Volume 108 — Arkansas Reports

V. Bourland, Chancellor; STATEMENT by the coubt. Appellants three directors of Special School District No. 15, of Logan County, brought suit to restrain W. B. Mitchell, appellee, a school teacher from taking charge of a public school of said district, as a teacher, etc., alleging that he was not a qualified teacher of the State; that he did not have a teacher’s license, as required by law when the contract of employment, under which he was attempting to teach school, was…

Garter, Judge; statement by the court. This was an action brought by Mrs. Mollie Duke against the Western Union Telegraph Company to recover damages on account of mental anguish sustained by reason of the negligence of the defendant in failing to deliver a telegram to her notifying her of the serious illness of her daughter, in consequence of which plaintiff failed to reach the bedside of her daughter before she died.

Cowling, Judge; 1. The damages must he the natural and proximate consequence of the injury. 3 Hutch, on Car., § 1430; 70 N. E. 205; 105 U. S. 249; 7 Wall. 244; 94 U. S. A. 469; 43 N. W. 513; 74 Wis. 53; 32 Me. 946; 40 Am. St. 724. 2. Everything possible was done to prevent the injury- 69 Ark. 402; 77 Id. 157; 56 Id. 252. The want of care did not contribute to produce the injury. 78 N. W. 598; 53 Am. St. 391; 81 N. J. L. 661; 80 Atl. 495; 25 Am. & E. Ann. Cases, 525. 3.

<p>1. Municipal corporations — police power — sidewalks.—Kirby’s Digest, § 5542, which provides that cities may order and compel property owners abutting on a street or public square to build, rebuild, maintain and repair foot pavements or sidewalks there along and to designate the materials to be used and specifications to be followed and time for completion, is valid under the police power of the State, and thereunder, a city by its ordinance may compel an abutting owner to rebuild a sidewalk where he already has one in front of his premises. (Page 28.)</p> <p>?. Municipal corporations — validity of ordinance — presumption.—■ While the presumption is in favor of the validity of a city ordinance, when the record is produced containing the ordinance, it may be overcome by proof that the essential requirements of the statutes have not been complied with in the enactment of the ordinance. (Page 30.)</p>

The court erred in its charge to the jury. The false representations of defendant inducing the trade, and the concealment of latent defects avoided the sale. 22 Ark. 52l: 24 Mo. 223: 27 Id. 530: 8 Am. & E. Ene. L. 794, 795 (1 ed.); 12 Id. 932-3, note 2; 1 Benjamin on Sales, p. 415, note 3; 80 A. & E. Ene. L. 802, 804 (1 ed.); 22 Ark. 454; 31 Id. 174; 30 Id. 691; 71 Id. 309; 20 Cyc. 117; 8 A. & E. Ene.

E. Jeffery, Judge; STATEMENT BY THE COURT. Nettie Mantooth instituted this action against B. F. Johnson to recover possession of a tract of land in Jackson County, Arkansas. The complaint is in the usual form and alleges title in the plaintiff.

This is an action for damages for mental anguish alleged to have been suffered by appellee on account of the negligence of appellant company in failing to deliver a telegram, advising him of the death of his mother, in time for him to attend the funeral.

Robertson, Chancellor; 1. Snowden, a mere naked trustee with no duties to perform, took nothing under the partition deed, but the entire title, both legal and equitable, vested at once in appellant. Kirby’s Dig., § 623; Tiedeman on Real Prop. (3 ed.), 505, 513; Perry on Trusts (2 ed.), § 298; 19 S. E. (N. C.), 375; 62 Ga. 743; 15 S. C. 277; 3 Kan. 292. 2.

Robertson, Chancellor; 1. The doctrine of estoppel by deed is conclusive here. A person can not deny his own deed whether it had been actually delivered or not; but in this case, the deed having been recorded makes out a prima facie case of delivery. 25 Ark. 225; 8 Ark. 345; 10 Ark. 89; 30 Ark. 230; 50 Ark. 212.

The State can not enact laws impairing or materially affecting its contractual obligations. Tbe acts assailed are within the prohibited class and are no protection to defendants. 16 Wall. 203, 233; 15 How. 308; 16 How. 370; 6 Cr. 87; 103 IT. S. 302; 105 U. S. (26 L. Ed.) 1090; 134 Id. 842, 849; 3 Ark. 285; 12 Wheat. 213, 327; 8 Id. 184; 6 How. (12 L. Ed.) 447; 14 Ky. (4 Litt.), 34, 35, 47, 69; 96 U. S. (24 L. Ed.), 793; 140 U. S. (35 L. Ed.), 363; 1 Kent, Com. 414-419. 2.

As the contract stands it is appellee’s personal note. There is no ambiguity nor doubtful meaning in it, and the court will construe it as made, without supplying or rearranging its words. 150 S. W. (Ark.) 858. If there is any doubt as to its meaning or if it is susceptible of two constructions, it should be construed most strongly against appellee, a practicing lawyer, who wrote it. 153 S. W. (Ark.), 101, 103. 2.

At common law, it is not a criminal offense to leave a wife without the means of support. 15 A. & E. 814; 45 Ark. 158. 2. Under our statute to constitute a criminal offense with desertion or abandonment must he coupled a failure . to support. 156 111. 241; 80 Ala. 45; Acts .1909, p. 134. 3. There must he abandonment and failure to support. 5 Mich. 80; 21 Cyc. 1611. 4. Infidelity in itself , is not sufficient to constitute abandonment. 41 Cyc. 1612.

D. Frierson, Chancellor; STATEMENT BY THE COURT. Appellant, J. W. Rhodes, the administrator of the estate of J. P. Keiser, deceased, and his widow, and minor heirs by their guardian brought this suit against the executor of the estate of J. D. Driver, deceased, and his heirs for the recovery of money alleged to have been wrongfully paid by the administrator of the estate of Keiser to the executor of the estate of Driver.

