Volume 109 — Arkansas Reports

Wood, Chancellor; The court had the power to amend its decree by nunc pro tunc entry after the lapse of the term. 23 Cyc. 867; 141 Pa. St. 266, 21 Atl. 592; 70 Fed. 656, 17 C. C. A. 317; 51 Ark. 287. It was unnecessary to bring up the oral evidence, since it is clear that it was confined to the point of identifying- a record which is not in dispute. 48 Ark. 45, 50; Id. 60, 65.

W. Wells, Judge; statement by the court. Plaintiff, an elderly lady, lived at Luna, in Chicot County. She had a daughter living at Arkansas City, in Desha County. The daughter was very ill, being confined, and the plaintiff having been informed of this fact, purchased a ticket, on September 6, 1911, for Arkansas City, and took passage on defendant’s road from that place.

E.Jeffery, Judge; STATEMENT BY THE COURT. In pursuance of an act of the Legislature, approved April 22, 1907, as amended by an act approved May 4, 1911, the county court of Independence County, at its January term, 1913, received bids from such banks as might desire to become the county depositary. Three banking companies filed sealed written proposals.

J. Driver, Judge; STATEMENT BY THE COURT. This is an action by Dna Frances Hill against the Missouri State Life Insurance Company to recover three thousand dollars upon a policy of life, insurance issued November 15, 1905, on the life of Charles Frederick Hill, the husband of the plaintiff. The plaintiff was designated as beneficiary in the policy. On August 28, 1911, Hill borrowed on his policy $354.00, its full loan value.

Martineau, Chancellor; STATEMENT' BY THE COURT. The question presented by this appeal is whether a special act, No. 212, of the 1913 session of the Legislature entitled, “An Act Creating Certain Road Improvement Districts for the Purpose of Building, Constructing, Maintaining and Repairing the Public Roads of Lonoke and Prairie Counties,” is repealed by Act No. 302, of the said session of the Legislature, entitled, “An Act Creating the Department of State Lands, Highways and…

The testimony entirely fails to prove the existence of permanent injuries, and it was error to instruct the jury that appellee could recover for such injuries. 187 Pa. St. 337. Where there is no proof of permanent injury, tbe charge on the measure of damages should not submit that question. 107 S. W. 453; 150 Mich. 235; 85 S. W. 671; 120 Ga. 465; 98 S. W. 303; 119 La. 344; 94 S. W. (Mo.), 799; 64 N. Y. 817; 63 N. Y. S. 1067; 90 Ky. 369; 14 S. W. 357; 29 Am.

<p>1. Burglary—evidence—sufficiency.—Evidence held sufficient to warrant a conviction for burglary. (Page 33.)</p> <p>2. Burglary—unexplained possession of stolen property.—The unexplained possession of property recently stolen, will warrant a conviction of burglary, as well as of larceny, where the larceny is proved to have occurred at the time of the breaking and entry of the house. (Page 34.)</p> <p>3. Trial—argument of counsel.—Where counsel uses improper language in his argument to the jury, no reversible error is committed, where opposing counsel objects to the improper argument, and his objection is sustained by the court. (Page 34.)</p>

Appellant brought this suit against the telephone company, claiming the penalty denounced by law for discrimination against him in failing to supply him with telephone service at his residence at 1304 Olive street, in Argenta, Arkansas. The complaint alleges that he was a resident within the corporate limits of Argenta, within the boundaries of the territory where the defendant operates a telephone system in said city.

J. Driver, Judge; STATEMENT BY THE COURT. The school district entered into a contract with the Southern Building Company, on April 13, 1908, whereby the latter agreed to erect a high school building, including plumbing and heating apparatus, in Paragould, Arkansas, according to plans and specifications, for the sum of twenty-seven thousand dollars ($27,000).

Wood, Chancellor; STATEMENT BY THE COURT. This is an appeal from the judgment of the chancery court of Desha county, restraining the collection of assessments on lands, in what is known as the “Cypress Creek Drainage District.” The Cypress Creek Drainage District was organized under Act 110 as amended by Act 455 of the General Assembly of 1911; approved June 2, 1911.

Shaver, Chancellor; STATEMENT BY THE COURT. This suit' was instituted by the appellant against the appellee to recover judgment on a promissory note of $200, which appellant alleged was executed by the appellee to appellant on the 1st day of December, 1906. The •note was made payable on the 1st day of December, 1911.

<p>Appeal from Clay Circuit Court, Western District; W. J. Driver, Judge;</p> <p>STATEMENT BY THE COURT. ■</p> <p>The Odd Fellows Building Company owned a certain building in the town of Corning and rented the lower story of it and a warehouse connected therewith to J. M. Hawks for the term of five years, beginning December 1, 1907. In January, 1911, the said Hawks was adjudged a bankrupt and the trustee in bankruptcy was authorized and directed to assign and transfer said unexpired lease to the Beal-Doyle Dry Goods Company, a domestic corporation. This suit was instituted in the circuit court by the Odd Fellows Building Company against the Beal-Doyle Dry Goods Company and Howard H. Gallup for the recovery of the amount claimed to be due for rent. The facts above stated were set out in the complaint and in addition thereto the complaint alleges:</p> <p>“That the said Howard H. Gallup, a part of the time since the sale of said lease, occupied said building and controlled the possession of the same, commencing about October 10, 1911, and ending about January 15, 1912, by permission of and under'some kind of an agreement with his codefendant, Beal-Doyle Dry Goods Company, and that said defendant, Howard H. Gallup, and his codefendant failed to pay this plaintiff for the time he so occupied said bmlding. A statement of the account is herewith filed and marked exhibit £A’ to this complaint.”</p> <p>Service of summons was had on Howard H. Gallup in Clay County, Arkansas, and Beal-Doyle Dry Goods Company was served with summons in Pulaski County, Arkansas. The defendant Beal-Doyle Dry Goods Company obtained leave of the court to appear specially for the purpose of filing a motion to quash the service of summons on it. The motion reads as follows:</p> <p>“Comes Beal-Doyle Dry Goods Company, and, appearing only for the purpose of this motion, and for no other, moves the court to quash the service in this cause as to it, and for grounds therefor states:</p> <p>“That Beal-Doyle Dry Goods Company is a corporation organized and existing under and by virtue of the laws of the State of Arkansas; that it is situated in Pulaski County, Arkansas, that its principal place of business is in Pulaski County, Arkansas; that its chief officer resides in Pulaski County, Arkansas; that it is not situated in Clay County, Arkansas; that the summons in this case was served upon the defendant, BealDoyle Dry Goods Company, in Pulaski County, Arkansas.</p> <p>“Wherefore, defendant asks that plaintiff’s service be quashed as to it.”</p> <p>The court overruled the motion, and the defendant excepted to the action of the court. The defendant then, without waiving its rights under its motion to quash the service of summons, answered, denying the allegations of the complaint. There was a jury trial and a verdict against the defendant, Beal-Doyle Dry Goods Company, and judgment was rendered upon the verdict. The defendant has duly prosecuted an appeal to this court.</p> <p>1. A corporation can not. be joined with another defendant for the purpose of being sued in any other county, except such counties as the statute provides for it to be sued in. Kirby’s Digest, $ § 6067, 6071, 6060-1, 6072; 77 Ark. 412, 417.</p> <p>2. No joint cause of action is stated in the pleadings. 44 Ark. 229; Kirby’s Dig., § 6067-6072.</p> <p>1. The summons was legally served on defendant. Acts 1909, p. 293.</p> <p>2. The motion to dismiss for want of jurisdiction was properly denied. He who seeks an advantage by motion must see that the court rules upon it upon proper evidence and have same made of record. Here it simply appears that a trial was had on a controverted question of facts and a verdict was rendered for appellee, and this is conclusive. 72 Ark. 101.</p>

The instructions given at request of the defendant are based upon the theory that plaintiff was making an attack on the release signed by him and attempting to overcome the terms of a written contract by parol evidence, which can only be done by showing fraud or mistake. Appellant’s right to bring suit in the form laid and to recover for a breach of the contract is fully sustained by the authorities. 6 Ind. App. 289, 51 Am.

Frierson, Chancellor; 1. There is in our State no statutory authority for the organization of a water and light 'improvement district for the reconstruction,' repair and improvement of an old plant. Section 5664, of Kirby’s Digest, relied on by appellees, authorizes the construction of an improvement, but does not authorize the reconstruction or repair of an old improvement.

<p>Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;</p> <p>The commission had no power in the premises except to grant the franchise, etc. 19 Cyc. 1460; Castle’s Dig., § 8002; 3 Thompson on Corporations, § § 2863-4, 2878.; 132 Fed. 901; 211 IT. S. 265; Thompson on Corporations, § § 2874-2866; Acts Ark. No. 163, March 12, 1913; Endlich on Int. Stat., § 407; 6 Words & Phrases, § 5105.</p> <p>1. Certiorari will not lie. 6 Cyc. 737; lb. 738; Kirby’s Dig., § § 1315-16; 52 Ark. 220; 61 Id. 607; 62 Id. 196; 69 Id. 591; 73 Id. 606; 80 Id. 201; 70 Id. 589; Bishop on Noncontraet Law, ¶¶ 785-6; Mechem on Pub. Officers, ¶ 637; 74 Pac. 71; 96 N. W. 673; 152, S. W. 1012; 40 Cyc. 667.</p> <p>2. The powers of the commission are judicial or g-u«..si-judicial, and can not be controlled by mandamus or certiorari. 94 Ark. 422.</p> <p>3. The commission had the power to extend the time to complete the work. Acts 1905, p. 769; Acts 1913, No. 145; 145 S. W. 199; Acts 1913, No. 163; 11 Ark. 47; 89 Id. 384; 101 Ark. 223; Kirby’s Dig., § 5448; United States v. Lane, IT. S. S. C. April 15,1913, ms. op.</p>

This was a suit in replevin, brought by appellant in the Lonoke Circuit Court, to recover the possession of two mules, the appellant claiming title to the mules as an innocent purchaser of a note given to Eagle & Co., of England, Ark., by T. E. Tolson for the purchase price of said mules, the title thereto remaining in Eagle & Go. until the full purchase price should be paid.

Francis Circuit Court; Hance N. Hutton, Judge; STATEMENT BY THE COURT. On March 5,1912, Dr. J. E. Stone, late of St. Francis County, made a will which was signed and witnessed in the usual form and seven days later he died, and a few days thereafter the will was filed for probate before the probate clerk of that county.

