Volume 110 — Arkansas Reports

<p>Appeal from Ouachita Circuit Court; George IF. Hays, Judge;</p>

<p>Appeal and error—failure to abstract record.—Where appellant failed to abstract the record as required by rule 9 of the Supreme Court, the judgment will be affirmed.</p>

<p>Appeal from Logan Circuit Court, Northern District; Jeptha H. Evans, Judge;</p>

F. Gautney, Judge; STATEMENT BY THE COURT. This action was instituted in the Clay Circuit Court for the Western District, on the 19th of September, 1912, the appellee being the plaintiff below, and by the suit he sought to recover the sum of one thousand ($1,000) dollars, which he alleged was due Mm under a verbal contract made with appellants to find a buyer for and to sell the merchantable timber on a tract of land owned by appellants in that district of the county.

Carter, Judge; STATEMENT BY THE COURT. Appellant, Sam Woodland, a negro boy, was indicted by the grand jury of Nevada County on a charge of burglary, alleged to have been committed by breaking into the depot of the Iron Mountain Railroad Company on the night of June 15,1913, and upon his trial therefor at the ensuing July term of the circuit court of that county, was convicted and sentenced to the penitentiary, aud he has appealed from that judgment.

Carter, Judge; STATEMENT BY THE COURT. Appellants were the owners of certain lands situated in Lafayette County, Arkansas, and brought suit against the appellee levee district for damages alleged to have been done these lands by the construction of its levee.

Martineau, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellant in the Pulaski Chancery Court, the object of which appears from the following recitals contained in the complaint: That on April 30, 1874, and prior thereto, the Cairo & Pulton Bailroad Company was a railroad corporation owning and operating a railroad in the State of Arkansas ; that its capital stock was divided into shares of twenty-five dollars each; that on the 30th day of April, 1874,…

Reed, Judge; 1. Tbe instructions placed tbe burden on tbe State as to appellant’s guilt, and properly the burden on defendant as to an alibi. 59 Ark. 379; 69 Id. 180. 2. But no proper exceptions were saved to tbe court’s charge. Tiner v. State, 109 Ark. 138. 3. No exceptions were saved to tbe overruling of tbe plea of former acquittal. 107 Ark. 29.

P. Henderson, Chancellor; While courts of chancery will not grant relief from an assessment for irregularities, inaccuracies, accidental omissions, over or under valuation of property, etc., they will for jurisdictional matters such as the validity of the tax; whether the property was within the district or not, the mode of levy, fraud, etc., or even excess of jurisdiction. 27. A. & E. Enc. Law, § 720; 133 Am. St. 173.

J. Driver, Judge; 1. Deceased was acting under tbe direction and control of a vice principal. Kirby’s Dig., § 6658; 67 Ark. 9; 70 Ark. 411; 67 Ark. 209. And assumed no risk incident to tbe service be was commanded to do unless tbe danger incurred was fully appreciated and was such tbat no person of ordinary prudence would bave undertaken it. 26 Cyc. 1221; 71 N. E. 863; 173 Mass. 512. Melvin was not, as a matter of law, guilty of contributory negilgence.

<p>1. Revivor—death of party—lapse of time.—Where a year has elapsed since the death of one of the appellees in a cause, under Kirby’s Digest, § 63X3, the cause can not be revived as to him except by consent. (Page 41.)</p> <p>2. Banks and banking—liability of directors.—Where the cashier of a bank made a number of bad loans, and the directors were guilty of negligence in not managing the affairs of the bank and controlling the action of the cashier, the directors will be held liable, not only to the creditors who are unable to enforce their rights against the bank, but to the stockholders thereof, whose stock was rendered, worthless on account of the losses sustained by the bank. (Page 41.)</p> <p>3. Banks and banking—liability of directors.—Where one V. was, without bis knowledge, elected a director of a bank, and never received notice of such fact, and never acted in the capacity of a director, he is not liable for losses sustained by the bank, due to mismanagement. (Page 42.)</p> <p>4. Corporations—liability of stockholders on unpaid subscriptions.—A stockholder in a corporation, who has not paid for his stock, is liable to creditors and other stockholders, to pay in the same to the corporation. (Page 42.)</p> <p>5. Corporations—unpaid stock subscriptions—equity.—A court of equity is the appropriate forum to enforce the right of the stockholder who has paid, against one who is in default in the payment of his subscription, when the corporation has ceased to perform its functions. (Page 43.)</p> <p>6. Appeal and error—incomplete record—presumption.—-When the record is incomplete, the presumption ordinarily arises that the omissions were sufficient to support the findings of the chancellor, but such presumption will not be indulged when the omissions from the record consist of the absence of exhibits which could not have any probative force in determining the issues in the case. (Page 44.)</p>

this case as in the case for running a blind tiger, of which he had been convicted. The plea of former conviction should have been sustained. Kirby’s Dig., § 5464; Id. 5633.

Lea, Judge; 1. Tke evidence is not sufficient to show negligence on the part of appellant, and, the burden resting on the appellee to make out its case, appellant’s request for a peremptory instruction should have been sustained. 2.

T. Gotham, Judge; Under sections 505 and 508, Kirby’s Digest, appellant was entitled to notice of protest of Ms check, he being the drawer. When a debtor gives to his creditor a draft or bill of exchange drawn on a third person and it is received in full satisfaction of a debt, when paid, the person so receiving it assumes the duty of presenting it properly for acceptance and payment, and giving timely notice of its dishonor.

Hays, Judge; It is error to admit parol evidence to contradict, vary or materially affect the .covenant against encumbrances in a deed conveying land, when same is offered for the purpose of defeating a recovery on the covenant. 54 Ark. 195; 10 Conn. 422; 60 la. 315; 14 N. W. 325; 6 Allen, 420 (Mass.) 15 Pick. 66 (Mass.); 8 Mass. 146; 83 Mich. 246; 47 N. W. 112; 10 L. R.'A.659; 5 Chio St. 271; 2 Speers, 649; 42 Am. Dec. 391 (S. C.); 27 Vt. 739; 25 Am. Dee. 552 (N. T.); 58 Am.

II. Humphreys, Chancellor; STATEMENT by the court. Nora B. Rice instituted this action in the chancery court against James Pozza, J. E. Felker et al. to obtain judgment on a debt and to foreclose a mortgage given to secure it.