J. Driver, Judge; 1. The motion to quash the indictment should have been sustained. The law does not authorize the presence of any person in the grand jury room besides the jurors themselves, the prosecuting attorney and the witness. Kirby’s Dig., § 2211. 2. The plea of former conviction should have been sustained.

Francis Circuit Court; Hance N. Hutton, Judge; 1. The company had the right to prescribe reasonable hours for receiving, sending and delivering messages. The message was received after hours, but was delivered early next morning. 32 S. E. 1026; 66 S. W. 592; 62 Id. 136; 47 Atl. 881; 51 S. E. 119; 91 Ark. 604; 47 Atl. 881. 2.

On the night of April 12,1910, appellee was walking along the west side of Center Street, to cross Fifth Street, in the city of Little Eock. After he had crossed the sidewalk and gone a part of the way into the street, he saw a wagon coming from the west. He stopped, and when he saw that he could go ahead of it, proceeded to cross the north street car track running west on Fifth Street, and the wagon passed to the north of him.

The validity of the provisions in the receipt or hill of lading declaring the value of the shipment to be not exceeding $50 and limiting the liability of the express company to that amount, “unless a greater value is declared at the time of shipment,” is settled by the decisions of the United States Supreme Court. 226 U. S. .491; Id. 513. ' Former opinions of this court in conflict with the act of Congress and the above decisions must give way.

T. Cotham, Judge; STATEMENT BY THE COURT. The indictment charged that “J. R. Carter, on the 29th day of July, 1912, in the county of G-arland aforesaid, did unlawfully, feloniously, and with malice aforethought and after premeditation, and deliberation kill and murder one Bud Woodfork with a certain pistol which the said J. R. Carter then and there had and held in his hand, the said pistol being then and there loaded with gunpowder and bullets, against the peace and dignity…

Hutton, Judge; 1. The policy was void and was never delivered, nor was the premium paid. 74 Ark. 507; 78 Id. 127; 85 Id. 337. 2. The policy was properly canceled. 8 Pa. Dist. 261; May on Ins. (4 ed.), § 68; 19 Cyc. 646, par. 2, note 33; 7 E. I. 562. 3. The jury should have been allowed to pass on the question whether the notice of cancellation of the policy was received or not. 105 Ark. 136. 4.

<p>1. School districts — ‘‘common school fund” — commissions of county treasurer.- — Under Art. 7, § 46, of the Constitution, which provides for the election of a county treasurer who shall be ex-officio treasurer of the common school fund, and Kirby’s Digest, § 3509, allowing the treasurer commissions on the aggregate amount of all school funds coming into his hands in any one year, the term “common school fund” means funds raised by the annual levy and collection of the taxes for school purposes and other sources as prescribed by Kirby’s Digest, § 7486, and special funds obtained by mortgaging the property of a special school district under Kirby’s Digest, § 7696, are not a part of the common school fund; and the treasurer being entitled to commissions on funds raised by taxation to pay the interest on the mortgage, is not entitled to a commission, on the principal of the mortgage debt. (Page 139.)</p> <p>2. Officer — fees.—A public officer is entitled to commissions or fees only when there is some specific statutory authority for the allowance of the same. (Page 140.)</p>

Shaver, Chancellor; 1. The petition was not signed by a majority in value of the owners of real property in the district. 2. The'council erred in including lot 1 and lots 11 and 12, block 73.

Elliott, Chancellor; It was error to transfer the canse to equity and for the chancery court to retain jurisdiction thereof after the transfer. The issues involved, the title to the land, the questions whether or not the defendant was in possession of the land described in the complaint and whether the plaintiff was entitled to such possession, were cognizable solely at law.

<p>Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;</p> <p>A married woman’s note given as security for tbe debt of another does not bind ber, and can not be enforced against ber property. 64 Ark. 385.</p> <p>Tbe promissory note of a married woman not given for ber personal benefit or that of her separate property is void. 35 Ark. 365; 58 Ark. 486. See also 66 Ark. 117; 32 Ark. 776.</p> <p>Tbe real question presented is whether or not a suit against a married woman and, tbe taking up of a former note signed by a married woman is sufficient consideration to bind her on a note signed by her, even though the note is signed by her husband also. A compromise of litigation is a good consideration for an express promise. 29 Ark. 131; 31 Ark. 222; 23 Ark. 557. Compromise of a disputed claim, however baseless, is a good consideration. 43 Ark. 177.</p>

<p>1. Insane person — jurisdiction of probate court. — The jurisdiction, of the probate court, with respect to control of the property of an insane person, is confined to limits prescribed by the statute. (Page 159.)</p> <p>2. Insane person — contract for sale of insane person’s land.— There is no statutory authority giving the guardian of an insane person power to enter into an executory contract giving a person an option to purchase property of the insane person, and such a contract, although authorized by the probate court is void. (Page 160.)</p> <p>3. Estoppel — conduct of parties. — When a lease of the property of an insane person made by the guardian with an option to purchase, is not voidable but void, the heirs of the insane person are not estopped to plead the invalidity of the lease, although they have received rent for a long period of years under the said lease., (Page 160.)</p> <p>4. Contracts — contract invalid in part.- — When the guardian of an insane person gave a lease on the latter’s property with an option to the lessee to purchase at the end of the term, the entire contract is not rendered void by reason of a portion thereof being void, and the parties are entitled to the benefits under the valid portion of the contract. (Page 160.)</p> <p>5. Partition — sale of property — distribution of proceeds. — When the assignee of a lease acquired a three-fifths interest in certain land, and failed to exercise an option in the lease to purchase the entire interest, and upon such failure the owner of the remaining two-fifths interest did not elect to pay the value of the building which had been erected by the lessee, but insisted upon his ownership of the building and a two-fifths interest in the land brought partition, the building may be ordered sold as a part of the realty, and the proceeds distributed according to the rights of the parties. (Page 161.)</p>

“A description which will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient.” Jones on Chattel Mortgages, § 54; 39 Ark. 394. The words £ £ of the last sawing, ’ ’ used in describing the lumber, was no more than an ambiguity which could be explained by parol testimony. 28 Ark. 282.

