1. Limitation of actions — nonsuit—subsequent suit. — Kirby’s Digest, see. 5083, providing that if an action shall be commenced within the time prescribed and the plaintiff therein suffer a nonsuit he may commence a new action within one year after such nonsuit suffered, does not limit but extends the period applicable under the general statute of limitations. (Page 67.)</p> <p>2. Trust — when constructive trust arises. — When an administrator or a trustee, without knowledge of his beneficiary, purchases the property entrusted to his charge, either at a private or public sale, equity will impress a constructive trust upon the property so purchased for the benefit of the beneficiaries. (Page 68.)</p> <p>3. Same — actions to enforce — burden of proof. — The burden is on one seeking to charge an administrator as constructive trustee of land purchased for himself to show that the land was owned by decedent when purchased by the administrator. (Page 71.)</p>

E. Jeffery, Judge; In a policy of the kind in question here, the beneficiary takes only an interest in expectancy, liable to be divested at any time at the will of the insured, and, in case of a change of beneficiary, the party originally named as such can not question the right of the beneficiary to whom the policy is changed to take thereunder. This question can only be raised by the supreme lodge or the insurer. 58 Ark. 262 ; 56 Ark. 62; 9 Am. St. Eep. 629; Id. 272. 1.

<p>Appeal from Clark Chancery Court; James D. Shaver, Chancellor;</p>

Shaver, Chancellor; STATEMENT BY THE COURT. John Soderman instituted against Alice Bell and others a suit in unlawful detainer for the unlawful detention of the possession of certain lands in Clark County.

Hays, Judge; The unexecuted portion of the contract is incapable of enforcement for uncertainty, indefiniteness and want of mutuality, in that no method is provided in the contract for ascertaining the price to be paid for the timber left standing on plaintiff’s land.

E. Jeffery, Judge; The right of a parent to the custody of his child must yield when the welfare of the child demands it. 78 Ark. 193; 37 Ark. 27; 80 Ark. 287; 82 Ark. 461; 89 Ark. 501. The parent is, in this case, estopped by the terms of her agreement to claim the custody of her children. 50 Ark. 354; 37 Ark. 29. Such contracts are enforceable. 29 Cyc. 1591-92.

Wells, Judge; Fire insurance policies should be interpreted with a view to arriving at the object and intention of the contracting parties. 113 Pac. 259. The insured forfeited his right to recover on the policy. 32 So. 104; 176 Fed. 76; 123 N. Y. S. 877; 114 111. 390; 55 N. E. 319; 49 Atl. 767; 46N.W. 1073; 96 N. Y. S. 183.

On the 1st day of July, 1910, E. J. Bacon, as executor of the estate of Rebecca S. Turner, deceased, filed a complaint in the Jackson Circuit Court against Anna R. Taylor to recover a balance of $14,530.54 with accrued interest upon a judgment alleged to have been rendered in the chancery court of Jefferson County, Kentucky.

E. Jeffery, Judge; • 1. It was error to admit incompetent testimony that the notes were payable in lumber, when they called for dollars. 20 Ark. 293; 1 Gr. Ev. § 275; 13 Ark. 593; 24 Id. 210; 67 Ark. 62; 65 Id. 333; 66 Id. 393; 73 Id. 431; 69 Id. 406; 71 Id. 185; 94 Id. 130. 2. It was error to admit testimony as to the value of the lumber when the contract price was fixed and claimed. 52 Ark. 117; 43 S. W. 27. 3.

135 111. 269; 123 S. W. 892. Section 3508 of Kirby’s Digest fixes the county treasurer’s compensation. 80 Ark. 62. The county treasurer can not make a charge for services rendered unless authorized to do so by statute. 57 Ark. 487. But the statute authorizes a charge for handling the road fund. (80 Ark. 62), and it as clearly authorizes the payment of commissions on the funds of a drainage district. Appellant must show statutory authority for making the charge. 57 Ark. 487.

65 Ark. 604; 19 Ark. 23; Id. 39. If the consideration to be paid is entire and single, then the contract must be held to be entire. 52 Ark. 257; 59 Pa. St. 420; 5 Gray 492; 2 Cush. 1. The contract was-not within the statute of frauds. 91 Ark. 149; 37 Kan. 437; 15 Pac. 586; 48 111. App. 140; 50 N. Y. Sup. Ct. 63; 8 Ohio Dec. 219. The measure of damages is the difference between the price to be paid and the actual value of the land at the time of the breach. 3 Suth.

Francis Circuit Court; J. S. Thomas, Special Judge; STATEMENT BY THE COURT. On June 4, 1902, Henry P. Gorman, administrator in succession of the estate of Hiram Evans, deceased, acting under an order of the probate court, made a sale of certain lands belonging to said estate for the payment of debts which had been duly probated and allowed by the probate court.

Hutton, Judge; STATEMENT BY THE COURT. The petitioner, E. M. CarlLee, was adjudged guilty of contempt of court; fined $500 and six months’ imprisonment in the county jail, and the case is before us on petition for certiorari to quash the judgment.

Hutton, Judge; STATEMENT BY THE COURT. Helena is a city of the first class, and its council passed an ordinance, requiring the residents of said city, owning and using vehicles of any description whatever, except bicycles, upon the streets of the city, to obtain a license from the city collector for the privilege. J. B. Dunlap was a resident of the city, and owned and operated upon its streets an automobile for his private use.