Such a bill of exceptions must be authenticated by the certificate of the trial judge, attesting its correctness, and filed with the clerk of the court within the time allowed; otherwise there is no bill of exceptions. 42 Ark. 488; 91 Ark. 566; 93 Ark. 316; 99 Ark. 97; 101 Ark. 84; 102 Ark. 439; 145 S. W. (Ark.) 887; Id. 888; 148 S. W. (Ark.) 496.

<p>Appeal from Bradley Circuit Court: E. E. 'Williams, Special Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>This was an action by Gr. A. Rice against School District No. 20 of Bradley County for the collection of $180 alleged to be due him upon a contract to teach school for said district. The case was tried before a jury, impaneled for that purpose, aind a verdict was returned in favor of the school district and this appeal is prosecuted to reverse the judgment rendered thereon.</p> <p>The complaint alleged that appellant was a regularly licensed teacher of Bradley County and that he had entered into a contract with the directors of the appellee school district to teach a school for said district for three months during the summer of 1912 at a salary of sixty dollars per month. That at the time for opening the school he appeared at the schoolhouse and began school, according to his contract, when the school directors came to the schoolhouse with another teacher and ordered him to desist teaching and give up possession of the schoolhouse, and thereafter refused to allow him to perform his contract. The answer denied all the material allegations of the complaint and specifically denied that any contract had been made with appellant. The controverted points in the case are, whether or not all of the directors were present and participated at a meeting of the directors, at which appellant was employed to teach, and whether or not the law was correctly declared in regard to the necessity for such a meeting.</p> <p>Appellant testified that he had applied to a Mr. Morgan, who was one of the school directors for the school, but Morgan had declined to consent to his employment, although the other two directors were willing that the school should be given to him. Appellant further testified that in company with the other two directors he went to the home of Morgan to consult with him about the employment of a teacher and the preparation of the notices for the annual school election. That when they arrived at Morgan’s house they found him at work in his barn and when they went out there they were told by him that he did not want to discuss the school question at his house and that he did not want appellant to have the school. Appellant further testified that Morgan was asked his objections to the appellant as a teacher and answered these questions by stating his objections to appellant, and that one of the directors said: “Well, we can fix up the school notices,” and that Morgan assented that this should be done and appellant filled in the blanks in the notices and after they had been prepared, one director asked the other if he had the school contract with him, and, upon its being produced, these two directors signed the contract and presented it to Morgan, who refused to sign it and also refused to sign the notices, although a few days later he did sign the notices. The two directors, who signed the contract, testified and substantially corroborated appellant.</p> <p>Morgan testified that appellant and the other directors came to Ms house and found Mm at work in his barn, and when they stated the object of their visit, he declined to participate in the meeting wMch they attempted to hold, and that he stated the would not consider the question of the employment of a teacher until the annual school meeting was held.' And he denied having any knowledge whether the notices of the school election were prepared at 'that time or not, although he admits that a few days later he signed the notices of the school election, and at the time of this meeting discussed the question of moving the schoolhouse and whether anything should be said upon that subject in-the notices, when they were prepared.</p> <p>The court gave an instruction asked by the district as follows: £ £ The court instructs the jury that where a, party, a member of the board of school directors, had no notice in writing'of the time, place and purpose of a meeting, and two members of the board went to the field where the tMrd director was at work, and the third director was present for the purpose of carrying on the work of Ms farm, and not for the purpose of a meeting of a board of school directors and did not participate in the proceedings of said board, and if you believe from the evidence in this case two of the directors of School District No. 20 attempted to make a school contract with Gr. A. Rice, under the conditions just set out, the contract made by the said two directors was illegal, and did not bind the district, and if you find that the alleged contract was made under the conditions above set out, your verdict will be for the defendant.”</p> <p>And refused an instruction asked by appellant to the following effect:</p> <p>“The court instructs the jury that if you believe from the evidence that all of the directors were present at and took any part in anything that was done at the meeting of the'board of directors of School District No. 20, held at the residence of S. W. Morgan on 22d day of April, 1912, and then and there at least two of the members of said board agreed to the employment of the said plaintiff, G. A. Bice, as teacher for said district for a term of three months during the summer of 1912, and entered into a written contract with him for said term at a monthly salary of $60, and you further find that the plaintiff offered and held himself in readiness to teach the school and carry out his part of the contract, then your verdict will be for the plaintiff for the amount sued for, and it makes no difference whether S. W. Morgan consented to the employment of plaintiff or signed the contract.”</p> <p>And appellant excepted to the court’s action in giving one instruction and refusing the other.</p> <p>In addition, the court gave of its own motion the following instruction: “The court instructs the jury</p> <p>that if you believe from the evidence in this case that all three of the school directors of School District No. 20 was present and participated in the meeting in which the contract in this suit was made, although only two directors signed said contract, then you will find for the plaintiff in the sum of $180. ’ ’</p> <p>Was the law properly declared and is the verdict unsupported by the evidence?</p> <p>1. The instruction given at appellee’s request, and set out in the opinion, is abstract and misleading, under the facts developed in this case, and is therefore erroneous. 1 Brashfield, Instructions to Juries, § 83; 54 Ark. 336; 14 Ark. 537; 6 Ark. 156.</p> <p>An erroneous and misleading instruction is not cured by a correct instruction on the same subject. 101 Ark. 37; 99 Ark. 377.</p> <p>2. The instruction requested by appellant should have been given. A written notice is not necessary where all the directors are present and participate in the proceedings. 83 Ark. 491; 4 Tex. 602-611.</p> <p>The instruction complained of is correct. 69 Ark. 162.</p>

<p>Appeal from Lawrence Circuit Court, Eastern Dis- ' trict; R. E. Jeffery, Judge;</p>

Meehs, Judge; STATEMENT BY THE COURT. The defendant, Thomas L. Tiner, was indicted for the crime of murder in the first degree, charged to have been committed by killing John R. Davis. He was convicted of murder in the second degree, and the jury assessed his punishment at a term of twelve years in the penitentiary. From the judgment of conviction, the defendant has duly prosecuted an appeal to this court.

Martmeau, Chancellor; STATEMENT BY THE COURT. Appellant brought this suit to foreclose a chattel mortgage and subject to saie the mules in controversy, which had been seized by attachment at the suit of EL Beuehley, against her father, F. F. Erdman.

<p>Appeal from Drew Circuit Court; H. W. Wells, Judge;</p> <p>1. The stockholders’ resolution, if regularly adopted, would not create, in law, any lien on the stock. Kirby’s Dig., § 853. Nor was there any statutory lien. A contingent claim is not a “debt due.” Ib.; 4 Thompson on Corporations, § 4000, p. 556.</p> <p>2. There was no lien at common law. If any existed, it-must be statutory. “Debt” means a sum certain. 1 Mass. 471; 31 N. J. Eq. 554. It never means a contingent liability. 37 Cal. 524; 54 Ala. 639; 53 N. J. Eq. 633; 98 Pa. 308-402; 31 Mich. 76; 2 Hill (N. Y.) 220; 3 Seld. 124; 17 N. Y. 458; 63 Fed. 707-722; 45 Minn. 238; 17 Wis. 181; 57 Am. Dec. 542; 17 Mich. 511; 14 Yt. 14; 94 N. W. 191; 58 Oh. St. 280; 10 Pa. St. 120; 3 Watts (Pa.) 394; 60 Ark. 198; 66 Icl. 327; 68 Id. 235.</p> <p>3. A resolution can not create a lien. 52 Mo. 377; 162 N. Y. 163; Helliwell on Stock, etc., 146-7-468, § 170, p. 309.</p> <p>4. If there was a lien, it was waived. 4 Thompson on Corp., § 4004, p. 565 (1909 ed.); Cook on Corp., vol. 2, § 531 (4 ed.); 15 Mo. App. 55; 88 Mo. 567; 44 Minn. 183.</p> <p>5. A purchaser without notice acquires the legal title. Helliwell on Stocks, etc., pp. 303, 304, 175-6, pp. 320-1-3-4; 4 Thompson bn Corp., § 4007; 52 Pa. St. 280.</p> <p>6. The assignment gave plaintiff title, and the refusal of the bank to reissue did not impair the title. 13 Otto. 800; 11 Wall. 369; 91 IT. S. 65; 2 Conn. 777; 11 Wend. 628; 22 Id. 362; 8 Pick. 90.</p> <p>7. If there was any lien it was statutory, and a purchaser is bound to take notice of a statutory lien. There Vas no express warranty, and no warranty as to quality or fitness is implied when the defects are known to the buyer, or he has knowledge sufficient to put him on inquiry. 35 Cyc. ¶ 9, p. 409; 2 Cook on Corp., § 532 (4 ed.). In the sale of personal property, there is no implied warranty except as to title. 45 Ark. 284..</p> <p>8. There is no proof of damages, and the burden was on the party claiming damage. 2 Wigmore on Ev., § 1362; 7 Cyc. 457-8.</p> <p>1. The statutes of this State give the bank a lien on stock for all debts due it. Sand. & Hill’s Dig., § 1342; 66 Ark. 327, 331. Stock must be transferred on the books of the company. 66 Ark. 331.</p> <p>2. Shares of stock are not negotiable instruments. Whoever buys takes subject to the equities and burdens' which attend them. 10 Cyc. 589. The statutes and bylaws must be complied with. 88 Ark. 113; Kirby’s Dig., § 853; 53 Ark. 298.</p> <p>3. The statute of frauds must be pleaded. 71 Ark. 304.</p> <p>4. There was no waiver.</p> <p>5. A mere assignment does not convey title. The statute and by-law must be complied with. 88 Ark. 113.</p> <p>6. There was an implied warranty of title that the stock was clear of all incumbrances. 24 Ark. 223; 45 Id. 284; lb. 288; 53 Id. 295; 19 Id. 447-460; 10 A. & E. An. Cas. 168, note; 35 Cyc. 394; 46 Minn. 4.13; 165 N. Y. 108; Burdick on Sales, 92.</p> <p>7. If the seller knew at the time of the sale that he had no title, the buyer has an action for deceit. 4 Ark. 467.</p> <p>8. As to the damages, the findings will not be disturbed. 96 Ark. 606; 92 Id. 41; 81 Id. 108; 90 Id. 375; 94 Id. 532.</p>

<p>1. Action on contract—transfer from taw to equity.—A mere matter of accounting -will not give equity jurisdiction, and in order to stow a ground for transferring a cause to equity, on account of tiie complicated nature of an account, it must appear that it would he difficult for a jury to determine the issues of fact involved. (Page 177.)</p> <p>2. Actions on contract—transfer from law to equity.—In an action on a contract when the matter involved is merely one of proof and calculation, with no special intricacies, equity has no jurisdiction. (Page 179.)</p>

E. Jeffery, Judge; STATEMENT BY THE COURT. On March 11,1913, one Benningfield was being tried in the circuit court of Lawrence County on an indictment charging him with murder in the first degree. The attorneys present representing the defendant were L. B. Poindexter and Oscar Blackford. L. C. Going, one of the attorneys for the defendant, was not present while the jury was being selected. He arrived at Walnut Ridge about 2 o ’clock Thursday morning, March 13,1913.