V. Bourland, Chancellor; STATEMENT BY THE COURT. The appellant, Phil Simon, and one Charles J. Smets, during the year 1910 and prior thereto, had been doing business in Crawford County, under the firm name of Simon Grocery Company, and had become indebted to appellees, on their various separate claims, in the aggregate sum of eleven hundred dollars ($1,100). The appellees had recovered judgments on their separate claims, making up the above aggregate.

E. Jeffery, Judge; 1. The alleged contract was contrary to law. 30 Ark. Law Rep. 417; 29 Id. 517; 97 Ark. 153; 95 Id. 552; 85 Id. 106; 81 Id. 41; 46 Id. 420. It contemplated the violation of the law in the performance thereof. 170 Fed. 409; 160 Id. 700; 183 Id. 719; 188 Id. 450; 200 Id. 219. 2. The claim was not duly authenticated, nor presented for allowance. 30 Ark. Law Rep. 474 ; 45 Ark. 392; 15 Id. 345. 3. The affidavit is not such as is required by Kirby’s Dig., § 114.

107 Ark. 386, 155 S. W. (Ark.) 504; Id. 507. The words “at the close of the session” do not mean that the election must take place on the final day thereof. These words were not intended by the framers of the Constitution to be construed literally, for the close of the session does not come until immediately after the sine die adjournment. The constitutional requirement that this election be held during the session is mandatory. Id. 505.

<p>Appeal from Boone Circuit Court; George W. Reed, Judge;</p> <p>1. The right of a defendant to be present in a felony case is both statutory and constitutional. Kirby’s Dig., § 2339; Const., art. 2, § 10; 5 Ark 431; 10 Id. 325; 58 Id. 239; 30 Id. 328; 62 Id. 537; 44 Id. 331; 100 Id. 334; 146 U. S. 374; 4 Sup. Court Beporter, 204; 28 Am. Dec. 629, and notes; 110 U. S. 524; 40 Ala. 325; 49 Cal. 41; 8 Col. 457; 37 Fla. 162; 55 Ca. 521; 14 Bush, 769; 30 La. 367; 53 Miss. 363; 84 N. C. 412; 4 Ore. 198; 99 Ya. 816; 85 Wis. 400; 90 Mo. 37; 20 S. W. 758. All the courts' hold that receiving the verdict in defendant’s absence is error,</p> <p>2. The waiver of counsel could not bind defendant. The right to be present can not be waived. 28 Am. Dec. 630, and notes; 12 Fla. 562; 97 N. C. 404; 24 Ark. 634; 20 L. R. A. (N. S.), 510; 110 IT. S. 524; 146 Id. 374; 4 S. C. Rep. 204, and cases supra.</p> <p>3. The receiving of a void verdict acts as an acquittal. Cases supra; 53 Miss. 363; 83 Ind. 331; 19 Kan. 445; 60 Minn. 90; 29 Tex. App. 62; 6 S. W. 646; 43 Ark. 271; 48 Id. 38; 31 Am. Rep. 31; 19 Id. 719; 24 Ark. 629.</p> <p>4. The admission of the testimony of Alex Davidson as to what he swore before the coroner’s jury and the grand jury and the remarks of counsel thereon were erroneous and prejudicial. 72 Ark. 584; 100 Id. 344; 51 Id. 115; 93 Id. 324; 52 Am. St. Rep. 717.</p> <p>5. It was error not to sustain the motion to elect on which count the State would prosecute. 69 Ark. 184; 60 Id. 554; 48 Id. 94; Kirby’s Dig., § 2230.</p> <p>6. The instructions are erroneous (136 Mo. 41-45), especially as to reasonable doubt and as to crimes committed by means of poison, lying in wait, burglary, arson, robbery, etc. Defendant was only charged with murder. 69 Ark. 184.</p> <p>1. The evidence sustains the conviction. The motive was shown.</p> <p>2. Appellant was present when the verdict was rendered as the record recites. While the bill of exceptions seems to indicate his absence and that he had by counsel waived his right to be present, the record is supreme and must prevail. 97 Ala. 49, 51; 165 Id. 18; 3 Col. 396; 3 Cyc. 153; 42 So. 380; 107 S. W. 420, 135 Id. 28; 17 Ark. 532; 24 Id. 499, 505; 23 Id. 131; 22 Id. 365; 72 Id. 320; 87 Id. 50;'l0 L. R. A. 933-6; 144 S. W. 208.</p> <p>3. The right to be present when the verdict is rendered is not a constitutional right, and may be waived. Const., art. 2, § 10; 43 Ark. 391; 46 Id. 141, 147; 20 L. R. A. (N. S.), 511.</p> <p>■ 4. He was not prejudiced by the verdict being rendered in his absence. 104 Ark. 629; 50 Ark. 492, 499.</p> <p>5. There was no error in admitting the testimony of Alex Davidson as to his former testimony. 76 Ark. 276. But if error, no objection was made. 92 Id. 237, 239; 80 Id. 364.</p> <p>6. The remarks of the court were neither erroneous' nor prejudicial. 2 Ark. 512, 574; 83 Id. 379.</p> <p>7. The appellant was only charged with one crime in different counts. 50 Ark. 305, 313; 71 Id. 574.</p> <p>8. There is no error in the instructions. They are well sustained. 105 Ark. 37; 106 Ark. 362; Kirby’s Dig., § 1766; 29 Ark. 248,' 268; 37 Id. 238, 254.</p>

On June 3, 1912, Mrs. Irma Anthony, in her own name, and as next friend to Victor Peterson and Boscoe Peterson, minors, instituted this action in the circuit court against the St. Louis, Iron Mountain & Southern Bailway Company to recover damages for injuries received hy their father, which resulted in his death. They allege that the plaintiff, Mrs. Irma Peterson, is only twenty-one years of age, and that Victor Peterson and Boscoe Peterson are minors.

