Volume 103 — Arkansas Reports

Meeks, Judge; Appellee having sued for a greater amount than he was entitled to recover as appears by the verdict, he was not entitled to recover the penalty and an attorney’s fee, and a bill of exceptions, is not necessary to bring this question before the court. 93 Ark. 84-5, and cases cited; 92 Ark. 378. The penalty and attorney’s fee were properly allowed. Authorities relied upon by appellant have no application to this case.

E. Jeffery, Judge; 1. The judgment should be reversed for misconduct of the jury in being improperly influenced in having and reading the article in a newspaper highly prejudicial to an impartial trial. Clark, Cr. Pro., § 179, p. 474; 59 S. E. 249; 86 Pac. 1100; Id. 889; 61 N. W. 179; 105 Fed. 371; 29 Ark. 248; 44 Ark. 118; 57 Id. 8; 5 Pac. Co. Rep. 236; 12 Phil. 576; 71 Miss. 82; 12 Pac. 272; 37 Id. 207; 2 O. St. 54; Kirby’s Dig., § 2393-5. 2.

Appellant, a traveling salesman, brought suit against appellee for the loss of one of his grips containing wearing apparels and other personal effects. He was passing through Fort Smith on his journey, and on arriving there handed his baggage — • two grips — to the porter of the Hotel Main, who was at the station to receive the baggage of incoming guests.

Carter, Judge; STATEMENT BY THE COURT. This suit was brought by appellant against W. H. Nabors, the collector of Columbia County and his bondsmen, to recover interest upon funds of the county which said collector failed to pay to the treasurer every fifteen days after collection to be turned into the county depository, duly established undér Act 62 of the Legislature of 1909.

Francis Circuit Court; Hance N. Hutton, Judge; 1. The statement of the deceased to the coroner, Todd, was not admissible because it does not appear that it was given in the consciousness of imminent dissolution. Wigmore on Ev., § § 1439, 1440, 1441, 1442; 75 Ark. 142; 68 Ark. 355; 63 Ark. 382; 58 Ark. 47; 2 Ark. 229. The fact that it was sworn to added nothing to its admissibility.

Reed, Judge; 1. That part of the fourth instruction which charged the jury that “it is not necessary that such intent (to kill) be formed for any particular length of time before the assault, but it may be conceived in a moment, ” would be a proper statement of the law where the object of the assault was accomplished and the defendant on trial for murder; but where the defendant is on trial for assault with intent to kill, the intent must have been so clearly in the mind of…

Carter, Judge; STATEMENT BY THE COURT. W. L. Miller and wife, the appellee, were engaged in the hotel business at Heber. In the month of September, 1910, they bought tickets from Heber to Little Rock.

M. Fowler, Special Judge; Time having been allowed the appellant in which to file his bill of exceptions, and the record failing to show that such bill of exceptions was filed within the time allowed, there is nothing before the court for determination, and the judgment of the lower court should be affirmed. Acts 1909, p. 147, amendatory of Kirby’s Dig., § 6225; 42 Ark. 488; 39 Ark. 558; 35 Ark. 386; Id. 395; 46 Ark. 482; 53 Ark. 415; 58 Ark. 110; 96 Ark. 316.

App.eal from Madison Circuit Court; J. S. Maples, Judge; The judgment should be affirmed because there is no evidence that the bill of exceptions was filed with the clerk within the time allowed by the trial court. 42 Ark. 488; 35 Ark. 396; Id. 386; 39 Ark. 558; 53 Ark. 415; 58 Ark. 110; Kirby’s Dig., § 6225.

Martineau, Chancellor; STATEMENT BY THE COURT. The Tax Commission, relying upon the authority given it by Act No. 1 of the extraordinary session of the General Assembly of 1911, entitled, “An act to reduce the rate of taxation, and to revise and amend the revenue laws of Arkansas” (the Turner-Jacobson Act), brought this suit against the assess- or of Pulaski County, to enforce the provisions of the law and to require him to comply therewith.

Shaver, Chancellor; 1. The deed was void for fraud, and the burden was on appellee to show its absence. 40 Ark. 393; 9 Ves. 291; Pom. Eq. Jur. §§ 951, 958; 46 Ark. 25; 74 Id. 231; 73 Id. 575; 54'Id. 627; 40 Id. 393; 96 Id. 281; etc. 2. There was no laches, and the statute of limitations never commenced to run. 1. No undue influence or fraud is shown. 71 Ark. 494; 75 Id. 89; 2 Pom. Eq. Jur. (2 ed.) § 1036; 25 L. R. A. (N. S.) 1194; 106 Am.

Between master and servant a prima facie case of negligence is not made by proof of injury. 100 Ark. 467; 79 Ark. 81. In the absence of a statute, there is no presumption of negligence. 44 Ark. 527; 46 Id. 555; 51 Id. 467; 179 U. S. 658. The doctrine of res ipsa loquitur does not apply. 2. There is no proof as to how the accident happened. Verdicts can not be found on conjecture.

