Volume 107 — Arkansas Reports

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT BY THE COURT. This suit was instituted as an action to redeem from a deed, absolute on its face, which, it is alleged, was intended as a mortgage.

Barker, Chancellor; A mortgage by the wife of her lands to seeure her husband’s debt is valid. Kirby’s Dig., § 740; 34 Ark. 17; 45 Ark. 117; 70 Ark. 516. 2. The evidence does not sustain the defense that Mrs. McGoogan was forced or unduly influenced by her husband to sign the mortgage.

Petition for mandamus. STATEMENT OE EACTS. The petitioner asks a mandamus from this court to compel respondent, Judge of the Eighth Judicial Circuit, to cause the circuit clerk to reinstate on the common law docket case No. 1090, wherein petitioner was plaintiff and the Texas & Pacific Railway Company was defendant, and to compel the respondent, as circuit judge, to proceed to try said cause anew.

Evans, Judge; STATEMENT OR RACTS. Appellant brought this suit in the circuit court against appellees, the directors of the Crawford County Levee District, to recover taxes which he alleges were illegally assessed against his land, and which were paid under protest by him. The Crawford County Levee District was created by the Legislature of 1909. See Acts of 1909, page 159.

<p>1. Venue—-motion foe change of—discretion of court—evidence.— When defendant filed a motion for change of venue with supporting affidavits, and the court examined the affiants orally, it was no abuse of the court’s discretion to overrule the motion, when the • knowledge of affiants did not extend to the whole county, and their examination did not disclose any such state of prejudice existing in the district as would prevent the defendant from receiving a fair and impartial trial therein. (Page 30.) '</p> <p>2. Liquors—venue—selling without a license.—Selling liquor without a license on a boat west of the middle of the Mississippi river, off the shore of Mississippi county, is selling liquor in Arkansas without a license. Kinnanne v. State, 106 Ark. 286, cited and approved. (Page 30.)</p> <p>3. Judgments—records of court—proof of same—evidence.—In a trial under an indictment for selling liquor without a license it is competent to show that defendant has been twice convicted of the same offense, and the clerk of the circuit court may read in evidence the records of said court showing the judgments rendered upon the former trials. The judgment of one conviction may be read in evidence, although not written on one page of the record.. (Page 31.)</p> <p>4. Bill of exceptions—purpose of.—The office of the bill of exceptions is to bring upon the record matters which do not appear upon the judgment roll or record proper, and errors which were committed by the court on the trial, not mentioned in the bill of exceptions, can not be reviewed on appeal, although set out in the motion for a new trial. The use of the bill of exceptions is to assign errors already committed by the court, except when relief is asked because of newly discovered evidence. (Page 32.)</p>

<p>1. Indictment—statutory offense.—An indictment charging a statutory offense, which follows the language of the statute will he held good on demurrer. (Page 36.)</p> <p>2. Liquors—illegal sale of—venue.—Kinnanne v. State, 286, cited and approved. (Page 36.)</p> <p>3. Liquors—selling without license.—When the proof shows the sale of four bottles of beer to one customer, the beer being kept in an ice box, there being no counters or other bar-room fixtures, the proof is sufficient to sustain a verdict of guilty under an indictment charging that defendant “did unlawfully keep a dram-shop and drinking saloon without first procuring a license from the county court * * (Page 36.)</p> <p>4. Bill of exceptions—assignment of errors.—Assignments of errors which should properly appear in the bill of exceptions, but which appear only in the motion for a new trial can not be considered on appeal. (Page 38.)</p>

W. Meeks, Judge; Upon the dismissal of the appeal by the circuit court a cause of action arose against the makers of the bond. The complaint states a canse of action. 6 Am. & Eng. Ann. Cases 465; 62 N. W. 297; 15 'N. W. 708; 31 N. E. 812; 58 N. W. 949.

Appellant brought suit against the railroad company for damages to a certain block of land in the city of Little Rock, alleged to have been caused by the construction of a railroad track near it without drainage, preventing the escape of the surface water and causing it to overflow.

Garter, Judge; STATEMENT BY THE COURT. Appellees brought this suit against the appellant railway company for damages for injury to twenty-four head of mules, shipped from Kansas City, in Missouri, to Marianna, Arkansas.

Garter, Judge; STATEMENT OE PACTS. This is a suit by the appellant against the appellee to recover damages which appellant alleged it had sustained by a fire which destroyed its produce and goods of the value of $6,000; that the fire department could and would have extinguished the fire but for the negligence of the appellee in blockading the streets in front of appellant’s place of business so that tbe vehicles of the fire department were prevented from getting to…

Carter, Judge; STATEMENT BY THE COURT. The appellants were tbe owners of certain farm lands in Clark County. The appellee is a railroad corporation, having a line of road running through these lands.

E. Jeffery, Judge; Contract between husband and wife in Missouri is valid. § § 4335-4340 Digest of 1899; 176 Mo. 107; 75 S. W. 404; 92 S. W. 637; 127 S. W. 118; 68 S. W. 758. The law of the place of making will determine whether a contract has been validly entered into. Minor on Conflict of Laws, § 72, p. 144; 124 N. W. 1042; 43 S. W. 687; Story on Conflict of Laws, § § 66, 102.