The defendant, Jim Halley, was indicted for the crime of assault with intent to kill, alleged to have been committed by cutting his wife with a razor. The defendant and his wife are colored people. The alleged assault occurred at the home of the defendant. The defendant and a companion named Arthur Hill came to the defendant’s house one night after his wife had gone to bed. She got up and let them in' and got back in bed.

Grace, Judge; STATEMENT BY THE COURT. Mildred Senyard brought this action against the Pine Bluff Natural Gas Company to recover damages for personal injuries received by her while driving along Walnut Street in the city of Pine Bluff at about 8:30 o’clock p. m., and which she alleged were caused by her buggy being overturned by running upon a pile of gravel placed by the defendant in the street.

F. Taylor, Special Judge; STATEMENT BY THE COURT. This suit was brought by Percy H. Williams against Eula Sloan Uzzell and Homer F. Sloan, principal and surety, on a note to recover a balance of $500 alleged to be due thereon. The note was payable to Nina W. Carleton, for the sum of $4,000 and endorsed by H. F. Sloan.

T. Wood, Chancellor; STATEMENT BY THE COURT. Appellants brought suit in ejectment for the possession of an undivided interest in certain lands, alleged to be unlawfully held by appellees and for damages for timber taken therefrom.

<p>Municipal corporations — street improvements — time op appeal. — The provisions of Kirby’s Digest, § 5706, that the transcript on appeal from a decree for street improvement asessments shall be filed within twenty days after the rendition of the decree appealed from, and § 5709, that no appeal shall be prosecuted after the expiration of the twenty days, are mandatory, and when a transcript has not been filed on time the appeal must be dismissed.</p>

Hays, Judge; STATEMENT BY THE COURT. The appellant sued the appellee on a promissory note for three hundred dollars ($300), executed for the balance of the purchase price of a gasoline engine, bought by the appellee from appellant, under a contract, which provides in part, as follows: “10-25-1909. “Mr. T. H. Chaffin, of Emerson: “The Middletown Machine Company, hereby propose to furnish and deliver f. o. b. cars, Middletown, Ohio. State Quantity Here. State H.-P. Here.

H. .Evans, Judge; STATEMENT BY THE COURT. The appellee sued appellant on a fire insurance policy to recover for a loss by fire of certain farm products and implements, the amount being stated in the policy at $1,100. The plaintiff alleged the loss by fire and compliance with the terms of the policy, and prayed judgment for the sum of $1,100, together with 12 per cent penalty and reasonable attorney’s fee.

D. Frier-son, Chancellor; STATEMENT BY THE COURT. This is a suit by appellees, against appellants, to have a vendor’s lien declared and enforced on two hundred (200) acres of land in Greene County, Arkansas.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. This is a suit to quiet title to thirty-two (32) acres of land in Boone County, Arkansas. The original complaint alleges a purchase of the land from one C. M. Davey, and that the draftsman of the deed, through mistake, conveyed the land to Francis X. Bogenshutz, instead of the appellee.

In testing tlie correctness of an instructed verdict, the evidence in the case will be given its strongest probative force in favor of tlie party against whom the verdict was directed. 95 Ark. 560. 2. It is well settled that where two persons are liable for the payment of a sum of money, and one of them pays it, the other shall make contribution by paying his proportional part of the amount to the party who paid it. 49 Ark. 105; 73 Ark. 174-8.

<p>Aepeau prom county court — affidavit.—Where, in an appeal from the county court, the appellee failed to file an affidavit for appeal until four days after the appeal was granted, and the appellant did not raise the question in the circuit court, the filing of the affidavit will be held to have been waived by reason of the appellant’s appearing and taking substantive steps wiihout moving to dismiss the appeal on that ground.</p>

. Appeal from Franklin Circuit Court, Ozark District ; Jeptha H. Evans, Judge; 1. The court should have directed a verdict for the defendant. 99 Ark. 252, and authorities cited; see 85 Ark. Í17; 59 Ark. 185. 2.

P. Henderson, Chancellor; 1. The property being a homestead, the mortgage is void because of the nonjoinder of the wife in its execution. Kirby’s Dig., § 3901; 57 Ark. 242; 86 Ark. 397; 90 Ark. 115; 91 Ark. 110. 2. Appellant obtained no vested rights under the Walker transactions. The purchase price was never paid. No deed was ever delivered.

The right to recover costs did not exist at common law, hut rests upon statute only. 86 Ark. 259; 60 Id. 194; 12 Id. 62. In the absence of a statute allowing costs, none can he recovered. 84 Ark. 187. There is no such statute. Kirby’s Dig., § 2850 to 2864; 95 Ark. 81; 86 Id. 259. The office of school director is not within our- statutes governing the contest of elections. 79 Ark. 213; 43 Id. 413. The judgment for costs was void. 2.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. This appeal is a continuation of the case of Browne v. Bentonville, reported in the 94 Ark., page'80. The waterworks improvement district was formed coextensive within the corporate limits of the city (then town) of Bentonville, August, 1896. Appellee was then, and since continuously has been, the owner of a tract of land, consisting of about four acres, situated within the said improvement district.

Wells, Judge; The evidence does not support a conviction for assault. Under the.statute, there are three essential elements in the crime of assault, all of which must appear from the evidence before a conviction can be sustained, viz.: (1) an intent; (2) an unlawful attempt, and. (3) the present ability to commit a violent injury on the person of another.

Lea, Judge; 1. The crime made out was rape, or it was nothing. The verdict is a manifest compromise, not responsive either to the law or the facts. It is patent that the jury did not find the prosecuting witness worthy of belief, that they did not find beyond a reasonable doubt that the element of force was present, or their verdict must have been “guilty of rape,” because the other element, penetration, was admitted. 2.

