Volume 106 — Arkansas Reports

H. Humphreys, Chancellor; STATEMENT BY THE COURT. W. E. Lynn, a resident of Missouri, died without children, leaving a widow, and, at the time of his death owned certain real estate in Benton County, Arkansas. Clara Lay recovered judgment against his estate for $830 and costs. The estate was administered in Missouri, and only a portion of the claim paid.

J. Driver, Judge; 1. Having alleged that the assault and battery was maliciously done, appellee was bound to prove it. It was therefore error to give any instructions which did not make the recovery of exemplary damages depend upon the malice of the wrong-doer. 19 N. W. 308, and cases cited; 90 Ark. 462. 2.

Elliott, Chancellor; STATEMENT BY THE COURT. The appellant instituted this action in the Lincoln Chancery Court to have homestead and dower assigned to her in certain lands situated in Lincoln County, Arkansas, which she • described in her complaint.

Carter, Judge; 1. Though the deed from Wm. N. Stricklin to Mary D. Stricklin conveyed to her but the equitable title which descended to appellants at her death as her heirs at law, subject to the life estate of their father, yet at his death his bare legal title vested in appellants as her heirs, and was merged with their equitable title. 60 Ark. 70.

.Appeal from Greene Circuit Court; W. J. Driver, Judge; STATEMENT BY THE COURT.

As a matter of law the appellant was not guilty of negligence in the construction of the frame work and the location of the saw therein. The instrumentalities furnished were safe for the use for which they were intended, since it is undisputed that the only purpose of the doorway to the enclosure was to enable the saws to be placed on or taken off its wheels, and that this was never done and in fact could not be done until after the saw stopped.

H. Evans, Judge; 1. The law applicable to this case is clearly stated in 46 Ark. 513. As to the duty of employees of railroads and negligence see 84 Ark. 270; 98 Id. 224; 90 Id. 403; Elliott on Railroads, § 1298; 97 Ark. 560. 2. No peril was discovered to employee, and until discovered the company was under no duty to act. 99 Ark. 560; Bailey on Personal Inj., vol 2, § 497; 83 Wis. 459; 170 Mass. 168. 3.

Martineau, Chancellor; STATEMENT BY THE COURT. Appellant, who was the plaintiff below, filed his complaint in the Pulaski Chancery Court against the defendants, who composed the Board of Improvement of Street Improvement District No. 167. of the city of Little Rock, and prayed the order of that court, restraining the said board from proceeding to carry out the terms of a contract which said board had entered into with one M. D. L. Cook for the construction of the improvement…

Guy Fulk, Judge; STATEMENT BY THE COURT. Appellant brings this action to compel by mandamus the State Board of Railroad Incorporation to grant it a franchise to operate a water power on the Ouachita River, in Garland County, Arkansas, making proper allegations in its petition showing, that it has duly complied with the provisions of Act 323, of the Acts of 1905, providing for the granting of such franchises, also setting out said act and alleging that the board at a special…

Guy Fulk, Judge; STATEMENT BY THE COURT. This suit was brought to compel by mandamus the State Board of Election Commissioners to canvass the returns and declare the adoption of proposed Amendment No. 15 to the Constitution of Arkansas, initiated by 8 per cent, of the voters, it being alleged that same had been duly submitted in accordance with law and adopted, receiving at said election 76,660 votes in its favor, with only 53,089 votes against it, and by the terms of said…

E. Jeffery, Judge; The court erred in setting aside the judgment on the verdict and in entering a judgment which was in effect an affirmance of the judgment of the justice of the peace. Kirby’s Dig., § 6649; 92 Ark. 425. 1. The question of jurisdiction was not raised in the case cited by appellant, and that case does not control here. This case is ruled by the case of Rose v. Christinet, 77 Ark. 582.

Wallace, Chancellor; From the expiration of the time fixed by the court in its decree in which to redeem, the appellees’ right of redemption was barred. 66 Ark. 490, 492. Sections 5416 and 5420 have reference to mortgages and deeds of trust only, and can not be extended to include a vendor’s lien reserved in the deed. The court correctly determined that the lien was an equitable mortgage.

Meeks, Judge; STATEMENT by the court. At the July, 1912, term of the Randolph Circuit Court, the appellant instituted this action against appellee, alleging in his complaint that he was the owner of the following described lands in that county, towit, fractional north half of section 17, in township 19 north, and range 3 east; and that appellee had been trespassing on said lands by cutting and removing timber thereform of the value of $3,525 and had damaged young and growing…

<p>Contract for sale of personal property. — There can be no sale of personal property while the price is undetermined, or when the parties have not agreed upon some means or standard, the application of which to the facts of their transaction will determine the amount to be paid without further negotiations in regard to price.</p>

<p>2. Accident insurance — latest disease — instructions.—When an accident insurance policy limits liability to “bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,” and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury. (Page 95.)</p> <p>2. Accident insurance — latent disease — instructions.—When an accident insurance policy limits liability to “bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,” and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though 'death from the disease might have resulted at a later period, regardless of the injury. (Page 95.)</p> <p>3. Accident insurance — warranties by insured. — Statements made by insured should be construed with reference to the time made unless they expressly or by implication refer to the future, so that when deceased answered questions propounded by the insurance company seventeen years before his death and was not required to answer said or other questions again, such answers will be deemed to apply to conditions as they existed at the time they were originally made. (Page 99.)</p> <p>4. Accident insurance — misstatement by insured as to age. — When a misstatement of insured’s age is inadvertently inserted in the policy by the defendant’s agents, the defendant company can not claim a forfeiture on that account. (Page 99.)</p> <p>5. Evidence — expert testimony. — It is competent for medical expert witnesses, in giving their opinions, to refer to medical authorities, and give in substance the result thereof, the books themselves not being introduced in evidence. (Page 100.)</p> <p>6. Evidence — priviliged communications — waiver.—Where a policy of insurance does not contain any provision waiving the statutory privilege as to the testimony of attending physicians concerning information received in the course of professional employment, the privilege is not waived by plaintiff who introduces an affidavit by a physician of the death of the insured. (Page 100.)</p> <p>7. Penalty — damages and attorney’s fees. — Where, plaintiff complied with the terms of an accident policy by demanding payment and furnishing proof of loss within the time specified in the policy, the defendant company will be liable for damages and attorney’s fees, under the statute which provides that if the company shall fail to pay within the time specified in the policy after the demand therefor, it shall be liable for damages and attorney’s fees. (Page 101.)</p>

Hutton, Judge; STATEMENT BY THE COURT. On November 4, 1904, the appellee and other heirs of Josiah Hawkins brought this suit against appellant to recover the possession of a certain tract of land in Lee County. Josiah Hawkins died in 1890, leaving surviving him the appellee and other children and grandchildren. In their complaint the plaintiffs alleged that their ancestor died intestate, and deraigned title through him from the government.

H. Evans, Judge; STATEMENT BY THE COURT. This suit was brought by the appellee, through his next friend, to recover damages for alleged false imprisonment of the appellee.

