Volume 111 — Arkansas Reports

Shaver, Chancellor; 1. The law requires election. 92 Ark. 15; 41 Id. 64; 30 Gratt. (Va.) 83; 96 Ark. 251; 48 N. Y. Supp. 32.. 2. Mary E. McWhorter affirmed the will by standing by and accepting support, maintenance, etc., under its provisions. Besides, it was a family settlement. 3. She was estopped and barred by twenty years enjoyment and 'the seven-year statute. 62 Ark. 316; Kirby’s Digest. 4. Laches is a complete bar. 55 Ark. 85; 64 Id. 345; 62 Id. 316. 1.

E. Jeffe-ry, Judge; STATEMENT BY THE COURT. The plaintiff, Will Coutch, brought this suit against the defendant, St. Louis, Iron Mountain & Southern Bail-way Company, to recover damages for personal injuries sustained by bim by reason of tbe alleged negligence of the railway company.

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. On October 8, 1910, A. J. Sears instituted this suit in the chancery court against John H. Setser and Eliza Setser, his wife, and W. H. Austin, to set aside a conveyance by the Setsers of the south half of lot 2 in block 12 in G-ravette, Benton County, Arkansas, as a fraud upon his rights as an existing creditor.

A verdict should have been directed for appellant. Jones on Landlord & Tenant, § 438. Even had it been an assignable lease, an assignment of it would necessarily have to be in writing. Kirby’s Dig., § 3665. And the assignment thereof in this case was void under the statute of frauds. 29 Car. 11, cap. 3; Browne on Statute of Frauds, 647; Id., § 106; Id., % 18; Kirby’s Dig., § 3664; 1 Tiffany, Landlord & Tenant, § 34; 71 Ark. 484; Reed on Statute of Frauds, § 380. 1.

'Carter, Judge; affirmed on the merits; STATEMENT BY THE COURT. Appellant was tried and convicted upon an indictment charging him with the crime of murder in the first degree. He filed a motion for a new trial in which, among other grounds, it was alleged that appellant was insane at the time of his trial and that that fact was unknown to his counsel until after the trial.

T. Gotham, Judge; STATEMENT BY THE COURT. This was an •action in replevin brought by appellant against appellee for $10,200 in money, currency of the United States, which had been collected by appellee for appellant. A demurrer to the complaint was sustained, whereupon appellant amended his complaint and a demurrer was filed to the complaint as amended and this demurrer was also sustained.

<p>Appeal from Randolph Circuit Court; John W. Meeks, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>This is a suit by appellant, who was plaintiff below, on an accident policy issued by appellee on the life of Georgia Smith, wife of appellant. The policy was one of limited liability, paying a benefit for injuries arising solely from certain specified causes, one of which was being kicked by a horse. The policies were issued by one T. J. Redwine, a merchant, who furnished his customers with a trading card, and, according to this card, when $5 was traded out the holder became entitled to an accident insurance policy on the payment of thirty-four cents. Both appellant and his wife had complied with the cards, and were the holders of policies in the appellee company. Appellant testified and now contends that his wife was thrown from a horse and kicked by it, while appellee offered the evidence of several of the neighbors to the effect that appellant had stated that his wife had fallen from her horse, and no contention was made by appellant at the time that she was kicked by it. The certificate of the physician indicates that even falling from the horse may have had nothing to do with the death, and it is conceded that there could be no recovery under the terms of the policy unless the jury found the facts to be that Mrs. Smith had been kicked by the horse. This question was properly submitted to the jury under proper instructions and the jury’s verdict would be conclusive of this case but for the fact that appellant says that the jury was improperly instructed upon the question of the iailure to furnish proof of the injury, and that the jury’s verdict may have been based upon that finding. The policy contained the following stipulation: “Written notice of any injury must be given immediately to the American National.Insurance Company, at its home office, Galveston, Texas, with names of witnesses. Any failure to give such written notice within ten days from •date of accident shall invalidate all claims under this policy. ” It is not claimed that appellant complied with this stipulation of the policy; but he says his recovery should not be defeated on that account, because of appellee’s waiver of this failure. The facts upon which the claim of waiver is based do not appear to be in dispute, and are as follows: The accident happened on July 7 and Mrs. Smith died the following day. No notice of the death was given except that contained in a letter asking for blanks upon which to make proof of death and the information contained in this proof, which was furnished later. The letter advising the company of the death of the insured was written by a Mr. Maynard on July 23, 1910, which was five days after the expiration of the ten-day limitation; but it does not appear that this letter contained any intimation of the expiration of the time for making proof. Proofs were made and forwarded to the appellee by Mr. Maynard in a letter dated August 12, and, in response to this letter, the claim adjuster of appellee wrote Mr. Maynard the following letter:</p> <p>Galveston, Texas, August 16, 1910.</p> <p>L. P. Maynard, Cashier, Reyno, Ark.</p> <p>Dear Sir: We have your favor of the 12th inst., enclosing proof of death of Georgia Smith, insured under our limited accident policy. No. 83218, and in reply beg to advise you that this company is not liable under this claim for the reason that Mrs. Smith’s death, did not result from an accident covered by the policy under which she was insured.</p> <p>Policy No. 83218, issued to Mrs. Smith, is a limited accident policy, which does not pay benefit except for death resulting from certain injuries which are specified in the policy, and since Mrs. Smith’s deathc„was not the result of one of those accidents specified in the policy, no indemnity is payable thereunder.</p> <p>Yours very truly,</p> <p>Claim Adjuster.</p> <p>The instruction complained of upon the question of waiver reads as follows:</p> <p>“You are instructed that under the terms of the policy sued on, the plaintiff was required to give the defendant a written notice of the accident within ten days from the date thereof, and the giving of said notice is a condition precedent to plaintiff’s right to recover, unless such notice was waived by the defendant, or by an agent authorized to waive it; and if the jury find from the evidence that a written notice by the plaintiff within ten days from the date of the accident was given the defendant by the plaintiff, and that the defendant did not waive such notice, then the plaintiff can not recover and the jury must return a verdict for the defendant.”</p> <p>The court’s instruction on the question of notice, etc., left entirely out of consideration the fact that notice had been waived by the admitted acts of the appellee, and was therefore not required. The authorities have repeatedly held that the stipulated notice is waived if an insurance company on receiving proofs later declines payment on other grounds. 1 Cyc. 278, chap. 2, and cases cited; 70 N. E. 174; 71 Mo. App. 42; 97 Tenn. 1; 77 Ark. 41; 94 Ark. 21; 91 Ark. 43; 46 Am. St. Rep. 796; 67 Md. 403; 1 Am. St. Rep. 398, and note; 17 la. 176.</p> <p>The instruction complained of was correct. Appellant overlooks the vital fact that the alleged “waiver” occurred after the forfeiture by appellant was complete. 79 Ark. 475; 88 Ark. 120, 123,124; 165 Ind. 317, 323, 324; 91 Ark. 43-50.</p>