Meeks, Judge; STATEMENT BY THE COURT. Elmer C. Kuhn, a minor, by his mother and next friend, brought this action against Arch Perrin et al. in the circuit court to set aside a judgment which had been rendered against him at a former term, in favor of the defendants. The lands involved in the action were owned by Isaac T. Reece in his lifetime.

When the defendant in a criminal case complies with the statutes governing changes of venue, he makes out a prima facie showing entitling him to a change of venue, and the State’s only defense to such motion is to attack the credibility of the supporting witnesses.

H. Evans, Judge; 1. Since the contract could not be performed within one year from the date of the making thereof, it clearly fell within the statute of frauds. 53 Tex. 9; 37 S. W. 379; Kirby’s Dig., § 3654, subdiv. 6; 118 S. W. 373; Browne, St. Frauds (4 ed.) § 511; 1 Greenl. Ev. (15 ed.) § 86. 2. After both rested, it was error to admit further testimony to show a renewal of the contract within a year.

<p>1. Witnesses — impeachment of accused. — Where a defendant in a criminal case testifies in his own behalf, he may on cross examination be questioned as to whether or not he has suffered a former conviction of a crime affecting his credibility, and such conviction need not be shown by the record of the judgment. (Page 90.)</p> <p>2. Appeal and error — harmless error. — The admission of incompetent testimony is not prejudicial if the point testified to is already admitted. (Page 90.)</p>

Guy Fulk, Judge; STATEMENT BY THE COURT. This is a controversy over the value of half a bale of cotton raised upon the lands of appellant by one Adams, the subtenant of Williams, to whom the lands had been leased.

<p>Appeal from Jackson Chancery Court; George T. Humphries, Chancellor.</p>

Evans, Judge; 1. Appellant can not be held liable under the proof. Appellee’s complaint that no notice that the car was in bad order was posted on the car or given to him or to the consignee is without merit, because he himself discovered the hole in the car and knew that it was such a hole as one might step into and get hurt. A railroad company is not an insurer of the safety of persons who come upon its premises on business with the company.

Robertson, Chancellor; The transfer of the note to appellant was in due course of business without any knowledge on his part of any defect therein or insolvency of the firm of Bowen & Boyd. He is an innocent purchaser for value. 65 Ark. 204.

Martineau, Chancellor; The provision of art. 5, § 22, of the Constitution was never legally complied with, and the act never became a law. The Constitution is mandatory. 27 Ark. 279; 33 Id. 17; 61 Id. 232; 40 Id. 200, 212; 19 Id. 250. The journal entries are’the exclusive evidence of whether the bill was passed. 1. The question of the existence or nonexistence of a law is a judicial one. It is a question of law. 94 U. S. 260; 34 Ark. 283.

Cotham, Judge; 1. The court erred in proceeding upon the theory that the knowledge or intention of the lessor at the time of making the lease would not affect the legality of the contract, and in holding that it was not a proper issue in the case unless an intention appeared from the contract that the lessor was to receive a benefit therefrom.

Evans, Judge; 0 1. The testimony excluded tended to show that the prosecutrix had a disposition or mania to make false charges against men of carnal abuse. 40 N. W. 473; '66 Ark. 523-5; 16 Cyc. 1181. 2. It was error to give the sixth instruction. It was prejudicial and not neutralized by the statement of the court. It eliminated the question of a reasonable doubt as to the defendant’s guilt. 3. The continuance should, have been granted. 1.

Where a railway company will not be benefited by the construction of a proposed levee, to compel it to pay assessments therefor would amount to taking its property without due process of law. The benefits derived from such an improvement should be such as are real and substantial, direct and special. 81 Ark. 564; 172 U. S. 269; 83 Ark. 54; Id. 351; 86 Ark. 8; Id. 231. 2.

T. Gotham, Judge; STATEMENT BY THE COURT. The appellee, being the owner of the automobile and equipments in controversy, sold them to one C. O. Steele, and for the purchase price thereof accepted two promissory notes from Steele in the following form for $800 each, respectively: “Little Rock, Ark., April 22, 1909. “Three months after date, I hereby promise to pay to the Little Rock Auto Company three hundred dollars in part payment for one 1908 Regal Automobile, this note to…

Hutton, Judge; STATEMENT by the court. The Fidelity Company sued appellee for $1,956.83, which it had to pay to the Chicago, Rock Island & Pacific Railway Company, as surety upon the indemnity bond of appellee, who was the station agent of said railroad company at Lonoke, and failed to pay over that amount received by him for said company in the performance of his duty. Attachments were also issued and levied upon certain of his real estate in White County.