<p>1. Carriers—delay in delivery oe goods shipped.—A common carrier is liable in damages for negligent delay in the transportation of property, but the owner can not, on account of unreasonable delay in the delivery, refuse to receive the goods, and sue the carrier for a conversion. (Page 85.)</p> <p>2. Carriers—failure to deliver goods shipped—measure of damages.—When a carrier failed to deliver a shipment of goods to the consignee, the damages due the consignee is the market value of the goods with interest, less the cost of carriage. (Page 86.)</p> <p>3. Carriers—failure to deliver goods promptly—tender—liability. —Where a carrier failed to deliver goods shipped promptly, but later tendered the identical shipment, and the consignee wrongfully refused to receive it, the carrier can not abandon the shipment nor convert it to its own use, but is liable for the value thereof, less the reasonable cost attendant upon keeping and disposing of the goods. (Page 86.)</p> <p>4; Carriers—failure to deliver goods shipped—liability.—Where an express company failed to deliver to the consignee the identical goods shipped, the consignee may recover the full value of the goods with interest, less the cost of carriage. (Page 86.)</p> <p>5. Appeai, and error—erroneous instruction—prejudice.—Where the trial court gave an erroneous instruction to find for the plaintiff, the error is not prejudicial when the verdict is in accordance with the law and the facts of the case. (Page 87.)</p>

Cotham, Judge; 1. A real estate broker is entitled to his commission where he was the procuring cause of the sale of the property to another. 89 Ark. 203. 2. Plaintiff must allege and prove (1) employment as agent to sell, and (2) a sale on terms fixed by the principal. 139 Am. St. Bep. 232. 1. Where there is any legal evidence to support the verdict, it will not be disturbed by this court. .85 Ark. 193. 2.. General objections to instructions are not sufficient. 3.

Hutton, Judge on exchange; 1. The harden was on appellee to prove that Mrs. Albert was the agent of appellants. 2 A. & E. Ene. L. & P. 973-978; 10 Ene. Ev. 27, 28, note 83; 5 Id. 699. 2. Legal conclusions or opinions are not admissible. lb. 699; 15 Col. App. 403; 119 Mich. 136, 48 S. W. 771; 63 Pac. 820; 23 Utah, 71; 31 Cyc. 1643; lb. 1665;,17 Id. 219, note 90, and p. 222, note 96. 3.

Reed, Judge; In the absence of statute, the power to punish for contempt is not possessed by inferior courts not of record, except for contemptuous conduct committed in the presence of the court, or in disobedience of its process. Kirby’s Dig., § § 5586, 726; Const., art. 7, § 43; 9 Cyc. 28; 16 Ark. 384; 33 N. J. L. 344; Wells on Jur. of Courts, 178; Bishop, New Cr. Law, 151-2.

Robertson, Chancellor; The commissioners exceeded their authority in expending money in enlarging and strengthening a part of the levee not referred to in the act. The literal meaning of the words used will be disregarded only tuhen it is obvious from the act itself that the use of the words was clerical error, or that the Legislature intended it in a different sense from its common meaning.

Gotham, Judge; STATEMENT BY THE COURT. '1 . This is a suit by appellant to replevy from the appellees an automobile, which she alleged was worth the sum of $500.

8. Maples, Judge; STATEMENT BY THE COURT. The appellant, as executor of the estate of Margaret C. Kenner, filed in the probate court of Carroll County a petition alleging that appellee had in his possession money and personal property belonging to the estate of Margaret C. Kenner, and that he withheld or concealed the same from the petitioner.

Tbe appellant sued the appellee on a written contract, alleging that appellee was indebted to it in tbe sum of $108.16, tbe purchase price of certain advertising matter furnished by the appellant to the appellee.