<p>Appeal from Miller Circuit Court; Jacob M. Carter, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>On February 17, 1912, J. W. Crow was at Texarkana, Arkansas. His residence was at Marshall, Missouri, where his wife and children were. His father lived at Ashley, Illinois, and died on that date. A message was sent from Ashley, Illinois, to J. W. Crow at Texarkana, which reached there about 6:00 p. m. of the 17th, and read:'</p> <p>“Father died at 3:30” (Signed) Joe.</p> <p>A message was also sent from Ashley, Illinois, to J. W Crow at Marshall, Missouri, containing the same information. At 8:55 P. M. of the 17th Mrs. Crow sent a message from Marshall, Missouri, to Texarkana, addressed to J. W. Crow, reading: .</p> <p>“Received telegram your father is dead. Are you going to Ashley? Wire me particulars.”</p> <p>Prior to the receipt of this message, however, Mr. Crow had dispatched a message from Texarkana to Marshall, reading:</p> <p>“Father is dead. Will leave in morning. Should arrive at St. Louis tomorrow night. You leave on Alton at noon. Meet me at Union Depot waiting room.”</p> <p>This message was filed at Texarkana at 6:30 P. M. and in the course of its transmission, was erroneously sent to Marshall, Texas, instead of Marshall, Missouri. Mr Crow also received another message from Marshall, Missouri, containing the same information as did the others which had been sent to Marshall from Ashley, and was repeated to him from Marshall, Missouri.</p> <p>Mr. Crow left Texarkana the next morning, the 18th at about 6:00 and reached St. Louis about 11:00 that evening. His father’s death took place at Ashley, Illinois, on the 17th at about 2:00 in the afternoon. The .train on which Mr. Crow was travelling was late in reaching St. Louis, so he wired to a brother, who communicated with a brother-in-law at Kirkwood, and arranged that the brother-in-law at Kirkwood should meet Mrs. Crow at the Union Station at St. Louis. He endeavored to do this, but Mrs. Crow did not arrive there. When the plaintiff reached St. Louis he looked around the waiting room for his wife, and inquired at the bureau of information. He also telephoned his brother-in-law at Kirkwood, and learned she had not come. Next morning he telegraphed his wife at Marshall, asking why she had not come. Nothing is said in the record of anything he may or may not have received in answer to this wire from St. Louis. There is testimony tending to show that he could have telephoned to Marshall after he arrived at St. Louis and have reached his wife by telephone, and that she could have taken the,train from there at 2:00 A. M. and have reached St. Louis in time to have accompanied her husband to Ashley on the train, which he did take, and which left St. Louis at 8:30 in the morning. Mr. Crow attended the funeral of his father, but Mrs. Crow did not. The husband sued for damages for $1,000 for being deprived of the consolation and comfort the presence of his wife would have afforded him. The wife sued for the same amount of damages alleged to have been occasioned because she was denied the opportunity of affording the comfort and consolation to her husband, and of attending the funeral. After the funeral Mr. Crow returned to Marshall and spent some time there with his wife and family.</p> <p>J. W. Crow testified, if my wife had received my message she would have arrived at the Union Station in St. Louis at 7 o’clock p. M. and, if my train had been on time, I would have been at the station to meet her. On account of my train being late I did not arrive at St. Louis until about 11 o’clock P. M. I went through the waiting room and found that my wife was not there and, as I had wired my brother from Benton, Arkansas, to come to St. Louis and meet her, I supposed he had come in and gotten her and they had gone out on the train. I went to the bureau of information and asked if there was any word there for me. There was not. I then called up a brother-in-law in Kirkwood, a suburb of St. Louis, but could not get any one there. There was a train which left Marshall at about 2 o’clock in the night time and arrived in St. Louis early in the morning. I stayed over in St. Louis, thinking possibly my wife might come on that train. We had a baby which was being raised on the bottle and, if my wife had come on the night train, she would have had to get on the train about 2 o’clock in the night with her baby and two grips. Ashley, Illinois, was about an hour’s journey by rail from St. Louis and Marshall, Missouri, was three or four hours journey from St. Louis.</p> <p>The jury returned a verdict for J. W. Crow in the sum of $504.77, and in favor of his wife in the sum of $250. From the judgment rendered the telegraph company has appealed to this court.</p> <p>1. “Mental anguish contemplates suffering in mind over the real ills, griefs and sorrows of life.” 83 Ark. 481. The testimony does not sustain the verdict in favor of J. W. Crow on account of mental anguish. The presence of his wife would doubtless have been in some measure a comfort to him, and her absense perhaps produced an unpleasant sensation, but it can not be classed as one of the real ills, griefs or sorrows of life. In the Garlington case, an exceptional one, 142 S. W. 854, this court confessed that it had carried the doctrine of recovery for mental anguish quite as far as it should go. The Griffin case, 92 Ark. 219, should be overruled before it becomes established as a precedent for the recovery of vague damages; but even in that case the elements of distress were, much greater than in this where the wife “was not personally acquainted” with the deceased.</p> <p>2. J. W. Crow was not entitled to recover because of his own Jack of ordinary care, and because of his own contributory negligence. 143 S. W. 1078; 2 Joyce on Electric Law, § 738a, § 821; Jones on Tel. & Tel. Companies, § 197; Cooley on Torts, § 674; 88 Tex. 230; 93 Tex. 117; 92 Ark. 59.</p> <p>3. The verdict in favor of J. W. Crow is excessive. 143 S. W. 854; 90 Ark. 57; 84 Ark. 457.</p> <p>4. The facts clearly show that Mrs. Crow is not entitled to damages. 149 S. W. 557.</p> <p>1. The verdict in favor of Mrs. Crow is clearly justified, aside from her failure to reach her husband and be with him in his hour of distress. 98 Ark. 87; 99 Ark. 117; 98 Ark. 347.</p> <p>2. The right of J. W. Crow to recover on account of being deprived of the presence of his wife, etc., is sustained by the decision in the Griffin case, 92 Ark. 219.</p>

<p>1. Marriage — evidence of general repute. — -In a trial involving the issue of marriage evidence of the general repute of the parties in the community is admissible. (Page 126.)</p> <p>2. Equity — objection to jurisdiction — waiver.—Objection to the jurisdiction of a court of equity, in a suit to recover an interest in certain lands, when the only issue is as to the legitimacy of one of the parties, will be treated as waived if no objection thereto was raised in the court below, and no motion was made to transfer the case to law. (Page 125.)</p> <p>3. Appeal and error — conclusiveness of chancellor’s findings.— Findings of fact made by a chancellor will not be disturbed on appeal unless they are against the clear preponderance of the testimony. (Page 126.)</p>

Elliott, Chancellor; STATEMENT BY THE COURT. Appellant instituted this action in the chancery court against appellee and for cause of action states: That several years ago he entered forty acres of land in the United States Land Office at Little Rock, Arkansas; that before he had completed his entry and obtained a patent and while the title to said premises was in the United States Government appellee brought a suit of ejectment against him in the circuit court and obtained…