H. Evans, Judge; The court will take judicial notice that the line of railroad over which appellee traveled does not at any point touch Saline County. 93 Ark. 269; 10 S. W. 81; 27 S. W. 119; 57 S. E. 458; 11 S. W. 500; 71 S. W. 831; 57 Ind. 457; 94 Pac. 138. This is an action for the recovery of a penalty and could properly be brought only in a county where some part of the cause of action arose. Kirby’s Dig., § 6061; 22 Am. & Eng.

Hays, Judge on exchange; STATEMENT BY THE COURT. Appellants, Berry and Props, were jointly indicted for the crime of stealing thirty-six quarts of whisky alleged to be of the value of thirty-six dollars, and the property of the St. Louis, Iron Mountain & Southern Railway Company. A witness testified that he was foreman of the Iron Mourn tain transfer shed. He checked a car that contained some whisky about the time this crime is alleged to have been committed — the day after.

The law presumes that every officer does his duty and that in his official acts he has not exceeded his authority. 96 Ark. 477; 95 Id. 195. 2.

Wells, Judge; 1. Punitive damages are not recoverable in an action ex contractu, but only actual damages caused by the breach of the contract. Actual damage is the measure whether the breach occurred from negligent failure or wilful refusal to perform the contract. ' 79 Ark. 36; 90 Id. 467; 13 Cyc. 113 F, and notes 98-99; 28 Am. St. Rep. note p. 874 et seq.; Anson on Contracts, 311. 2.

Lea, Judge; 1. The court that sits for the correction of error must examine the evidence and discharge the defendant unless that evidence demonstrates to their satisfaction that the defendant is guilty beyond all reasonable doubt, and in this respect they are not concluded by the verdict of the jury. 172 111. 367; 72 Conn. 635; 117 Ga. 230; 67 New Jersey Law, 223; 142 Ind. 276; 50 Mich. 239; 138 Mo. 112; 13... Mo. 112; 130 Okla. 633. 2.

Francis Circuit Court; Hance N. Hutton, Judge; The evidence does-not support the verdict. The payment was not made within the time required by the laws of the order, and no authority is shown for the local secretary receiving it. 80 Ark. 421; 81 Ark. 512; 85 Ark. 337; 97 Ark. 425. 1. The burden was on appellant to prove that the assessment was made, and that it was made by proper authority and in accordance with the laws of the society.

V. Bourland, Chancellor; The court erred in allowing appellants only one-eightieth part of the rent from all wells on the forty acre tract. Appellants are entitled to rental for all gas wells producing on their half acre after the execution and delivery of their deed. Archer’s Law & Practice in Oil and Gas Cases, 884; Id. 894, § 14; 68 O.'st. 259; 67 N. E. 494; 39 W. Va. 231; 43 W. Va. 826; 50 Id. 344; Id. 299; Gould on Waters, § 291; 88 Pa. 198; 53 Pa. 229.

Appellees instituted an action of ejectment against the appellants to recover the possession of the following described land situated in Faulkner County, Arkansas, towit: southwest quarter of section 2, township 6 north, range 11 west. Mather Strickland, Sr., originally owned this land, and was the father of the appellant and the grandfather of the appellees. He died on March 2, 1908.

Grace, Judge; STATEMENT BY THE COURT. The appellee sued appellant for 300,000 feet of timber at $4 per thousand, alleging that appellant had obtained that much timber for which he had not paid, under a contract by which appellee sold to appellant all the timber on a certain tract of land.

Elliott, Chancellor; 1. The chancery court should have dismissed the cases for want of jurisdiction. The aid of equity may be invoked only where there is no adequate remedy at law. 26 Ark. 649; 65 Ark. 505; 66 Ark. 391, and cases cited. At the time the suits were brought, O. K. Uzzell was in possession of the Martin land, and Gates had an adequate remedy at law.

J. Driver, Judge; 1. The court erred in refusing to permit Mrs. Brewer, Mrs. Lunsford and other witnesses to state whether or not, in their opinion the defendant, Nancy Williams, was sane or insane at the time she made use of the language complained of.

E. Jeffery, Judge; 1. The compromise and settlement, and release executed by appellee, is a bar to this action. 75 Ark. 354; 62 Ark. 342; 43 Conn. 455.

W. Meeks, Judge; The circuit court erred in dismissing the appeal from the county court. Kirby’s Dig., §§ 1487, 3006; 135 S. W. 833; 47 Ark. 441. 1.

Haden Humphreys, Chancellor; 1. The abstract tendered did not show a marketable title. The acknowledgment was not good as a corporate act and no seal was attached. 78 Ala. 542; Maupin on Marketable Title, p. 61. 2. Waiver of performance by contract does not apply after nonperformance after breach. A waiver to be binding must either operate by way of estoppel or be supported by valuable consideration. 72 Ark. 525. 3.