Carter, Judge; STATEMENT BY THE COURT. This suit was brought by appellant in the Miller Circuit Court against appellee for damages for personal injuries to him and injuries to his horse and buggy, alleged to have been caused while driving along the street by his horse stepping or falling, in the night time, into an excavation in the street in the city of Texarkana, negligently left open and unguarded by appellee, the damage being alleged at $1,000 to himself, $100 to his…

Guy Fulk, Judge; STATEMENT BY THE COURT. An information was filed by the prosecuting attorney in a.justice’s court in Pulaski County, charging appellant with the embezzlement of ten dollars from Jennie Houston. He was tried and convicted, and from the judgment appealed to the circuit court, where he was again tried and convicted, and his punishment assessed at ten dollars and one day in jail.

Guy Fulk, Judge; The contest in the circuit court was not between the estate of Elizabeth S. Shall, deceased, and the devisees under her will, but between these devisees and the executor over the question whether certain credits claimed by him in his accounts of settlement were legal and proper charges against decedent’s estate.

The right to recover costs rests upon statutes only. 60 Ark. 194; 95 Ark. 85; 32 Ark. 51, 52; 25 Ark. 235; Kirby’s Digest, § 1458; 56 Ark. 581; 57 Ark. 487; 64 Ark. 203; 23 Ark. 540; 39 Ark. 291; 46 Ark. 147.

Cowling, Judge; STATEMENT BY THE COURT. This is a suit on a promissory note for $135.93, executed May 18, 1910, by W. C. Stone and due J. L. Gray on December 1, thereafter. The answer admitted the execution of the note, and that it had not been paid, but alleged that it was made in settlement of a premium on two policies of life insurance, one upon his own life, the amount of the premium being $83.20, and the other upon the life of his wife, the premium amounting to $52.70.

Carter, Judge; When the terms of a contract are ambiguous, the conduct of the parties under the contract furnishes the best guide for the interpretation thereof. 55 Ark. 414; 52 Ark. 65; 49 Ark. 129; 88 Ark. 364. It is to be construed most strongly against the party who drafted it. 73 Ark. 338; 74 Ark. 41; 90 Ark. 88.

<p>Railroads — trespasser on track — contributory negligence. — It constitutes negligence per se for a person to go upon a railroad track without looking and listening for approaching trains, except where there is an implied invitation to go upon the track without taking those precautions, or where the situation is such that the person is, in the . exercise of reasonable care, misled into believing that no engine or cars are expected.</p>

making appropriations for the expenses of the county are vested solely in the quorum court, and the Legislature has no such power, except as applied to the State, and both are limited by the Constitution. 32 Ark. 676; 30 Ark. 101; Art. 16 § 11, Const.; Art. 7, § 30, Const.

Cowling, Judge; 1. The demurrer to the indictment should have been sustained. It is material, to effectuate the purpose and intent of the act, that the weigher should have complied with the act by procuring the scales, having them tested as provided by law, and by placing them in a convenient place, easy of access for the public, and it should be alleged in the indictment. Acts 1905 p. 704-5-6, § 4.

<p>Appeal from Boone Circuit Court; George W. Reed, Judge;</p> <p>1. In order to sustain the allegation that a levy was excessive, it was not necessary that the judgment-debtor should have pointed out the property to be sold, or have given to the officer any list of property so selected to be levied upon or sold. 2 Freeman on Executions, 1412, 1413. Section 3230, Kirby’s Digest, is not mandatory, but permissive. It is the duty of the officer to levy an execution upon sufficient property to satisfy the debt and cost, and in determining what is a sufficient levy for that purpose, he is left to his own judgment, free from the restraint or control of either the plaintiff or defendant. 10 Ark. 28, 33-34; 75 N. Y. Supp. 976, 71 App. Div. 351; Freeman on Executions, § 258. See also 5 Ark. 680; 14 Ark. 38. It is the duty of the officer to avoid excessive levies, and he is liable if the levy is excessive. 2 Freeman on Executions,! 253, pp. 1407, 1408; 7 B. Mon. (Ky.) 298; 2 Freeman on Ex., 1410-11-12.</p> <p>2. The complaint was good on general demurrer. 17 Cyc. 1112; Id. 1113; 52 Mo. 518; l'Bush 504; 6 Johns. Ch. 411; 30 la. 453; 28 Tex. 202, 91 Am. Dec. 309; 43 Mo. 294; 67 N. E. 398; 202 111. 624; 13 Ore. 538,11 Pac. 295.</p> <p>3. If appellee desired a more detailed statement of appellant’s cause of action, the proper remedy was by motion to make the complaint more definite and certain, and not by demurrer. 60 Ark. 39; 52 Ark. 378; 94 Ark. 437.</p>

<p>Appeal from Lee Circuit Court; Hance N. Hutton, Judge;</p> <p>I. The court erred in ruling that Ewing was a competent juror. 45 Ark. 165; 56 Id. 382; 69 Id. 322.</p> <p>2. Defendant was entitled to an instruction on manslaughter. 74 Ark. 444, 454; 162 U. S. 313; 82 Ark. 97.</p> <p>1. There was no evidence upon which to predicate an instruction as to manslaughter; but, if so, thefailure was harmless error.</p> <p>2. Ewing was a competent juror.</p>

Robertson, Chancellor; STATEMENT BY THE COURT. The plaintiff brought suit against the defendants to cancel and set aside his conveyance of a certain lot in Blytheville to the defendants upon the following complaint, alleging: “That in August, 1909, M. P. Carpenter, one of the defendants, herein, showed to this plaintiff a tract of land covered with merchantable timber in Chickasawba District, Mississippi County, Arkansas, and represented to said plaintiff that said land and…

V. Bourland, Chancellor; No betterments should have been allowed. 48 Ark. 187; 47 Id. 528; 59 Id. 146; 18 Mich. 142; 29 Wis. 663; 40 la. 213. . The improvements were made in good faith by one claiming under color of title. 48 Ark. 187.