The misconduct of the jury in mingling with other guests of the hotel where they stayed, and in reading in both of the daily papers the sensational accounts of the case therein contained, is alone sufficient to reverse this case. The burden was on the State to prove that no prejudice resulted to the defendant. 44 Ark. 120. Where a defendant in a criminal case has been prejudiced by the reading of newspapers by the jury, the verdict is vitiated. 42 Am.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p> <p>1. A plaintiff can not impeach his own witness by proof of prior contradictory statements without first showing that he had been entrapped by the witness or that his testimony amounts to a surprise. 40 Cyc. 2559; 50 Cent. Dig., Witnesses, § 1214; 7 Enc. of Ev. 31; Greenleaf on Ev. (16 ed.), § 444; 154 U. S. 134, 38 L. Ed. 936; 99 Wis. 639, 75 N. W. 416; 2 Okla. Cr. 362, 102 Pac. 57; 93 Pac. 1049; 153 Cal. 652, 96 Pac. 266; 34 Fla. 185; 15 So. 904; 20 Mont. 574, 52 Pac. 611; 110 S. W. (Tex.) 1013; 103 S. W. (Tex.) 911; 60 S. W. (Tex.) 881; 45 S. W. 808; 45 Fla. 8; 92 Ark. 237, 122 S. W. 506; 59 Miss. 243; 116 La. 36, 40 So. 524; 111 Pac. (Okla.) 679, 140 A. St. Eep. 668, 31 L. E. A. (N. S.) 1166. There can be no claim of surprise where a party places a witness upon the stand with notice that the witness will testify adversely to him; and the practice of questioning one’s own witness for the sole purpose of impeaching him is not permissible, supra; 115 Cal. 50, 46 Pac. 863; 89 Pac. 757; 9 Idaho 35, 71 Pac. 608.</p> <p>The error of this method of procedure is so substantially prejudicial, that it is not cured by the giving of an instruction to the jury at defendant’s request to the effect that proof of prior inconsistent and contradictory statements does not tend to establish the truth of the matter set forth in said statements. 70 Miss. 742, 12 So. 852; 100 S. W. (Tex.) 927; Id. 770; 92 S. W. (Tex.) 1093.</p> <p>Admission of proof of prior contradictory statements was further erroneous for the reason that the witness had not testified prejudicially to the plaintiff at the time of his impeachment. 40 Cyc. 2696; 10 Enc. PI. & Pr. 320; 7 Enc. of Ev. 31-35; 34 Fla. 185, 15 So. 904; 65 W. Va. 375, 64 S. E. 260; 18 Ore. 307, 22 Pac. 1064; 29 Ore. 85, 43 Pac. 947; 24 S. W. 904; 46 Fla. 166; 49 Cal. 384; 141 Cal. 529; 153 Cal. 652; 94 Cal. 550; 110 S. W. 1013.</p> <p>2. The court erred in refusing a peremptory instruction in favor of the defendant.</p> <p>The verdict of the jury is not supported by sufficient evidence. There is no evidence whatever that he was caught between the ties, or that he was caught in any manner and was unable to extricate himself. 115 S. W. 890; 76 Ark. 436; 181 Fed. 91; 98 Tex. 451; 126 Pac. 760; 139 N. C. 273; 56' 111. App. 578; 89 S. W. 810; 103 Va. 64; 157 N. W. 244; 93 S. W. 868; 28 Ky. Law Eep. 989; 75 Md. 38; 75 Md. 38; 23 Atl. 65; 81 Atl. 267; 79 Ark. 437; 73 Tex. 304; 47 Minn. 384; 131 N. Y. 671; 97 Pa. 450; 159 Mass. 589; 150 S. W. (Ark.) 572; 179 IT. S. 658; 222 Mo. 488; 72 S. C. 398; 140 S. W. 579.</p> <p>It is apparent that appellee relied in the lower court upon the prior contradictory statements of the witness Young to make out his case. It is elementary law of evidence that proof of prior inconsistent statements of a witness can be introduced and considered only for the purpose of impeachment, and not as substantive evidence of the truth of the matter stated. 40 Cyc. 2764; 7 Enc. of Ev. 249; 50 Am. Dig., Cent. Ed., 1655; Wigmore on Ev. § 106; 132 Mo. 363; 80 Ky. 507; 34 Fla. 185; 123 Cal. 374; 100 S. W. 770; 111 Pac. (Okla.) 679; 75 N. H. 23; 67 Ark. 594; 18 S. W. (Ark.) 172; 72 Ark. 582; 73 Ark. 484.</p> <p>The peremptory instruction should have been given for the further reason that the cause of action alleged was not proved. The allegations of the complaint bring this case within the operation of the Federal Employers’ Liability Act, which is paramount and exclusive. Thornton, Fed. Employers’ Liability Act, § 40, p. 223; Id. p. 424; Id. 444; 175 Fed. 506; 173 Fed. 527; 184 Fed. 828; 140 S. W. (Ark.) 579; 33 S. C. Eep. (IT. S.) 135; Id. 192; 167 Fed. 660; 233 IT. S. 1; 200 Fed. 44. The laws of the State of Oklahoma, therefore, in so far as they covered the same subject, were superseded by the Federal act, and the plaintiff must recover under that act or not at all. So long as the complaint shows that the Federal statute was applicable, it was the sole measure and source of the plaintiff’s right of action. 167 Fed. 660; 158 IT. S. 285, 29 L. Ed. 983; Thornton, Fed. Employers’ Liability Act, § 19, p. 35; 197 Fed. 537; Id. 578; Id. 579-; Id. 580; 153 S. W. 163; 148 S. W. (Mo.) 1011.</p> <p>There was no attempt made nor any request to amend the complaint so as to base a right of action upon the laws of Oklahoma. Even if an amendment had been offered it would have been the duty of the court to refuse it, because a new cause of action can not be introduced by way of amendment. 70 Ark. 319; 75 Ark. 465; 83 Ga. 441; Id. 659; 113 Ga. 15; 78 Atl. 34; 158 IT. S. 285, 39 L. Ed. 983.</p> <p>1. The parties having elected to try upon one issue in the lower court, the defendant will not be permitted to try it upon a different issue on appeal. 64 Ark. 305.</p> <p>On the point that there had been no amendment nor request to .amend the complaint, it is enough to say that there could be no more effective way of amending the complaint than by requesting and having the trial court to give an instruction that a certain allegation was withdrawn. The court’s discretion and authority in the matter is clear. Kirby’s Dig., § § 6140, 6141, 6142, 6145; 42 Ark. 57; 94 Ark. 365.</p> <p>2. It was error to exclude the deposition of the witness Young at the time it was offered by plaintiff. Kirby’s Dig., § 3157; 49 S. W. 791; 23 S. E. 207; 17 111. 406; Id. 571; 11 Humph. (Tenn.) 90. If it was error to exclude this deposition, it was induced by appellant, of which it can not complain; and it can not complain of the subsequent error, if it was error, in permitting it to be used to contradict the witnesses.</p> <p>The statement given by Young to Mr. Green, the claim agent, on the next day after the accident, was identified by him as containing the absolute facts so far as he knew them. It is not mere contradiction of the witness, but is affirmative testimony of itself, tending to prove the facts therein stated. 1 Greenleaf on Ev. (16 ed.), § § 436-439; 63 Ark. 187.</p> <p>The rule formulated- under section 3157, Kirby’s Digest, is not limited to cases where the party seeking the contradiction of a witness must show that he was entrapped or his testimony amounts .to a surprise. The statute is broad and was passed to destroy the rule of evidence appellant contends for. 2 Wigmore on Ev., § 896; Id. % 904; 1 Greenleaf on Ev. (2 ed.), § 444.</p> <p>3. A peremptory instruction to find for the defendant was properly refused, because, leaving the testimony of Young entirely out of it, there is sufficient evidence in the record to go to the jury, and to sustain a finding that defendant came to his death from one of the causes alleged in the complaint. St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476.</p>

<p>Appeal from Phillips Circuit Court; Harnee N. Hutton,Judge-,</p> <p>STATEMENT BY THE COURT.</p> <p>Appellee sued appellants for the loss'of a shipment of cotton consigned to it at Barton, Ark., and which was destroyed by fire while in the cars upon the sidetrack at the station. The proof showed that the cars which the cotton was in at the time it was destroyed were on a sidetrack adjoining the depot on the north side of the main line of appellants’ road at that place. The plant of appellee was situated on the south side of the main track, and'there was a private switch from the south side of appellants’ main line to appellee’s plant. This private switch was maintained by appellants, and was used exclusively for receiving and delivering carload shipments of cotton and other supplies used by appellee. The m nager of appellee’s mill was the station agent of the rauroad company at Barton. The same person was also the assistant to the station agent and assistant to the manager of the mill. The hill of lading in question in this, case was for ninety-four bales of cotton consigned to appellee at Barton, and it contained the clause as follows:</p> <p>“2. Notice.—This contract is accomplished, and the liabilities of the companies as common carriers thereunder terminates on the arrival of the cotton at the station or depot of delivery, and it is understood and agreed that the companies will he liable as warehousemen only thereafter. ’ ’</p> <p>Appellee had a shed hack of its mill on the private spur track. It was the custom of the railroad company to deliver carload shipments on. the spur track at the shed, and appellee would unload the shipment from the cars into the shed. The private track was within the yard limits of the station. The conductor of appellant’s local freight train had exclusive charge of the switching at this station. When the cars arrived at the station and were placed on the sidetrack, appellee’s agent requested the conductor to spot the cars at the usual place next to the shed. The conductor several times promised to do this, but neglected to do it on account of the press of other duties. After the cars had been on the sidetrack for about nine days, the conductor was again requested to spot the cars, and promised to do so the next morning. Appellee needed cotton in its mill and unloaded part of it from the cars where they stood for immediate use. That night a fire occurred and the remaining cotton was destroyed by the fire. Appellee had already gotten out as much of the cotton as it needed for immediate use, and did not intend to unload any more of the cotton until the cars were spotted at the shed. Appellee’s agent had paid the freight and signed a receipt for the cotton before the fire occurred, but the testimony shows that it was the custom of appellee to sign a receipt for shipments weekly and to pay the freight therefor whether the goods had been received or not. This was an established custom, and was acquiesced in by the railroad company. Forty-six bales of cotton, valued at $2,764.91, were destroyed by the fire, and the jury returned a verdict for appellee for that amount.</p> <p>From the judgment rendered, appellants have duly prosecuted an appeal to this court.</p> <p>1. Neither the express nor the implied obligations of a bill of lading can be varied by parol. Hutchinson on Carriers, (3 ed.) § § 167, 168; Id. 310; 93 Ark. 537; 128 Ala. 167; 4 L. E. A. 244; 119 Pa. St. 24; 72 N. Y. 615; 30 Ala. 608; 13 L. E. A. 262; 115 Mass. 536; 6 Cyc. 466; 36 O. St. 453; 31 Me. 228; 80 Ala. 5; 66 Tex. 292.</p> <p>2. A carrier’s liability as such terminates upon the arrival of the goods at the designated place of delivery, allowing a reasonable time after notice of the arrival for the consignee to receive and take possession of the goods; and after tbe lapse of such reasonable time, the carrier is liable as a warehouseman only. 100 Ark. 37; 77 Ark. 482; 60 Ark. 375; 2 Hutchinson on Carriers, § 685, p. 765; Id. % 694, p. 774. As a warehouseman, a carrier is liable only for the results of its negligence, the burden of proving which is on the party alleging it.' There would be no presumption of negligence arising from the destruction of the goods by fire or otherwise. 60 Ark. 375; 52 Ark. 26; 64 Ark. 115; 97 Ark. 287..</p> <p>3. The evidence fails to establish the custom respecting the delivery of carload freight.</p> <p>“The liability of the common carrier ceases with the delivery of the goods at the point of destination according to the direction of the shipper, or according to the usage and custom of the delivery at such place of destination.” 100 Ark. 37, 42; Hutchinson on Carriers, (3 ed.), §§ 664, 710, 711; 6 Cyc. 465 “f;” 40 L. E. A. (N. S.) 73.</p>