Hays, Judge; STATEMENT BY THE COURT. This suit was brought by appellants against T. B. Leake and others to recover a balance of $614.95, claimed to be due on a note for $1,000, executed to them May 29, 1907. The note was signed by the defendants and credited with six different amounts paid thereon from May 29, 1907, to March 15,' 1910, Aggregating $534.93.

Evans, Judge; STATEMENT BY THE COURT. These suits were instituted by the. appellee — one in his .own right, and the other, as administrator of the estate of Charles Champion — to recover damages for the loss by appellee of the services of his minor child, and for the benefit of the estate of the child.

Smith, Special Judge; The indictment is defective. It fails to allege from whom the goods were stolen. There is a variance between the indictment' and evidence. Nor does the indictment charge that the railroad company is a corporation. Kirby’s Dig., § § 2231-2. 1. There is no variance. It is not necessray to prove a charter. 41 Tex. 215. 2. If a corporation is alleged as owner, only its de facto existence need be shown. 3 Bishop, New Or.

Grace, Judge; STATEMENT BY THE COURT. The plaintiff, Simmons National Bank, instituted this action in the circuit court against F. L. Dilley to recover damages on account of fraud and deceit.

Wells,, Judge; STATEMENT BY THE COURT. R. M. Baxter instituted this action in the circuit court against Johnson & Cotnam to recover damages suffered on account of certain alleged false representations made by the defendants to the plaintiff.

J. Driver, Judge; STATEMENT BY THE COURT. On the 14th. day of December, 1910, Edgar Bass brought this suit in the circuit court against Noah Starnes and Edward Cleveland for the possession of a tract of land in Clay County, Arkansas. Before the trial of the case Starnes, who was in possession, had surrendered the land to Bass, who had purchased the same from Cleveland on the 6th day of January, 1909.

Martineau, Chancellor; STATEMENT BY THE COURT. This was an action instituted in the chancery court, by Goldsmith Bros. Smelting & ■ Refining Company against D. L. Moore aud Mrs. Duncan L. Moore, his-wife. The complaint alleges that the plaintiff sold and delivered to the defendant, D. L. Moore, a bill of goods upon the faith of a letter written to it by his wife, which is set out in the complaint.

Wood, Chancellor; In the absence of fraud and unfairness, mere inadequacy of price, however gross, does not invalidate a judicial sale. 20 Ark. 381; 44 Id. 502; 47 Id. 86; 52 Id. 316; 56 Id. 240; 65 Id. 152; 66 Id. 490; 74 Id. 324; 77 Id. 216. There is no proof of accident or mistake. The property was sold for a grossly inadequate price.

<p>1. Master and servant — injury to servant — simple tools — liability — safe appliances. — In an action for damages for personal injuries sustained by plaintiff while using one of a number of sticks pointed at the end and six feet long, while unchoking a lath machine in a saw mill, the sticks being taken from another department of the lumber mill because of their size, to be used for this specific purpose, the sticks will be held to be simple tools, which the defendant master need not inspect in the performance of his duty to provide safe appliances for his servants. (Page 386.)</p> <p>2. Master and servant — assumption of risk. — Where an employee in a saw mill used a stick intended for the purpose, to unchoke a lath machine, and was injured by the breaking of the stick due to a defect easily seen, when he acted without direction from his employer, he will be held, as a matter of law, to have assumed the risks arising from the defects in the stick. (Page 387.)</p>

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee brought this suit for damages for personal injuries, alleged to have been sustained while a passenger, boarding appellant’s passenger train at Oliphint, Arkansas.

E. Jeffery, Judge; STATEMENT BY THE COURT. J. T. Burch, brought suit, as administrator, for damages for the death of his intestate, R. L. Burch, alleged to have been wrongfully caused by the negligence of the railway company.

Kirby’s Dig., § 3145; 2 Bishop, New Crim. Prac., § 1260. It must be shown that the confession was read to the accused and that he assented to it. 2 Tex. App. 97; 101 Mo. 514; 136 Mo. 644; 137 Ala. 17. A.nd when offered in evidence it should be read in its entirety and taken together, including all that was said at the time relating to the subject and as a part of the confession, whether favorable to the accused. 3 Enc. of Ev. 348; 42 Ark. 70; 69 Ark. 599.

<p>1. Counterclaim and set-off — what claim may.be used as set-off. —Under Kirby’s Digest, § 6001, which provides that “A set-off can only be pleaded in an action founded upon a contract, and must be a cause of action arising upon contract or ascertained by the decision of a • court.” Held, where plaintiff brought an action against the members of an old partnership on a joint and several liability, an account due from plaintiff to a new partnership could be availed of as a set-off, although the new partnership consisted of persons different from the old. (Page 413.)</p> <p>2. Counterclaim and set-off — liquidated damages. — The damages in 'a causé of action' for brokers’ commissions are not unliqui- .' dated and unavailing as a set-off, when there is no controversy over the price to be paid for the services;..the only issue being whether the services had been performed. (Page 414.)</p>

<p>Appeal from Crawford Cliancery Court; J. V. B'our-land, Chancellor;</p>

73 Ark. 32; lb. 169; 70 Ark. 144; 13 Ark. 105. .The verdict is contrary to the evidence. 1. The exceptions were not carried into the motion for a new trial and therefore are treated as abandoned. 73 Ark. 453-6. 2. The testimony is sufficient to sustain the conviction.

V. Bourlamd, Chancellor; 1. The Legislature has determined the benefits accruing to the lands in the district. This is final. Only an arbitrary and manifest. abuse of the power can be reviewed, not mere mistakes of judgment. 30 Ark. L. Rep. 252; 98 Ark. 113; 85 Id. 12; 83 Id. 344; 81 Id. 562. 2. The fact that part of the lands are above overflow is not sufficient to show that the same would not be benefited by the levee. 59 Ark. 513; 64 Id. 258; 81 Id. 562; 99 Id. 100. 3.