Hutton, Judge; 1. There was no proof of malice nor premeditation, and the evidence does not support a conviction of murder in the first degree. 82 Ark. 97. 2. The court should have instructed as to manslaughter. 74 Ark. 444, 453; 162 U. S. 313; 156 Id. 51; 50 Ark. 545; 73 Id. 126; 71 Id. 86; 5 Id. 545. 1. There is no evidence to reduce the offense to manslaughter. 2. The testimony supports the verdict.

70 Ark. 385; 65 Ark. 278. Defendant was entitled to have plaintiff state his cause of action in more definite terms. Kirby’s Digest, § 4564; Id. 6091, 4565. The verdict of the jury must be signed by some one of their number as foreman. Kirby’s Digest, § 6204; 5 Ark. 444; 29 Am. & Eng. Ency. Law 1042. The facts are determined by the jury. 67 Ark. 399; 74 Ark. 478; 76 Ark. 115; 70 Ark. 512.

Hays, Judge on exchange; The court should have told the jury what a “division point” is. 63 Ark. 477; 99 Pac. 271; 9 Gill 331; 109 111. App. 560. The evidence does not sustain the verdict. 14 Ark. 286; 21 Ark. 370; 23 Ark. 101. The act is void for uncertainty and indefiniteness with respect to the places to which it applies 27 Fed. Cas. p. 1041; 19 Fed. 679; 52 Fed. 918; 35 Fed. 866; Pet. C. C. 122; 1 Paine 34; Bish. Stat. Crimes 41; Lieb.

Hutton, Judge; 1. The motion in arrest of judgment should have been sustained. Embezzlement being purely a statutory offense, no offense is stated if there is no statute covering the particular charge in the indictment. In this case section 1837 of Kirby’s Digest could not be applicable because that statute does not apply to public officers, nor agents of any public or municipal corporation. The term “incorporated company” applies only to private corporations. 22 N. Y. 243.

Wood, Chancellor; 1. The demurrer to the answer was properly sustained, as the claims of appellee Hudson against his deceased wife’s estate were not legal, valid claims; and if they were, equity had no jurisdiction to allow judgments for them. 33 Ark. 727; 48 Ark. 544; 90 Id. 444. 2. If there was any consideration, it was grossly inadequate.

Guy Fulk, Judge; STATEMENT BY THE COURT. This is a suit for damages growing out of the failure to deliver the following telegram: “Hot Springs, Ark., August 30, 1907.- E. V. St. Clair, Terre Haute, Indiana. Ship body of Leo Ivy to Traskwood, Arkansas. Thirty dollars for expenses. H. McCafferty, Undertaker.” Leo Ivy was the fifteen-year old son of the appellee, by his former wife, and for whom he had a very great affection.

Martineau, Chancellor; STATEMENT BY THE COURT. Lowrance first filed a suit in the Pulaski Chancery Court against James Holman for specific performance of a contract to convey a forty-acre tract of land. A decree was entered on.

Evans, Judge; A verdict should have been directed for the appellant. 7 Wall. 44; 94 U. S. 469; 105 U. S. 249. The injury complained of must be the direct consequence of the defendant’s negligence; otherwise, plaintiff is not entitled to recover. 56 Ark. 268; 115 Mass. 304; 58 Ark. 158; 55 Ark. 520; 200 111. 456; 114 Pac. 611.

V. Bourland, Chancellor; The court erred in holdihg the statute unconstitutional. 24 Ark. 621; 45 Ark. 400; 50 Ark. 513; 60 Ark. 343. The constitutionality of a statute will not be determined if the case can be decided on other grounds. 60 Ark. 221; Id. 240; 77 Ark. 383; 79 Ark. 236; 86 Ark. 231. Legislative acts are upheld when possible. 27 Ark. 202; 77 Ark. 250; 86 Ark. 465. The statute is valid, unless prohibited by the Constitution. 60 Ark. 343; 56 Ark. 354.

Grace, Judge; 1. The court erred in overruling appellant’s petition for change of venue. Kirby’s Digest,' § 2318; 98 Ark. 139; 54 Ark. 243. 2. It was error to exclude evidence offered by appellant to show the conduct of the deceased and appellant towards each other prior and up to the time of the killing. 21 Cyc. 894-f; 62 Ark. 119; 52 Ark. 303;-21 Cyc. 912; Wharton on Homicide 895; 137 Ala. 1,-24 Ky. Law Rep. 1174; 66 S. C. 419; 42 Tex. Cr.

Henderson, Chancellor; The rights and liabilities of parties to a note executed for a patent right and patent-right territory form an exception to the law merchant, and are clearly defined by our statute. Kirby’s Digest, § § 512-514. Under the statute the maker can make all defenses against the holder of such a note that could be made against the original payee, and no person is an innocent purchaser or holder, thereof, whether transferred before maturity or not.