On the 8th day of May, 1906, L. P. Coleman, who was the owner of a certain tract of timber land in White County, together with his -wife, executed the following instrument: “Timber Deed. “Know All Men by These Presents: “That the undersigned, L. P. Coleman, of the county of Pulaski, in the State of Arkansas, by the written direction of J. S. Leffler, found on the reverse side hereof and signed by J. S. Leffler, and in consideration of the sum of fifteen hundred ($1,500)…

E. Jeffery, Judge; STATEMENT BY THE COURT. On May 17, 1912, I. P. Hydrick was a passenger on appellant’s train from Newport to Swifton, Arkansas. After the train whistled for Swifton the name of the station, “Swifton,” was announced, and when the train stopped Hydrick left his seat to debark from the train, and when he got on the platform of the car the train pulled up with a jerk and Hydrick fell off.

<p>1. Bills and notes—negotiable note.-—A note made by the directors to a bank, in which it is recited that the same is given to make up the shortage of the cashier, and providing that the makers shall be reimbursed out of any of the missing assets which shall be discovered, is non-negotiable, and a holder, although he takes before maturity, takes subject to all equities and defenses available between the original parties. (Page 248.)</p> <p>2. Bills and notes—payment by joint maker—effect.—Where one of the joint makers of a note pays the same, the note is extinguished except for the purpose of contribution from the co-makers to the party paying it. (Page 248.)</p> <p>3. Bills and notes—endorsement—liability of endorser.—Where a note is made to a bank by its directors, to cover the shortage of its cashier, and the same in endorsed by the cashier, upon the sole direction of the president, who is one of the directors, for the purpose of enabling the president to hold the other makers to contribution, the endorsement is for accommodation merely, and doe3 not operate to make the bank liable to one with knowledge of the fact, and the endorsement carries with it no guarantee of payment. (Page 249.)</p> <p>4. Bills anl notes—non-negotiable note—liability of endorser.— Where the payee of a non-negotiable note endorses the same, the endorser is not liable thereon, unless the assignment is made in a form from which an intention to guarantee the payment of the note may be inferred, or induces the assignee to take it by an agreement, express or implied, to that effect. (Page 249.)</p>

<p>Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>There being a vacancy in the office of Governor of the State of Arkansas, and a special election having been called to fill same by Acting Governor J. M. Futrell, as required by the Constitution, fixing the date thereof as July 23, 1913, the Democratic party, through its central committee, called a primary election for making the nomination of a candidate for the office, fixing the date of such election June 21, 1913. It also fixed June 30 thereafter as the date upon which the central committee should meet for canvassing the returns of the election and certification of the nominee. The appellee gave notice that he would contest the election before the central committee at its meeting to canvass the returns and the nomination of his opponent, Judge Hays, under the provisions of Act 371 of the Acts of 1911.</p> <p>Fearing that the committee might not hear the contest, he also procured a mandatory injunction from the Pulaski Chancery Court, directing the said committee to proceed and hear his contest upon its meeting to ascertain and announce the result of the primary election and certify the nominee, which injunction was read to the committee upon its meeting upon the said 30th day of June.</p> <p>At the meeting of the committee after three days’ hearing of the contest, it determined from the evidence before it and from snch investigation as it had had opportunity to make, within the time limited for the hearing thereof and thereafter certifying the nominee to the Secretary of State within the time prescribed by law, that there was no proof to sustain the allegations of fraud made by the contestant and that the returns showed that Judge Hays had received 861 votes more than his opponent, the appellee, and declared him the nominee of the party and certified his nomination to the Secretary of State on July 2, 1913.</p> <p>Thereupon, appellee filed a supplemental complaint in the chancery court, alleging that the committee had violated the preliminary injunction, had not granted him a hearing of the contest, had not heard the same as required by law, “but had only conducted a feigned and pretended hearing, had made no investigation of the fraud alleged to have been perpetrated in the contest filed, had refused to allow appellee a reasonable time in which to produce his evidence and arbitrarily and oppressively violated appellee’s rights and fraudulently certified the name of George W. Hays, contestee, before said committee to Earle Hodges, the Secretary of State, as the Democratic nominee.” That said Secretary of State, unless restrained from so doing, will certify the name of said contestee, George W. Hays, to the various county election commissioners as the Democratic nominee for Governor, and “that if same be done, contestee will be deprived of all rights under the law as contestant of said election, and that said certification if allowed to proceed will operate and amount to an absolute denial to him of the right to proceed with his contest as allowed by law, and the decretal order of the court, and will result in rendering absolutely nugatory and of no effect whatever, said decretal order of the court, and that it is his intention to further prosecute the said contest before the proper tribunal to a' final determination in the forum as provided by law. Prays that Earle Hodges, Secretary of State, be made a party, and that a restraining order issue preventing Ms certifying to the county boards of election commissioners the name of George W. Hays as the nominee, and that upon a final hearing that the restraining order be made permanent.”</p> <p>The appellants answered, admitting that the Democratic State Central Committee is a body especially created by statute for the purpose of hearing contests and certifying nominees of the party; that it met on June 30, 1913, in accordance with its rules adopted prior thereto; that it heard and considered all the evidence presented by the contestant, allowing him all the time possible in wMch to present Ms contest, and permit the committee to ascertain and determine the result of the election and certify the name of the nominee to the Secretary of State twenty days before the date fixed for the election, July 23, 1913, as required by law. That after hearing all the evidence and argument of counsel, and acting as they believed, in compliance with the injunction and in full compliance with their duty under the law, found that the allegations of fraud were not sustained, were without foundation and dismissed Ms petition for want of proof. That it further found that George W. Hays had received a majority of all the votes cast in the primary election and was entitled to a certificate as nominee of the Democratic party and directed its chairman and secretary to certify Ms name to the Secretary of State as such Democratic nominee for the office of Governor. It also alleged that the law requires the Secretary of State to certify out the said nomination to the boards of election commissioners of the counties eighteen days before the election, and prayed that the temporary injunction be dissolved and a perpetual injunction be denied.</p> <p>The chancellor granted the relief prayed for and enjoined the Secretary of State from certifying out the nomination made and returned to him by the said Democratic Central Committee, and from the decree this appeal comes.</p> <p>In the absence of a statute giving them jurisdiction, the courts have no power to interfere with the judgments of committees and tribunals of established political parties in matters involving party government, discipline or the nomination of candidates. 15 Cyc. 330-332; 67 N. W. (Neb.) 755, 757; 76 N. W. (Mich.) 914; 112 N. W. (Mich.) 1071.</p> <p>A court of equity has no power to try contested elections or title to office, and such court has never exercised that power except in cases where it has been Conferred by express enactment or by necessary implication therefrom. 15 Cyc. 397; 78 111. 237; 151 111. 41, 25 L. R. A. 143; 69 Fed. 852, 30 L. R. A. 90; 189 U. S. 475, 47 L. Ed. 909. The Constitution of the State empowers the Legislature to create chancery' courts and vest them with jurisdiction in matters of equity, and the Legislature can give to such courts jurisdiction only in matters of equity. Election contests for nominations are not matters of equity, and have never been so considered. 80 Ark. 145; 15 Cyc. 331; 5 Pomeroy Eq. Jur. 324, 331-4; 123 N. Y. 609; 25 N. E. 1057. “Ño principle of the law of injunction is better settled than that injunction does not lie to determine questions of appointment to public office and the title thereto, as they are of a purely legal nature and cognizable only in courts of law. ” 5 L. R. A. (W. Ya.) 334; 3 L. R. A. (W. Va.) 954; 17 O. St. 201; 6 Am. & Eng. Enc. of L. 392; 69 Ark. 606, 611; 122 S. W. (Tenn.) 979; 43 Ark. 63; 84 Ark. 540; 38 Pac. 468; 90 Pac. 1034; 99 N. W. (Neb.) 681; 70 Pac. (Mont.) 519, 523.</p> <p>1. Act 371 of the Acts of the Legislature of 1911, which attempts to provide for the manner of holding a primary election in the State of Arkansas, is unconstitutional and void. 80 Ark. 145. When the Constitution has spoken on any particular subject, and has included one thing of a kind, it excludes all others, under the principle “ expressio unius est exclusio alterius.” Id. 145, 150; Broom’s Legal Maxims 480, 489; 9 Cyc. 584; 19 Cyc. 23, 27; 1 Ark. 283; Id. 513; 20 Ark. 410; 27 Ark. 479; 43 Ark. 676; 35 Ark. 457; 49 Ark. 231; 60 Ark. 95; 51 Ark. 534; 3 Words and Phrases 2330, “Election;” Bonvier; Anderson.</p> <p>2. The chancery court was clearly without power to hear and determine this controversy for the reason above stated, and for the further reason that, if the act is held to be constitutional, it has provided a tribunal for the hearing of such controversy whose decision is final and from which there is no appeal to the courts. If this tribunal is a court, it is of concurrent jurisdiction with the chancery court, and obtained jurisdiction first.</p> <p>If the State Central Committee is an inferior tribunal to the courts, then the circuit court, and not the chancery court, has jurisdiction, because, in this State, all jurisdiction not specifically vested in some other court, is vested in the circuit court. See Kirby’s Dig., § 1315. This controversy falls squarely within the doctrine announced bv the court in the bridge district cases. 96 Ark. 424; 106 Ark. 151.</p> <p>. 1. The act is constitutional. In none of the States where are found the opinions relied on by appellants is there a law such as ours. 74 Pac. (Col.) 896; 62 Atl. (Md.) 249; 89 N. W. (Minn.) 1126; 56 Atl. (N. J.) 1; 51 N. E. (O.) 150; 66 Pac. (Ore.) 714; 92 N. W. 4.</p> <p>2. Under the allegations set forth in the original complaint, there was jurisdiction in the chancery court to issue a mandatory injunction to compel the State Central Committee of the party to hear the contest filed by the appellee. 87 S. W. (Ky.) 786; Id. 805; 89 S. W. 1; 75 S. W. 1082; 120 S. W. 343; 84 S. W. 767; 100 N. W. 925; 121 S. W. 468; 31 S. W. 290; 97 Pac. 396; 71 S. W. 892; 86 S. W. 697.</p> <p>•The holding in Hester v. Bomlamd, 80 Ark. 145, was merely that the Legislature had no power to vest in a court of chancery jurisdiction to hear election contests, whereas, that is not the object of this suit, bnt the aid .of the chancery court is sought only to compel the granting to appellee of a right which is conferred upon him by statute.</p> <p>3. It appearing by the supplemental complaint filed that the State Central Committee did not obey the court’s, mandatory process, but only made a feigned and pretended investigation, arbitrarily refused to produce evidence which appellee had requested to be brought before it, and failed to hear the contest, it was within the power of the chancery court to order the State Central Committee to proceed with the contest in order to preserve the rights of the appellee, and, pending the hearing of •such contest, to grant an injunction restraining the Secretary of State from certifying out the purported nomination to the county boards of election commissioners. Where chancery has rightfully assumed jurisdiction of the parties and subject-matter for certain purposes, it will grant complete relief without remitting the parties to an action at law for further relief. 75 Ark. 52; 77 Ark. 570. Where a party has put himself upon the merits without objection to the jurisdiction of equity, he can’not object at the hearing, nor on appeal, unless the court is wholly incompetent to grant relief. 14 Ark. 345; 17 Ark. 340; 18 Ark. 583; 13 Ark. 193; 15 Ark. 307; 30 Ark. 89, 91. See also, on the question of jurisdiction, and power to grant the mandatory injunctions, 62 Pac. 664; 87 S.- W. 787; 77 Ark. 555; 23 Am, & Eng. Enc. of L. (2 ed.) 372; 19 Id. (2 ed.) 737-739; 62 Atl. (Pa.) 258; 76 N. W. (Minn.) 285; 91 N. W. 950. The failure alone on the part of the committee to send for the ballots and to .recount the same in the counties where the contestant alleged fraud had been perpetrated, was a failure to hear the contest. 59 So. 71; 58 So. 582; 57 So. 272.</p> <p>If appellant’s construction of section 6 of the act of 1911 (Act 371) is correct, the law gives no relief to a candidate who alleges fraud. The courts are under the duty to give such construction to the law as to make it effectual. 134 N. Y. 374.</p> <p>The law shoxild and does throw around a candidate for nomination for an office the same rights as if he were a candidate in the general election, and for every wrong against such a candidate there is a remedy. 135 N. Y. S. 187.</p> <p>4. An application for mandamus would have afforded no remedy whatever. Had appellee made an application for a writ of mandamus, the thing that it was necessary to prevent woxild have been accomplished before he coxild have complied with the requirements of the statute governing applications for mandamus. 84 S. W. 767.</p>