J. Driver, Judge; 1. The indictment is defective in that it fails to describe the court in which it is found. Kirby’s Digest, § 2243; 73 Ark. 280; 5 N. C. (Murph.) 281; 22 Cyc. 230; 5 How. (Miss.) 20; 7 Tex. App. 52; 44 Tex. 376; 9 Phila. 593; 2 McCord 181; 60 Ala. 93. 2. The verdict is not sustained by the evidence under the act, April 13, 1905. The testimony shows a substantial compliance with the act.

There is no evidence of an intent to convert. The burden was on the State to prove the intent. Greenleaf on Evidence (15 ed.), § § 35, 50. 2. The jury should not be permitted to disregard undisputed evidence. 96 Ark. 500. 3. . The intent to unlawfully deprive the owner of his property must exist in the mind of the defendant. 24 A. & E. Enc. Law, 45 to 49; Kirby’s Dig., § 1830; 78 Ark. 299; 105 Minn. 217. This intent must be proved. 32 Ark. 238. 4.

94 Ark. 132; 88 Ark. 213; 86 Ark. 162; 83 Ark. 163; 80 Ark. 505; 17 Cyc. 596; Id. 632; 80 Mo. App. 145; 47 Minn. 367; 45 N. W. 861; 9 Enc. of Ev. 406; Id. 408; 21 How. 289; 1 Am. & Eng. Enc. of L. (1 ed.), 416. Tbe parol testimony complained of does not contradict tbe written agreement, but only explains how one of tbe items of tbe account was arrived at. It was admissible.

E. Jeffery, Judge; STATEMENT BY THE COURT. The plaintiff, L. L. Campbell, brought this action against the St. Louis, Iron Mountain & Southern Railway Company for damages sustained by him by reason of an alleged negligent delay in transporting his baggage from Newport to Hope in the State of Arkansas. In addition to actual damages, plaintiff also seeks to recover the penalty for failure to deliver baggage as provided for in Act 252 of the G-eneral Acts of 1911.

Grace, Judge; 1. The issues are the same as in 104 Ark. 236. The court erred in admitting the testimony of Joseph Paffe as to the master mechanic hiring firemen in the yards.- 2. There is error in the. instructions. 104 Ark. 236. 1. The testimony shows that the master mechanic did hire firemen in the yards. Paffe’s testimony was competent and shows the custom. 146 S. W. 855; 104 Ark. 236. 2.

<p>1. Sale of chattels — conditional sale — reservation op title. — In conditional sales of personal property, where the title is retained by the vendor, until the purchase price is paid, the vendee acquires an interest that he can sell or mortgage without the consent of the vendor but the vendor’s right to recover the property, if the purchase price is not paid is not prejudiced by such sale or mortgage. (Page 446.)</p> <p>2. Contracts — statute of frauds. — An agreement in writing wherby C agreed to pay a debt due from B to R, upon the purchase of certain property hy C from B; held, not to be in violation of the statute of frauds. (Page 446.)</p> <p>3. Contracts — consideration—time of payment. — Where a contract, whereby C agrees to pay to R a certain sum, is complete upon its signature and delivery, C is bound to pay the debt within a reasonable time, and it is not prejudicial error to allow proof that the time agreed upon was sixty days. (Page 446.)</p> <p>4. Contracts — necessary signatures. — Where C agrees to pay to R a debt owed to R by B, it is not necessary that the contract be signed by R, since it was made by C and B for R’s benefit, and was signed by C, the party to he charged thereunder. (Page 446.)</p>

Reed, Judge; 1. It was error to permit the sheriff, Caruthers, to testify that Davis was convicted of the killing of Moore, and further error to state to the jury that evidence of Davis’s conviction was evidence of his guilt. The conviction of Davis could only be proved by the record or by a duly certified copy thereof. 25 Pa. St. 221; 12 Tex. App. 408; 40 Ga. 465;'26 Gratt, (Ya.) 953; 39 Miss. 702; 80 Ga. 127; 75 Va. 925. 2.

John Carson and his wife sued the Fort Smith Light & Traction Company for damages, alleging that the damage resulted from the company’s wrongfully turning the gas already paid for out of the meter and depriving them of the use thereof. Appellee company is a public service corporation furnishing gas to the people of Fort Smith, it’s consumers, under contract, one of whom was John Carson.

Elliott, Chancellor; The bonds are void because they were issued without a petition from the land owners asking that they be issued. Act No. 150, Acts 1913. It is necessary for the commissioners to comply with this act before they issue any bonds. There was no delivery of the bonds.

The burden was on plaintiff to show the authority of Clary to authorize persons to ride on defendant’s trains. He made no attempt to do so. 2. But if Clary had such authority, the invitation would embrace the right to ride on such trains and in such manner it is intended they should be ridden on. The injury was caused by plaintiff’s own negligence. 1.

Reed, Judge; STATEMENT BV THE COURT. The appellant was tried and convicted at the February term, 1913, of the Pulton Circuit Court for the offense of selling mortgaged property.

Hays, Judge; STATEMENT BY THE COURT. This suit was brought by appellee to recover damages for personal injuries alleged to have been sustained from the negligence of appellant company while he was a passenger upon one of its passenger trains operated between the stations of Magnolia and McNeil'.

Reed, Judge; 1. It was obvious error to allow counsel for appellee in bis opening statement to impress upon tbe minds of tbe jury tbe fact that a bood or apron had been placed about tbe saw immediately after tbe accident, and after-wards on tbe trial to bring out testimony to prove that fact. 70 Ark. 182; 78 Ark. 148, syllabus 7; 79 Ark. 393; 89 Ark. 556; 82 Ark. 561. 2.