Guy Fulk, Judge; STATEMENT BY THE COURT. Appellant had a contract with Pulaski County to do certain dredge work for the purpose of draining what is known as “Dark Hollow.” Appellant sublet a portion of the work to C. S. Whitney. Whitney arranged with the appellee to cash time checks issued by him as the work progressed.

Evans, Judge; STATEMENT by the court. Appellant, in order to drain its right-of-way, dug a ditch across a foot-path on its right-of-way that had been used by the public with appellant’s permission for ten years. Appellant put piles of dirt in the roadway five or six feet wide and two or three feet high. The appellee on the night of the injury had walked to church on the pathway, and had crossed over the piles of dirt, and noticed same.

Garter, Judge; 1. It was appellee’s duty to exercise ordinary care to provide appellant a reasonably safe place to ride upon the hand car. 97 Ark. 187; Id. 350; Id. 138. Also to give him proper instructions and warning of dangers. 90 Ark. 473; Id. 407; 73 Ark. 49.

Cowling, Judge; 1. It appears by the witness Warlick’s testimony that he was a minister of the gospel, acting in that capacity in his visits to the testator, and instructing the testator in the rules and practices of the church, he being a penitent seeking instruction from the minister. The testator’s statements to the minister were privileged communications, and the court erred in admitting them as testimony.

E. Jeffery, Judge; STATEMENT BY THE COURT. This suit was brought by appellee against Ludy Arnold and C. E. Hardin, appellant, on a promissory note for $500, made January 5, 1906, and payable nine months after date to the order of appellee.

2. Quieting title — laches.—In order to bar a suit to remove a cloud upon the title to wild and unimproved land by laches, a purchaser under a void tax title and his privies must have, prior to the commencement of the suit, paid the taxes upon the land under color of title for at least seven years. (Page 255.) Appeal from Bradley Chancery Court; Zachariah T. Wood, Chancellor; 1. The statute of limitations does not apply.

One who is an agent of one party to an agreement can not at the same time be an agent of the other party to the same agreement. Hammond on Contracts, § 228, p. 397; Id. § 256, pp. 585-6; Clark on Contracts, 164; 30 Miss. 343; 17 Barb. 397. 1. There is substantial evidence to support the verdict, and this court will not disturb it on appeal. 97 Ark. 86; 94 Ark. 135; 95 Ark. 172; 92 Ark. 120; Id. 586.

Carter, Judge; 1. After a bill of exceptions has been filed in the office of the. clerk within the time fixed by the court, it is subject to be amended so as to speak the truth, as any other record of the court is subject to be so amended. 53 Ark. 250; 59 Ark. 54, 60; 52 Pac. 571; 37 Pac. 153.

Martineau Chancellor; 1. The authority to levy taxes for local improvements has its Qrigin- in the principle of local self-government. 67 Ark. 30. • The filing of the petition of ten property owners being mandatory and jurisdictional for the protection of property owners, the city council has no authority to form an improvement district until such a petition has been filed, nor to create any district except such as is requested in the petition. 71 Ark. 561; 59 Ark. 344,…

Martineau, Chancellor on exchange; STATEMENT BY THE COURT. The appellee sued for a divorce, alleging as grounds therefor cruel and inhuman treatment by appellant, such as to endanger his life, and adultery; that he was possessed of property at the time of the marriage, in 1890, from which he realized about ten thousand dollars, and from that and other properties accumulated afterwards, about $17,000 in all; that there were two children born to this marriage, a girl fourteen…

Hays, Judge; The court erred in excluding the mortgage as evidence. It is clear from the evidence that the directors and stockholders of appellee by their conduct and acquiescence ratified the act of Nelson in executing the note and mortgage, and are estopped from denying its validity. Morawetz on Private Corp. (2 ed.) § § 618, 627, 633; 1 Beach on Private Corp. § §194, 195; 10 Cyc. 1074 (E), 1076-2-a, 1'077-b, 1077-c; Morawetz on Priv.

This suit was brought by appellant to recover the value of nine barrels of wild ducks, delivered to it for shipment from Manila, Arkansas, on November 19, 1909, to Chicago, Illinois.

Hutton, Judge; 1. No legal voter or resident of District No. 30 signed the petition. Kirby’s Digest, § 7548; 60 Ark. 124. Held: or to make additional order in case no election is held, yet the fair construction of the act would give him such power. 5. The clause in the petition with reference to the manner in which the school for white and colored children should be conducted is mere surplusage, and does not vitiate the petition.

<p>Appeal from Van Burén Circuit Court; George W. Reed, Judge;</p>

Henry Thielman brought this suit against E. G. Reinsch and J. H. Owens, .composing the firm of Reinsch & Owens, to recover damages for an alleged breach of warranty in the sale of two pumps. The defendant filed an answer in which they denied that they had warranted the pumps sold the plaintiff, and by way of cross complaint asked judgment for the sum of $500. alleged to be due them on the purchase price of the pumps.