H. Evans, Judge; 1. The evidence is not sufficient to sustain the verdict. Mere threats are not sufficient to sustain a conviction. 100 Ark. 344. Identification through the medium of the voice is not sufficient unless the voice itself, independent of extrinsic evidence, is at the time recognized.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>John Kittrell was employed as a driver in what is known as Prairie Creek Mine No. 4, in Sebastian County. On the 14th of September, 1911, while passing through one of the entries to the mine a large quantity of coal fell upon him and broke his back. Since that time he has been paralyzed from his hips down. He brought this suit against the Prairie Creek Coal Mining Company, his employer, to recover damages for his injuries, alleging negligence in the following particulars: That defendant “ carelessly and negligently permitted coal to become loose in the upper rib or side of the entry at the place where Kittrell was required to pass in the performance of his duty as driver;” and had “carelessly and negligently failed to inspect said place; ’ ’ and had ‘ carelessly and negligently failed to remove loose coal from the upper rib and roof.of said west entry;” and had “carelessly and negligently failed to place timbers under the same;” and had “carelessly and negligently failed to notify plaintiff of the said loose coal;” and had “carelessly and negligently failed to employ a competent inspector, a fire boss, whose duty it was to inspect said mines for loose coal,” etc. That the inspector, John McKinney, ‘ did not have sufficient knowledge and experience to be a fire boss and inspector in said mine, and was not of sober habits; that he frequently became intoxicated and went on duty in an intoxicated condition,” which condition “ rendered him incompetent to perform his duties, all of which facts were well known to the defendant. That by these concurring acts of negligence the plaintiff, while in the performance of his duty, received the injury. ’ ’</p> <p>The defendant denied all the material allegations, and set up the defense of contributory negligence and assumed risk. The facts are substantially as follows:</p> <p>Appellee had had eight years’ experience as a driver. Had been working in the mine where he was injured a little over a week. The duty of a driver is to drive a mule attached to a coal car. He usually picks up those cars at the entry where the miners place them, but if the miners are not able to move the car out of the rooms the driver takes the mnle into the room and pulls the ear out. He also hauls timbers and props into the mine. He had no other duties except to haul coal from the mines and to haul timbers and other things in and from the mine. His duties were performed under the directions of his driver boss. No duties of inspection devolved upon him.</p> <p>While the duty of a special inspection of the mine to protect the workers from danger did not devolve upon the driver, it was his duty, as well as the duty of coal diggers and all other employees in the mine, if they observed loose rock or any other dangerous thing during the day while in the performance of their respective duties, to report the same to the foreman or fire boss or some one having authority to remove it. This rule was for the protection of the employees. The driver, during the day, travelled the entry more than any one else, and the rule required that if he observed any danger in the entries or anywhere in the mine he was to report it for his own safety. The company relied upon any one who comes in contact with a danger during the progress of the work to examine and report it, but the duty of regular inspection of - the mine devolved upon the fire boss. He made an inspection every day. His duties required him to inspect the mine generally. He went into the mine about 4 o’clock in the morning. He was to look after the gas and to see that there was no loose rock or coal or anything that would imperil the lives of the employees working in the mine.</p> <p>On the morning of the injury Kittrell was returning from one of the rooms in the mine, driving his car, seated on the left-hand corner, in the usual place for the driver, and as he passed along the entry a large quantity of coal, from 500 to 1,000 pounds, fell upon him, breaking his back and paralyzing him as stated.</p> <p>About a week or two previous the coal was all taken down between rooms 8 and 9. This was four or five yards from the entry between rooms 9 and 10, where Kittrell was hurt. That coal fell down or was pulled down. There was about 3,500 pounds of it.</p> <p>About six weeks before Kittrell was hurt, one of the miners observed that the coal was loose and ready to fall at any moment at the place where Kittrell was hurt. A witness described minutely the condition of this loose coal, showing that there were slips or cracks in the coal; that the same had been shot and was loose. “The top was loose and the dirt underneath crumbled off, and when pulled over from the back part there was a crack in the coal through which one could run his arm behind it.” When coal was loose in the manner described one could discover that it was loose by hitting it with his hand and could tell from the sound that “it was drummy or loose.” There were two layers of coal in the entry, and the crack was about a foot from the top layer; about a foot higher than the dirt band between the two layers.</p> <p>Kittrell didn’t see any crack in the coal between rooms 9 and 10. He didn’t notice any difference in the coal at this place from any other place.</p> <p>Those travelling in the entry and working in the rooms of the mine were furnished light by lamps which they usually carried on their caps. The lamp placed on the cap threw the light ahead so as to enable one to see ahead of Him. Sometimes the lamps were carried in the hand. One going through the entry where Kittrell was hurt would hardly discover the crack in the coal. One witness discovered it because he sounded the coal and saw that it was “feathering out and loose there, and went back and looked for the crack and saw it was loose.” The witness saw the coal was crumbling off at the top and felt and knew that there was something wrong with it. The presence of the crumbling coal led him to believe that the same was loose. He then made an examination and found that same was loose. The witness tested it for possibly twelve feet and found it drummy as far as he tested it. The coal was not bulged or sticking out, but merely loose.</p> <p>Other witnesses who were experienced miners testified that they discovered that there was a crack in the coal at the place where Kittrell was injured. The crack was in the neck of the room and four or five inches in width. One of the witnesses said that a man with a good light could see the crack six or seven feet, maybe ten feet. He could not say whether a man driving a car with a lamp on his head could see the crack or not from his position on the car. Another witness testified that his attention had been attracted to the place by one who had seen it. He discovered it, after he was warned of it, by examining it with his light. He says he could easily have seen it if he had paid any attention to it. “It could easily have been seen if you put a light right up against it. ’ ’ Another witness says that before Kittrell was hurt he noticed a dangerous piece of coal and a crack three or four inches. “It looked dangerous.” The condition of the coal indicated that it was liable to fall at any time. He discovered it by the light of bis lamp when he was pulling a car from the room. The coal stuck out some at this point. He noticed this the first time when he drove in there, which was about a month before Kittrell was injured.</p> <p>Another witness stated that he noticed the crack which started in what he would call the neck of room 9. «He could stick his hand in it. He noticed it while he was passing in the entry and it indicated to his mind that the coal was in a dangerous condition and that it was liable to turn over. “The bottom coal had been shot out from under it and there was nothing there to support it. ’ ’ He said that he discovered it by his light while going in the entry, and that it was not hard to discover going in that way if a man was looking for danger.</p> <p>Another witness testified that about two months before Kittrell was injured he was laying track on second west entry and saw a crack in the rib and it scared him and he tried to pull it out and was unable to do so. He had been a coal miner thirty-five or forty years, and working in this mine off and on for eight years. From his experience as a miner he judged that there was a “squeeze” there. This meant the coal was loose. He says that a good miner could have found this place, and the mine inspector could have seen it. He further testified that the existence of a crack does not always show that coal is liable to fall immediately; that sometimes cracks appear in coal and stay for years and the- coal does not fall. Sometimes cracks appear in coal that do not indicate that the coal would fall immediately, but all cracks are not of that kind, and this was not of that kind. When he attempted to pull the coal down it didn’t look like it would fall immediately unless somebody bothered it. He tried to pull it out by himself but was unable to do so as he was without tools to do it with and without assistance.</p> <p>W. B. Wechell, a witness on behalf of the appellant, testified that he was mine foreman from November, 1910, to the 5th of September, 1911; that he was succeeded a,s foreman by Joe Augurer. He examined every entry in the mine, including second west entry. He didn’t remember exactly the condition of the stump or pillar between rooms 9 and 10 on the 5th of September, 1911. He knew of nothing dangerous about it. He made an examination by just simply going along and looking at the pillars at each side. He didn’t see any crack or other sign that indicated that it was necessary that the coal be taken down between rooms 9 and 10. He says he_ didn’t notice any “squeeze” between rooms 9 and 10. The reason he didn’t see it, he says, was that probably it was not there when he was in there; he didn’t think it was. .He states that there was a fall in the neighborhood of the entry at rooms 9 and 10 about a month before Kittrell was injured. He was informed by the State mine inspector that there was a squeeze on in certain parts of the mine, but didn’t remember whether he included second west entry or not.</p> <p>Witness Joe Augurer testified that he was mine foreman of appellant on the day that Kittrell was injured. He was in the second west entry sometimes twice a day. He would make inspection of all entries as he would come in. He was asked if anything was wrong with second west entry and answered, “No more than any other entry that I could see.” He didn’t observe any danger in this entry between rooms 9 and 10 before the accident. He states that the presence of a crack in the stump would not necessarily show that the mine was dangerous. It might show it. When a crack appears you can not always pull the coal down; sometimes you can and other times you can not. No one notified him of the dangerous condition of the entry before the accident. He did not see the crack in the second west entry about the neck of room 9; “didn’t look for cracks, along there.”</p> <p>Other witnesses testified that they worked in the -mine, and if there was any dangerous condition of the coal between rooms 9 and 10 they did not see it. One witness testified that he passed rooms 9 and 10 often; that he saw the rib while he was working there before this accident and saw nothing wrong with it. He didn’t inspect it.</p> <p>The inspector testified, on behalf of appellant, that he inspected the second west entry on the day that Kittrell was injured. He says: “There was lots of loose coal in the second west entry, but it didn’t look to me like it was dangerous. The second west entry was not dangerous to my idea of mining. Nobody ever told me anything about this mine being dangerous. I have knowledge enough and had eyes to see things that were dangerous. In making the inspection as fire boss I had a Wolf lamp and a Davy lamp. I guess I kept it in good condition. I always clean the lamps and keep them in good condition.” On cross examination this witness testified in part as follows: “I laid off about September 3. They stopped my pay and I had to quit. I was not laid off because I was drunk. I laid off and sent another miner to take my place. It is not true that I was laid off because I was drunk. I was never laid off in my life. I never got fired in my life. Sometimes the best of us get drunk. It takes a good deal to make me drunk. I don’t believe I was drunk five times at Prairie Creek mine in my fife.” He was asked if a little drink would make bim drunk and answered, “Yes; about sixteen gallons,” and said that he drank both Scotch and rye.</p> <p>A witness, Mrs. Fannie Morgan, testified on behalf of appellee, in rebuttal, over the objection of appellant, in part as follows: John McKinney boarded at her house when he was fire boss. He quit soon after John Kittrell was hurt. He boarded at her house about six weeks before that. He was drinking more or less all the time he was at her house. There were more nights that he came in real drunk than when he was not drunk. He was supposed to go on duty at 3 o’clock. He generally left her house about 2 o’clock in the morning.</p> <p>We will refer to such of the instructions as it is necessary to comment upon in the opinion. The verdict and judgment were in favor of the appellee in the sum of $8,000, and appellant duly prosecutes this appeal.</p> <p>1. The motion to quash the service of the summons should have been sustained, because (1) the service was on a holiday, February 22, Washington’s birthday. Kirby’s Dig., § 501; 18 Ark. 534. (2) The service was not had a sufficient length of time, ten days, before the commencement of the term of court. If it be held that service on February 22 was a valid service, it does not follow that that day should be counted as one of the days contemplated by the statute. Kirbv’s Dig., § 6111; Id. § 7822; Id. § 501; 142 Cal. 441; 34 Kan. 212; 303 Ya. 494, 49 S. E. 643.</p> <p>2. The complaint was indefinite. 32 Ark. 315; 38 Id. 393; 60 Id. 39; 66 Id. 278; 77 Ark. 351.</p> <p>3. No negligence is actionable unless it is the proximate cause of the injury. Thompson on Neg., § 4863.</p> <p>4. Where there is a sharp conflict in the testimony, the court should not, as a matter of law, decide issues of fact. 75 Ark. 468; 95 Id. 48, 506; 97 Id. 560; 99 Id. 377; 100 Id. 433.</p> <p>1. The motion to quash, to make complaint more specific and to strike, etc., are not made grounds of the motion for a new trial. 59 Ark. 599; 46 Id. 17; 64 Id. 483; 82 Id. 242; 72 Id. 250; 79 Id. 176.</p> <p>2. Admission' of incompetent testimony is harmless if the. fact * * * is otherwise established by competent testimony. 74 Ark. 417; 76 Id. 276; 78 Id. 7; 79 Id. 338; 88 Id. 484.</p> <p>3. As to the instructions, the court properly followed 95 Ark. 477; 87 Id. 217.</p>