Evans, Judge; STATEMENT BY THE COUBT. The plaintiff, George T. Tippin, brought this suit against M. F. H. Smeltzer and W. A. Steel to recover damages for a breach of warranty in the sale of certain strawberry plants. In November, 1909, the plaintiff leased from Tom Wallace for a period of eight years two hundred acres of land in Johnson County, Arkansas. A part of the lease was an old pasture with large trees but no underbrush on it.

M. Jaclcson, Judge; STATEMENT BY THE COURT. This was an action of ejectment brought by appellants against appellees on the 24th of September, 1904. The facts are as follows: W. A. Brasher died intestate in the year 1863, owning the lands in controversy, which, are situated in Lee County, Arkansas'. He left surviving him as his sole heirs at law, A. W. Brasher, Rachel Brown, Melissa Long, T. J. Brasher and Mrs. A. Woolridge, who were Ms brothers and sisters.

<p>1. Master and servant—injury to servant—contributory negligence—question for jury.—Appellee was employed as assistant inspector in appellant’s mill, his duty being to inspect the machinery at the noon hour. In the forenoon he was called to perform the duties of an absent employee, and was injured by reason of the removal by another employee of a plank protecting the machinery at which appellee was called to work. Held, although appellee was an inspector, but was injured when called to perform other duties in the mill, the appellant is not entitled to a peremptory instruction in its favor, but the question of the contributory negligence of the appellee was, under the circumstances, a question for the jury. (Page 295.)</p> <p>2. Master and servant—injury to servant—assumed risk.—Where appellee is employed as an inspector in appellant’s mill and his duty requires him to inspect the machinery only at stated intervals, when he is called upon to perform the duties of another servant, at a time other than the time for the inspection, if he is injured by a defect in the covering of the machinery, due to negligence of another servant, he does not assume the risk created at the time of the injury by the negligence of the appellant, its agents or servants of which he did not know. (Page 296.)</p>

Martineau, Chancellor; STATEMENT BY THE COURT. Ledwidge and English were the owners of a certain mill plant near Pinnacle, Arkansas.

Martineau, Chancellor; STATEMENT BY THE COURT. On the 15th of January, 1890, L. W. Monroe entered into a contract with George Pettus and Pete Pettus whereby Monroe agreed to sell a certain tract of land in Lonoke County for the consideration of $1,500, evidenced by a promissory note for that amount, with interest from maturity at 10 per cent per annum.

Hays, Judge; 1. The rights of the appellees were forfeited by reason of the building being unoccupied and vacant, and remaining so for from three to five months prior to the time the fire occurred. The forfeiture became complete when the unoccupied condition of the building extended beyond a period of ten days, as provided for by the terms of the contract itself. 2 Clements, Fire Insurance, 367; 5 So. 768; 42 N. W. 630. 2.

<p>Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge;</p> <p>1. It devolved on tbe State to prove that the Pacific Express Company was a corporation. 58 Ark. 17; 98 Am. Dec. 121.</p> <p>2. There is no testimony upon which to base a conviction. 68 Ark. 529; 85 Id. 360; 74 Id. 491.</p> <p>3. Incompetent evidence was admitted as to a confession by defendant. 22 Ark. 336; 69 Id. 599. A confession, to be admissible, must be absolutely free and voluntary, without any influence or promise of reward, inducement or threats. 22 Ark. 336; 19 Id. 160; 35 Id. 35; 66 Id. 506; 69 Id. 506; 69 Id. 599; 94 Id. 343; 50 Id. 305.</p> <p>4. The admissibility of testimony is a question for the court. 28 Ark. 121; 66 Id. 506.</p> <p>1. The proof as to the Pacific Express Company being a corporation was sufficient, it being proved that it was generally known by such name. Only the de facto existence of a corporation need be shown. 3 Bish., Cr. Pr., § 752 (2); Broivn v. State, 108 Ark. 336.</p> <p>2. The confession of defendant was properly admitted. 74 Ark. 397; Greenwood v. State, 107 Ark. 568; 43 Ark. 367.</p>

<p>1. Trusts—constructive trust—agreement to purchase—"trust ex maleficio.-—Under'a promise to buy in land for tbe owner at a judicial sale, and bold tbe same in trust for bim, a failure to perform tbe latter promise, does not create a “trust ex maleficio,” wben there is no evidence of fraud on tbe part of tbe purchaser. (Page 337.)</p> <p>2. Mortgages—deed as a mortgage—oral evidence.—Where appellant purchased land at a judicial sale under a promise to hold tbe same as security for tbe purchase money, such transaction constitutes an equitable mortgage, and tbe agreement not being within tbe statutes of fraud may be proven by oral testimony. (Page 339.)</p> <p>3. Mortgages—deed absolute on face—proof.—In order to convert a deed absolute on its face into a mortgage, the proof must be clear, unequivocal and convincing. (Page 340.)</p>

T. Cowling, Judge; 1. The indictment is not sufficient. Section 2068, Kirby’s Digest, contemplates and refers to banking games only. 88 Ark. 411. The conjunction “or” would not constitute the clause, “who travel about from place to place, ’ ’ etc., a sufficient nor independent offense. 8 Q. B. Div. 447; 10 la. 448; Id. 593; 46 la. 670; 138 N. Y. 151; 2 Lewis’ Sutherland, Stat. Con.., § 397.

F. Gautney, Judge; 1. The court erred in permitting the child, Leslie Penny, to testify without first showing his qualification to testify. 93 Ark. 156. . 2. The evidence does not sustain the verdict. 93 Ark. 479; Id. 482. Leslie Penny was properly qualified as a witness. 93 Ark. 156.

Gotham, Judge; 1. The indictment should have been quashed because of the presence in the grand jury room, while they were taking testimony and investigating the case, of an attorney employed by the prosecuting witness for the purpose of prosecuting appellant. Kirby’s Dig., § 2211; 7 Tex. App. 519; 126 Pa. St. 53,12 Am. St. Rep. 894, and notes at page 900. 2.

<p>Criminal law—bight to be confronted by witnesses—agreement of counsel.—Where the record does not show that counsel for defendant agreed that the written statement of a witness made before the grand jury might be read in evidence at the trial, the act of the court in permitting the same to he read, held to deprive defendant of his right to he confronted with the witnesses against him, under art. 2, § 10, Const, of Ark. . .</p>

F. Gautney, Judge; The court should have sustained appellants’ request for a directed verdict of acquittal. Under the evidence, they had possession of the lot where the gate was for three years after the sale of the land. The enclosure was neither the enclosure of Smith nor in his possession, the possession of the mill lot and its fences never having passed from defendant, J. C. Miller. Kirby’s Dig., § 1913. 1.