<p>Appeal from Pulaski Circuit Court, Second Division ; Guy Fulh, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>The appellant brought suit against tbe appellees to recover damages alleged to have accrued to appellant from the conduct of the appellees in planning and executing a conspiracy to destroy appellant’s business and the business of the Industrial Mutual Indemnity Company, a corporation to whose assets and business appellant became successor.</p> <p>The first paragraph of the complaint set up the organization of appellant and appellee, American National Insurance Company, stated the business they were engaged in, and that Smith was in the employ of appellee, American National Insurance Company as general agent for Arkansas.</p> <p>The second paragraph alleged the organization of the Industrial Mutual Indemnity Company, and set forth that it was engaged in the industrial insurance business until the 28th of February, 2911, when the” appellant, by contract with it, reinsured its policy holders and took over all of its assets.</p> <p>The third and fourth paragraphs set forth at length the manner in which the mutual compare carried on its business of insurance, and alleged that the defendant, Smith, while he was the general superintendent of the mutual company, in September, 1910, clandestinely entered into a contract with his co-defendant to enter at some future time the employment of the American National Insurance Company, and in the meantime to “organize and execute a conspiracy to destroy the appellant and the mutual company. ’ ’</p> <p>The fifth and sixth paragraphs alleged that defendants had conspired together to destroy appellant as a competitor, against the statutes of the State prohibiting the formation of pools, trusts, etc.</p> <p>The seventh paragraph sets out specifically that the purpose of the alleged conspiracy was to procure all of the employees of the appellant and their contracts of insurance, and all of their business, property and good will in order to force appellant out of business; that this was to be done by false and fraudulent representations made concerning the appellant; that they endeavored, by this means, through Smith, to persuade the employees of the mutual company to breach their contracts of employment and to leave the employment of the appellant and enter the employment of the National Insurance Company; that the conspiracy should be continued as long as necessary to accomplish the purpose intended, and that resort should be had “to intimidation, threats, false and slanderous statements, bribery, false and malicious prosecutions, vexatious litigation, confiscation of prop; erty, or any other unlawful means necessary to accomplish the destruction of their competitors. ’ ’</p> <p>The eighth paragraph alleged that by the “unlawful means aforesaid” the appellant succeeded in procuring the employees of the mutual company, on the morning of January 9, 1911, to enter the employ of appellee.</p> <p>The ninth, paragraph sets forth that the agents of the appellee company, in pursuance of the false and fraudulent representations, induced the policy holders of the mutual company to abandon their policies with that company and to insure in the national company, which was done by false and fraudulent statements, setting them out; that this was done “falsely, designedly and maliciously, for the purpose of executing the unlawful conspiracy. ’ ’</p> <p>The tenth and eleventh paragraphs detailed the further efforvj of the defendants to destroy the business of the mutual company by interference with its agents and policy holders, causing the policies to lapse in the mutual company and the appellant company.</p> <p>The twelfth paragraph specifies the amount of damages alleged to have resulted to appellant by reason of the acts of the alleged conspiracy.</p> <p>The fourteenth and fifteenth paragraphs allege that, suits were brought against the mutual company for the dissolution of the same in pursuance of the conspiracy, and that the purpose of the suits was to destroy the mutual company’s business by causing the policy holders therein to drop their policies by false and fraudulent statements concerning the solvency of the mutual company, which are set forth; that the false and fraudulent statements made throughout the various districts in which the mutual company was doing business caused a loss to plaintiff of an income from policy holders in the mutual company to the amount of $20,000.</p> <p>The sixteenth paragraph sets forth the following: “That the defendants during the years 1911 and 1912 have continued, through malice and by means of false and fraudulent promises of compensation and promotion, interfered with the employees of plaintiff, whereby the business of plaintiff was kept deranged; that they have succeeded in securing said employees to leave plaintiff, in breach of contract, and enter the employment of defendants; that they carried to defendants the skill and knowledge of plaintiff’s business that they had acquired at plaintiff’s expense; that defendants required them to spend their time in harassing, annoying and worrying plaintiff’s policy holders, from whom they had formerly collected, and in trying to cause said policy holders to lapse their insurance, all of which was in furtherance of said conspiracy; that because thereof plaintiff has been compelled to employ agents to overcome said wrongs and maintain said insurance, and in defense of its said business has been compelled to spend to its damage the sum of $5,000; that in numerous instances plaintiff has been unable to satisfy its said policy holders from the aforesaid attacks of defendants whereby the premiums of plaintiff have been' greatly reduced, to its damage in the sum of $5,000; that because of said wrong it has been deprived of new business to its damage in the sum of $15,000.”</p> <p>The seventeenth paragraph sets forth that one Nelson, plaintiff’s former superintendent, joined the conspiracy, through appellee’s wrong, and brought suit against the appellant in the sum of $50,000; that said suit was brought for the purpose of ‘ ‘ annoying and vexing plaintiff’s policy holders and employees, and as a basis for further false and fraudulent representations against plaintiff, to its damage in the sum of $5,000.”</p> <p>The eighteenth paragraph sets forth certain false and fraudulent representations of Nelson in pursuance of the conspiracy by which appellant alleges that it was brought into disrepute with its policy holders, and as a result caused them to lapse their insurance, to plaintiff’s damage in the sum of $7,000.</p> <p>The nineteenth paragraph sets forth that the good name and reputation of plaintiff had been damaged in the sum of $80,000.</p> <p>The twentieth paragraph alleges exemplary damages in the sum of $50,000; and the prayer was for judgment for $200,000.</p> <p>The appellees, defendants below, demurred to the complaint, alleging that the same ‘ ‘ does not state a cause of action.” The court sustained the demurrer. Appellant refused to plead further, whereupon the court dismissed the complaint, and the cause is here on appeal.</p> <p>The wrongs complained of are actionable, and the complaint states a cause of action, because:</p> <p>1. The purposes of the alleged conspiracy are unlawful, (a) To suppress competition and establish a monopoly is against public policy and contrary to law. Kirby’s Dig., § § 1976 to 1982; 1 Bishop’s Crim. Law, § § 518-529; 2 Id., % 230. (b) It is contrary to law to wilfully interfere with, entice away, employ and induce laborers and employees to breach their contracts of employment. Kirby’s Dig., § 5030. (c) It is a civil wrong to harass and annoy plaintiff’s agents and policy holders, and to injure and destroy its business. 77 N. Y. Supp. 373.</p> <p>2. The'complaint alleges interference with the contractual relations of appellant with its agents and policy holders. 2 E. & B. 216; Bigelow on Torts, 23, 24; Id., 133-6; 86 Ark. 130; 6 Q. B. Div. 333; 70 N. J. Eq. 541; 76 N. C. 355; .122 Ca. 509; 50 W. Ya. 611; 188 Mass. 353; 23 Fla. 206; 90 Me. 166; 77 Md. 396; 101 111. App. 355; 177 Mass. 485; 59 W. Ya. 253; 43 Qa. 601; 66 N. Y. 82; 2 Wend. 385; 19 Id. 305; 5 0. Cir. 40; 12 Mass. 115.</p> <p>3. It states a cause of action because of the wrong of appellees in employing the superintendents, agents and other employees of appellant, with their knowledge, skill and influence over its policy holders. 90 Ark. 301; 31 Cyc. 1430; 8 O. Dec., Reprint, 32; 2 Hare, 393; 3 Ch. 462-1892; 38 N. Y. Supp. 487; 2 Q. B. 35-1895; 14 Ch. Div. 596-1880; 15 So. (Ala.) 956; 50 Neb. 248; 19 N. Y. 9; 130 N. Y. 134; 6 N. Y. Supp. 507; 86 Mo. 546; 52 N. W. (Minn.) 131.</p> <p>4. Because of the unlawful means employed to injure appellant in its business, in (1) interfering with existing business, 61 Wash. 107, and (2) procuring refusal to make subsequent contracts of employment and insurance. Bigelow, Torts, 115.</p> <p>5. Because of malice of appellees toward appellant as shown in their efforts to destroy it. The thing done, and all the methods employed to do it, may be lawful, still it may be actionable because of the malicious motive that actuates the doer.</p> <p>Nothing can justify the malicious interference, annoyance, harassing and worrying of plaintiff’s agents and policy holders, alleged in the complaint. 107 Mass. 555; 57 N. E. 1011; 107 Minn. 145; 161 Fed. 219; 9 L. E. A. (N. S.) 904, and note; 118 Ky. 662; 86 Fed. 1017; 26 So. 791; 150 Fed. 419; 29 L. E. A. (N. S.) 869, and note.</p> <p>6. Because of the number of persons associated together in the conspiracy. The fact that the defendant company conspired with others, and with them formed a conspiracy to do something that it could not do alone, created a cause of action. 159 Pa. St. 420.</p> <p>1. This court did not hold the contract valid in the case of Freemyer v. Industrial Mutual Indemnity Company, 101 Ark. 61, as is contended by appellant, but specifically reserved decision on the power of a corporation to merge itself into a new company, until that question should properly come before it.</p> <p>Appellees insist that appellants could not recover under its contract for the damage done the mutual company. All the wrongs alleged are tortious—grow out of libel, slander, malicious prosecution or conspiracy. The right of action, if any, would not survive to a personal representative, and is not assignable. 4 Cyc. 23; Kirby’s Dig., § § 6285-6; 41 Ark. 295-298; 54 Ark.' 358-361.</p> <p>2. A cause of .action arising out of conspiracy is not assignable. 96 Wis. 10, 70 N. W. 289: 76 Wis. 657, 45 N. W. 667.</p>