M. Barker, Chancellor; 1. The Constitution on the removal of courthouses, county seats, seats of justice, etc., only applies to and contemplates a removal from one town to another. Removals of courthouses from one lot to another in the same town are within the jurisdiction of county courts. Const.

Martineau, Chancellor; 1. A private corporation has the right to have a nuisance abated. Joyce on Nuisances, par. 442; 108 U. S. 317, 330. 2. Appellants can be joined as parties plaintiff. All are similarly injured at the same time and in the same way. Kirby’s Digest, § 6005. 3. A nuisance may be both public and private. That which annoys the public generally or invades its rights, constitutes also a private nuisance where specific injury occurs.

A number of indictments were returned by the grand jury of Mississippi County against the appellant, charging him with violations of the liquor law. These indictments were returned against appellant at the October, 1911, term of the circuit court of Mississippi County for the Osceola District. Four cases are here on appeal, and they involve the same questions, and are considered and determined at the same time.

<p>1. Bills and notes — effect of alteration. — The alteration of a check, without the drawer’s knowledge or consent, although done in such manner as to leave no mark or indication of an alteration observable by a man of ordinary prudence, avoids the check as to the drawer, even in the hands of one to whom it is negotiated before maturity for valuable consideration and without notice of such alteration. (Page 304.)</p> <p>2. Appeal and eror — erroneous charge — harmless error. — An erroneous charge as to the burden of proof was harmless where it was favorable to appellants. (Page 305.)</p> <p>3. Trial — -remark of court. — A remark by the court, in the jury’s presence, to plaintiff’s counsel that the introduction of the notes alleged to have been forged, together with proof of genuineness of plaintiff” signature, made out a prima facie ease in favor of defendant, was not prejudicial where the jury were instructed that the burden was on the defendant to show that no alterations had been made in the checks, especially where no request was made that the jury be instructed to disregard the court’s remark. (Page 305.)</p>

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

Frierson, Chancellor; 1. The court erred in charging the real estate with a trust for $946.00 and interest. The money was not paid at the time of the purchase by the cestui que trust with the understanding and agreement that she was to have an interest therein. 93 Ark. 93; 49 Id. 430; 54 Id. 499; 2 Johns. Ch. 406; 34 U. S. 1091; 21 Id. 570; Pom., Eq. Jur. § 1037.

J. Driver, Judge; STATEMENT BY THE“ COURT. These are two appeals prosecuted by the two defendants from judgments of conviction had upon separate trials. The facts and questions involved in the two cases are the same, and for that reason the appeals are considered together.

<p>Larceny — sufficiency of evidence. — A conviction of larceny of some sheep will not be sustained where the defendant did not exercise any control over the sheep, and did not have any connection with the theft except to ride in the wagon for a while with the boys who stole the sheep and were carrying them away.</p>

E. Jeffery, Judge; An examination of the various statutes on the subject that have been in force at different times shows a clear intent on the part of the Legislature to give to the widow the amount provided for in section 3, Kirby’s Digest, for herself and minor children, in addition to her dower rights and the benefits of sections 72 and 74.

Martineau, • Chancellor; STATEMENT BY THE COURT. This was an action instituted by the Merchants & Planters Bank, of England, Arkansas, against J. C. Goodrum, Jr., and his wife, Belle Goodrum, seeking to require from them the execution of a deed for certain lands which they had, for that purpose, conveyed to a trustee, who refused to carry out the trust by conveying said lands to plaintiff.

W. Wells, Judge; 1. This case is ruled by 72 Ark. 141. Title does not pass while anything remains to be done to ascertain the quantity or price. Newmark on Sales, ch. 10, § 115; lb. § 227; lb. § § 9, 70, 294-5, 305; 89 S. W. 474 ; 28 Ky. Law Rep. 444, 657; 89 S. W. 648, 1130. 2. There is error in the court’s charge. 1. Whether a contract is executed or executory depends solely on the intention of the parties. 35 Cyc. 277.

Cotham, Judge; 1. While the driver of an automobile is required, to use all the care and caution which a careful and prudent person would exercise under the same circumstances, yet he has the right to assume, and act upon the assumption, that others using the highway will also exercise a like caution and not recklessly expose themselves to danger.

Lea, Judge; STATEMENT BY THE COURT. Appellant was convicted of the crime of rape upon the person of Ella Hardeastle, and sentenced to be hanged. The testimony shows that the rape was committed at night, at about 3 o’clock in the morning, by some one who entered the room, through a window, where the prosecuting witness was asleep.

Cotham, Judge; 1. Positive proof of specific acts of illicit intimacy is not required — general reputation is sufficient to show previous unchastity. 59 Kan. 237; 34 Id. 63; 77 Neb. 519; 47 N. J. L. 241; 59 Id. 1. 2. While previous chastity is presumed, the presumption of defendant’s innocence rebuts the former. 71 Ark. 398. 3. The verdict does not conform to Kirby’s Digest, § 2943. 4. Appellant was willing to marry the prosecutrix — she refused. 5.