<p>Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge;</p> <p>1. 96 Ark. 424 and 149 S. W. 66 are not conclusive of this case. As no appeal is allowed by the act, certiorari is the only remedy. 52 Ark. 220, Kirby’s Dig., § 1315; 25 Ark. 476; 14 Id. 337; 20 Id. 581; 21 Id. 265; 80 Id. 200.</p> <p>2. The findings of the board are conclusive only on collateral attack. 96 Ark. 424 ; 32 Id. 553; 55 Pac. 156; 27 Atl. 166.</p> <p>3. The board is an “inferior tribunal;” its acts are “g-wasi-judicial” only; and its acts are reviewable on certiorari. 16 Cal. 298; 70 Ark 568, 589; 6 Cyc. 770; 61 Ark. 605; 62 Id. 196-201; 70 Id. 568-589; 96 Id. 410; 78 Id. 432; 198 U. S. 253.</p> <p>1. The finding of the board is not reviewable. 149 S. W. 66; 104 Ark. 425; 96 Ark. 424; 59 Id. 513.</p> <p>2. The demurrer was properly sustained, no cause of action being stated. 33 Ark. 117; 35 Id. 95; 73 Id. 604.</p> <p>3. No fraud is alleged except argumentatively. 90 Ark. 29.</p> <p>' 4. Where the Legislature has created a tribunal to ascertain and declare a certain result, and no provision for an appeal is given, the action of such tribunal is final. 96 Ark. 424; 170 TJ. S. 304; 164 Id. 112.</p> <p>5. Certiorari does not lie, where the action of a board is purely legislative,, executive or administrative, although its action involves the exercise of discretion. 62 Ark. 196; 70 Id. 568, 99 U. S. 761; 80 N. W. 942; 29 N. W. 77; 89 Ark. 604.</p>