Reed, Judge; STATEMENT BY THE. COURT. R. L. Workman instituted this action against J. L. Reich to recover commissions for selling real estate for the latter. The material facts are substantially as follows: On the 20th day of June, 1911, R. L. Workman and J. L. Reich entered into a written contract whereby the former became agent for the latter, for a stated commission, to sell his real estate.

S. Maples, Judge; STATEMENT. BY THE COURT. This is an action by S. W. Fulkerson against the Western Union Telegraph Company for damages for the failure on the part of the defendant to deliver to plaintiff the following telegraphic message: “January 25, 1912. Mr. S. W. Fulkerson, Benton-■ville, Arkansas. Offer you Tennessee territory twenty direct five mail effective first. Wire quick answer.

<p>Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor;</p>

The indictment should have been quashed on defendant’s motion. Kirby’s Dig., § 2220; 12 Ark. 636; 69 Ark. 190. It should have been dismissed because of misjoinder of offenses. Kirby’s Dig., § § 2230, 2231; 32 Ark. 203; 33 Ark. 177; 36 Ark. 55. 2. The court erred, both in the setting of the case for trial in the absence of the defendant, and in permitting his motion for change of venue to be withdrawn at a time when he was not present. Kirby’s Dig., § 2339; Const.

E. Evcms, Judge; STATEMENT BY THE COURT. Appellee instituted this suit as administratrix of W. R. Roddy, her deceased husband, and in her complaint she alleged that her intestate was killed on the 29th day of May, 1911, by the negligent operation of one of appellant’s trains at Portland, in this State. The negligence was alleged to have consisted in a failure to keep a lookout, and a failure to give signals at a public street crossing.

Reed, Judge; The court erred in instructing the jury that the burden was on the defendant to show that the offense was committed more than one year before the finding of the indictment. That it was committed within one year was a material allegation of the indictment, and the burden was on the State to prove it.

Francis Chancery Court; Edward D. Robertson, Chancellor; A mortgagee in possession must account for rents, not only to the mortgagor, but also to judgment-creditors and subsequent mortgagees. 27 Cyc. 1252; 42 N. J. Eq. 297, 10 Atl. 880; 20 Conn. 427; 75 Ia. 368; 25 Atl. 512; 41 N. J. Eq. 311; 7 B. Mon. (Ky.) 66; 49 Ark. 508; 3 Pomeroy’s Eq., § 121.

Cowling, Judge; 1. The message which is the foundation of the action, contains the stipulation that the company will not be liable for damages or statutory penalties where the claim is) not presented within sixty days after the filing of the message for transmission.

<p>Appeal from Franklin Circuit Court, Ozark District; Jeptha R. Evans, Judge;</p> <p>1. Under the evidence showing that the plaintiff, a well educated woman of more than ordinary intelligence; after reading the release and informing herself of its contents, signed it for a consideration of $40, and in the absence of any evidence of fraud or imposition inducing her to sign the release, the jury should have been directed to return a verdict for the defendant, and the court erred in refusing to so instruct the jury. 87 Ark. 614; 82 Ark. 112.</p> <p>2. The court erred in refusing the petition for change of venue. 74 Ark. 173.</p> <p>1. There was no error in overruling the motion for change of venue. As the law now stands, an application for change of venue addresses itself to the discretion of the trial judge, and unless it conclusively appears that there was such an abuse of this dicretion as to amount to a denial of justice, this court will not interfere with or control it. Acts 1909, p. 751; 153 S. W. 817; 106 Ark. 530.</p> <p>2. The jury’s verdict is conclusive touching all disputed facts in the case, and, from their verdict based upon the evidence, the conclusion is clear that, appellee was overreached by the claim agent; that at the time the release was signed, appellee’s excitement was such, and her mind was so completely occupied by the distressful condition of her child, that she did not realize that she herself was injured, and did not know that she was signing a release for damages resulting from her own injuries. The facts bring this case within thé rule heretofore announced by the court. 34 Ark. 613; 82 Ark. 105; 87 Ark. 614; 73 Ark. 42.</p>

Evans, Judge; 1. The court should have directed a verdict for the defendant. The evidence going to prove that there were obstructions upon the track which derailed the train can not be controverted, and the presumption of negligence arising from the fact of the derailment was overcome by this clear, positive and uncontroverted proof.

Cowlmg, Judge; STATEMENT BY THE COURT. This is a suit in ejectment by appellant against the appellee for a strip of land about seventy-five feet wide at one end, and about forty-five feet wide at the other end, along the section line between sections 34, in township 9 south, range 27 west, and section 3, in township 10 south, range 27 west, also the township line running east and west between said sections.

H. Evans, Judge; The act is unconstitutional and void. Art. 2, § 18, Const. 1874; Id., art. 2, § 29; 111 111. 581; 53 Am. Rep. 643; vol. 1, Green’s History of the English People, 252, 253; 152 IT. S-. 133; 123 Tenn. 654, 135 S. W. 325.