<p>1. Mortgage — suit to redeem — parties.—In a suit by the vendor of land to redeem the land from a mortgage sale, his vendee is not a necessary party. (Page 371.)</p> <p>2. Set-off and counterclaim — when not allowed. — When a vendor of land seeks to redeem the land from a mortgage sale to a third person, and makes his vendee a party, such vendee is not entitled to counterclaim damages for breach of the contract of sale, as such counterclaim has no connection with the foundation of plaintiff’s claim and is not connected with the subject of the action. (Page 372.)</p>

It is not larceny to convert or take a cow over one year old and not marked or branded, and running at large in the range, etc. Kirby’s Digest, § 1898; 37 Ark. 54; 24 Id. 480; 60 Id. 59. 2. “At large” and “running at large” have a well-defined meaning. 28 la, 491, 497; 15 N. W. 286; 73 la, 723; 1 Words & Phrases, 605. “Range” and “cattle range” have been judicially defined. 59 N. W. 227. The cow was not running at large in the range or woods.

Cowling, Judge; Whatever might have been said by appellant prior to the 13th day of April, 1909, with reference to the purchase of the land himself, the whole matter was merged into a broker’s contract, pure' and simple, when on that day appellee executed and delivered the deed in escrow to the First National Bank of De Queen and drew his draft on Hammond for $11,500 and attached it to the deed, etc. Such contracts do not of necessity have to be in writing; and the statute…

Cowling, Judge, STATEMENT BY THE COURT. Appellant, on March 15, 1911, brought this suit for unlawful detainer against appellees, alleging that he was the owner and entitled to possession of a certain lot situated in the town of Calico Rock, Ark., unlawfully detained by them. At the March term of the Izard Circuit Court a demurrer was interposed to the complaint, and sustained by the court, exceptions to the court’s ruling being saved.

Shaver, Chancellor; Appellant, being under the legal- age at the time of signing the deed, had the right to disaffirm it after arriving at full age. 90 Ark. 851; 44 Ark. 153; 21 Ark. 294; 38 Ark. 278; '62 Ark. 316; 85 Ark. 556; 77 Ark. 35; 36 111. 376; 74 Ind. 115; 116 Ky. 92; 13 Mass. 371, etc. An infant has not the legal capacity to irrevocably alienate his property. 34-Ala. 150; 36 Am. St. Rep. 606; 155 N. Y. 535; 82 Am. St. Rep. 103.

Cowling, Judge; STATEMENT BY THE COURT. Appellant brought suit to recover damages for the value of a mare, alleged to have been negligently struck by a train on appellee’s road, and so injured as to be entirely worthless. The railroad company denied injuring the mare by the operation of any of its trains.

S. Maples, Judge; 1. Appellant not having been brought to trial before the end of the second term of the circuit court having jurisdiction of the offense, the cause having been continued without his consent and after he had announced ready for trial, the court should have discharged him upon his motion. The statute is in keeping with the constitutional provision that one accused of crime shall have a speedy, fair and impartial trial, and is mandatory.

Shaver, Chancellor;. STATEMENT BY THE COURT. School District No. 2 in Miller County was duly organized on October 22,1910, as a rural special school district under Acts 1909, c. 321, approved May 31, 1909, later amended by act approved April 7, 1911.

The court erred in submitting to the jury the question whether, after Holt rendered the services and charged same to Zimmerman, the latter ratified it.

The act is invalid because it attempts to extend the provisions of all the provisions of the several enactments governing the organization of single school districts to of any given territory in any county in this State, other than incorporated cities and towns” * * *, by merely declaring that “they may be organized into and established as a single school district in the manner and with the powers therein provided, with such modifications of said laws as are herein…

A locomotive engineer has a right to presume that a person on the track will leave the track in time for an approaching train to pass.. 77 Ark. 405; 90 Ark. 378-286. 2. All persons are presumed to be in possession of their faculties, and the engineer had the right to presume that, when he sounded the danger signals, deceased and his companions would leave the track.

Barker, Chancellor; 1. Dodson acquired the note after maturity. It was dishonored and put the purchaser on notice of all defenses. 38 Ark. 127; 30 Id. 590. 2. Appellee had no legal right, with his father, to negotiate the note to the Ouachita Valley Bank. 179 111. 599; 46 L. R. A. 753. 1.

<p>Evidence — parol evidence to vary writing. — Where parties to a dispute agreed to a complete settlement of all their differences and entered into a written contract to that effect, it was not admissible to prove by parol evidence that only a part of their differences was included therein.</p>

<p>1. Railroads — statutory penalty — nature op proceedings. — A proceeding by the prosecuting attorney under Kirby’s Digest, section 6595, to recover the statutory penalty for failure to ring a bell or sound a whistle at a railroad crossing is a civil and not a criminal proceeding. (Page 432.)</p> <p>2. Same — recovery op penalty — pee op prosecuting attorney.— Where a prosecuting attorney recovers the penalty provided by Kirby’s Digest, section 6595, for failure of a railroad company to give either of the required signals at a public crossing, he is entitled to afee of $5 to be taxed as costs in the case, under section 3488, Kirby’s Digest, allowing him a fee of $5 “for each judgment on complaint or information, or otherwise, in the name of the State or of any county.”' (Page 432.)</p>

69 Ark. 34. A water line does not shift up and down a stream but at right angles to it as it advances or recedes. In no case will an accretion be divided between coterminous owners by lines running up and down a stream. 17 Pick. (Mass.) 41; 13 R. I. 355; 100 N. Y. 437; 92 S. W. (Mo.) 228; 108 N. W. (Ia.) 924; 111 N. W. (Wis.) 570; 127 N. W. (Mich.) 365; 33 Am.