Garter, Judge; Where a renewal note is given with the express understanding that it is taken in satisfaction or payment of a former note, such renewal note constitutes in law a new debt and the old note is thereby paid, and this- is true whether the renewal note is given by the original maker or given in his behalf by some third person. 75 Ark. 354; Id. 559; 2 Ark. 209-226; 30 Cyc. 1194-1197; 36 Cyc. 1199-1200; 30 Cyc. 1202, 1205; 8 Ark. 213; 7 Cyc. 877, 878; Id. 882-883; 48…

Coivling, Judge; Tbe action of tbe trial court in refusing to require tbe prosecuting witness to answer the question whether or not she had ever had intercourse with any other man than the defendant, was correct. In a prosecution for carnal abuse the chastity of the prosecuting witness is not in issue, but if it were so, it would be improper to require her to testify to matters that would tend to incriminate or disgrace her. 15 Ark. 624; 93 Ark. 260.

<p>AjJpeal from Randolph Chancery Court; George T. Humphries, Chancellor;</p> <p>The burden of proof is on the party alleging that a deed which is absolute on its face was intended as a mortgage, and such proof must be clear, unequivocal and convincing, some jurisdictions even going to the length of holding that it must be beyond a reasonable doubt. 88 Ark. 299; 27 Cyc. 1025b; 187 Mo. 46; 45 Mich. 533; 61 N. Y. App. Div. 315.</p> <p>Under the evidence the deed to appellee, coupled with the stipulation to reconvey, or allow appellant to redeem within one year, constituted, not a mortgage, but rather a conditional sale. 35 Am. St. Rep. 868; 27 Cyc. 998; Id. T010.</p> <p>The redemption agreement wás itself void, not being contained in the face of the- deed and Kraft had no authority to bind his principal in snch an instrument. 27 Cyc. 1000. The instrument given, if avowedly a mortgage, would have been ground for- bankruptcy. Fed. Cases, No. 6603; 2 Hask. 90; 27 Cyc. 1051; 22 Am. Dec. 212; 16 N. J. Eq. 189.</p> <p>1. The evidence makes it certain that there was no absolute sale of the property, and that the transaction was intended to secure the debt which appellant then owed appellee is equally certain. As to what is a mortgage, see 15 Am. & Eng. Enc. of L (1 ed.), 727, and authorities cited in Words & Phrases, vol. 5, title, “Mortgage.”</p> <p>2. A chancellor’s findings, while not conclusive, will not be disturbed unless against the clear preponderance of the evidence. 68 Ark. 314; 71 Ark. 605; 63 Ark. 134; 73 Ark. 489; 67 Ark. 200; 77 Ark. 305; 100 Ark. 555; Id. 433.</p>

<p>I. Carriers — penalty for overcharge op pare. — When plaintiff asked for a round-trip ticket from Little Rock to Hot Springs, and paid the proper amount for the same, hut by an honest and unintentional mistake the railway company’s agent gave him a round-trip ticket to Benton, with no intention to charge or receive more than the legal rate, the statute exacting a penalty for overcharging does not apply, and the railway company is not liable for any penalty thereunder. (Page 173.)</p> <p>a. Carriers — -damages por selling incorrect ticket. — A carrier, whose agent delivers an incorrect ticket to a passenger applying for same, is liable for damages resulting to the passenger because of its mistake and failure to furnish the correct ticket. (Page 174.)</p>

The appellant brought suit in replevin against appellees, the Board of Trustees of the State Agricultural School of the First District of Arkansas, for certain machinery installed by it in the school building at Jonesboro for the lighting thereof.

Hays, Judge; STATEMENT BY THE COURT. J. H. Bird, as next friend of Wharton Bird, brought this suit in the Union Circuit Court against appellant to recover damages for injuries to Wharton Bird alleged to have been caused by the negligence of appellant. Judgment was rendered in favor of the appellee in the sum of $11,000.

Smith, Judge; STATEMENT BY THE COURT. Appellee brought suit for damages for malicious prosecution against appellant, alleging that she had maliciously and without probable cause sworn out a search warrant before a justice of the peace of Lawrence County, charging that certain of her wearing apparel had been stolen and she suspected it was concealed in the house occupied by appellee and that under said warrant the constable searched her house and the trunk mentioned in the…

E. Jeffery, Judge; STATEMENT BY THE COURT. Some time in the year 1894 or 1895, petitioner, P. T. Mantooth, married Mary Turner, who lived at that time in Jackson County with respondent, Mary Vaught. Respondent had partially reared Mary Turner and had treated her as a mother would treat her own child. Some time after the marriage Mantooth and his wife moved to Franklin County, where they lived together until December, 1899, when they separated.

Robertson, Chancellor; STATEMENT BY THE OOTJRT. This suit is over an undivided one-half interest in and to the southeast quarter of the southeast quarter and the north half of the southwest quarter of the southeast quarter of section 22, township 2 north, range 1 east, in Lee County.

E. Jeffery, Judge; 1. The court erred in permitting the introduction of irrelevant testimony. The testimony as to the signing of Mrs. Baulch’s name and as to the engagement were attempts to impeach the witnesses by contradicting them upon immaterial matters, which is not permissible. 34 Ark. 485; 58 Ark. 125; 59 Ark. 435; 72 Ark. 409. 2.

Elliott, Chancellor; STATEMENT BY THE COURT. Held: nor of the fact that it was necessary to produce proof, and no question is raised as to the conduct of her attorney in withdrawing from the case, nor is there any claim of fraud practiced upon her by appellee or his attorneys. 104 Ark. 562; 14 Ark. 32; 13 Ark. 600; 66 Ark. 183; 104 Ark. 127.

9 I. C. C. Bep. 602. A mistake of the agent or agents of the railway companies would not relieve the companies of the duty to collect the freight due according to the tariffs. 27 Ark. Law Bep. 126, and cases cited.

W. Wells, Judge; The court erred in striking from the answer and cross complaint the allegation that plaintiff, after contract with defendant, became a member of a pool to control prices of cotton seed in Arkansas, etc. The rule is conceded that a collateral contract is not affected by an illegal combination in restraint of trade of one of the parties in violation of either the common-law, the Sherman anti-trust law or the State statute of January 23, 1905. 184 U. S. 540; 91…

<p>Appeal from Crittenden Chancery Court; Charles T. Coleman, Special Chancellor;</p>

This is a suit by appellee against appellant to recover damages for a breach of a covenant of warranty. J. F. Copelin, the husband of appellee, Mrs. Esther Copelin, bought a tract of land from appellant, J. H. Brawley, and had the title taken in his wife’s name. The deed is as follows: .