<p>Appeal from Fulton Circuit Court; George W. Reed, Judge;</p> <p>1. The proof shows that the cow was over twelve months old, was running at large on the range, and not marked nor branded. The court erred in refusing to instruct the jury to acquit appellants if they found this to be the fact. 60 Ark. 60.- The court further erred in refusing to submit to the jury the question whether or not the cow was such ‘ ‘ a live animal as is made larceny to steal,” thereby invading the province of the jury. Art. 7, § 23, Const. Ark.; 52 Ark. 264; 49 Ark. 448; 43 Ark. 296; 71 Ark. 38; 74 Ark. 563; 76 Ark. 468; 77 Ark. 203; Id. 261; 69 Ark. 138.</p> <p>In this case, unlike the Jefferies case, 102 Ark. 377, the owner of the cow testified that “she was running at large on the range,” yet the court, in the Jefferies case, notwithstanding no' witness testified that the animal was running at large on the range, correctly submitted that question to the jury.</p> <p>The refusal to give appellant’s instruction on this phase of the case had the effect to exclude a theory of the case which the evidence entitled the appellant to have submitted to the jury. 82 Ark. 499; Id. 372; 93 Ark. 140; 96 Ark. 212.</p> <p>2. The court’s charge to the jury with reference to a confession is an abstract declaration which improperly assumes that appellant had confessed to the commission of the crime, and ignores the question of reasonable doubt as to whether such confession was made, as well as the principle of law that confessions are to be received with caution, and should be taken with all other facts and circumstances in the ease. 66 Ark. 506; 71 Ark. 38; 76 Ark. 468; Kirby’s Dig., § 2383. The court therefore erred in refusing to instruct the jury, as requested by appellant, that a defendant in a criminal case can not be convicted on statements' made out of court, if he denies the commission of the offense in court, unless such crime is proved by other competent testimony tending to establish his guilt and connect him with the crime.</p> <p>3. Under the facts shown, Mrs. Davis and Mrs. Jones were both accessories after the fact, and the court erred in refusing to give the instruction requested by appellant on the question of accessories. Kirby’s Dig., § 1562; 59 Ark. 383; 50 Ark. 534; 71 Ark. 470.</p> <p>4. The court committed reversible error in refusing to-require the prosecuting attorney, in his opening argument, to make a fair statement of the evidence and grounds he relied upon for a conviction, and in permitting him, in his closing argument, to argue the whole of the testimony. Kirby’s Dig., § 6139; Id. § 2388; 74 Ark. 256; Id. 210; 67 Ark. 127; Id. 365; 80 Ark. 158; 71 Ark. 415; Id. 403; 70 Ark. 305; 77 Ark. 238; Id. 19; 65 Ark. 619; 75 Ark. 577; 72 Ark, 427; 72 Ark. 139. It was also error to permit him to argue the testimony of a witness which had been excluded. 80 Ark. 167.</p> <p>1. Under the evidence, the cow was subject to larceny, and was not running at large within the meaning of the statute. 102 Ark. 373-376. The court properly refused to put that question to the jury. 67 Ark. 147-154; 15 Ark. 624-654.</p> <p>2. There is no error in the instructions; moreover, general exceptions to certain instructions will not be considered here if any of them are good. Tiner v. State, 109 Ark. 138.</p> <p>Instruction 7, given by the court, correctly declares the rule with reference to the weight to be given by the jury to the confession. 107 Ark. 568.</p> <p>3. Exceptions either to the admission or exclusion of evidence, or to the giving or refusing to give instructions, will not be considered on appeal, where such exceptions have not been preserved in the motion for new trial and the bill of exceptions. 91 Ark. 441-443, and cases cited.</p>

<p>Appeal from Greene Circuit Court; J. F. Gautney, Judge;</p> <p>Tbe boundary line between tbe State of Arkansas and tbe State of Missouri separating Greene County from tbe State of Missouri is tbe middle of tbe main channel of tbe St. Francis River. Const. Ark. 1874, art. 1. Tbe Legislature of tbe State of Arkansas is without authority (even though tbe Legislature of Missouri by a similar enactment concurs therein) to extend tbe criminal jurisdiction of the- courts of tbe State over territory outside tbe boundaries of tbe State of Arkansas, and included within tbe boundaries of tbe State of Missouri. Supra, art. 2, § 10, Const. Ark. 1874; 30 Arb. 41; 32 Ark. 565.</p> <p>The acts of the two States extending their jurisdiction over the waters of the St. Francis Biver so as to make the same concurrent, is a valid exercise of the legislative powers of the States, in keeping with and conformity to the enabling act passed by the Congress of the United States upon the admission of Missouri into the Union. 3 U. S. Stat. at Large, 546; 105 S. W. 930-932; 85 S. W. 925; 131 Am. St. Bep. 765; 16 Am. & Eng. Ann. Cases, 1113; 65 L. B. A. 963-965; 89 Ark. 428-433; 65 Mo. App. 681-687; 85 S. W. (Mo.) 975.</p>

M. Garter, Judge; STATEMENT by the court. The defendant, Sam Arnott, was indicted by the grand jury of Clark County for murder in the first degree, charged to have been committed by shooting I. Y. Nash. A change of venue was taken to Hempstead County, and the defendant was convicted of manslaughter, Ms punishment being fixed at two years in the State penitentiary. From the judgment of conviction he duly prosecuted an appeal to this court.

<p>1. Indictment—presumption as to regularity.—'When an indictment is properly returned into court, it will he presumed that it was duly found with the concurrence of the requisite number of the grand jury. (Page 387.)</p> <p>2. Burglary—sufficiency of evidence.—When the evidence showed that certain premises were left at 12 midnight and opened at 4:10 a. m., and that when opened a glass door was broken out, and goods missing, held that from this evidence, the jury was justified in inferring that the premises were broken into in the night time. (Page 388.)</p> <p>3. Witness—impeachment of accused.—When a defendant takes the stand in his own behalf he thereby becomes subject to impeachment, the same as any other witness. (Page 389.)</p>

M. Jackson, Judge; 1. The uncorroborated testimony of an accomplice is not sufficient to warrant a conviction. Kirby’s Dig., § 2384; 75 Ark. 540. 2. Where a defendant is charged as a principal in the commission of a felony, and the evidence only tends ■to prove that he was an accessory before the fact, the evidence does not sustain a conviction as a principal. 37 Ark. 274; 41 Ark. 173; 55 Ark. 593. 3.

F. Oautney, Judge; The court’s fourth instruction to the effect that proof of the presence or absence of a motive was immaterial and had no bearing upon an issue of insanity as a defense to the crime of murder, was erroneous (1) because the presence or absence of a motive is often the test as to whether a man’s acts are rational or irrational; (2) because it singles out evidence and calls the attention of the jury to one fact adduced in evidence to the exclusion of other…

<p>Appeal from Yell Circuit Court, Danville District; Hugh Basham, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>In 1875 the Legislature passed an act providing for holding separate chancery, circuit and probate court at Dardanelle, in Yell County, but the act did not interfere with the holding of any of the courts at Danville, the then, and the present, county seat. The act divided the county into two judicial districts and provided that the jurisdiction of the courts of the Dardanelle District should extend over that district the same, and in like manner, as if said district was a constitutional county of this State, and the clerk of those courts was required to keep an office at Dardanelle with the seal of office; and public records were required to be provided in which to record all those instruments which the law requires to be placed of record. After providing in detail for the establishment of the district the following proviso was added to the act:</p> <p>“Provided, that all business shall continue to be transacted in said county as is now provided for by law, and until the said commissioners named in the third (3) section of this act have reported that they have a courthouse in readiness for the purpose of holding the circuit and probate courts of the Dardanelle District, and as soon thereafter as the said commissioners procure a courthouse for the holding of the courts in the Dardanelle District, then the courts shall be holden and the business conducted in all respects as is by law required to be done at the county seat of said county, and it shall be the duty of the presiding judge of the county court to order and direct the clerk of the circuit court to prepare the circuit court records, and the circuit and chancery courts of the county of Tell for the two said districts, shall be held at such time as may be provided by law.”</p> <p>The citizens of Dardanelle met the conditions imposed by the Legislature and the act became effective, and the business of that district has been transacted continuously since, in conformity with the terms of this act. But the courthouse was destroyed by fire, except that the fire-proof vault containing all the public records was not destroyed.</p> <p>On April 12, 1913, the county court, by an order entered of record, took initial steps to build a courthouse and jail at the expense of the county. Commissioners formed plans and let the contract subject to the court’s approval, and the court appropriated $25,000 for building purposes. Before the commissioners reported, or other steps were taken, J. B. Law and other citizens and taxpayers of that county were, upon their written. petition, made parties and allowed to defend against such improvement, and filed their motion to set aside and revoke the order. On June 20, 1913, the court denied appellant’s motion to set' aside its former -order, approved the plans prepared and submitted by the commissioners, and ordered the contracts let,.and appellants ap-, pealed to the circuit court. The ease was tried in -the-circuit court where the judgment-of the county court Was-affirmed, and motion for new trial having been filed and overruled, exceptions were duly saved and this appeal-taken. .■•••=•</p> <p>Appellants contend the court had no authority to have built or to provide for more than one courthouse, and that that building must be "at the seat of justice of the county, which means the county seat; and that by the terms of the act of 1875, by which the court was established, the county was exempted from the burden of providing or maintaining a courthouse in the Dardanelle District. The question in the case, therefore, is, whether the county court had the power to order a courthouse and jail built in the Dardanelle District, and charge the county with the cost thereof.</p> <p>1. Laws creating liabilities against counties are strictly construed. They are not to be made liable beyond the strict letter of the law. 11 Cyc. 390; 35 Pac. 97; 24 N. E. (111.) 626; Id. (Ind.) 138; 60 Am. St. Rep. 518; 1 Dil., Mun. Corp., 450, § 237; 86 Pac. 1022; 3 N. E. 848; 95 S. W. 1032; 32 Ark. 45.</p> <p>The only law authorizing the building of courthouses is found at section 1009, 'et seq., Kirby’s Digest, and unless authority to build two or more courthouses is to be found there, it does not exist. 63 Ark. 402; 18. S. ~WV 1144; 36 Am. St. Rep. 439; 37 Pae. 484. The grant of power to the county court to build a courthouse at the county seat is a limitation on the power of the court, and effectually prohibits it from building one at any other place. 45 Ark. 524; 79 Ark. 235; 60 Ark. 343-355.</p> <p>2. The statute, Kirby’s Dig,, § 1009, provides for the erection in -each county, at the established seat of justice, of a good and sufficient- courthouse and jail, “Seat of justice” and ''county-.seat,” as.used by-our lawmakers,- are interchangeable terms, and mean the same thing. When the statute was enacted in 1835, it was then customary to designate the county town as the seat of justice, but it meant then, as it means now, the county seat. The seat of justice of Yell County is Dan-ville. .20 S. W. 501, 502; 102 Ark. 281; act creating Lonoke County, Acts 1873, p. 102; Const. 1874; 5 Ark. 20; act creating Grant County, Acts 1869, p. 34. See also Acts 1869, p. 74; 75 S. W. 93; 25 Am. & Eng. Enc. of L. (2 ed.), 156.</p> <p>3. The act creating the Dardanelle District, Acts 1875, p. 188, expressly provides (§ 18) that the courthouse shall be furnished by that district, and exempts the county from it as a public burden. • The county court is powerless under the law to charge the county with the expense of erecting the proposed building. 15 Mo. 600; 36 Cyc. 1190.</p> <p>1. For a full interpretation of the powers and duties of the county court under the statute, see 93 Ark. 11; see also, 63 Ark. 397; 68 Ark. 340; 73 Ark. 523.</p> <p>It is conceded that Dardanelle is not a county seat, but it is an established seat of justice, under the act creating the Dardanelle District; and in oontemplattion of law is “the established seat of justice in said county for the Dardanelle District.” 16 N. W. 876; 16 S. W. 489; 84 Miss. 536. The “established seat of justice” is not always nor necessarily a county' seat, and by the use of this broader term, the Legislature doubtless intended to meet emergencies that might arise requiring a courthouse at a different place from the county seat. 60 Ark. 343; 75 Tex. 136.</p> <p>2. There is no merit in appellant’s contention to the effect that the expense of rebuilding the destroyed courthouse is one to be met by the people of the Dardanelle District alone, and that the county court is without power to erect the same at the expense of the whole county. The amount paid by the Dardanelle District pursuant to the act creating the district has performed its functions, and the people of that district are under no further obligation to contribute to the rebuilding of the courthouse other than that resting upon the people of the whole county. Moreover, any attempt by the Legislature to create a continuing burden upon the Dardanelle District to maintain the courthouse would have been invalid and not enforceable, because repugnant to the Constitution. 57 Ark. 554; 80 Ark. 150; 55 Ark. 323.</p>