D. F. Bragg filed a complaint in the Lonoke Circuit Court against J. H. Laster and Chas. Laster in three counts. The first and third counts alleged malicious prosecution and the second, slander.

Appellant was convicted of the crime of assault with intent to Mil and appeals to this court. The testimony of Hugh Priestley is as follows: “I am twenty years old; came to Russellville a year and a half ago from Alabama. I lived at the home of Joe Jerrall’s father, who kept a private boarding house. I know Ada Jerrall, the sister of the defendant, but I never made love to her and never made improper advances towards her.

Grace, Judge; STATEMENT BY THE COURT. Appellant instituted this suit.against appellee to recover damages for injuries received by her while riding upon one of appellee’s hand-cars on its line of railroad. The facts shown by the appellant and her witnesses are substantially as follows: Appellant was a midwife and had been nursing the wife of A. S. Desha, a section foreman on appellee’s line of railroad.

J. Driver, Judge; 1. “Process” is a writ or summons issued in course of a judicial proceeding. Kirby’s Dig. § 7815. Under the testimony to the effect that the police officers had no warrant or other process for Amory, there is clearly no evidence to sustain the verdict. Kirby’s Dig. § 1960. 2. Instruction 1 given by the court is clearly erroneous in that it refers to an ordinance which was never introduced in evidence.

Hutton, Judge; 1. Tbe judgment against Drew and the other officers of the appellant lodge is manifest error, not responsive to the allegations of the complaint nor to the verdict of the jury. 2. The evidence is not sufficient to support the verdict against the lodge. The so-called “financial card” was inadmissible in evidence without proof of its genuineness.

E. Jeffery, Judge; . 1. Before appellee could maintain tbis action, it devolved upon it to show a performance, or an offer to perform, on its part, or such an absolute and unqualified repudiation of the contract by appellant before the time for delivery as to render a performance or .tender to perform unnecessary. 4 Selden, 512; 2 Mechem on Sales, $ 1109; 56 N. Y. 638; 16 Fed. 168; 30 Cal. 486; 40 111. 368; 35 Cyc. 164.

J. Driver, Judge; 1. Unlike the Joiner case, 94 Ark. 198, tlie record in this case shows that the plea of appellant was entered upon condition. It is immaterial that the judgment of February, 1907, was entered by appellant’s consent.

J. Driver, Judge; 1. If the appellant ivas young, inexperienced and without warning placed in a dangerous place to work, and was injured by sand getting into his eye through the negligence and carelessness of Phillips in failing to adjust a proper nose-piece with a proper-sized shoulder to grind the handles, etc., there was liability on the part of the Western Handle Company at least.

Basham, Judge; STATEMENT BY THE COURT. Appellee sued appellant for damages alleged to have been caused by the trespassing of appellant’s stock upon her crops. The complaint alleges that appellee is the owner of certain lands within Fencing District No. 3, of Conway County; that said district is a legally constituted and existing fencing district of said county, within which it is made unlawful for stock to run at large.

T. Wood, Chancellor; 1. The confirmation decrees are void for want of jurisdiction. The statute, Kirby’s Digest, § § 661 to 675, inclusive, prescribes minutely the whole procedure for confirming a defective tax title. A valid confirmation can only be had “by pursuing the rules hereinafter prescribed.” Id., § 661.

Meeks, Judge; STATEMENT BY THE COURT. On the 28th day of March, 1910, the Wood G-rocer Company, of Mammoth Spring, Arkansas, instituted an action of attachment in a justice of the peace court against L. Starks Company, a foreign corporation, and sued out a writ of garnishment against the Citizens Bank of Mammoth Spring.

<p>Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor;</p>

Juanita Allison, by ber next friend, C. G\ Reed, instituted tbis action in tbe circuit court against I. I). Caffey to recover a balance of $200 alleged to be due on a note executed by Caffey in favor of Kizer Allison, deceased, ber father, for tbe payment of a balance due on certain lands.

W. Hays, Judge; STATEMENT BY THE COURT. Willa Britton instituted this action against the St. Louis Southwestern Railway Company to recover damages for personal injuries alleged to have been caused by the negligence of the railway company while she was riding as a passenger on one of its trains. She originally brought an action in the Federal court where there was a verdict and judgment in her favor.

E. Marr tineau, Chancellor; 1. The State has the right, under its police power, to prohibit the carrying on of a livery stable business within certain designated limits, and having such power it can delegate it to cities. 22 S. W. 470; 16 Mo. App. 131; 16 Wal. 62; 5 Am. St. Eep. 331; 37 Am. Eep. 564; 41 Am. St. Eep. 630 ;'53 Id. 325; 91 Am. Dec. 472; 83 Id. 740; 90 Id. 278; 34 Id. 637; 33 Pa: St. 202; 18 O. St. 563; 54 Wis. 376.; 90 Am. Dec: 279; 90 S: W. 874; 83 Am.

E. Jeffery, Judge: STATEMENT BY THE COURT. Appellants brought suit in ejectment against appellees for certain lands, describing them, and alleged that their father, Z. Smith, died January 27, 1896, and that they are his sole surviving heirs. That on that date Delia M. Dobbs was of the age of ten years, J. A. Smith seventeen years and W. E. Smith twenty years of age and that Z. Smith was the owner and occupied said lands as the homestead at the time of his death.