Judge; •statement by the court. Appellee was indicted for the crime of knowingly receiving stolen property, and charged with having received one suit of clothes, the property of Mrs. Diehl, of the value of $15, a gold cross and chain, of the value of $12, the property of Crie Ozier, one umbrella, the property of T. A. Wright, of the value of $12, one gold bracelet, the property of Kathleen Doyle, of the value of $15, and forty rare coins, the property of Levi Spitzberg,…

For the appellant to have accepted appellees’ tickets as valid transportation on its train from Stuttgart to England by way of Altheimer would have been a discrimination in their favor and a violation of the law. Kirby’s Dig., § § 6722, 6804, 6813. The act of appellant’s agent in accepting the tickets on its train from Stuttgart to Altheimer as valid transportation was not binding on the company.

Hays, Judge; STATEMENT BY THE COURT. This suit was commenced on July 3,1911, by George E. Dilley, who resides in Palestine, Texas, and does business there under the name of George M. Dilley & Son, against the appellee, J. A. Thomas, to recover liquidated damag’es for the violation of a contract of sale of a lot of gin machinery, entered into by appellee with the appellant on the 21st day of April, 1911.

J. Driver, Judge; 1. There was no evidence to sustain the charge of running a “blind tiger.” There was nothing secret or “sly” about the sale; it was not clandestinely made. 42 S. E. 274; 45 Ark. 175; 42 S. E. 720. 2. The sale was made in Tennessee according to the agreed statement of facts, which is made part of the record. 104 Ark. 240 ; 95 Id. 381. 1.

Appellant was convicted of the crime of gaming and appeals to this court. The.evidence tends to show the following facts: The appellant, with three other persons, went to a certain room in the town of DeWitt about 12 o’clock at night. They found a deck of cards in this room. They were not on their way home. In fact, appellant was going in the opposite direction. A disturbance took place in the room and the sheriff was called upon to quell it.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant was convicted upon an indictment charging him with running a dramshop and drinking saloon in the Osceola District of Mississippi County, without a license. It appears from the testimony that Robert Dixon bought either a pint or a quart of whiskey from appellant’s bar on a steamboat called the Harry Lee. The purchase was made from the barroom on said boat where they had many kinds of whiskey and beer for sale.

Petition for mandamus to; Charles D. Frierson, Chancellor; The ruling of this court upon the motion to dismiss thé appeal was a binding adjudication of that question, and the lower court had no authority except to obey the mandate of this court and to dismiss the complaint as against Hopson.

J. Driver, Judge; 1. The statute is mandatory. The finding of fact by the court is in the language of th» statute, and when, having heard the evidence and found that the organization of the proposed district “will be to the advantage of the owners of real property therein,” he could not ignore “the best interest of the owners of real property” therein and dismiss the petition.

Robertson, Chancellor; The order directing the holding of the election was invalid because it fixed the time for the election more than fifteen days from the date of the order. Kirby’s Dig. § 7669; 48 Ark. 239; 61 Ark. 259; 51 Ark. 34.

Cowling, Judge; This court bas never beld that where one party violates a contract the other can also violate it and then sue and enjoy the benefits of the contract. In this case, if the facts at the time the suit was brought were not such as to entitle the appellee to prevail, he could not maintain the suit, and the court erred in refusing to instruct the jury to that effect. The suit was prematurely brought. 22 Ark. 572, 580; 39 Ark. 442, 447; 40 Ark. 545, 548; 85 Ark. 246.

<p>1. Principal and agent — personal liability of agent — instructions— specific objections. — An. objection to an instruction that an agent is personally liable on a contract that he makes for his principal and which contract is not legally binding on his principal, must be specific, not general. (Page 320.)</p> <p>2. Witness — evidence—testimony given at another trial. — B. sued a corporation in the Federal court for damages for breach of a contract made with its agent R., but finding that R. had no authority to make the contract B. took a nonsuit, and sued R. in the State court. Held, when R. reads in evidence in the State court portions of B.’s testimony in the Federal court for the purpose of contradicting B., R. can not be heard to complain when B. reads in evidence other portions of his testimony given in the Federal court which appear to reconcile the contradictions. (Page 319.)</p>

Martineau, Chancellor; STATEMENT BY THE COURT. The Attorney General, proceeding under Act No. 112, entitled, “An Act for an annual franchise tax on corporations doing business in the State of Arkansas” (Acts of Arkansas, 1911, page 67), brought this suit to recover the franchise tax levied against the St. Louis Southwestern Eailway Company by the Arkansas Tax Commission under the provisions of said Act for the year 1911.

Frierson, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellants against appellee Durbin, for specific performance of an alleged contract for the sale of certain land in Clay County. The complaint alleged that Durbin entered into an oral contract with Chas.

J. Driver, Judge; STATEMENT BY THE COURT. The indictment in this case charged that the defendant, Ambrose Kinnanne, using and controlling a certain steamboat on the Mississippi river, called the Harry Lee, did unlawfully on said boat by device and stratagem sell intoxicating liquors. Ned Ayers, for the State, testified: Some time during the year prior to the 10th day of May, 1910, the steamer, Harry Lee, landed near Osceola, in Mississippi County, Arkansas.

E. Jeffery, Judge; STATEMENT BY THE COURT. This is a suit brought by the appellee against appellant and one John A. Bush, upon their joint note for $1,000. The note was signed by the firm of Bush & Lamew and by W. L. Lamew and John A. Bush individually. There was no service upon Bush, but service was had upon Lamew.

Button, Judge; STATEMENT BY THE COURT. Appellants, claiming to be tbe children and sole heirs at law of Drew S. Foster, deceased, brought suit in ejectment against the appellee, alleging that said ancestor was the owner of the eighty acres of land, describing it, in his lifetime, having acquired the same by donation deed from the.State of Arkansas; that the land was occupied as his homestead; that he died seized and possessed thereof, and that appellee was in possession…

E. Jeffery, Judge; 1. The claim was assigned “without recourse” and thus the assignor was relieved of all liability for failure to realize on the claim, 62 Ark. 595. 2. Parol evidence is not admissable to vary or contradict a written instrument. 67 Ark. 494 ; 73 Id. 431; 4 Cyc. 111. The testimony of T. J. Jones was hearsay merely. 3. The court erred in its instructions, citing 6 S. R. A. 279; 52 Fed. 705; 3 Suth. on Damages, §761.

8. Maples, Judge; 1. There was no duty upon appellant to make an inspection for the purpose of seeing whether the nut attached to the top of the rod cup was perfectly square on all its corners, nor any negligence in sending out an engine having thereon a nut one corner of which might have been worn away. 1 Bailey on Master & Servant (2 ed.), § 251; 76 N. W. (Mich.), 497; 112 N. W. (Neb.), 318; 38 S. E. 876; 82 S. W. 319; 98 Fed. 192; 104 N. W. (Ia.), 577; 106 N. W. (Wis.),…

Gotham, Judge; 1. The conduct of tbe prosecuting attorney in recalling the witness Bluitt and questioning him as to specific acts, and particularly the question as to whether or not he had been convicted of petit larceny, etc., was an effort to discredit the witness before the jury by improper questions, and was necessarily prejudicial; and the mild statement of the court was not sufficient to eradicate the injurious effect of it. Id. (State v.. Coulter); 100 Ark. 561. 2.