Elliott, Chancellor; 1. A minor has seven years after becoming of age in which to disaffirm his deed. 34 Ark. 596 ; 51 Id. 294; 44 Id. 153; 62 Id. 318. 2. The assignment of the certificate of purchase at tax sale and the deed thereon constitute only a redemption from the tax sale and the -resulting protection to the title already held by McKewen, and was not the acquisition of a new title. 32 Ark. Ill; 31 Id. 334.

Dying declarations, when merely matters of opinion are inadmissible. 39 Ark. 221; 63 Id. 384; 52 Id. 347. 2. Dying declarations, to be admissible in evidence, must be made under the consciousness of the approach of death-in extremis. Wigmore on Evidence, § 1439; Greenleaf on Evidence (16 ed.), § 158; 90 Mo. 54; 55 Cal. 76. The statements of deceased immediately after the shooting were dying declarations, and properly admitted as such.

Martineau, Chancellor; 1. A lease of a building does not carry the soil under to any depth. 25 Ark. 441; 18 Utah 464; 68 Atl. 950; 35 S. E. 271; 118 Mass. 125. But if it did the landlord would have a right to make any use of the reversion that did not disturb or injure the tenant’s use of the leased premises. 36 Ga. 97, 104-5; 31 W. Ya. 621; 56 Mo. App. 133; 45 N. J. L. 37; 140 N. C. 422, and many others. 2.

Carter, Judge; STATEMENT BY THE COURT: By an act of the Legislature the St. Louis, Iron Mountain & Southern Railway Company was required to build a steel or iron viaduct over its tracks along and upon College Street in the city of Texarkana to a point not to exceed 300 feet south of its right-of-way, and the city of Texarkana and the railway company were required to pay the abutting property owners all damages that might accrue to them by reason of the construction of the…

Evans, Judge; STATEMENT BY THE COURT. Appellee sued appellant for damages alleging that he was injured while riding upon one of the appellant’s local freight trains, and that his injuries resulted from the negligent handling of certain cars and a locomotive which were permitted to strike with unusual force the caboose in which appellee was riding. The accident occured between Benton and Argenta, Arkansas.

E. Jeffery, Judge; STATEMENT BY THE COURT. The appellant was convicted under section 1655 of Kirby’s Digest of the crime of disturbing a religious congregation.

The appellant was sixty-eight years old. She was illiterate and incapable of transacting business. She relied on her son to transact all of her business for her. She had been deaf in one ear since childhood. On May 9, 1911, she was hurt on a passenger train of appellee at Beebe.

Reed, Judge; STATEMENT BY THE COURT. This is an action brought by plaintiff, B. N. Bridwell, against the Waters-Pierce Oil Company and its agents for slander alleged to have been committed by making defamatory statements in regard to the inspection and quality of the oil, which he was engaged in selling.

The refusal of a continuance operated as a denial of justice. 21 Ark. 460; 10 Id. 528 ; 71 Id. 182; 85 Id. 334. 2. The judgment should be reversed for improper testimony, remarks and proceedings before the jury. 69 Ark. 648; 23 Id. 121. 3. The closing argument of the State’s attorney was prejudicial and unfair. 75 Ark. 577; 77 Id. 19; 72 Id. 427; 95 Id. 233; 81 Id. 25; 77 Id. 238; 65 Id. 619; 74 Id. 298; 72 Id. 461; 63 Id. 174; 74 Id. 210. 4.

<p>Appeal from Conway Circuit Court, Hugh Basham, Judge;</p>

H. Evans, Judge; STATEMENT BY THE COURT. The plaintiff alleged that on the 12th day of September, 1908, plaintiff’s intestate, Clint Ruff, boarded one of defendant’s local freight trains at Walnut Lake, Arkansas, and became a passenger thereon, intending to go to Dumas, Arkansas, another station on defendant’s railroad; that a short distance from Walnut Lake, while the train was upon a high trestle over a body of water, defendant’s conductor in charge of the train wilfully…

The appellant had a horse which he traded to appellee for his mare. Appellant brought this suit against appellee for breach of warranty, alleging that appellee warranted the mare to be sound at the time he exchanged his horse for her, but that the mare at the time was unsound, she having a disease known as the heaves; but that said disease was not at the time observable. He alleged that the mare he obtained in exchange was worthless; that his horse was worth $150.

Cowling, Judge; STATEMENT BY THE COURT. Appellee, Mike Drew, brought this suit against the appellant railroad company to recover damages for injuries sustained by him while going over the tracks of the appellant at a public crossing in the town of Horatio, in Sevier County, Arkansas.

V. Bourland, Chancellor; 1. The evidence clearly establishes appellee’s habitual drunkenness, within the meaning of the statute. One may be an habitual drunkard, and still be able to attend to his usual business, even though there may be intervals when he entirely refrains from the use of intoxicating drinks. 38 Ark. 324; 117 Am. St. Rep. 1054; 8 Pac. 110, 112; 35 Mich. 210; 137 S. W. 56; 84 Mo. App. 208; 19 III. 465. 2.