T. Wood, Chancellor; STATEMENT BY TEE COURT. This appeal presents a question between Coyer & Company, intervenors in the lower court, and N. C. Wil‘liamson, appellee, over a sum of money owing by the Board of Levee Inspectors of Chicot County, Arkansas.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee brought suit for damages for personal injuries, alleged to have been caused by the negligence of the railroad company in running him down and striking him with one of its trains, while he was attempting to remove a speeder from the track and after discovering his perilous position.

Appellant brought suit in ejectment against Mary Porter and Anna Porter and two other children of A. P. Porter, deceased, for two acres of land, claiming to be the owner thereof and deraigning his title thereto. Two of the children answered, admitting the allegations of the complaint and disclaiming any interest in the land.

1. Contracts—mutual assent.—In order to constitute a binding contract of sale, there must be the mutual assent of both parties, to the essential terms of the agreement. The intention of the parties is the first consideration. (Page 230.) Appeal from Garland Circuit Court; George W. Rays, Judge; STATEMENT BY THE COURT. Appellants brought suit for damages for the breach of an alleged contract of sale of a stock of goods.

V. Bourland, Chancellor; STATEMENT BY THE COURT. This action was instituted by the Bank of Hartford to recover the sum of $2,141.66 upon a promissory note, executed on September 9, 1907, to the bank by appellees, A. A. McDonald, M. L. Croom and by one Joseph M. Spradling, who was the president of the bank, but died before the institution of the suit; and his administrator was made a party defendant. The note sued on was as follows: “ ($2,141.66) Hartford, Ark., Sept. 9, 1907.

<p>Appeal from Poinsett Chancery court; L. C. Going, Special Chancellor;</p> <p>The clerk’s certificate on its face shows a full compliance with the requirements of the statute. This record is conclusive and evidence aliunde would not be rer ceived to contradict it. Kirby’s Dig. § 7086; 65 Ark. 599; 55 Ark. 218; 80 Ark. 31.</p> <p>The clerk’s certificate showing the publication of the notice on May 22 and June 5, and not showing a publication between those dates is evidence that the publication was not in compliance with .the statute, and avoids the sale. 55 Ark. 192; 92 Ark. 211, 212; 84 Ark. 1.</p> <p>The clerk’s certificate in plain language states that the notice was published “two weeks in succession” in a “weekly newspaper,” etc. The omission in the certificate of the intervening date does not invalidate the notice. 97 Ark. 76; 91 Ark. 117; 30 Ark. 732; - 2 Cyc. 22.</p>

Hutton, Judge; STATEMENT OE PACTS. This is a suit by the appellee against the appellant in the Circuit Court of Lee County to have a judgment for building material furnished by the appellee which it alleged was used in a certain hotel building belonging to the appellant. The complaint set up that the material was furnished to B. M. Nelson, the contractor, who had been employed by the appellant to construct the building in the city of Marianna.

Wells, Judge; STATEMENT BY THE COURT. L. L. Sullivan owned and operated a saw mill on the banks of the Saline river where the railroad crosses it in Cleveland County, Arkansas. He entered into a written contract with W. W. Wooldridge whereby the latter agreed to deliver him logs at his mill at a certain price and to warrant and defend the title to the same against the claims of all persons.

V. Bourland, Chancellor; STATEMENT BY THE COURT. The appellant, Mrs. Johnson, brought this suit against her husband for divorce, alleging wilful desertion for more than one year and such indignities as to render her life intolerable. She alleged that there were two children of the marriage, Ann T., two years of age, and Augusta, six years of age, and that appellee had wholly failed to provide for them. She prayed for absolute divorce, alimony and suit money.

Kirby’s Dig. § 5743. The only requirement is that they be citizens, and it is not necessary that one be an elector in order to be a citizen. 6 Am. & Eng. Enc. of L. 15; 21 Wall. (IT. S.) 165,169,170; 24 Ark. 159. Unless there is something in our Constitution to prevent, a woman may be a notary public in this State.

Appellee brought this suit against appellant to recover damages on account of his land being caused to overflow by the appellant digging a ditch near his land for the purpose of draining its road bed. The facts as adduced by appellee are substantially as follows: In the year 1910 the appellant, seeking an outlet for the water that accumulated near its right-of-way dug a ditch parallel with its line of railroad for a distance of about five miles.

<p>Appeal from Monroe Circuit Court; Eugene Lank-ford, Judge;</p> <p>Hearsay evidence is not admissible. 6 Ene. Ev., 443; 16 Cyc. 1195; 10 Ark. 638; 16 Id. 628.. The judgment should be reversed.</p>

<p>1. Appeal and error—finding by circuit court—conclusiveness.— A finding of fact by tbe circuit court, will not be disturbed if supported by 'legally sufficient evidence, even though the finding appears to be against the preponderance of the evidence. (Page 283.)</p> <p>2. Homestead—abandonment.—When land has been impressed by appellee with the character of a homestead, she does not abandon the same when she marries and moves to another State, when it appears that her removal was only temporary and that she intended to return to the homestead. (Page 284.)</p> <p>3. Homestead—abandonment.—A temporary removal from a homestead, once impressed as such, does not constitute an abandonment, even though the party exercises the rights of citizenship in another State. (Page 284.)</p> <p>4. Homestead—married woman—change of domicile.—-A married woman does not abandon her homestead in Arkansas by a temporary removal with her husband to reside with him in another State, even though the domicile of the wife follows that of her husband. (Page 285.)</p>