Read, Judge; STATEMENT BY THE COURT. The plaintiffs, Millsaps, Hatchett & Co., brought this suit before a justice of the peace against O. P. Nixon and Sam Boone. There were no writtten pleadings in the case.

Matlock, Special Judge; STATEMENT BY THE COURT. Appellee brought suit against appellants upon three promissory notes made by H. O. Scott and indorsed by Carnehan and Chestnutt, appellants, alleging that said Scott was indebted to him and to secure the payment of the indebtedness executed said notes so indorsed for the amount specified; that same are due and unpaid; and attached copies to the complaint.

Robertson, Chancellor; STATEMENT BY THE COURT. Appellant instituted this suit in the Poinsett Chancery Court, and alleged, in substance, that on the 22d day of July, 1898, he was the owner of, and by deed of that date conveyed to the Kansas City, Fort Scott & Memphis Railway Company, a strip of land situated in Marked Tree, Poinsett County, Arkansas, which he described in his complaint.

Cowling, Judge; 1. The indictment is insufficient, and the demurrer should have been sustained. Kirby’s Digest, § § 1689, 2230; 163 Ind. 628; 70 N. E. 600; 58 Ark. 43; 94 Id. 242; 70 Id. 30; 42 Id. 131; 38 Id. 523; 118 Ind. 491. The language is not sufficiently definite. Cases supra; 95 N. E. 768. 2. The evidence is not sufficient, and there was error in the admission of evidence.

Cowling, Judge; STATEMENT BY THE COURT. This is an action by J. T. Carroll as administrator and J. T. Carroll in his individual capacity against the GraysoniaNashville Lumber Company for the alleged negligent killing of his wife by one of the railroad trains of said company.

Guy Fulk, Judge; STATEMENT BY THE COURT. This controversy grows out of the purchase of a convict farm by the Board of Commissioners of the State Penitentiary, who were acting under the authority vested in them by act of the General Assembly approved June 24, 1897. The Governor, Attorney General, Secretary of State, Auditor, and the Commissioner of Mines, Manufactures and Agriculture, constituted said board.

Shaver, Chancellor; STATEMENT BY THE COURT. The St. Louis, Iron Mountain & Southern Railway Company instituted in the circuit court a proceeding under the statute to condemn for railroad purposes a certain block of ground in the city of Arkadelphia in Clark County, Arkansas, the property of the Memphis, Dallas & Gulf Railroad Company, and in its petition for condemnation made the usual statutory allegations. The defendant demurred to the petition which was overruled.

Cowling, Judge; 1. In its instructions the court erred in its definition of a passenger. 10 Fed. Cas. 464; 55 Ala. 387. The use of the word “protection” was error. 55 Ala. 387; 176 Pa. St. 341; 114 U. S. 587; 6 Words & Phr. pp. 5741-2. 2. Plaintiff was not a passenger on the K. C. So. Ry. Co. and instruction 2 was reversible error. The K. C. owed no duty to plaintiff as a carrier. 90 Ark. 378; 94 Id. 15. 3. The verdict is excessive. 1.

The appellant was indicted and convicted of murder in the first degree for killing one Lillie Gardner. The testimony shows that she, with her sister, Lucy Kelly, had started home, and were driving along the street in a buggy in the city of Russell-ville.

W. Meeks, Judge; 1. The affidavit for appeal and the payment of the fee for transcript is all that is requisite for an appeal. Kirby’s Digest, § 4666; 19 Ark. 647; 96 Id. 332. If there was no appeal, the circuit court had no jurisdiction, and the court erred in affirming the judgment. 19 Ark. 647; Kirby’s Digest, § 4664. 2. It was error to render judgment against the bondsmen. Kirby’s Digest, § 4666; 19 Ark. 647. 3.

S. Maples. Judge; 1. In view of the mental and physical condition of appellant as set up in the motion for a continuance and supported by the testimony of medical experts, the court abused its discretion in overruling the motion. 23 Ark. 34. 2. The statute under which the indictment is drawn is a criminal statute and must be strictly construed. No case can be brought within its provisions unless it is within both the letter and spirit of the law.

E. Jeffery, Judge; STATEMENT BY THE COURT. This suit was instituted by appellant, Reeder, the surviving partner of the firm of Wright & Reeder, to recover the sum of $81 with interest, alleged to be due for services rendered by them as attorneys in defending the appellee, who was convicted in the Independence Circuit Court of the crime of grand larceny. He appealed, and the judgment of conviction was affirmed.

Francis Circuit Court; Hance N. Hutton, Judge; STATEMENT BY THE COURT. Andrew Reed was indicted, tried and convicted before a jury, of the crime of murder in the first degree, charged to have been committed, by shooting his wife, Mollie Reed. The defendant killed his wife on Monday the 12th day of June, 1911. The defendant and his wife were separated, and had been living apart for some time.

<p>Sales op chattels — sufficiency of delivery. — If the property be present, and the vendor for an agreed consideration makes an unconditional sale of the property to the vendee, who accepts it, although the actual possession of the property is retained by the vendor as bailee for the vendee, the s.ale is complete.</p>

H. Evans, Judge; STATEMENT OP PACTS. George Lindahl, a boy between sixteen and seventeen years of age, while riding on a platform of an overcrowded train of the Chicago, Rock Island & Pacific Railway Company, fell therefrom and was injured. This suit is brought against the railroad company to recover damages therefor. The company defended on the ground that there was no negligence on its part, and that George Lindahl was guilty of contributory negligence.