V. Bourland, Chancellor; The circumstances in this case are not sufficient to constitute Willie J. Boydston a trustee for the benefit of the plaintiffs..

Evans, Judge; 1. Failure to keep a cash account from the date of the inventory, November 21, 1910, to January 1, 1911, and then entering a cash item of $200 was not a substantial compliance with the terms of the policy. 66 Ark. 82; 85 Ark. 579; 96 S. W. 697; 102 S. W. 226; 53 Ark. 357; 7 Vroom 35; 65 Ark. 240; 118 S. W. 1086. 2.

Hutton, Judge; STATEMENT BY THE COURT. Howard Reed, Jim Lattin and Captain Bradford were indicted under section 1960 of Kirby’s Digest for obstructing-process. The evidence on behalf of the State is substantially as follows: A subpoena was issued from the White Circuit Court for Fred Price, and Price, although duly served, refused to appear in obedience to it.

Guy Fulk, Judge; STATEMENT BY THE COURT. In June, 1909, the appellants filed their assessment lists of personal property located at 121-123 Main Street, Little Rock, Arkansas, in the sum of $18,000 with the assessor of Pulaski County, and the assessment was by him entered on the assessment rolls of Pulaski County.

S. Maples, Judge; STATEMENT BY THE COURT. This suit was brought by appellants against the railroad company for damages for the destruction of a dwelling house and furniture therein, in the city of Fayetteville, Arkansas, alleged to have been caused by fire communicated by sparks escaping from one of its engines.

It was error to try the cause on the substituted answer. The whole case turned on the value as a bridge site, a claim not made in the original answer. It was also an abuse of discretion to refuse a continuance. 77 Mo. 26; 71 Ark. 222. 2. ° The fundamental error was in admitting incompetent testimony of the bridge value. 49 Ark. 381; 97 Id. 241; 52 S. E. 725; .18 App. Div. (N. Y.) 194; 26W.Va.672; 98 U. S. 403; 159 Pa. St. 99; 54 Atl. Rep. 339. 3.

Wells, Judge; STATEMENT BY THE COURT. This was a suit by Curry against Watkins to recover the possession of an automobile. The complaint is the usual one in replevin, described the property, and alleged that appellee was entitled to the possession, that it was wrongfully detained, and the other formal allegations.

Proceeds of the mortgaged cotton delivered to the plaintiffs should be applied on the mortgage indebtedness. 47 Ark. 17-31. The mortgage secured only Wilson’s indebtedness to the firm of McCown & Parker due up to October 15, 1909. Any account not mentioned therein, or contracted after the above date, would not be secured by the mortgage.

Carter, Judge; STATEMENT BY THE COURT. This is an action of trespass brought by H. D. Parker against J. R. Abbott to recover damages for tearing down and removing an ice house on a certain town lot of which the plaintiff claimed to be the owner. The defendant Abbott sought to justify his conduct in tearing down and removing the ice house on two grounds: First, he claimed that the ice house was excepted from 'the deed executed to Parker.

<p>Appeal and error — failure, to comply with rule nine. — Where appellant has not abstracted nor attempted to abstract the testimony introduced at the trial nor the instructions given by the court, nor mentioned whether a motion for new trial was filed and overruled, an alleged error of the court in refusing a certain instruction requested by him will not be considered.'</p>

Cowling, Judge; STATEMENT BY THE COURT. Appellant was charged with criminal trespass, upon the following indictment, (caption omitted): • “The grand jury of Howard County, in the name and by the authority of the State of Arkansas, accuse S. C. Dildy of the crime of trespass, committed as follows to wit: “The said S. C. Dildy, in the county and State aforesaid, on the 15th day of May, 1911, did unlawfully and wilfully and without right enter upon certain land belonging to one…

S. Maples, Judge; 1. There is no proof to sustain a finding that the rotten condition of the plank, if it was rotten, was the cause of the injury; no proof of any notice of the defective condition of the plank, nor that any such defect existed as could be observed by constant use and handling. 2.

Reed, Judge; 1. The indictment is indefinite and uncertain. We find no law making it a crime to “engage in the' running of a horse for pastime or amusement.” Kirby’s Dig., § § 2036, 2040; 10 Ark. 259. 2. The instructions were erroneous, and the proof inadequate to sustain a conviction. ' 1. The indictment is good under section 2036 or section 2040, Kirby’s Digest. It specifically charges an offense and puts defendant on notice. 2.

Matlock, Special Judge; 1. To warrant a recovery, the proof must show, not only that the defendant was negligent in failing to deliver the messages, but also that if they had been delivered plaintiff could and would have been present before the death of his son and at his funeral. 89 Ark. 483. 2. If negligence had been shown, still appellee is barred from recovery for failure to present the claim within ninety days. 80 Ark. 554; 94 Ark. 336. 3.