S. Maples, Judge; STATEMENT BY THE COURT. This action was begun in the Benton Circuit Court by the appellee against the appellants to recover the amount of a judgment and costs and interest thereon, which the appellee, James, secured against the Southern Fruit Product Manufacturing Company, a corporation, in the Benton Circuit Court, amounting to $121.20. The appellants were sued as directors and officers of the corporation against which James had obtained his judgment.

E. Jeffery, Judge; The court erred in refusing instructions 1, 2 and 3, requested by defendant. Instruction 3, to the effect that settled insanity which becomes fixed and established as a' diseased condition of the mind, produced by habitual intoxication, affects criminal responsibility in the same way as insanity produced by any other cause, is surely the law. For test of criminal responsibility on a plea of insanity, see 64 Ark. 534. See, also, Kirby’s Digest, § 1550.

Martineau, Chancellor; Counsel review and discuss the testimony, and contend that a clear preponderance of the evidence' establishes a resulting trust in favor of the appellant. The question in this case is not who bores the expense of the improvements, but ivho paid the purchase money for the lot itself in controversy here.

Appellant was convicted of petit larceny before a justice of the peace.

V. Bourland, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellee in the Sebastian Chancery Court, for the Fort Smith District, against appellants to set aside certain deeds executed between tbe parties in tbe division of tbe estate of one Charles Webb, deceased, the husband of the appellee, and the son and brother of the appellants.

Martinecm, Cbaneellor; statement by the court. Appellee is a corporation engaged in the business of rice milling at Lonoke.

W. Meeks, Judge; When 'the Legislature enacted that the boundaries of a school district organized in an incorporated town should be co-extensive with the 'boundaries of the town, it was beyond the power of the county court to erect a common school district out of part of such territory. Acts 1909, Act No. 312; 145 S. W. (Ark.) 896, 897. The county court’s order was void, and certiorari was the proper remedy. 1.

Garter, Judge; STATEMENT BT THE COURT. Appellee instituted this suit against appellant to recover damages for personal injuries which he received while attempting to cross appellant’s railroad track at a public crossing at Highland, in Hempstead county, Arkansas. The circumstances under which appellee received his injuries are testified to by himself substantially as follows: The main line of appellant’s fine of railway at Highland runs north and south.

H. Evans, Judge; STATEMENT BY THE COURT. The plaintiff, Sam T. Cooper, brought this suit against the St. Louis, Iron Mountain & Southern Railway Company, the defendant, to recover damages for injuries to his mule, which he alleges were sustained by reason of the negligence of the defendant.

The American Trust Company instituted this action in the chancery court against W. Y. Nash, as collector, and R. L. Collins, as county clerk of Craighead County, to enjoin the collection of taxes on personal property which it claimed were erroneously assessed against it.