Martineau, Chancellor; A contractor is not entitled to a lien for a bonus agreed to be paid for expediting the work. Such sum is not for material nor. labor furnished. 59 Ark. 81; 43 Ark. 168; 54 Ark. 522; 65 Ark. 183; 71 Ark. 84. But, even if he were entitled to a lien, it could not extend further than the leasehold interest. 71 Ala. 55; 21 L. R. A. 489; 62 Id. 396. There was no privity of contact between the owner of the fee and the contractor. 59 Ark. 81.

Wallace, Chancellor; 1. Agreed boundaries are favored, where accretions are divided amicably, by the courts, and such divisions are held valid and binding, although not following the rules of law. 13 R. I. 76; 10 Gray 521; 18 N. J. Eq. 391; 10 N. Y. 412; 131 S. W. 463; 130 la. 618. The proof of agreement here is stronger than in 131 S. W. 463. 2. The suit is barred. 1.

Guy Fulk, Judge; STATEMENT BY THE COURT. This action was here on a former appeal and is reported under the style of Danaher v. Southwestern Telegraph & Telephone Company, 94 Ark. 533. The action is for a recovery of the statutory penalties, under section 7948 of Kirby’s Digest, for an alleged discrimination against the plaintiff in'refusing her telephone service.

Lea, Judge; 1. This district was held to have been legally formed under a constitutional act. 92 Ark. 93. 2. Under our laws there are two systems for the formation of improvement districts: (1) applying to land lying wholly within the boundaries of municipalities, and (2) to lands lying wholly outside of said boundaries.

The injury complained of was one of the risks assumed by appellee when he undertook the employment in which he was engaged. It was his duty to inform himself of the ordinary risks incident to the employment; and, if he negligently failed to do so, he will still he held to have assumed them. 77 Ark. 367.

S. Maples, Judge; 1. Where a note is void under section 513, Kirby’s Digest, the value of the patented article may be recovered on the contract of sale. 70 Ark. 200. If one of two considerations for a contract is void for insufficiency merely, and not illegality, the other, if sufficient, will support the contract. 117 Am. St. Rep. 495; 63 O. St. 363; 57 Miss. 418, and note 3. This principle will hold good in cases based upon the above statute.

Court; John E. Martineau, Chancellor; 1. The court’s finding with reference to the estimate amounts in effect to making a “new contract between the parties, one which was never in contemplation by them. Courts have no such power, but are limited to construing, reforming, enforcing or cancelling a contract — never to making a contract'. 2 Parsons on Contracts, (9 ed.) 651, 655. 2. .The evidence is not sufficient to justify a de'cree for specific performance. 3.

On the night of the 14th day of September, 1910, Walter Minson, employed by the appellant as a brakeman and acting as hind brakeman on one of its freight trains, was run over by the train, his left leg being crushed and cut off in two places, which resulted in his death a few hours later.

Hutton, Judge; In the absence of a statute authorizing it, a party is not allowed to contradict his own witness; and even where there is a statute such as ours authorizing it, it is only permissible to do so where the witness has testified to some substantive fact prejudicial to the party calling him. Jones on Evidence, § 855; 40 N. W. 70; 93 Ind. 133; 78 S. W. 519; 29 S. W. 471; 20 S. W. 549; 37 S. W. 761, 763r 10 Enc. PI. & Pr. 320; 72 Ark. 582.

<p>Appeal from Sharp Circuit Court; Southern District; J. W. Meeks, Judge;</p> <p>There was no consideration for the alleged promise to pay. Kirby’s Digest, § 3654; 12 Ark. 174; 31 Id. 613; 52 Id. 174; 45 Id. 67; 32 S. W. 27; 50 Id. 926; 51 Mo. App. 637; 99 Va. 620; 32 Ky. Law. 521; 3 Ark. 31; 32 S. W. 195; 4 Ark. 271; 26 Id. 160; 30 Id. 194; 68 Id. 276; 66 Id. 550; 83 Id. 149.</p> <p>There was a consideration as defined in 24 Ark. 197; 21 Id. 249; 25 Id. 196; 72 Id. 354; *96 Id. 545; 94 Id. 7.</p>

Carter, Judge; The indictment is fatally defective in that it does not allege the manner of the killing — -whether the gun was used as a club or a firearm — and the demurrer should have been sustained. 27 Ark. 493; 34 Ark. 263; 54 Ark. 549; Id. 587; 51 Ark. 138; 26 Ark. 323; 29 Ark. 168. The demurrer was properly overruled.

H. Evans, Judge; STATEMENT BY THE COURT. On the 11th day of November, 1910, I. H. Young applied to the ticket agent of the Chicago, Rock Island and Pacific Railway Company at its station at Little Rock, Arkansas, for two tickets to Benton, Arkansas, and tendered in payment therefor $2.50. The agent delivered him the two tickets, and handed him back twelve cents in change. The regular fare from Little Rock to Benton was sixty-nine cents.

Guy Fulk, Judge; The court erred m giving a peremptory instruction to the jury to find for the defendants. Where there is any evidence tending to establish an issue, it is error to take the case from the jury. 63 Ark. 94; 77 Ark. 556.