<p>1. Instructions—specific objections.-—Where the instructions given by the court on the question of self-defense properly state the law of the case, defendant should object specifically to another instruction given on the same point, which he claims was objectionable. (Page 211.)</p> <p>2. Assault with intent to kill—criminal intent—instructions. —Where defendant, in a prosecution for homicide, testified that he drew his pistol and shot the prosecuting witness with intent to kill him, because he thought his own life was in danger, an instruction given by the court, that “ * * * every sane man is presumed to intend the natural and probable consequences of his acts,” is erroneous, but not prejudicial. (Page 212.)</p> <p>3. Assault with intent to kill—self-defense.-—Where ' the evidence showed that defendant had a pistol in his hand and the prosecuting witness had started away, but, after a remark by defendant, turned, and defendant then shot him, an instruction that a plea of self-defense would be unavailing if, after defendant drew his pistol, he could reasonably have prevented an injury without shooting, and that such fact was apparent to him at the time, is proper. (Page 213.)</p> <p>4. Instructions—points already covered.—It is not error to refuse to give a requested instruction, when the law therein contained - is sufficiently set out in other instructions which the court has given. (Page 213.)</p> <p>5. Criminal law—assault with intent to kill—lesser crime.— While mere words, however opprobrious, will not justify an assault with intent to kill, yet words, accompanied by acts of a violent or threatening character, would be a provocation that might reduce the crime from assault with intent to kill to aggravated, assault, or to a justification of an aggravated assault. (Page 214. )</p> <p>6. Trial—remarks of trial judge—prejudice.—The trial judge may, by proper instructions, remove prejudice occasioned by his remark as to a former conviction of defendant of a crime. (Page 215. )</p>

8. Maples, Judge; STATEMENT BY THE COURT. Appellees sued appellants on a promissory note alleged to have been given them for the purchase price of a jack. Appellants’ answer admitted the execution of the note, and that it was given for the purchase price of the jack.

Reed, Judge; STATEMENT BY THE COURT, ' The appellant held a claim in the form of a promissory note against the estate of which appellee is the administratrix.

Reed, Judge; No rule of criminal procedure is better settled than that evidence of one crime can not be introduced to prove a man guilty of another.

1. The complaint does not allege that the train was not held a reasonable length of time, and there is no testimony to show that it was not held a sufficient time to afford passengers an opportunity to get aboard. Instruction 2 was therefore abstract and misleading. 2. The fifth instruction was also erroneous.

1. The exceptions to the general rule making it the duty of the master to furnish the servant a safe place to work are as well-established as the rule itself. The duty does not apply where the work is making a dangerous place safe; where the work itself makes the place unsafe or dangerous; where the character of the place for safety is constantly changing as the work progresses as the direct result of the servant’s labor. 1 Bailey on Personal Injuries, § 81.

This cause was heard upon the mandate of this court in Felton v. Brown, 102 Ark. 658. In that case we affirmed the decree of the chancery court “insofar as it relates to the homestead of Mary A. Felton,” and reversed the decree insofar as it awarded to Alice Lamb one-third of the estate of Marion Felton, deceased, and so much of the decree as awarded to Carrie Felton certain portions of the personal property of the estate.

A-ppeal from Randolph. Circuit Court; J. W. Meeks, Judge; 1. By the refusal of the court to make the order to secure the attendance of a material witness defendant was unlawfully deprived of a material right guaranteed by the Constitution. Art. 2, § 10; 58 Ark. 544; 50 Id. 161; 4 S. W. Rep. 24. The continuance should have been granted. 71 Ark. 182; 50 Id. 161; 99 Id. 394; 4 S. W. 24. 2.

<p>1. School districts—power of directors to bind districts.—The members of the board of directors of a school district have power to biD.d the district only when convened and acting together. (Page 264.)</p> <p>2. School districts—contract to teach.—A contract to teach is invalid when it was not signed at a meeting of the board of school directors, and the contract was signed by only two directors. (Page 264.)</p> <p>3. School districts—contract to teach-—ratification.—Where there was no meeting of the board of school directors, but two directors signed the contract with plaintiff to teach, under the evidence all of the directors held to have so ratified the contract as to make it binding on the district. (Page 264.)</p> <p>4. School districts—contract to teach—breach.—When a teacher under contract to teach, stopped the school at the order of the directors, and reopened the school in two weeks after learning that the directors gave the order, thinking the contract with her was invalid, she will not be held to have committed a breach of the contract. (Page 264.)</p>

Garter, Judge; The letter of May 20, the account having been ren-. dered, and appellee, having full knowledge of the facts and circumstances, having made payment of $378.85, made request for further time and promised to pay at the expiration thereof, and appellant having accepted the same, constitutes an account stated; and after the dispute arose, the letter of June 17 constituted a contract of compromise and settlement.

Martineau, Chancellor; 1. The act was not passed by the Legislature, because that body failed to comply with the constitutional requirements, Constitution, art. 5, § 21; Id., § 11; 33 Ark. 17; 77 Ark. 565; 22 L. R. A. (N. S.) 1089. The notes of the stenographer of the house can not be used to impeach a bill by showing that action on it was indefinitely postponed. 29 Okla. 233.

This was an action brought by the appellees in the court of a justice of the peace to enforce a laborer’s lien against a certain crop of vegetables in the possession of appellant. On December 20, 1912, which was the return day of the summons and attachment, the case was tried and judgment rendered in favor of appellees for the sum of $299.99 and the attached property was ordered sold-in satisfaction of this judgment.

' Appellee was the plaintiff below and alleged in his complaint that appellant was the transferee and owner of a lease executed July 14, 1904, by appellee together with Margaret Norris and others, heirs of J. W. Norris, deceased, to M. E. Anderson, et al., the lease embracing the coal and mineral rights under a certain hundred acres of land there described.

W. Meeks, Judge; STATEMENT BY THE COURT. This is an action in ejectment and the recitals of the complaint are as follows: The plaintiffs, by permission of the court, file this their amended complaint, and for cause of action against the defendant herein say: That they are the owners in fee simple, and entitled to the immediate possession of, the west half of the southwest quarter of section thirty-three (33), township ten (10) north, range thirteen (13) west, in Van Burén…

Petition for mandamus, Boone Circuit Court; George W. Reed, Judge; STATEMENT BY THE COURT.

E. Patterson, Judge; Instructions 3 and 5 are erroneous, and the latter instruction is so much in conflict with the other instructions that it can not be reconciled with them. 76 Ark. 225; 99 Ark. 385; 102 Ark. 629; 83 Ark. 61. Appellant was entitled to have submitted to the jury the question whether or not he was drunk, and whether or not there was provocation sufficient to have reduced the crime to manslaughter had death ensued.