<p>Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;</p> <p>1. The court erred in sustaining the demurrer. It is within the power of the Legislature to tax all lands in the original district to pay the initiatory expenses of said original district. 97 Ark. 322; 72 Id. 119; 81 Id. 562; 83 Id. 54; 76. 344; 98 Id. 113.</p> <p>2. No issue can be raised in the courts as to notice of special legislation. 48 Ark. 570; 72 Id. 119; 75 Id. 120.</p> <p>3. The contention of appellee that it was the intention of the Legislature to let his lands out of the district because they would not he benefited is not well taken. 76 Ark. 113.</p> <p>1. It is the province of the court to declare a tax void when the Legislature exceeds the Constitutional limits of its powers. 101 U. S. 153; 43 Cal. 335; 13 Am. Rep.* 143; 19 Kan. 584; 59 Mo. 415; 20 Wall. 655; 22 Fed. 54. Whether a particular object of taxation is public or private is a judicial and not a legislative function. 107 Fed. 827; 111 Mass. 454; 15 Am. Rep. 39; 32 Conn. 118; 86 Minn. Ill; 20 Wall. 655.</p> <p>2. Local burdens require local benefits. 57 Ark. 554; 45 Ala. 370; 105 IT. S. 275; 103 Id. 562; 97 Id. 284; 57 Ark. 554. One locality can not be taxed for the benefit of another. 57 Ark. 554.</p> <p>3. Only those who are benefitted can be taxed.' Taxation must be equal and uniform. 41 Am. Dec. 333; Cooley on Torts, 344; 22 Ark. 526; 11 Allen (Mass.) 258; 25 Ark. 289; 30 Id. 31; 117 Ala. 303; 34 Cal. 433; 43 Mo. 479; 28 Oh. 311; 43 Tex. 508; 57 Ark. 554; 105 IT. S. 275.</p>

Rays, Judge; 1. The county court was without authority to make the allowance without an appropriation. There was no contract or purchase by, or consideration to, the county. 66 Ark. 82; Kirby’s Dig., §§ 1494, 1500, 1503; 61 Ark. 74; 85 Id. 611. 2. The contract should have been let to the lowest bidder. 54 Ark. 645. 3. No claim or demand, verified as required by law, was ever filed in the county court.

10 Ark. 241; 38 Id. 150; 53 Id. 287; 73 Id. 523; 93 Id. 11; 68 Id. 340; 73 Id. 66; 89 Id. 160; 97 Id. 314; 96 Id. 427; 1 S. W. 468; 88 Ky. 485; 68 Id. 240; 84 Id. 547; 6 B. Mon. 214. The attempt to set aside the judgment at a subsequent term was void and should be quashed on certiorari. 1.

<p>Appeal from Cleburne Circuit Court; George W. Reed, Judge;</p> <p>1. The undisputed evidence shows that Gentry, the third director, had moved out of the district, and was living in another district at the time the contract was entered into; that one Sam Woods was elected to succeed Gentry, but had refused to serve, and that no one had ever been elected or appointed to serve in his stead. Under such circumstances the remaining directors not only had the power but it was their duty to act for the district, and it is bound by their act.</p> <p>2. If the statute, Kirby’s Digest, § 7615, is mandatory, it is nevertheless immaterial to the validity of the contract that the directors failed to subscribe their names to the original which they retained. The material point is that they and Marr entered into the contract, and that they and he signed the contract which Marr retained. They could have signed the original signed by Marr, which they kept, and their failure to do so does not affect the validity of the real contract entered into. 130 S. W. (Ark.) 541; 72 Ark. 359; 51 So. (Ala.) 969; 117 Mass. 96; 125 N. Y. S. 952; 83 Ark. 152, 153; 121 N. W. 1076; 88 N. E. 973.</p> <p>3. But the statute, Kirby’s Dig. § 7615, is directory merely, and a substantial compliance therewith is sufficient. Kirby’s Dig. § § 7818, 7821; 36 Ark. 446; 34 Ark. 491, 493; 42. Ark. 46, 51; 95 Ark. 28, 29, 30.</p> <p>It is not necessary that the teacher should sign the duplicate furnished to Mm by the directors in order to make the original contract binding, but it is indispensably necessary to its validity that the directors and the teacher sign the original contract which is to be kept by the directors. Kirby’s Dig. § 7615; 87 Ark. 93. The effect of the failure of the directors to sign the original is that there was no valid contract made of which they could give a duplicate to appellant until they did sign the original contract. 35 Cyc. 1081, 1082.</p>

Reed, Judge; 1. A joint action against two or more for slander can not be maintained. 48 Am. Dec. 423; 121 S. W. 1026; Hale on Torts, 122; 25 Pa. 550; 22 Atl. 970; 35 Pac. 1011; 25 Cyc. 1011; 13 Enc. PL & Pr. 30; 34 Atl. 995; Cooley on Torts, 91; 32 Cent. Dig. § 171. 2. If defendants had made the statements alleged, and if they had been untrue, there would be no liability. Bishop on Contracts, § 664; 31 Ark. 72; 105 Fed. 163.