The constitution and by-laws of a fraternal order form a part of the contract of insurance, and will be held as. binding where not inconsistent with the terms of the certificate. 52 Ark. 202; 55 Ark. 210; 80 Ark. 419; 81 Ark. 512; 98 Ark. 423. The judgment should be affirmed because the bill of exceptions does not contain all the evidence.

<p>1. Definitions — “union” —■ “league” — “federation.” — The words “union,” “league,” and “federation,” imply, in their ordinary application an unincorporated union or association of persons for a common purpose. (Page 404.)</p> <p>2. Indictment—sufficiency—partnerships and unincorporated associations.—-In indictments under Kirby’s Digest, § 1839, for larceny or embezzlement it is not necessary to state the names of persons composing a partnership or other unincorporated associations. Kirby’s Digest, § 2233. (Page 405.)</p> <p>3. Larceny—indictment—charge of ownership—sufficiency.—An indictment under Kirby’s Digest, § 1839, for larceny, is sufficient which charges the ownership to he in a partnership. (Page 405.)</p>

Carter, Judge; 1. Due diligence was shown, and the testimony of the absent witness was material in that it would refute the State’s contention that the belts were the property of the witness Parmer. The denial of appellant’s motion for a continuance was an abuse of discretion. 2.

Gotham, Judge; 1. There is no proof of age. 2. Cites 51 Ark. 119, as to the court’s charge to the jury. 1. Age may be proven by circumstantial evidence. 2. There is no error in the court’s charge. Kirby’s Digest, § § 1837-8; 53 N. W. 571; 100 Ark. 201.

M. Jackson, Judge; STATEMENT BY THE COURT. The appellant was indicted jointly with Sam Hunter for the crime of assault with intent to kill one Ellen Hall by administering poison. The prosecuting witness testified that she lived at Elaine, in Phillips County. She received a letter postmarked “Helena, Arkansas,” which reads as follows: “Helena, Ark., March 14,1913. Ellen Hall. Dear Sweetheart: How are you? I am in Helena and feeling very well.

Garter, Judge; 1. To constitute assault with intent to kill, or, under the statute (Kirby’s Dig., § 1588), a specific intent to take life must be shown. 91 Ark. 505; 54 Id. 489. 2. The question as to whether defendant had invited or provoked the assault should have been included in the court’s charge. 73 Ark. 406; 95 Id. 431; 104 N. W. 191. 3. It was error to charge the -jury that appellant was guilty of' assault with intent to kill, or not at all.

Garter, Judge; STATEMENT BY THE OOUBT. Appellant was convicted on an indictment which, charged him with the crime of escape and rescue, committed as follows, towit: ‘‘ Said John Dickens * * * did unlawfully, wilfully, maliciously and feloniously, and by force and menaces of bodily harm, set at liberty one Charlie Spears, by then and there aiding, abetting, advising and encouraging the said Charlie Spears to escape from the custody of one James N. Crenshaw, deputy sheriff for…

F. Qautney, Judge; The only question presented by the record is whether or not wilfulness is a necessary element of the crime denounced by the statute.

Elliott, Chancellor; 1. The directors, in passing on the question whether or not the petitions were signed by a majority, either in number, or acreage or value, of the holders of real property, did not confine themselves to the record of the “last county assessment,” as prescribed by section 5 of Special Act No. 214, Acts 1911, p. 608.

Francis Circuit Court; J. M. Jackson, Judge; STATEMENT BY THE COURT.

M. Jackson, Judge; 1. There is not sufficient legal evidence to sustain the verdict. 2. The ownership of a building alleged to have been burglarized is material, and must be proved as alleged. 102 Ark. 627; 73 Ark. 34. 3. The corpus delicti is not established. 1. There is sufficient evidence to sustain the verdict, and the jury’s finding upon conflicting testimony is conclusive unless there is no evidence at all upon which to base it.

M. Jaclcson, Judge; STATEMENT BY THE COURT. Appellant was indicted for murder in the first degree. He moved for a continuance upon the ground of the absence of Lee Bush, a material witness, setting out what he expected to prove by him, and stated that the witness was within the jurisdiction of the court and he believed could have him present at the next term.

Carter, Judge; STATEMENT BY THE COURT. Tbe appellant was indicted for murder in the first degree, the indictment alleging: ■ ' “The said Tom Fisher, in the county and State aforesaid, on the 24th of December, 1912, did unlawfully, wilfully, feloniously and of his malice aforethought, and after premeditation and deliberation, kill and murder one Jack Chandler, a human being, by then and there stabbing and cutting him, the said Jack Chandler, with a certain knife which he, the…

B. Grace, Judge, on Exchange; Guy Fulh, Judge on Exchange, in Case No. 1789; STATEMENT BY THE COURT. • The appellee is the duly acting sheriff of Garland County, and was twice tried upon indictments charging him with nonfeasance in office.

<p>1. Homicide—self-defense—use of weapon unlawfully caebied.— While a person may use in his necessary self-defense a weapon which he is carrying unlawfully, an instruction is properly refused which says that appellant had a right to go to the place when she believed deceased (her husband) was staying with another woman, “and to carry with her a weapon to defend herself against any possible attack,” because such instruction is argumentative, and is objectionable because it permits one who is expecting trouble, and probably looking for it, to be armed and ready for it when it comes. (Page 478.)</p> <p>2. Homicide—self-defense.—When appellant fired four shots at deceased, if the first two were fatal md fired in her necessary self-defense, the fact that she fired two other ineffective shots, yould not deprive her of the right to plead self-defense against the fatal shots. (Page 478.)</p> <p>3. Instructions—refusal to give instruction covered by otheb given instructions.—It is not error to refuse to give an instruction at appellant’s request which properly states the law, when the court has given another instruction which exhaustively covers the law of the case. (Page 478.)</p> <p>4. New trial—newly discovered evidence.—A new trial upon the ground of newly discovered evidence is properly refused, when the new evidence is merely cumulative to other testimony, and in the absence of a showing why, with any diligence, the thing sought to be proved by the new evidence, could not have been proved at the first trial. (Page 479.)</p>

This is a mandamus proceeding to compel the Secretary of State to accept and file a petition for a referendum of an act entitled “An Act to Regulate the Issuance of Liquor License in Arkansas,” approved February 17,1913. The petition therefor recited that petitioners are residents of the State, and were such on January 1,1913, and were then and are now duly qualified electors of the State of Arkansas, in the county of Pulaski.

'Appeal from Logan Chancery Court; J. V. Bow-land, Chancellor; 1. Appellee had a complete and adequate remedy at law, hence appellant’s demurrer should have been sustained. 2. Littleton had the legal right to convert his unem cumbered assets into a homestead, and to hold it as exempt from the claims of creditors. 99 Ark. 45. 1.

F. Gautney, Judge; An accessory before the fact can not be convicted of a felony under an indictment charging him with being a principal, unless he is present at the commission of the crime. Kirby’s Dig., § § 1560, 1561; 37 Ark. 274; 41 Ark. 173; 55 Ark. 593; 96 Ark. 58; 22 Cyc. 455, and note 2.

Plaintiffs need not go back of a common source of title in this suit to quiet title. 90 Ark. 420-423; 41 Ark. 17-21; 44 Ark. 517-519; 49 Am. Dec. 383-389; 8 L. E. A. 727-732; 139 S. W. 149. The principle of “common source of title,” invoked by appellants, does not obtain in this case, and the rule basing recovery on the strength of plaintiff’s title has no application.

On November 14, .1908, the Russellville Water & Light Company entered into a contract with one Fred Wilson to build a dam across the Illinois river and .a. reservoir, in Pope County, Arkansas, for the purpose of furnishing power for a water and light plant in the city of Russellville.

Carter, Judge; STATEMENT BY THE COURT. Appellant Scoggin was indicted in the Hempstead Circuit Court for the crime of murder in the first degree. He was convicted of murder in the second degree, sentenced to imprisonment in the penitentiary for a period of ten years, and has appealed to this court. Charner Wesson, the deceased, was the father-in-law of the appellant. He was killed by the appellant in Hempstead County, Arkansas, in December, 1912.