Garter, Judge; STATEMENT BY THE COURT. The appellees, John B. Moffett and others, brought this suit in ejectment for a certain forty acres of land in Miller County, Arkansas, particularly describing it, alleging that they were the owners thereof and the children and heirs of N. B. Moffett, who died seized and possessed of said land on December 4, 1905, leaving them, his children and Frankie Moffett, his widow, surviving Mm.

Garter, Judge; STATEMENT BY THE COURT. Appellant, while county clerk of Clark County, and before his term expired and his successor, appellee, was inducted into office on October 31, 1912, began to make up the tax books for the year, and presented a claim for $914.10 against the county for work done thereon, itemizing it.

<p>Appeal from Nevada Circuit Court; Jacob M. Carter, Judge;</p> <p>STATEMENT BY THE COUKT.</p> <p>The city of Prescott brought this suit to extend G-reenlawn Street and condemn a right-of-way therefor through and across two lots belonging to appellee.</p> <p>The testimony tends to show that the two lots were of the value of from five to eight hundred dollars, and were 100 feet wide by 240 feet long, and that the extension of the street through them required a strip of land 60 feet wide by 480 feet long, leaving a strip eight feet wide on the south side of the street, and thirty-two feet wide on the north side of the street, the length of both lots. Some of the witnesses stated that the damages to the lots would be the value thereof as the fractions remaining would be practically worthless, while others stated that the land remaining would be from two to three hundred dollars in value, and one witness testified that the value of the lots was about a thousand dollars, and that the land not taken in opening the street would be worth three or four hundred dollars. Appellees introduced only one witness who testified that the market value of the two lots was six to six hundred and fifty dollars, and that if the street was extended through as contemplated, that the remainder of the lots not taken would be practically worthless. The jury returned a verdict assessing the damages at five hundred dollars, and from a judgment thereon, the city brings this appeal.</p> <p>The evidence sought to be brought out by the questions to the witness, G-reeson, was competent, as tending to show the effect of an improvement on the value of the land, and was admissible. 71 Ark. 38; 11 Ballard on Real Prop., § 167; 64 Ark. 555, 559.</p> <p>The. question propounded to Greeson and others, for the exclusion of which complaint is now made, was not proper, because (1) it was not'in proper form; (2) if it was intended as a “hypothetical” question, it should have stated the facts upon which the conclusion is to be drawn, and, (3) there is nothing in the question itself nor in any part of the record, to show what the answer would be or what' point the appellant expected to prove. 101 Ark. 442; 58 Ark. 353; 73 Ark. 409-10.</p>

Martineau, Chancellor; STATEMENT BY THE COURT. The appellant filed a complaint, the object and prayer of which was to reform a lease which appellant alleges it was induced to enter into by the false and fraudulent representations of the appellee, and to recover from, appellee certain rents which had been paid him, pursuant to the terms of said lease. To this complaint, a demurrer and cross complaint was filed.

Hays, Judge; 1. It is an essential requisite to impeaching a person that the witness knows his general reputation among his neighbors for truth and veracity, and from that knowledge would not believe him on oath. Evidence of particular acts * * * is not admissible. 67 Ark. 112. 2. The testimony admitted was incompetent and prejudicial.

T. Cowling, Judge; The court’s construction of the contract is erroneous, in that the effect of it is that appellants can not raise the question of fraud, however gross it may be, committed by the insured in part 2, of his application, making the policy with reference to this issue incontestible, although the company reserved in the policy one year from the date of its issuance to contest it, except for nonpayment of premium.

Bob1 ertson, Chancellor; 1. The warning order was not entered of record. 74 Ind. 56; 52 Iowa, 171; 130 N. T. 509; 23 Cyc. 835; 1 Black on Judgments, § 106; 93 Tex. 259; 131 Cal. 552; 34 Cyc. 585; 24 Am. & E. Enc. Law (2 ed.), p. 108; 30 Cal. 539. 2. It was not entered of record before the publication. 55 Ark. 30; 47 Id. 131; 18 Wall.' 372. 3. Mrs.'Comstock is not the heir. The proof is not sufficient to show there were no heirs nor lineal descendants. The burden was upon her.

<p>Appeal from Lee Chancery Court; R. I). Smith, Special Chancellor;</p> <p>1. After the death of a party to a suit while the case is under advisement, the court may enter its judgment nunc pro tunc, hut the entry can not properly be made until a proper revivor and substitution of parties is had. 73 Pac. 813; 17 Ark. 100, 105; 20 Ark. 336; 23 Ark. 18; 34 Ark. 300; 72 Ark. 185; 40 Ark. 224; 75 Ark. 12; 85 Ark. 334; Kirby’s Dig., § § 4432, 6265, 6266.</p> <p>2. The motion for revivor was in time. The case could not be • appealed to this court until final judgment had been entered in the chancery court. Until the judgment roll was made up in the trial court no copy thereof could be had to incorporate in the transcript of the record required by statute. Until the judgment is entered the time within which an appeal must be taken does not begin to run. Elliott on Appellate Procedure, § 118; Black on Judgments (2 ed.), § 106, p. 151; Id. % 110, p. 157; 35 Neb. 761, 763; 92 N. W. 294; 40 Neb. 740; 38 L. R. A. 243; 107 N. W, 753; 9 Minn. 318, 350; 20 Minn. 559; 36 Minn. 117; 24 How. Pr. (N. Y.), 193; 60 N. Y. 112; 95 N. Y. 542; 68 N. Y. S. 777; 114 N. Y. S. 792; 71 O. St. 50; 105 Tenn. 521; 15 N. J. Eq. 398; 39 N. J. Eq. 230; 125 la. 335; 54 W. Va. 581; 206 Pa. 91; 11-La. Ann. 181; 80 S. W. (Ky.) 823; 1 Wall. 690; 6 Wall. 153.</p> <p>The right of appeal existed at once when the decree was rendered in November, 1911, and appellant’s time commenced to run from that' date. 57 Ark. 185; 69 Ark. 48; Kirby’s Dig., §'1199. ■ (</p> <p>The chancery court had no further control over’ the case after the expiration of the term. 36 Ark. 513.</p> <p>No revivor was necessary in order to put the decree of record nor to make the record speak the truth as to the date of rendition of the decree. No correction of the decree was asked.' 13. Afk'. 654; 54 Ark. 551, 552; Kirby’s Dig., § 6176; 54 Cal. 519.</p>