E. Martinecm, Chancellor; STATEMENT BY THE COURT. Appellee brought suit by her next friend, alleging that she was the only child of Joseph Parker, deceased. That prior to his death he purchased the quarter section of land in controversy, describing it, executed eight promissory notes for the sum of fifty dollars each, in payment therefor, and received a bond for title from the owner, Ed Bell, and was delivered possession of the land.

<p>Appeal from Pnlaski Circuit Court, Second Division; Guy Fulh, Judge;</p>

Appellee filed in the county court of Arkansas county, his petition excepting to the assessment of benefits made by the commissioners of appellant drainage district, upon certain of his lands situated within the district, describing them, and setting out the amount of the assessments, all of which he alleged were excessive, illegal and entirely without authority of law; that the lands could receive no benefit whatever from the proposed drain and should not be assessed in any…

H. Evans, Judge; STATEMENT OP PACTS. On the 22nd day of February, 1912, appellees, Ella Humphreys and her husband, James Humphreys, instituted separate actions in the Saline Circuit Court against the appellant railway company for damages alleged to have resulted from exposure of appellee, Ella Humphreys, to an overflow of water from Rose Creek in the western part of the city of Little Rock.

The appellant brought suit in replevin before a justice of the peace for a piano, sold by it to the appellee, and a judgment was rendered in its favor, in the alternative for $123.20, with interest and cost, or the return of the piano. The cause was appealed to the circuit court, where there was a directed verdict for the appellee, and the appellant has appealed from the judgment rendered in that cause.

Reed, Judge; The court erred in the admission of testimony; also in its charge to the jury. 93 Ark. 153. The evidence did not warrant a verdict. 90 Ark. 407. An employer of mature years and experience needs no warning of obvious dangers as they are among the ordinary risks he assumes. Cases supra. 1. A verdict on conflicting evidence will not be disturbed. 23 Ark. 50; 18 S. W. .172; 157 Fed. 656.

Tbe evidence introduced to show that appellant made the statement that the roof did not leak was not admissible, if introduced to show a warranty, its effect would be to add to, contradict or vary a written instrument, and if offered to show fraud, it was not responsive to the allegations of the complaint. 95 Ark. 131; 44 Ark. 496; 92 Ark. 509; 77 Ark. 355. Bloch’s promises to repair, being without consideration, were a nullity.

Elliott, Chancellor; 1. When a suit is brought in time and dismissed, a new action can only be brought within one year after such dismissal. The statute does not authorize a succession of actions in infinitum. Kirby’s Dig., § 5083; Mansfield’s Dig., § 4497. The amendment of April 14, 1891, striking out the clause “from time to time’' from the last named statute signifies the intention of the Legislature to prevent an indefinite succession of suits.

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

In withdrawing instruction 3 from the jury the court eliminated one of appellant’s main defenses, i. e., the release, and in his remarks to the jury the court eliminated the essential element to avoid the release, the question of fraud, and in effect told the jury that no matter if the claim agent was acting in good faith yet the release would not be binding upon appellee unless she had sufficient intelligence to understand the nature of the release. 87 Ark. 614; 136 Fed.…

74 Ark. 336. The conversation in the mule pen at Stuttgart, more than a year after the partnership was entered into, did not amount to a contract, but was a mere conference between the partners as to the advisability of pursuing a course which either party could pursue without authority from the other. There was no consideration to support a contract on the part of appellant to stand the losses on sales made on time.

E. Jeffery, Judge; STATEMENT BY THE COURT. This is an action of ejectment instituted in the circuit court by Wolf & Bailey against Carrie D. Phillips to recover the following lands situated in the Western District of Lawrence County, Arkansas, towit: The west half of the southeast quarter and the southeast quarter of the southwest quarter of section 2, township 17 north, range 3 west.

Hutton, Judge; The attempted consolidation was ineffectual for two reasons: 1. Act 289 of Acts of 1909, is void for uncertainty. 2. It was repealed by Act No. 116 of Acts of 1911 by implication. It is a general act, comprehensive in its scope, and covers the whole subject. 105 Ark. 77; 80 Ark. 411; 97 IT. S. 546; 88 Ark. 324. ■ The former act was not repealed by the latter.

Guy Fulh, Judge; The Constitution devolves the duties, powers and emoluments of the office of Governor upon the President of the Senate, and not the office itself. The office in case of vacancy devolves not upon the person of the President of the Senate, but upon that office, and therefore upon whatever individual holds it rightfully for the time bei ig.

<p>Appeal from.Pulaski Circuit Court, Second Division; Guy Fulk, Judge;</p>

Humphries, Chancellor; Whether W. G. and J. L. Jones were solvent or insolvent, whether the deed was taken in Fred F. Jones’s name for a fraudulent purpose or not, in either case appellants are entitled to have a resulting trust declared in their favor upon an undivided half interest in the land. W. G.'Jones, appellants’ intestate, paid one-half the purchase price of the land.

Chancery Court; T. H. Humphreys, Chancellor; STATEMENT BY THE COURT. The appellants are the owners of land in improvement districts in the city of Fayetteville. In the case of Board of Improvement v. Pollard, reported in 98 Ark., at page 543, appellants contested the validity of the assessment made and levied upon these lands for the year 1909.