Robertson, Chancellor; STATEMENT BY THE COURT. This is a suit by the appellant against the appellees to recover section 16, in township 6 south, range 2 east, in Phillips County, Arkansas. The suit was begun in the circuit court. The appellant alleged title to the land through a sale by the collector under the provisions of chapter 142, sections 7700 to 7707, inclusive, of Kirby’s Digest.

Frierson, Chancellor; 1. The issuance of' bonds in a proceeding of this kind is without constitutional sanction. Art. 12, sec. 5, Const.; 33 Ark. 497. 2.

Shaver, Chancellor; STATEMENT BY THE COURT. Plaintiffs, appellants, filed a complaint in the Little River Chancery Court against R. H. Murphy and other defendants, alleging that they are the sons and sole heirs-at-law of J. M. Priest, deceased, who died in 1894; that said J. M. Priest, their father, on or about the 18th day of September, 1893, being the owner of a five-ninths interest in the northeast quarter, section 22, township 12 north, range 32 west, executed a warranty…

Wells, Judge; 1. Appellee having already received, as the proof shows, a warrant for his services equal to the customary and ordinary price when paid in lawful money of the United States or in county warrants at par with lawful money of the United States, he is not entitled to receive more by reason of the fact that he was the lowest bidder and entered into a written contract to build the bridges for the amount of his bid.

Conway Chancery Court; Jeremiah G. Wallace, Chancellor; 1. Appellant was entitled to indemnity to the extent of one-half of the mortgage security. 48 Ark. 442; 50 Ark. 234; 59 Ark. 47; 34 Ark. 80; 60 Ark. 526.

Robertson, Chancellor; STATEMENT BY THE COURT. This is an action instituted by H. H. Williams, seeking to redeem from a sale certain lands which had been sold under a decree foreclosing a mortgage or to have specifically performed a contract reselling to him said lands. The original complaint was filed on July 1, 1905, and was brought against the American Mortgage Company and D. Hopson as defendants.

Guy Fulk, Judge; 1. This court only reviews errors of law, having appellate jurisdiction only. Rule 15 of this court prescribes the manner of preparing bills of exception. 2. Where the action of the court is purely a matter of record, no bill is necessary. 66 Ark. 80. But questions as to the admission of evidence, exceptions, etc., must be incorporated in a bill of exceptions. 25 Ark. 380; 74 Id. 286. 3.

Grace, Judge; 1. The jury could not have understood the additional instruction prescribing the form of their verdict, given at the conclusion of the argument, otherwise than as directing a verdict of murder in the first degree or acquittal. The instruction cut the jury off from consideration of a lower degree of homicide, or the nature of the penalty that might otherwise have been imposed.

Hays, Judge; 1. The appellee showed no right to recover. A charge of negligence can not be sustained by showing that the person charged refused to risk life or limb in an effort to save another from injury, even though there be some evidence to show that by so doing both might have escaped. The principle of self-preservation prevails. 4 Bl. Comm., Chitty (6ed.), 140, 187.

Martineau, Chancellor; STATEMENT BY THE COURT. On July 1, 1889, C. O. Boynton filed a complaint in the Mississippi Chancery Court against Haggart and McMasters, asking that his title be quieted against them to a large body of lands in Mississippi County, Arkansas. At the October term, 1899, of the chancery court the defendants removed the cause to the Federal court, and on the 11th of June, 1901, the Federal court rendered a decree in favor of the defendants.

Cowling, Judge; STATEMENT BY THE COURT. Appellee brought this suit against appellants as common carriers alleging a neglect of duty in failing to deliver a shaft rod for his gin within a reasonable time after receiving it for transportation. Appellee lived at Antimony, Howard County, Arkansas, and owned a gin about two miles south of his home. The main shaft of the gin was broken in September, 1910.

Shaver, Chancellor; 1. The act is unconstitutional because: (1) It conflicts with art. 7, § 28, Constitution, art. 23, amendment 5; 76 Ark. 22; 92 Id. 98. A road tax is a county tax, and county courts only have jurisdiction of such. (2) It conflicts with art 7, § 30. (3) It is in conflict with art. 12, § 2. 87 Ark. 591; 36 Id. 175. (4) It is in conflict with art. 5, § 24, prohibiting special laws.

Grace, Judge; STATEMENT BY THE COURT. Appellee alleged that he entered into a contract with appellant whereby, for a consideration of $500 paid by appellee to appellant and the agreement on his part to move his mill from Monticello, in Drew County, to Gould, in Lincoln County, and to erect same on the land of appellant and to saw timber, appellant agreed to furnish appellee with timber estimated at 4,000,000 feet, for which appellee was to pay $10 per thousand feet.