J. Driver, Judge; Appellee pleaded guilty in order to avoid arrest and trial, and he knew at the time that the payment was made that the deputy prosecuting attorney’s fee demanded was illegal, because that officer’s appointment was irregular and because he was not present, yet he agreed to pay the sum demanded.

Wallace, Chancellor; 1. The mistake, to be ground for reformation of a .deed, must be mutual. 89 Ark. 309; 83 Ark. 131; 71 Ark. 614; 124 Wis. 536; 134 Fed. 70; 127 Mo. 255. Equity will not relieve against a mistake induced by the negligence of the complaining party. 75 Ark. 272; 47 Ark. 335; 84 Fed. 927; 69 111. 221; 70 Ind. 554; 124 Wis. 536.

E. Jeffery, Judge; 1. A motion to revive an action should be in writing. There was none in this case. Kirby’s Dig., § 6085. 2. An order of revivor can not properly be made in less than six months after the appointment of an administrator, except by consent. Kirby’s Dig., § 6013; 85 Ark. 157; 103 Ark. 607. In this case there is no evidence of consent of the adult heirs to revive, and the infant heirs could not consent. 39 Ark. 104. 3.

T. Gotham, Judge; STATEMENT BY THE COURT. The Legislature of 1913 passed an act in relation to pandering, which provides, among other things, “that any person who by promises, threats, violence, by any device or scheme, by fraud or artifice * * * shall take, place, harbor, inveigle,' entice, persuade, encourage or procure any female person to enter any place within this State in which prostitution is practiced, encouraged or allowed; for the purpose of prostitution, * * *…

Appellant was the plaintiff-below and alleged in its complaint the following facts: “That during August and September, 1911, it had sold and delivered to one Ben Hirsch certain lumber of the value of $352.65 for the purpose of erecting buildings on his farm.

Appellee alleged in her complaint that appellant was a corporation, operating a line of telegraph from Saltillo, Texas, to Beebe, Arkansas, and that on January 4, 1912, one Walter Everett, delivered to the defendant company at Saltillo, a message directed to her at Beebe, advising her that her husband, who was then at Saltillo, was very ill, and that on the next day the said Everett delivered another message to the defendant directed to appellee in the following words: “Bert…

<p>Appeal from Garland Chancery Court; Alonzo Curl, Special Chancellor;</p>

E. Martinea-u, Chancellor; STATEMENT BY THE COURT. This is a proceeding by appellant, a taxpayer of Pulaski County, against appellees to restrain them from proceeding further in the erection of an annex to the Pulaski County courthouse. The county court deemed it expedient to erect an annex to the present courthouse, and the quorum court made an appropriation for that purpose.

M. Jackson, Judge; The indictments charge the offense in the language of the statute, which is ordinarily held sufficient. 100 Ark. 412. “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any ■ defect which does not tend to the prejudice of the substantial rights of the defendant or the merits.” Kirby’s Digest, § 2229.

The relation of landlord and tenant never existed between the parties, hence rules of law applicable in such cases do not apply in this case. A direct contract is necessary to create the relation of landlord and tenant. It will not be inferred as a matter of law from mere fact of lawful occupancy. Jones, Landlord & Tenant, § 3; 82 Ala. 342; 2 So. 646; 142 Mass. 233; 113 N. Y. 442, 21 N. E. 114; 3 Atl. 508.

The circuit court had no jurisdiction to render judgment in the cause. 147 S. W. (Ark.) 460, and authorities cited. The county court acquired no jurisdiction in the first instance because of the failure of petitioners to file bond for the amount required by law, giving two freehold sureties on said bond. Kirby’s Dig., § 1415, as amended by Acts 1907, p. 278.

Cotvling, Judge; 1. An instruction requiring the appellant to have turned over the message to the Memphis, Dallas & Q-ulf Railway Company instead of calling up the telephone exchange for transmission of the message to the addressee, was harsh and unreasonable. A telegraph company may make rules and regulations for the handling of messages. 96 Ark. 213-217; 91 Ark. 602-604; 18 Md. 341-358; 46 W. Va. 48; 8 Tex. Civ. App. 176.

achariah T. Wood, Chancellor; STATEMENT BY THE COURT. Appellants instituted this action against appellee to . cancel a .will made by Geo. E. B. Veasey to appellee, and to have the lands mentioned in the will, and other lands, declared the property of appellants as the heirs of Abner Veasey, deceased.

Frierson, Chancellor; STATEMENT BY THE COURT. This is a suit by appellant against appellees as trustees of the Methodist Episcopal Church, South, at Peach Orchard, Arkansas, to foreclose a mortgage on the church lot and house executed by the trustees to appellant. The lot on which the church building was afterward erected was formerly donated to the church by appellant.

The defendant, John Bruder, was indicted for murder in the first degree, charged to have been committed by shooting Tony Bly. The facts proved by the State, briefly stated, are as follows: The deceased, Tony Bly, was the proprietor of a saloon in the city of Fort Smith, in Sebastian County, Arkansas, and was killed in it by the defendant shortly after 5 o’clock in the afternoon of the 23d day of January, 1913.

380, where it was held that improvement districts were exempt from' liability for personal injuries. Here we have a ease of invasion; taking and damaging private property for public use without compensation. The right' of property is before and higher than any constitutional sanction * * * and can not be appropriated or damaged without just compensation. Constitution, art. 2, § 22; 11 Am. Rep. 352; 102 Am. St. 881; 65 Am.

<p>1. Deeds—sufficiency of consideration.—An agreement upon the part of the grantee to support the grantor during his lifetime is a sufficient consideration for a deed conveying land. (Page 430.)</p> <p>2. Deeds—delivery—conclusiveness of chancellor’s findings.—B. executed a deed to certain land to A., his daughter, in consideration of her promise to support him all of his life. A. was present when the deed was executed, consented to it, and fulfilled her agreement. B. deposited the deed with the cashier of a hank to be delivered at his death to A.’s husband. At B.’s death, A.’s husband received the deed and placed it on record. Held, the chancellor did not err in holding that the delivery of the deed to the cashier of the bank was, in effect, the present delivery of it to be held by the bank for the benefit of A. (Page 431.)</p>

E. Patterson, Judge; STATEMENT BY THE COURT. The appellant, Will May, was indicted by the grand jury of Columbia County, Arkansas, for assault with intent to kill one Pleas Dismukes by cutting him with a knife, and he was convicted of that crime and sentenced to one year’s imprisonment in the State penitentiary, and has prosecuted this appeal.