The license fee provided for by the ordinance in question is not. unreasonable, considering the population of the city of Fort Smith and the number of hotels and other houses for public entertainment therein, and is, therefore, not a tax for increasing its revenues. 52 Ark. 301; 56 Ark. 370; 70 Ark. 28. 2.

Lea, Judge; STATEMENT BY THE COURT. This is a suit by the appellee against the appellant for personal injuries.

Grace, Judge; STATEMENT BY THE COURT. This was a suit by appellant against appellee for damages on account of personal injuries alleged to have been sustained by reason of the carelessness and negligence of appellee’s agents in running appellee's passenger train No. 137 “up to and near the depot at the station of McGehee, in Desha County, Arkansas, in the night time, without ringing any bell to give a warning of its approach.” And, further, that appellee was negligent “in…

, Appeal from Greene Circuit Court; Frank Smith, Judge; 1. The term “board measure” bas a generally well understood meaning, and has for its unit the “board foot,” which is “a board one foot long, one foot wide and one inch thick, but in reality is equivalent to 144 cubic inches of manufactured lumber in any form.” 10 Enc. Brittanica (11 ed.), 658.

<p>Mortgage — duty to insure — damages.—PlaintiH loaned defendant money to erect a building, with a provision in the mortgage that the mortgagor was to procure fire insurance on the property, with a right to mortgagee to do so if the mortgagor did not. The mortgagee procured the insurance with a three-fourths loss clause instead of a three-fourths value clause therein. The property was destroyed by fire. Held. In the absence of an agreement between mortgagee and mortgagor as to the kind of insurance to be placed on the property, that the mortgagee was entitled to recover from the mortgagor the amount of mortgagee’s loan to mortgagor not realized from the insurance.</p>

T. Wood, Chancellor; The evidence is against contention of appellee. Appellee was not the owner of the note at the time of rendition of decree in his favor. A personal decree was rendered against the. widow, who signed note and mortgage, and record does not show that it was such a contract as she was competent to make. 66 Ark. 113. Allen Trihue, Jr., did not sign the note, and no personal judgment could go against him.

Evans, Judge; 1. The court erred in refusing to transfer to the Federal court. Congress has no power to confer jurisdiction upon a State court. The exception in the employers’ liability act as amended April 5, 1910, attempting to deprive a defendant of the right of removal to the Federal court is clearly unconstitutional. Art. 3, § § 1-3, Const. U. S.; 36 Fed. 337-355; 33 Fed. 84, 85; 1 Wheaton, 304-327; 98 Fed. 833-837; 165 TJ.

We think the case of Reese v. Steel, 73 Ark. 66, is decisive of this case against respondent’s' contention. The circuit court has the right and the power conferred on it by the Constitution and the statutes, to issue a restraining order under the conditions and circumstances prevailing in this case. Art. 7, § 14, Const.; Kirby’s Dig. § § 1314,1317,1318,1319, 1523. And Reese v. Steel, 73 Ark. 66, sustains respondent’s contention.

Reed, Judge; 1. Negligence can not be predicated upon appellant’s allowing the rolling stone to remain on the side of the embankment. 86 Ga. 231, 12 S. E. 307; 97 Pac. 28; 104 S. W. 956. 2. That the pathway was not wide enough, if such was the fact, was not the proximate cause of the injurv. 41 Ark. 393; 194 Pa. St., 44 Atl., 1069; 129 N. T. 669, 29 N. >E. 825; 155 111. App. 194. 3. Appellee assumed the risk. 107 Ky. 223, 51 S. W. 580; 98 Ark. 202; 82 Ark. 11.

E. Jeffery, Judge; Appellant’s motion for an instructed verdict should have been sustained because there is a fatal variance between the description given in appellee’s affidavit and the writ and the description of the hog as shown in the proof. Kirby’s Dig. § § 7886, 7887; 37 Ark. 55; Kirby’s Dig. § 6854; 44 Ark. 308; 16 Ark. 90; Wells on Replevin, 461, § 171; Id. 155, § 173. The variance between the age of the animal alleged and the proof is fatal.

N. Hutton, Judge; 1. If the defendants were operating the hospital department for gain and profit, they can not escape liability on the ground that such acts were not within the scope of the powers granted under the articles of incorporation, and, therefore, ultra vires and void. 91 Ark. 367. 2.

On November 4, 1911, Fayette Leonard was indicted in Independence County for the crime of illegal cohabitation. He was convicted and fined in the sum of fifty dollars, and appeals to this court. Pearl Gilbert, the girl with whom appellant was alleged to have lived in illegal cohabitation, testified that she knew Leonard in 1910 and 1911. She stayed at the house, with him and was not his wife. Witness DeCamp was the marshal of the town of Batesville. He knew Leonard in 1911.

<p>Criminal law — former conviction. — Where defendant is indicted and convicted for the crime of illegal cohabitation, the plea of autrefois convict will not be sustained to a second indictment when the second indictment and proof show the acts of illegal cohabitation to have occurred subsequent to the date of the former Indictment.</p>

<p>Master and servant — joint contract op employment. — Appellant and the Iron Mountain railway company employed a joint agent at Ken-sett, the Iron Mountain railway paying him his wages, and appellant accounting to it for one-half same. The agent became sick, and the Iron Mountain railway wired appellee to take his place as agent; appellee had knowledge of the arrangement between the two roads; the appellant, for convenience, checked in appellee as agent, out the Iron Mountain railway.did not; the Iron Mountain railway, however, tendered appellee the full amount due the joint agent; appellee refused to accept same, but sued appellant for the full amount due the agent and penalty for failure to pay same promptly. Held, under the contract between the two roads, of which appellee had knowledge, he became joint agent when notified by the Iron Mountain railway, and accepted the position; and being tendered the full amount due him as agent under the joint agency contract, he has no claim for wages which he could enforce against the appellant; and that his being checked in as agent by the appellant was for convenience only and did not render the appellant liable for wages.</p>

Reed, Judge; 1. The note being accommodation paper and not used for the purpose for which it was executed, appellants are not bound by it. 65 Ark. 209; 95 Ark. 368; 53 Fed. 875; 1 Denio (N. Y.) 583; 1 Duvall, 415; 35 Conn. 372; 34 Ind. 251. The case of Evans v. Speer Hardware Company, 65 Ark. 204, relied on by appellee in the lower court is not analogous to this on the facts, and is not an authority against appellant’s contention. 2.

S. Maples, Judge; STATEMENT OE EACTS. Appellee brought suit against appellants and five others, who did not appeal here, in justice court, alleging that each of the said appellants was indebted to it in the sum of $100 for subscriptions to the capital stock of the corporation. It alleged in the complaint against Gr.

Elliott, Chancellor; STATEMENT BY THE COURT. Appellant brought suit against appellee in the chancery court of the southern district of Prairie County. Afterward, appellant dismissed his suit, and the following is the record entry of dismissal: “On this day this cause coming on for hearing, comes the plaintiff herein by his attorneys, Manning & Emerson, and on motion of plaintiff, this cause is dismissed at plaintiff’s cost.