Reed, Judge; STATEMENT BY THE COURT. Carlton was a constable in Newton County, Arkansas. One night in December, 1912, there was a box supper at a sclioolhouse for the purpose of raising funds to purchase Christmas presents for the children. Some women requested Carlton to he present' to keep the peace, as they had heard that a number of young men in the neighborhood had said they had ordered whiskey, and had also, said they were going to “can” the box supper.

<p>Appeal from Hempstead Chancery Court; J ames D. Shaver, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>This is the second appeal in this case. When the case was here before we stated the issue as follows: “The plaintiff, Dan Walker, disaffirmed a deed of conveyance which he alleges was executed by him to the defendant, J. E. Goodlett, while he was under twenty-one years of age, and he instituted this action to cancel said conveyance.</p> <p>“The defendant denied in his answer that the plaintiff was under twenty-one years of age when he executed the deed, and this presented the only issue which the chancellor was called on by the pleadings to decide.”</p> <p>On the former appeal the case was “reversed and remanded with directions to enter decree for plaintiff in accordance with this opinion.” The Chief Justice, in rendering the opinion, used this language: “It appears from the testimony that a part of the consideration for the conveyance was a debt for supplies furnished plaintiff by defendant to enable the former to make and gather a crop. The remainder of the consideration was a debt of Emma Walker, who joined in the conveyance. An infant can bind and encumber his estate for the value of necessities furnished to him, but can not irrevocably alienate his estate even for that purpose.”</p> <p>The appellant filed a mandate -in the lower court and asked a decree in accordance therewith. But the court construed the mandate to mean that the defendant below (appellee here) was entitled to reimbursement for necessaries, and granted the defendant sixty days in which, to take further testimony to ascertain the amount of supplies furnished plaintiff: (appellant here).</p> <p>Appellant filed his plea of res judicata, and afterward a motion to quash the depositions that were taken'. The court overruled the plea of res judicata, and the motion to quash the depositions, and rendered a decree in favor of the appellee for $188.18, and directed the land of appellant sold to satisfy the same, and this appeal has been duly prosecuted.</p> <p>There was no plea for necessaries furnished in the first instance, nor involved in the first appeal, and appellee is now barred from asserting such claim. It is res judicata. 127 Am. St. Eep. 363; 137 Am. St. Eep. 55.</p> <p>The opinion on first appeal is the law of the case. The court’s decree should be reversed, if for no other reason, because it directed that the land be sold, whereas this court held that the land could not be irrevocably alienated, and the chancellor’s ruling is incompatible with the mandate in the case.</p>

<p>Pleading—sufficiency of complaint in suit on surety bond.—Plain- ¡ tiff, the beneficiary of a policy of insurance, sued the sureties on the bond of the insurance company. The bond was “conditioned for the prompt payment of all moneys coming into the hands of its officers, to which beneficiaries are entitled.” The complaint alleged “that said company has failed and refused, after repeated demands, to pay said claim, except a partial payment of $25; that there is now due and unpaid to this plaintiff, the beneficiary named in said contract, the sum of $300,” which was the only allegation of the complaint as to a breach of the bond sued on. On demurrer, the complaint was held bad, because no breach of the condition of the bond was assigned.</p>

Reed, Judge; The indictment is bad, and the demurrer to it should have been sustained, because it does not set out the language used. In an indictment for slander it is not sufficient to state conclusions, but it must allege either the actual words or the substance of the actual words used. 25 Cyc. 577-8; 17 S. W. (Tex.) 548; 11 S. W. (Tex.) 521; 32 Cent. Dig., “Libel and Slander,” § 243; 86 S. W. (Mo.) 1098.

Replevin is strictly a possessory action. Under the evidence, replevin does not lie in this case. 82 Ark. 362-364; 66 Ark. 135; Í5 O. Cir. Ct. R. 515; 23 Ind. App. 410; 60 Mich. 357; 17 Kan. 204; Kirby’s Dig., § 6854; 74 Ark. 557. 2. Without reference to the amount involved, appellant was entitled, on his demand therefor, to a trial by jury. Art. 2, § 7, Const. Ark.; 4 Ark. 158; 8 Ark. 436; 56 Ark. 391; 75 Ark. 443; 40 Ark. 297; 61 Ind. 415; Kirby’s Dig., § 6170. .. 1.

Hays, Judge; It was improper to submit the contract to the jury for interpretation, because it was susceptible of but one reasonable construction, and that construction is the natural meaning of the words used in it. There was no oral testimony that either explained, altered or varied it or that threw any light on its meaning in any way. Its construction was wholly a matter for the court. 20 Ark. 583; 67 Ark. 553; 75 Ark. 55; 9 Cyc. 591; 53 Ark. 156.

The judgment should be affirmed for want of a proper bill of exceptions. A trial court has no power, after the lapse of the term in which a case was tried, to extend the time for filing a bill of exceptions. 52 Ark. 554; 38 Ark. 216; 42 Ark. 488; 45 Ark. 102; 53 Ark. 415; 103 Ark. 44; 58 Ark. 110.

Carter, Judge; 1. An agent can bind his principal only to the extent of his authority. One who deals with an agent must ascertain what his authority is. 32 Id. 354; 92 Ark. 315,535. 2. Miller had no authority to make the special rate. 1. The contract of the general manager bound the company. 49 S. E. Rep. 621; 121 Ga. 555. 2. The contract was within the apparent authority of the manager, and bound the company. 152 S. W. 282.

<p>1. Judgments—payment—right to appeal.—Plaintiff recovered a judgment against defendants in the circuit court, and accepted payment of the same. Held, the judgment being such that it must be sustained or reversed as a whole, plaintiff will not be allowed later to appeal from the judgment of the circuit court. (Page 550.)</p> <p>2. Drainage districts—contract of commissioners.—Where C sued a drainage district for his fees for organizing same and recovered judgment and accepted payment by the commissioners of the amount of the judgment, when a taxpayer intervened, an agreement between C and the commissioners that the payment to C would not prejudice his right to appeal from the judgment, will not give to C the right to appeal. (Page 551.)</p>

<p>Appeal from Faulkner Chancery Court; Jordan Sellers, Chancellor;</p> <p>1. Section 5032, Kirby’s Digest, gives the landlord a lien upon the crop grown on the premises, etc. 146 S. W. 133. This covers all the crops grown. 95 Ark. 37; 35 Id. 231; 89 N. C. 137; 71 Miss. 482; 4 So. 442; 64 Mo. App: 351; 131 Iowa 62; 107 N. W. 1032; 51 Miss. 155. The landlord’s lien is superior to that of mortgagee. 25 Ark. 417; 24 Id. 545, and cases supra.</p> <p>2. The mortgage is void for uncertainty in description. 54 Ark. 92; 43 Id. 350.</p> <p>1. Gordon and the crop were liable only for the rent of the land rented by Gordon from Carr, or ten acres, at the agreed price. Kirby’s Dig., § 5035; 146 S. W. 133.</p> <p>2. The description in the mortgage is sufficiently definite. 54 Ark. 92; 43 Ark. 350; 28 N. Y. 362; 37 Id. 593; Smith on Chat. Mortgages, 10; 57 Ark. 371; 51 Ark. 410.</p>

Grace, Judge; Appeal from Pulaski Chancery Court; Jolm E. Martineau, Chancellor; Section 1 of the act of March 3, 1913, not only operates as a repeal of that part of section 5667, Kirby’s Digest, providing for the appointment of the board of improvement districts by the city council, but also as a repeal of the entire section.

E. Jeffery, Judge; STATEMENT BY THE COURT. . This was a suit in replevin for timothy hay grown on land belonging to the Meadow Lake Farm Company, in Independence County, Arkansas. The plaintiff claimed that he owned the hay by virtue of a verbal lease for the year 1912. The plaintiff had subrented the land from one Cain, wdio had leased the land for five years.

This suit was brought by appellant for the purpose of condemning a right-of-way across a strip of land owned by appellees near the city of Fort Smith, in Sebastian County, Arkansas.

<p>Appeal from Greene Circuit Court; W. J. Driver, Judge;</p> <p>1. Opinions of witnesses are not admissible in evidence. Tbe jury are as competent to pass on matters of common, ordinary knowledge and give their opinion, as the witnesses who testified as to the necessity of some caretaker in the box car. 65 Ark. 98; 85 Id. 64; 82 Id. 214; 95 Id. 157; 97 Id. 180; 94 IT. S. 469; 113 Id. 645; 118 Ga. 590.</p> <p>2. Testimony as to custom is not admissible. 84 Ark. 389; 23 Id. 215; 62 Id. 1.</p> <p>3. A passenger is bound to furnish the conductor evidence, beyond his own statement, of his right to passage on the car. 32 Am. St. 528. There is error in the court’s charge.</p> <p>1. Evidence as to custom and the admission of opinions, even if erroneous, was not prejudicial. The law of this case was settled on former appeal. 105 Ark. 340. Evidence as to custom is often admissible. 158 S. W. 118.</p> <p>2. The instructions, as a whole, correctly state the law. It is not error to refuse to repeat instructions, or fail to do so. 104 Ark. 489.</p>

V. Bourland, Chancellor; STATEMENT BY THE COURT. This is an appeal by plaintiffs from a decree of the chancery court in defendants’ favor in an action brought by Annie Nedry and John B. Nedry against John Vaile, John W. Vaile and Walton Vaile, to compel them to pay the claims of plaintiffs as creditors of the Fort Smith Automobile & Supply Company, a corporation, whose assets defendants are alleged to have absorbed.

Wood, Chancellor; STATEMENT BY THE COURT. This was an action instituted by appellees against appellants in the Bradley Chancery Court to cancel certain deeds executed by the State Land Commissioner to B. F. Gardner in 1903. , On February 10,1858, J. R. Langford acquired title to the lands in controversy by patent from the State, based upon the swamp and overflow land act. Langford died on the 1st day of March, 1885, leaving surviving him appellees, as his only heirs at law.

<p>Appeal—separate issue in cause—final judgment.—Where the chancery court by its decree cancelled certain deeds purporting to convey lands to defendant, and adjudged title in plaintiffs, declaring a lien in defendant’s favor for taxes paid, the decree is final, although a master was appointed to determine the amount of timber cut by the defendant, and the decree was rendered before the master made his report. The adjudication of the value of the timber is a separate issue, which the chancery court still has jurisdiction to determine.</p>