Reed, Judge; statement by the court. The lumber company brought suit for damages against the express company, alleged to have been caused by the negligent failure to deliver a piece of machinery to the foundry to which it was consigned for repairs, and also claimed special damages. A judgment by default was rendered and upon a trial upon the question of damages a verdict and judgment was rendered in favor of appellee.

0, Mahoney, Chancellor; STATEMENT BY THE COURT. Appellants brought this suit against appellee to recover the amount of a judgment for the sum of $587.34 which it had obtained against. the El Dorado Light & Power Company. The complaint alleges that on December 1,1908, said light and power company was a corporation organized and doing business in the State and indebted to it in said sum for goods and merchandise sold and delivered to it.

Garter, Judge; STATEMENT BY THE COURT. This is a suit for damages for the wrongful death of O. E. Gihson, alleged to have been caused by the negligence of appellant company, in running a train over Mm and not keeping a constant lookout, the complaint alleging: “That the servants of the defendant operating the train did not keep a constant lookout, as required by law, and that had they kept such a lookout they could have discovered the deceased’s peril in time to have…

Carter, Judge; STATEMENT BY THE COURT. P. H. McLaughlin brought suit for damages against the city of Hope, arising from the construction of its sewer system, which discharged the sewage of the city into Hanegan’s branch, which flowed through certain lands, the property of S. B. Henry, part of which upon the branch had been leased by him for a mill site, and upon which a saw mill had been erected for the purpose of manufacturing certain timber, belonging to said Henry, and…

Wells, Judge; STATEMENT BY THE COURT. On July 20, 1912, R. W. Wilson, prosecuting attorney, in the name of the State, for the use and benefit of Bradley County,-filed in the Bradley Circuit Court three hundred and sixty-five complaints against the St. Louis, Iron Mountain & Southern Railway Company.

Hays, Judge; Oral evidence of the purported ordinance was not admissible. If such an ordinance was passed, the original or a certified copy thereof was the best evidence, and should have been produced. Kirby’s Dig., § 3066; 66 Ark. 535. See also Kirby’s Dig., § 5473; 40 Ark. 105; 22 Mich. 104. The court erred in directing a verdict for the appellee, the evidence not being legally sufficient to support it. 97 Ark. 438, 442; 90 Ark. 23; 99 Ark. 491.

Elliott, Chancellor; 1. The chancery court is without jurisdiction where the party has a complete and adequate remedy at law, unless there is shown to exist some one of the established subjects of equity jurisdiction. 29 Ark. 340; 27 Ark. 676; 36 Ark. 481; 48 Ark. 331; Id. 510; 93 Ark. 266-269; 14 Ark. 339; 20 Ark. 610; 29 Ark. 340; 30 Ark. 128; 75 Ark. 114; 67 Ark. 441. 2.

<p>1. Mortgages-—limitation of actions—burden of proof.—Where plaintiffs are the children of deceased, and • bring an action in chancery to restrain the foreclosure of a mortgage executed by their parents, which mortgage is not barred on its face by the statute of limitations, the burden is upon plaintiffs to allege and prove facts sufficient to justify the court in granting the relief prayed. Kirby’s Digest, § 3108. (Page 467.)'</p> <p>2. Mortgage-—foreclosure—limitation of actions—burden of proof.— Where a husband and wife give their note and execute a mortgage to secure the same, in an action by their children and heirs, to restrain a foreclosure of the mortgage on the ground that the debt is barred, the burden is upon the plaintiffs to show that the debt is barred as to both of the mortgagors. (Page 466.)</p> <p>3. Limitation of actions—mortgage executed by husband and wife. —When a husband and wife give their note and execute a mortgage to secure the same, the right of the mortgagee to foreclose may be barred as to the husband by reason of the statute of nonclaim, but not as to the wife because no administration was had oñ her estate, and the mortgagee’s right to foreclose is therefore not barred. (Page 466.)</p> <p>4. Appeal and error—decision of chancellor—practice in supreme court.—Although the reasons upon which a chancellor bases his decree are unsound, the decree will be affirmed if upon the whole ■ record the decree is correct. Chancery cases are tried de novo in the Supreme Court, on the record made below. (Page 468.)</p>

The court should have sustained appellant’s motion for peremptory charge to acquit. The evidence is clear that there was never as much as $10.00 in the meter at one time, and that at the date in question there could not have been more than twenty-five cents. If there was an intent to commit petit larceny only, there was no burglary. 61 Ark. 341, 347. 2.

I. Humphries, Chancellor; The proof fails to show that there was in fact a meeting of- the minds of the parties. Before a court is authorized to decree a specific performance of a contract, there must have been a contract, and the proof of the contract must be clear and unambiguous. 63 Ark. 100. Appellant admits that he promised to make appellee a deed, and that on the faith of this promise, the latter went into possession and made valuable improvements.

Louis Hempfling was a brakeman in the employ of appellant. , On the night of the 22d of January, 1912, about 10 o’clock he left Argenta on a freight train consisting of coal cars and a caboose, going west to Spadra.

Wallace, Chancellor; STATEMENT BY THE COURT. Appellant was the plaintiff below and brought this suit on October 23, 1906, to collect the balance of purchase money alleged to be due it upon the sale of west half of southeast quarter (south of chute), section 28, township 4 north, range 14 west; lying in Faulkner County, Arkansas.