<p>Insurance — warranty—breach—evidence.—C. became a member of defendant fraternal order in Texas, in November, 1911, and in his medical examination for a benefit certificate, he was asked “Q. Do you use wine, spiritous or malted liquors? A. No.” . In a suit to collect- óii ttié certificate,- held, evidence- of witnesses . , who knew insured in 1912 'after he removed from Texas to Arkansas, as to his habits, is inadmissible, being- too remote to .have any bearing on the question of the habits of insured concerning the use of intoxicating liquors prior to his admission to the order.</p>

. Appeal from Pulaski Circuit Court, Second. Division; Guy Fulk, Judge; ■': ' STATEMENT BY THE COURT. Rumina E. McClure owned a lot on Main Street, in the city of .Little Rock, Arkansas, on which was a building equipped and fixed up for the display of motion pictures, and rented it for that purpose to E. H. Hulsey for the term of five years from and after the first day of November, 1910, at a monthly rental of $300, payable in advance.

■Frierson, Chancellor; 1. Sarter had a lien upon the property attached as against Pickett and Purnatta, and such lien was not waived by taking a note with personal security. Kirby’s •Dig., § 5033; 36 Ark. 96. 2. The purchase of the crop by appellee was subject to the landlord’s lien. 70 Ark. 79; 69 Ark. 306; 72 Ark. 132; 69 Ark. 551. 3. Cole is entitled to be subrogated to the rights of Sarter. 37 Cyc. 414; 14 Barb. (N. Y.) 481; 39 N. C. 22; .14 O. St. 376; 19 Am.

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

<p>1. Mechanics’ liens — subcontractor—levee district. — A subcontractor on the construction, of a levee for a levee district has no lien on the property of the district for labor or material furnished. (Page 550.)</p> <p>2. Levee districts — construction—assignment op right under contract. — A levee district awarded a contract to M. to construct a levee, and M. procured plaintiff trust company to agree to finace the work and take the district’s bonds; M. agreed to furnish all labor and materials, and gave a bond conditioned on his paying all liabilities for labor' and materials. M. assigned his income arising under the contract with the district to plaintiff trust company, directing tie district to deliver checks for work, done and a monthly estimate to the trust company. Held, the assignment from M. to the trust company entitled the latter only to the net profits due M. and that subcontractors were entitled to be paid by the district for their labor and material furnished, as against the trust company under its assignment. (Page 551.)</p> <p>3. Levee district — saie of bonds. — A levee district contracted with a trust company to place its bonds with the company for sale; the trust company with the consent of the district assigned its interest and right to profits arising from the sale of the bonds to one G., but the bonds were never sold. Held, in an action against the levee district by the assignee of the income of the contractor, G. had no right to enforce his claim by an intervention. (Page 551.)</p>

E. Jeffery, Judge; A sale is presumed to be for cash, unless there was at the time a contract for a different mode of payment. Tiedeman on Sales § § 151-168; 63 Ark. 87; 55 Ark. 45. Crediting the account of Land by Rankin is not a payment such as would constitute Rankin a bona fide purchaser. 76 Ark. 282; 63 Ark. 87. Replevin will lie for goods intermingled with others ■where the kind, quality and price is the same. 70 Ark. 105.

Humphries, Chancellor; STATEMENT BY TH.E COURT. Appellant brought suit for subrogation to the lien of certain mortgagees whose mortgage debts were paid off by the money loaned by it for the purpose under the agreement that it would be given a first mortgage lien upon the property.

A foreign corporation engaged in business in this State can make no contract, nor bring suit on any contract made in the State until it has complied with the statute. Kirby’s Dig., § § 832, 833; 77 Ark. 205. The assignee of a contract made by such a corporation without having complied with the law, stands in no better attitude than-the corporation itself. 2. The use of the spur track was a vital part of the contract. Without it, appellant could do nothing.

Humphries, Chancellor; 1. The allegation that the Patterson Telephone Company is the one responsible is a pure conclusion of law, and demurrable. 38 Ark. 519; 43 Id. 296; 72 Id. 478. 2. It is not averred that seven years adverse possession had elapsed before suit. 73 Ark. 8. Nor that adverse possession was under color of title. 75 Ark. 593-5. 3. An offer to remove the poles is no defense to a suit for the use of land. 7 Ark. 405; 10 Id. 592; 11 Id. 442. .4.

<p>1. Actions — eight to transfer cause — waiver.—When plaintiff sues defendant at law, and plaintiff’s remedy is in equity, defendant waives the point by not moving to transfer. (Page 575.)</p> <p>2., Evidence — conflict—verdict.—When there is a conflict in the evi- ■ dence, it is settled by the verdict of the jury. (Page 575.)</p> <p>3. Judgment — res judicata — When the undisputed evidence shows that the claim asserted by the plaintiff was adjudicated in a former action between the parties, it can not be again adjudicated in another action. (Page 578.)</p>

Smith, Judge; STATEMENT BY THE COURT. On the 19th day of September, 1911, James A. Hopkins was in the employ of appellant, as carriage rider, at its stave mill in Craighead County, Arkansas.

E. Jeffery, Judge; STATEMENT BY THE COURT. On or about February 10, 1913, tbe appellant killed one Vernon Neely in Jackson County, Arkansas, at tbe borne of Mollie Mays, about 9:30 o’clock in tbe evening. Vernon Neely arrived at Newport about 4. o’clock on tbe day of tbe killing. He went to Newport on tbe local train, and was accompanied by two other negroes, Hardley Taylor and Efford Allison. They came to Newport from Beebe.