Elliott, Chancellor; STATEMENT BY THE COURT. This suit was instituted in the Jefferson Chancery Court on July 29, 1904, by Emily Phillips against W. D. Jones, and the purpose of the suit was to compel Jones to convey to Emily Phillips lot 1, block 10, Woodruff’s Addition to the city of Pine Bluff, Arkansas. This is the second appeal in this case.

Carter, Judge; 1. The court’s third instruction was erroneous in that it assumed that appellees were put off the train, and left it for the jury to decide whether appellees were compelled to walk from Hafton to Patmos. 2. The verdict is so grossly excessive as to show on its face that it was the result of passion and prejudice. 67 Ark. 130; 69 Ark. 187; 81 Ark. 430; 88 Ark. 203; 94 Ark. 326; 47 La.

S. Maples, Judge; statement by the court. This was an action brought by W. I. Peters against the North Arkansas Telephone Company and W. L. Stuckey, to recover damages for personal injuries received by him while travelling along a public highway and alleged to have been sustained by striking a telephone wire of said defendants, which they had negligently allowed to sag or hang too low across said highway.

W. Meeks, Judge; The court erred in dismissing the appeal. 31 Ark. 268; Id. 550; 32 Id. 292. It was an abuse of discretion. Cases supra. 1. The bill of exceptions was not filed in time. 91 Ark. 566; 95 Id. 831; 35 Id. 386; 58 Id. 110; 42 Id. 488. 2. Appellant’s time was limited to sixty days; the first day excluded, the last included. 26 N. E. 61; 41 Id. 1069; 51 N. W. 24; 50 Id. 986; 28 S. W. 84; 27 Id. 555; 128 Id. 1077; 10 Ark. 497; 33 Id. 421.

<p>Certiorari to Crawford Chancery Court; J. V. Bourland, Chancellor;</p>

Robertson, Chancellor; 1. The probate court has no jurisdiction to order the sale of lands of an estate to pay a debt which was never probated. 38 Ark. 471; 31 Ark. 539. 2. Where the settlement of an administrator shows that he has funds on hand sufficient to pay all probated debts, the court is without authority to order a sale of the lands of the estate. 46 Ark. 373, and cases cited; 52 Ark. 320. 3.

Robertson, Chancellor; STATEMENT BY THE COURT. This is a suit by the appellee against the appellant to cancel certain tax deeds held by the latter under a sale of a certain tract of land in Crittenden County made in June, 1907, for the taxes of 1906, and under a sale made in June, 1908, for the taxes of 1907. The amended complaint set up that the sales were invalid and the deeds void, among other things, for the following reasons: “2.

<p>Appeal from Van Burén Circuit Court; George W. Reed, Judge;</p>

Cowling, Judge; STATEMENT BY THE COURT. Appellee sued appellant for damages for being evicted from a certain building and deprived of the use of a moving picture machine, which he claimed to have rented for the purpose of operating a moving picture show in the city of Mena, Arkansas.

Cotham, Judge; Where the testimony in support of a motion for a new trial on the ground of newly discovered evidence is conflicting and controverted, the trial court correctly exercises a sound discretion in disposing of the question of fact thereby raised; but where the affidavit and motion is not controverted, there is no such discretion. 74 Ark. 388. The rule as to cumulative evidence is not an absolute test. 66 Ark. 525.

Cotham, Judge; STATEMENT BY THE COURT. Appellee sued appellant, the proprietor of the Waverly Hotel, at Hot Springs, for the value of her baggage, wearing apparel, money and jewelry, destroyed by fire when the hotel was burned, alleging that he was an innkeeper, and that she was a guest at the time of the destruction of the property.

Martineau, Chancellor; STATEMENT BY THE COURT. Nick Peay entered into contracts with Pulaski County by which the latter hired to him the county prisoners for the years 1903 and 1904, in consideration that Peay would pay to Pulaski County all costs of conviction of such prisoners during the period covered by the contracts. Peay executed bonds with R. A. Furth as surety for the due performance of the contracts.

Cowling, Judge; STATEMENT BY THE COURT. This is a suit under sections 6644 and 6645 of Kirby’s Digest (as amended by Acts of 1909, page 13.5,.) to recover damages and penalty for an alleged failure on the part of appellants to construct a cattle guard on the inclosed lands of the appellee, through which appellant’s railroad ran, after appellee had given appellants notice to construct cattle guards as required by the statute.

S. Maples, Judge; 1. A negligent act can not be shown to be justified by custom or usage. 6 Thompson on Negl., § 7882. 2. The witness Thomas does not show sufficient knowledge to testify as an expert. His testimony as to the hood and its uses, etc., was inadmissible. 55 Ark. 65; 62 Id. 1; 2 Elliott on Ev., § 1096. 3. ' The evidence shows negligence on the part of plaintiff as matter of law. 63 Ark. 427; 76 Id. 10; 97 Id. 438. 4.