<p>Appeal and error—evidence—exclusion of entire testimony of witness.—Where portions of the testimony of a witness are incom; petent as hearsay, and other portions are clearly admissible, and ■’ no objection was made to any of the evidence until the conclusion of the examination of the witness when the court, on motion- of the prosecuting attorney, excluded all the testimony; held, the defendant was entitled to the benefit of the competent testimony, and it was error to exclude the whole testimony.</p>

At the September term, 1911, of the Prairie Circuit Court, appellant recovered a judgment against the appellee in the sum of $1,000. An appeal was taken and the judgment below affirmed by this court.

W. Wells, Judge; STATEMENT BY THE COURT. Harvey Smith, was injured while in the service of the Chicago, Rock Island & Pacific Railway Company by being struck on the shin by an eight-pound sledge hammer in the hands of a car repairer whom he was assisting in the work of repairing a defective car. The hammer as alleged in the complaint had an imperfect striking surface and was defective for the use to which it was being put at the time the injury was received.

This was an action brought by Dora C. Broadbent, administratrix of the estate of Charles Broadbent, deceased, against the Buena Vista Veneer Company to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought to recover damages for the benefit of the next of kin of the deceased and for his estate.

T. Gotham, Judge; 1. The court erred in ordering the homestead sold in satisfaction of the two $500 demands, because they were not reduced to judgment during Carr’s lifetime. Section 3 of article 9 of the Constitution refers to the homestead rights of a man while he is alive, and is intended to exempt his homestead from the liens of judgments and decrees except such as may be rendered upon a certain class of obligations. This section refers to liens and not to debts.

On this issue the burden of proof was on the plaintiff. It is not a question of whether the trainmen had been keeping a lookout in time to have prevented the injury, but whether they saw him in time to have done so. 152 Fed. 686; 173 Fed. 753; 174 Fed. 597.

Chancery Court; T. H. Humphries, Chancellor; 1. Appellee was a trustee and a strict accounting was required at his hands. 121 Ala. 131; 41 Ark. 264; 32 Pa. St. 495; 25 Ark. 219; 97 Id. 228; 28 A. & E. Enc. L. 1076. 2. The burden was on appellee to show a proper disbursement of the funds in his hands. 96 Ark. 299; 193 Pa. St. 294; 28 A. & E. Ene. L. 1095. He was bound to keep clean and accurate accounts. Perry on Trusts, vol. 2, § 821; 28 A. & E. Ene. L. 1095. 3.

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. Plaintiff’s right to redeem was barred. Kirby’s Digest, § 7095; 52 Ark. 532; 59 Id. 144. 2. Kirby’s Digest, § 5075, does not apply and does not extend ber time to redeem. 63 Ark. 397; 80 Id. 411; 71 Id. 135; 84 Id. 329. 1. Tbe period of redemption is extended by Kirby’s Digest, § 5075; 53 Ark. 418; 71 Id. 135; 81 Id. 440; 95 Id. 76; 87 Id. 428.

W. Hays, Judge; STATEMENT OF FACTS. The appellee was in the employ of appellant as a carpenter on what is known as the “rip-track” in the yards of appellant in the city of El Dorado. He received an injury by a car door jumping the track and severely crushing his hand. He alleged in Ms complaint that the appellant was negligent in not exercising ordinary care to furnish him with reasonably safe means and instruments Avith which to Avork.

Lea, Judge; STATEMENT BY THE COURT. Elijah Greenwood was indicted for the crime of murder in the first degree charged to have been committed by killing Alice Turner. The testimony on the part of' .the State is substantially as follows: On the 29th day of November, 1912, some boys were hunting near Sweet Home, in Pulaski County, Arkansas, and, as they say, between 1 and 2 o’clock in the daytime they found the body of Alice Turner, who had been recently killed.

Appellants for themselves and others, creditors of W. C. Grice, filed a creditors’ bill, alleging that he was indebted to them in certain specified amounts and other creditors in various sums; had been engaged in the mercantile business in Dell, Mississippi County, Arkansas; was insolvent, owed many debts and had no property, except the stock of goods, which was valued at $1,000; that his debts amounted to $1,200, or more, and that his creditors, pressing him for payment of…

Appellants brought suit against the railroad company for the penalty provided by the statute, section 6646 (as amended in 1907), 6648, Kirby’s Digest, for its failure to drain a pond of water on its right-of-way within 200 yards of his residence.

T.Humphries, Chancellor ¡ STATEMENT BY THE COURT. Appellants brought suit in equity for the possession of certain lands and to cancel certain deeds and a will as a cloud upon their title. James Green purchased the lands in controversy, a part of the school lands of the State, on December 28, 1844, executed his promissory note for $80 in payment therefor, due ten years after date, and obtained a certificate of purchase for said land.

T. 'Cowling, Judge; Wright Prickett and J. I. Alley, for appellant. 1. The bank was only the prima facie owner of the draft. 55 Am. Dec. 292; 22 Hun. 335. 2. The letters of Scott and the cashier were admissible to show the true ownership of the draft. Jones on Ev. (2 ed.), p. 312, § 248; 1 Greenl. Ev., § 180; 1 L. R. A. 224; 56 Hun. 501; 10 N. Y. Supp. 561; 33 Ark. 370. 3.