J. Driver, Judge; STATEMENT BY THE COURT. Appellee instituted this suit in the circuit court of Mississippi County to recover damages for certain injuries received by him from falling through appellant’s depot platform at the station of Grider, in said county, March 8, 1912. The suit was tried at the January term, 1913, and resulted in a verdict for appellee for two thousand dollars, from which the appellant has appealed to this court.

<p>1. Railroads—duty to keep lookout—injury to person at crossing. —Under Acts of 1911, page 275, the operatives of a railway train are required to keep a lookout for trespassers, and all others upon its track, and is liable for any negligence resulting in an injury to any such person, notwithstanding the contributory negligence of the injured party. (Page 446.)</p> <p>2. Railroads—duty to keep lookout—headlight.—A railway is liable for an injury to a person under the lookout statute (Acts 1911, p. 275) caused by reason of its negligence in failing to provide its locomotive with a proper headlight, as required by Acts 1907, page 1018. (Page 447.)</p> <p>3. Locomotive—definition.—The word, “locomotive,” as used in Acts of 1907, page 1018, providing for maintenance of headlights of certain candlepower, applies to all self-propelled engines or machines used on railroads for the ordinary purpose of transporting freight or passengers. (Page 449.)</p> <p>4. Railroads—duty to provide headlight.—A railroad company is required to provide the headlight required by Acts of 1907, page 1018, on a motor car operated by the railroad and used in carrying passengers. • (Page 449.)</p>

S. Maples, Judge; 1. Oral evidence is not admissible to vary or contradict a written instrument, and the verdict is contrary to the evidence. 2. .Improper argument of counsel was allowed by the court. 3. Instruction 5 was palpable error. 4. Instruction G is also erroneous, and the verdict is so unjust and unreasonable that it is shocking to a sense of justice. 1.

II. Evans, Judge; 1. Appellee both, assumed the risk and was guilty of contributory negligence.

V. B ourland, Chancellor; STATEMENT BY THE COURT. Edward C. Brogan died on August 25, 1910, leaving a will, the portion of which it is material here to consider, reads as follows: Item 9.

Cowling, Judge; STATEMENT BY THE COURT. Judgment was rendered against appellant in the justice court for the sum of $4.95, and he appealed to the circuit court. The circuit court dismissed the appeal ‘ ‘ on the ground that the amount involved is too small for the' consideration of the court,” and appellant appeals to this court. 1. A litigant has the right to appeal from any judgment, however small.

Garter, J.udge; STATEMENT BY THE COURT. This is a suit by appellants against appellee for the recovery of the statutory penalty under section 7948 of Kirby’s Digest, for an alleged discrimination against them in refusing them telephone service. The complaint alleges that appellee is a corporation, organized under the laws of this State, and that it owns and operates a telephone exchange in the city of Prescott.

Shaver, Chancellor; STATEMENT BY THE'COURT. In 1898, Eliza Schuman was the owner in fee simple of eighty acres of land, on which is now situated the town of Rocky Comfort. The railroad station and post-office are called “Foreman.” The land was situated in Little River County; and in 1898, Eliza Schuman laid it off into lots and blocks for townsite purposes. The west half of block 30 was dedicated to the public.

E. Jeffery, Judge; 1. Under the undisputed testimony no legal liability on the part of appellant is shown. 63 Pae. 294; 162 Mass. 319, and cases cited; 93 Ark. 387; 99 S. W. (Ark.) 693. 2. The court erred in permitting counsel for appellee to make a closing argument, after he had made an opening argument to the jury, and appellant’s counsel offered, without argument, to submit the case on the evidence, instructions and the argument of appellee’s counsel. 1.

Appellant was plaintiff below and alleged in ber complaint that sbe was tbe owner of and entitled to the immediate possession of tbe store building occupied by tbe defendant and used by him as a restaurant in tbe city of Brinkley.

Martineau, Chancellor; The Constitution requires an absolute majority of the property owners in order to validate the proceedings, not a majority on the face of the record, bnt an absolute, actual majority. And whether or not there exists a majority is a judicial question which the courts must determine whenever its attention is brought to it. 50 Ark. 127.

8. Maples, Judge; 1. Prior to the act of June 2,1911, material men and laborers had no lien upon public property, or property in trust, etc. 17 Ark. 483; 49 Id. 94; 56 Id. 476. 2. Public officers, county boards, supervisors, commissioners, etc., and other governing bodies are liable for ministerial acts causing injury. Act June 2, 1911; 49 S. W. 705; 20 Tex. Civ. App. 178; Cooley on Torts, 379; 95 Am. St. (note) 74; 52 Ark. 541; 35 Cyc. 908; 18 Wis. 627; 110 Tenn. 67. 1.

Carter, Judge; Instruction numbered 1 given by the court has been condemned by this court in the Gibson case, 107 Ark. 431. It is erroneous in placing upon the defendant the burden of disproving negligence upon proof merely that plaintiff was injured by a train. Under the amended lookout statute it must appear that a prima facie case of ■negligence is established before the burden is shifted to the defendant.

E. Patterson, Judge; 1. It was error to refuse the petition to inquire into the mental condition of defendant at the time of trial. Kirby’s Dig., § 2440; 69 Ark. 167; 77 Id. 423; 72 Id. 523; 104 Id. 43. 2. After a juror has been accepted by both parties he can not be challenged peremptorily without permission. 70 Ark. 337; Kirby’s Dig., § 2357. 3. The defendant must be present when any substantive step is taken, and the record mnst show it.

W. Hendricks, Judge; The circuit court had jurisdiction under section 9 of the enabling act of 1911, but if not, the court should have transferred the cause to the chancery court. The enabling act had no other purpose than to give effect to Amendment No. 10. There is no authority whatever for the reference of any local measure for any county or municipality to the people. 105 Ark. 583. This case seems conclusive.