This was a suit for damages for mental anguish alleged to have been occasioned by the failure to deliver the following telegram: “Ulie McGuan, Osceola: John Lavelle’s wife wants you to come at once; dangerously ill. (Signed)- “John Lavelle.” The testimony shows that on July 26, 1910, appellant was sick with congestion at her home in Tyronzo, and her physicians thought and advised her that she would not get well.

E. Jeffery, Judge; 1. Actual notice of an adverse holding need not, under the proof in this case, have been brought home to the plaintiff, but he should have been held to have had notice thereof from the notoriety and quality of the acts of ownership which had been exercised over the property by the defendants, and the court erred in not so holding. 137 S.W. 553; 24 L. R. A. 261. 2.

Carter, Judge; 1. The record does not disclose upon what grounds the court took the case away from the jury. If it did so on the grounds that appellant assumed the risk, then its action was in the face of the statute. “Safety Appliance Act,” §§ 2, 8; 86 Ark. 244. 2.

Grace, Judge; STATEMENT BY THE COURT. The plaintiff, R. Spann, brought suit against the timber company for damages for failure to inspect and receive certain railroad ties, which he claimed to have gotten out for them under contract: If any contract was made, it was by correspondence, and it was alleged that the contract was as follows: “St. Louis, Mo., June 27, 1908. “Mr. R. Spann, Kelso, Ark. “Dear Sir: Your letter of the 26th received, and, replying- to same, would advise…

Hays, Judge; 1. Considering the evidence in its aspect most favorable to appellee, the proof is not legally sufficient to show negligence. 97 Ark. 486; 35 Id. 602. Defendant was only bound to use ordinary care to prevent the injury. 6 Words & Phr. 5029; 11 L. R. A. 689; 26 Am. St. 842; 14 Pac. 633; 59 S. W. 13. 2. This was purely an accident. 1 Words & Phr. 63; 63 L. R. A. 416; 50 Am. Rep. 352; 27 L. R. A. 365. 3.

Instruction No. 1 on the question of alibi as a defense is erroneous; while instruction No. 4, given at appellant’s request, correctly states the law. The two are in irreconcilable conflict.

Grace, Judge; 1. The only question is whether there was sufficient evidence to warrant the submission of the case to the jury on the question of negligence. 63 Ark. 94; 77 Id. 556; 70 Id. 74; •71 Id. 305; 73 Id. 561; 71 Id. 446; 91 Id. 337; 87 Id. 498. 2.

Haden Humphreys, Chancellor; The deed to appellee was valid and based upon a sufficient consideration. The McNutt case, 78 Ark. 346, settles this controversy conclusively in favor of appellee. See also 80 Ark. 458; 81 Am. Dec. 758; 13 Cyc. 704, and note 79; Id. 743; and note 20; 60 Am. Dec. 682; 29 N. E. 524; 92 N. E. 162; 7 Am. St. Rep. 863; 13 Cyc. 531; 81 111. 176; 75 Ark. 131; 34 Miss. 18; 13 Cyc. 529.

The original complaint was admissible for the purpose of showing an admission, the issue being sharply drawn as to whether appellee was hurt in trying to get on the car, as alleged in the original complaint, or after he had got to his place by being jerked off. The court erred in excluding the original complaint, and in refusing to allow plaintiff to be cross examined touching its allegations. 21 Pac. 359; 20 Pac. 473; 8 S. W. 549; 1 Enc. of Ev. 438. 2.

Henderson, Chancellor; STATEMENT BY THE COURT. George J. Shell and wife executed a deed of trust on certain lands in Grant County, Arkansas, to secure a certain promissory note. Shell and his wife died. The note became due, was not paid, and the payee and beneficiary, appellant herein, foreclosed the deed of trust.

The court had no jurisdiction. The clerk failed to certify copies of the indictment, proceedings, order of removal, as required by statute. Kirby’s Digest, § 2326; 38 Cyc. 938; 58 S. W. 686, 690; 7 Nev. 83-95; Black, Law Diet. 1183. (1 ed.); 15 Ark. 624; 33 Id. 815; 36 Id. 237; 38 Id. 221; 48 Id. 94, 105; 63 Id. 130; 72 Id. 613. 2. The indictment charges no offense. Acts 1909, § 4, p. 506. 3. There was a fatal variance in the proof and the indictment.

Reed, Special Chancellor; 1. Mary A. Felton was entitled to her homestead right in the entire 160 acres. The decree setting aside the release from Alice L. Lamb is not supported by the evidence. The interplea should have been dismissed. She was estopped. 13 Cur. Law, note 58, par. 17, p. 1598; 56 W. Va. 611; 64 S. E. 911; 81 Kan. 210; 106 Id. 279. 2.

T. Cotham, Judge; STATEMENT BY THE COURT. Appellee brought this suit against the appellants to recover damages for an alleged breach of contract. This suit is based on the following contract, which was entered into on May 2, 1907: “Know all men by these presents .that Wm.

H. Evans, Judge; The court erred in allowing the penalty and attorney’s fee. 93 Ark. 84; 92 Id. 378; 94 Id. 578. A motion for a new trial was unnecessary; the error appears upon the face of the judgment. 57 Ark. 370; 61 Id. 33. 1. There is no bill of exceptions. 37 Ark. 37; 38 Id. 216; 39 Id. 558; 42 Id. 488; 52 Id. 554; 95 Id. 332. 2. Appellant contested the claim, and never made any offer to confess judgmént for the amount due. 94 Ark. 578; 86 Id. 115.’