Garter, Judge; STATEMENT BY THE COURT. The complaint, in substance, alleged: Plaintiffs are doing a brokerage business in Monroe, La. Appellee is an Arkansas corporation, doing business at Arkadelphia, Ark. On January 30,1911, plaintiffs acted as merchandise brokers for local customers, and were agents for defendant at Monroe, La., and purchased from defendant two cars of chops which defendant billed from its mills to plaintiffs at Monroe, La., shippers ’ order.

H. Evans, Judge; STATEMENT BY THE COURT. This suit was brought by appellee against appellant in replevin for one gray mare, which appellee alleged he purchased of appellant, giving him as a consideration therefor one note for $58.50, which had been executed by appellant to appellee, and also an account of appellant to appellee, the note, interest and account amounting in the aggregate to about $70.00.

<p>1. Gaming — exhibition of gaming device. — One who shows a table especially prepared for the game of “craps,” for the purpose of attracting bettors, and who retains a certain per cent of the bets for the benefit of the person who ran the gaming house, is guilty of exhibiting a gaming device under section 1732 of Kirby’s Digest. (Page 490.)</p> <p>2. Gaming — exhibiting gaming device. — A jury may properly infer that defendant is interested in exhibiting a gaming table when it appears that defendant owned the house and that the table had been exhibited there for some time; that fines were regularly paid on the same, and that defendant once gave orders concerning the closing up of the gaming house. (Page 490.)</p> <p>3. Misdemeanor — accessory.—It is not error for the trial court, in instructing a jury in á prosecution for exhibiting a gaming device to read section 1560 of Kirby’s Digest, which defines who is an accessory to a crime, but told the jury that there are no accessories in misdemeanors, and that any one guilty at all is a principal. (Page 491.)</p>

Appellee, tbe administratrix of tbe estate of tbe deceased, brought suit for tbe benefit of berself and minor' son against appellee for damages for tbe wrongful death of her husband, Lloyd George Fithian, alleged to have been caused by tbe negligence of tbe railroad company.

Martineau, Chancellor; STATEMENT BY THE COURT. This is an action brought by G. L. Grant, a member of the House of Representatives of the present General Assembly, against Joe Hardage, as Speaker of the House of Representatives, to enjoin him from declaring Amendment No. 13, submitted at the last general election, under authority of Amendment No. 10, adopted as required by section 718, Kirby’s Digest.

Evans, Judge; The effect of the Act of 1905 is not, as held by the lower court, to make the delivering carrier liable for damages to shipments caused by the negligence of the initial carrier, but is merely declaratory of the common carrier law as announced by this Court, namely: that the delivering carrier is prima facie liable; but this presumption of liability may be overcome by proof.

Act 318, Acts 1911, §§ 3, 10, 23. 1. Plaintiffs have not the legal capacity to sue, hence, the suit not being brought by the proper party plaintiff, the demurrer was well taken. Act, § -2. 2. The petition does not state facts sufficient to constitute a cause of action. It is not alleged that a warrant, signed by the chairman of the board was presented for payment, nor that there is in the treasury funds sufficient to pay all outstanding warrants of a lower number.

Elliott, Chancellor; 1. The land involved was the homestead of the appellant, and the foreclosure under the power of sale clause in the mortgage was not valid. Kirby’s Dig., §§ 3710, 3713; 36 Ark. 545; 38 Ark. 112; 43 Ark. 429; 48 Ark. 539; 54 Ark. 9. 2. The appraisement required by statute was never made, and a debtor or mortgagor can not waive such requirement. Kirby’s Dig., §§ 5111, 5112, 5113. 3.

H. Evans, Judge; 1. Under tbe circumstances of this case, where it is shown that the plaintiff, with knowledge of the presence and situation of the engine, and while the engine was stopped at some distance from the crossing, drove thereon, negligence can not be imputed to the engineer if, while the plaintiff was driving over the crossing, he started his engine to moving away from the crossing and in doing so made no greater noises and allowed no greater escape of steam from…

49 Am. St. Eep. 162. Appellee was.not employed for any definite time, hence, even without an express reservation of the right to withdraw the offer, appellant had the right to revoke his authority at will before he produeed a customer able, ready and willing to buy. 89 Ark. 415.

Garter, Judge; STATEMENT BY THE COURT. The complaint alleged that on the 24th day of March, 1912, the appellee went to appellant’s depot at Bierne about two hours before the passenger train was due, for the purpose of taking passage to Prescott; that he applied at the ticket windoAv for a ticket, stating that his purpose in asking for a ticket at that time Avas to gain admittance to the Avaiting room as it was a cold and disagreeable day.

Barber, Chancellor; STATEMENT BY THE COURT. The appellant sued the appellee in the Dallas Chancery Court to restrain him from collecting taxes assessed against the capital stock and surplus of appellant for the year 1911. The appellant is a domestic corporation, organized on the 16th day of January, 1905. The certificate of incorporation named Fordyce, Arkansas, as the domicile of appellant. Appellant is doing a fire insurance business in Arkansas and elsewhere.

S. Maples, Judge; STATEMENT OF FACTS. The appellant set up in her complaint that she suffered mental anguish and that appellee was liable for damages to her on account of the negligent failure to deliver a telegram sent to her from Brushton, N. Y., by her niece notifying her of the death of her only sister, whereby she was deprived “of sending counsel and consolation to her deceased sister’s children.” Appellant introduced evidence tending to show that the appellee…

Shaver, Chancellor; STATEMENT OP PACTS. On the 28th day of August, 1904, John Mobbs departed this life intestate, leaving him surviving as his widow, L. L. Mobbs, and as his minor children and only heirs at law, Frank Mobbs, May Mobbs and Elmer Mobbs. Tbe only property be owned at tbe time of bis death was bis homestead situated in Sevier County, Arkansas.

The date of a negotiable instrument is prima facie evidence of the time when it was executed. 2 Enc. of Evidence, 426. 2. A note executed on Sunday may be ratified by a later promise on a week day to pay it. Appellee by his promise later given and by his conduct in retaining the policy ratified the notes in question. 44 Ark. 74; 57 Ark. 483; 85 Ark. 473; Bishop on Contracts, § 487. 1.

F. Taylor, Special Judge; STATEMENT OP PACTS. Appellant brought suit in the circuit court to recover an attorney’s fee of $100 for services rendered appellee.

Court, Western District ; J. S. Maples, Judge; STATEMENT BY THE COURT. This is a suit for damages for personal injury, alleged to have been caused by the negligence of the railroad company in the use of a defective glass water gauge, or one not properly protected by wire netting. It denied any negligence on its part and pleaded assumption of risk in bar to appellant’s right to recover.

Martineau, Chancellor; A deed absolute on its face is presumed to be what it purports to be and evidence to overcome it must be clear, unequivocal and convincing. 88 Ark. 299; 75 Ark. 551. Appellees knew what sort of an instrument they signed, and if they did not they are responsible for the omission. 71 Ark. 185.