Frierson, Chancellor; STATEMENT BY THE COURT. Appellants had a donation deed to the southwest quarter of section 20, township 6 north, range 8 east, in Crittenden County. They went into the actual possession of fifteen acres in the southwest quarter of the southwest quarter, but actual possession was not taken of the northeast quarter of the southwest quarter of section 20.

8. Maples, Judge; This cause should be reversed because of improper conduct of the counsel of the State. 73 Ark. 148; 89 Id. 304. The arguments of counsel for the State were not prejudicial. 73 Ark. 151; 96 Id-. 7; lb. 177; 108 Ark. 508.

T. Humphries, Chancellor; STATEMET BY THE COURT. Appellants sought to enjoin the.collection of certain improvement taxes levied for the purpose of building sidewalks in the incorporated town of Hoxie. The litigation involves the validity of the ordinances under which the improvement district was created and the taxes assessed.

Evans, Judge; STATEMENT BY THE COURT. Appellant was convicted for perjury and filed a motion in arrest of judgment in wbicb be alleged that tbe facts stated in tbe indictment did not Constitute a public offense. This motion was overruled and appellant was sentenced to a term in tbe penitentiary and be bas appealed. The indictment was as follows: State of Arkansas v. • Jesse Loudermilk.

B. Yerger, Special Judge; STATEMENT BY THE COURT. Appellant, Francis H. Conway, filed a replevin suit before a justice of tbe peace, for tbe possession of one lot of saw logs on tbe yard at Indian Station, Cbicot County, Arkansas, worth $295. He filed a replevin bond and obtained an orcler of delivery and took possession of tbe logs under it.

<p>1. Improvement districts—directors—duty to file statement.—Act 333, page 789, Acts of 1905, authorizing the real estate owners of an improvement district to be organized in the city of Jonesboro, and to elect directors, for the purpose of purchasing and controlling the water and light plant and for the construction of sewers, held not to amend the general law save in the matter of the election of the directors and the placing of the control of the water and light plant in their hands, and the directors will be compelled by mandamus to file with the city clerk a settlement pursuant to the terms of section 5740, Kirby’s Digest. (Page 564.)</p> <p>2. Improvement districts—water and light plant—supervision of by city council.—Kirby’s Digest, § 5741, gives a city council power to audit or readjust the accounts of a local improvement district, but the council.can not disturb the account to the extent of supervising the expenditures of the district, and where by special act the Legislature has given the directors of an improvement district the management of a light and water plant, under Kirby’s Digest, § 5741, the city council has no power to supervise the operation and management of the plant. (Page 566.)</p>

There is no competent evidence to sustain the verdict. The burden was on the appellee to establish not only the breach of the contract by the defendants, but also that the market price of the timber left standing was at the time of the breach more than the contract price. 47 Ark. 519; 2 Ark. 397. 2.

M. Jackson, Judge; 1. There is no adequate description of the land. It is admitted that the section 4 in question has never been surveyed or platted by the Government, nor by any one in its behalf, nor any evidence that it has ever been surveyed at all. The starting point being in the northwest corner of an unknown section that had no legal existence, all the measurements and bearings would be ineffectual to identify any land. 2.

Gotham, Judge; 1. Appellee is not entitled to recover in an action for money bad and received upon tbe issue joined in the pleadings. If guilty, tbe bank is guilty of a tort only, and tbe action should bave been for damages. 69 Ark. 209; 27 Cyc. 881; 22 Ala. 125; 113 Cal. 97; 27 Cyc. 849; 4 Id. 353; 22 Yt. 624; 50 Id. 297; 20 Kan. 235; 82 Am. St. 207; 2 Greenl. Ev. (16 ed.), § 108, notes; Am. Ann. Cas. 1913a, 932; 17 Ark. 599; 31 Id. 158. 2.

W. Wells, Judge; There was error in the court’s charge. ■ Nos. 13, 15, 18 and 19 are in conflict with No. 10 for defendant. There is no error in the instructions. No. 13 is a copy of Kirby’s Dig., § 1797. No. 15 was approved in 76 Ark. 515, and is taken from Dig., § 1798. No. 18 was not prejudicial. If defendant negligently threw a stick at defendant, he was guilty of involuntary manslaughter. 100 Ark. 330-335; 68 Id. 310.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant appeals from a judgment convicting him of murder in the first degree for the killing of one James Chandler. A deputy sheriff of Poinsett County lived at Tyronza, Arkansas. He and Chandler left the station and went down the dirt road to appellant’s house.

Hays, Judge; STATEMENT BY THE COURT] Tbe appellant brought this suit against the appellees to recover a car of oats which the appellees were in possession of under an attachment, issued at the instance of the C. H. Couch Commission Company against the Brown Grain Company, a nonresident.

F. Gautney, Judge; STATEMENT BY THE COURT. This is a suit to recover damages for mental anguish alleged to have been suffered by appellee on account of the alleged negligent failure of appellant to promptly deliver to her the following telegram: “To Mrs. Annie Littlefield, Wynne, Ark. ‘ ‘ Papa no better; come in a. m. “Tom Jones.” Appellee resided at Wynne, Arkansas, and her father, J. Jones, resided at Palestine, Arkansas.

W. Wells, Judge; STATEMENT BY THE COURT. The appellant was convicted of the crime of grand larceny, the indictment alleging that he “did feloniously steal, take and carry away one dark Jersey bull,” the property of T. A. McCandless. The evidence shows that McCandless lost a “shabby heavy-set yearling, with long hair,” the calf of a cow that was “part Durham and part Jersey.

8. Maples, Judge; 1. The depositions of appellee should have been suppressed. Acts 1905, Act 326, p. 778, § 3; 9 Ark. 62. 2. The verdict is against the law and evidence. The receipt for amount paid is not conclusive under the Hepburn act. The goods were shipped as “vinegar stock,” not pure apple vinegar. No value was fixed in the bill of lading.

T. Cowling. Judge; STATEMENT BY THE COURT. This action was commenced before a justice of the peace by the Roach Wholesale Grocery Company against Dreyfus Brothers, to recover damages alleged to have been sustained by the defendant’s failure to ship a certain bill of candies.