Wood, Chancellor; The presumption is that a voluntary alienation of property hy an embarrassed debtor is fraudulent as against existing creditors. And when such alienation is by an embarrassed debtor to his wife during the pendency of a suit against him and immediately before the suit is to be tried, the transaction is not only a badge of fraud, but almost positive proof of it. 50 Ark. 42; 20 Cyc. 444; Id. 451.

Acts 1885, p. 176; 76 Ark. 124; 100 Ark. 546. The testimony shows a wilful discrimination or refusal of service. A telephone company can not refuse service to a subscriber until he pays a debt contracted for services rendered in the past. 94 Ark. 533; 29 Ark. Law Rep. 757.

P. Henderson, Chancellor; STATEMENT BY THE COURT. This is a suit by appellees to cancel certain deeds which the appellees allege were executed by the appellee, Lou Smith, to the appellants herein through the wrongful, fraudulent connivance, collusion and misrepresentations of the appellants.

<p>Peincipa! and agent—authority op agent.—Authority to employ a contractor to furnish all the individual players for an orchestra necessarily included the authority to employ any particular individual player.</p>

<p>Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge;</p> <p>STATEMENT BY THE 'COUBT.</p> <p>The plaintiff, Black, filed the complaint, alleging that on a certain day in the year 1911, plaintiff owned five shares of stock in the Hoke Metal Frame Screen Manufacturing Company, a corporation, and paid for said stock on July 20, 1910, the sum of $250.00; that defendants on said day owned stock in said corporation, and with certain of their friends, owned about 50 per cent of the stock of the said corporation. That one Smith and his friends owned about 50 per cent of the stock of the said corporation, and on said day said Smith desired to purchase the stock of plaintiff; and that defendants desired to prevent the said Smith from purchasing plaintiff’s stock; that on said day, said Smith proposed to purchase plaintiff’s stock and offered to pay plaintiff a certain sum of money therefor; and that plaintiff was about to accept the said offer, and would have accepted said offer, but that defendants, in order to induce plaintiff not to accept said offer, and in order to further the best interests of the said corporation, in defendant’s opinion, on or about said day, made and entered into an oral contract with plaintiff, whereby said defendants and each of them agreed that if the plaintiff would refuse to accept, and would not accept said offer of said Smith to purchase plaintiff’s said stock, that defendants and each of them would pay plaintiff $250.00 with interest thereon from the blank day of 1911 until paid, “if the dividends on plaintiff’s stock and plaintiff’s equitable interest in the assets of said corporation, when the same became insolvent, if it did become insolvent, and did not equal the sum of $250.00 and interest thereon from the blank day of 1911 until said promise and agreement on the part of the defendants and each of them, plaintiff forebore the sale of said stock and refused to accept said offer from said W. M. Smith to purchase the stock of plaintiff. That the plaintiff has in all things kept and performed all things to be by him kept and performed in said contract; and that there have been no dividends paid on said stock; and that plaintiff’s interest in the assets of said corporation is of no value. That said corporation is insolvent; that said Hoke Metal Screen Manufacturing Company has been sold; and that the proceeds of said sale, together with all other assets of the said corporation are not equal to its indebtedness. That the defendants well knew that said corporation became insolvent before the filing of this suit; that said defendants and each of them are liable to this plaintiff for the sum of $1,000.00. Wherefore, plaintiff prays judgment for that sum.</p> <p>• There were three separate complaints filed, one by each appellant, all substantially the same, except for different amounts. Appellees demurred to the complaints for the following reasons: First, the complaints did not state facts sufficient to constitute a cause of action; second, the complaints state that thq contract or agreement sued on, is an oral contract and not in writing, and the complaints alleged and show on their faces that said contract or agreement, if any, is an agreemnt or promise to answer for the debts, defaults, and miscarriages of the said Hoke Metal Screen Manufacturing Company, and appellees plead the statute of fraud on this account in bar if this suit. The court sustained the demurrer. The appellants dechning to plead further, the court dismissed the complaint, to which ruling of the court, appellants duly excepted and prayed an appeal to this court.</p> <p>1. The complaint states a cause of action. 10 Cyc. 577d; 2 Cook on Corp. (6 ed.) 622c; Anson on Cont. 63; Parsons on Cont. 444; 27 Ark. 407; 9 Cyc. 312-315; 151 S. W. 249; 100 Ark. 515; 151 S. W. 1001; 18 L. R. A. (N. S.) 707-711; 31 L. R. A. 557; 94 Ark. 463.</p> <p>2. The contract was not against public policy. 9 Cyc. 483f; 176 U. S. 498; 95 Ark. 449; 31 L. R. A. (N. S.) 1186-1196; 61 Am. St. Rep. 770-775.</p> <p>3. The promise was not collateral, and hence not within the statute of fraud. 12 Ark. 174; 45 Id. 67-74-75; 64 Id. 462, 465; 76 Id. 292; 22 How. 28; 141 U. S. 479.</p> <p>1. Complaint states no cause of action, because, (1) The agreement is a gambling or wager contract and void. (2) It is against public policy, and (3), it is void for want of consideration. Cook on Corporations 341; 64 S. E. 894; 61 Id. 487; Cook on Corp. 622.</p> <p>2. It is within the statute of frauds. Kirby’s Dig., § 3656.</p>