Reed, Judge; The court erred in sustaining plaintiff’s demurrer, which was a general one, if either one of the two paragraphs of defendant’s answer set out in the opinion, presented a complete defense. 72 Ark. 29. As to paragraph 13 of the defendant’s answer (set out in the opinion), this court has expressly upheld as reasonable, this provision, in the following cases: 63 Ark. 331 and 90 Ark. 308. See, also, 203 Fed. 971 and 129 S. W. 181 (Tex.).

Mandamus will lie to compel an auditor to draw a warrant for an officer’s salary. 5 Ark. 436; 26 Ark. 237; 26 Cyc. 235, and cases cited. 2. The judge of a circuit court is a State officer. Const. 1874, art. 7, § 13; art. 19, § 11; art. 7, § 22; 21 So. 293; 36 Cyc. 852, 853; 23 Cyc. 506; 11 Cyc. 415.

<p>Appeal from Greene Circuit Court, First Division; J. F. Gaibtney, Judge;</p> <p>1. Replevin did not lie. Kirby’s Dig., § 5410; 18 Ark. 166; 43 Id. 519; 18 Enc. PI. & Pr. 497; 82 Ark. 244; 24 A. & E. Enc. Law (2 ed.), 488; 5 Id. 1020; Jones on Chat. Mortg., $ § 632-4; 89 N. W. 510; 101 N. W. 1054; 7 Cyc. 78. When a mortgagee takes possession, a tender will not support replevin. 5 A. & E. Enc. L. (2 ed.) 1020; 101 N. W. 1050; 89 N. W. 510. Tbe remedy is by bill to redeem in equity. 101 N. W. 1050; 79 Pac. 925; 18 Ark. 102; 3 Midi. Ill; 28 Mo. App. 354; 4 A. & E. Enc. PL & Pr. 511. Tender does not revest title, nor divest tbe lien. 83 Ark. 484; 112 111. App. 223; 50 Ark. 505; 38 Id. 329.</p> <p>2. Tbe tender was not sufficient. 23 N. W. 775; 25 Minn. 135-140. It did not include costs and expenses.</p> <p>3. Tbe burden was on appellee to show a sufficient tender. 54 N. E. 253; 89 N. E. 919.</p> <p>1. Tbe mortgagor bad an interest be could sell, subject to tbe mortgage lien. Kirby’s Dig,, § 5396; 87 Ark. 502.</p> <p>2. The tender was sufficient, and as long as kept good, paralyzes tbe power to sell under tbe mortgage. 36 Ark. 17; 66 Id. 550.</p> <p>3. Tbe personal expenses of an agent can not be charged against tbe mortgaged property. 53 Ark. 545; 63 Id. 231.</p>

II. Evans, Judge; 1. The court erred in its charge as to the duty of railroads under the “lookout” statute. As between co-employees there is no presumption of negligence. 98 Ark. 202; 74 Id. 19; 79 Id. 76; 90- Id. 326; 91 Id. 308; 84 Id. 372. . 2. Defendant’s instruction No. 2 should have been given.' It was error to give No. 7 for plaintiff and refuse No. 7 for defendant and No. 11 as asked.

Hutton, Judge; 1. In support of the proposition that the evidence does not sustain the verdict, counsel say that the^re is no question under the testimony but that the engineer complied with the statute, and fully discharged his duty with respect to ringing the bell and sounding.the whis.tle (Kirby’s Dig., § 6595); but that appellee, while he claims that he kept the lookout required for his own safety, and listened for approaching trains, is contradicted by every…

Hays, Judge; 1. “Other necessary incidental expenses” in the Acts 1907, page 951, § § 6-14, does not include stamps or traveling expenses. No constructive fees are allowable. Only fees, costs, etc., specially allowed by- statute are chargeable to the county. 57 Ark. 491; 32 Id. 445; 103 Ark. 610; Kirby’s Dig., § 1458; 47 Ark. 442. “Stamps” were allowed before the passage of section 1458, Kirby’s Dig. (32 Ark. 54), -but not since.

The Turner act does not authorize an original proceeding in the circuit court to establish a drainage district, nor to change an old district formed under the prior general statute to the operation of said Turner act. Acts 1909, No. 279, § § 1:34; Kirby’s Dig., § 1414 et seq. 1438. 2. The ex parte petition should have been dismissed.

E. Williams, Special Judge; 1. Anders, by drawing on the Bradley Lumber Company for the $4,492, expressly requested that company, to that extent, to pay the note of the appellee, of which he and others wrere joint makers. Where one person, at the request of another, pays an obligation for which the other is legally liable, he can recover the amount so paid from the person for whose benefit it was paid. 28 Conn. 455; 13 La.

D. Frierson, Chancellor; STATEMENT BY THE COURT. On the 20th of October, 1910, the collector of Craig-head-County instituted this action in the chancery court for the Eastern District of Craighead County, on behalf of Drainage District No. 3 of that county, for the collection of certain assessments levied against certain lands, for the payment of interest, costs and bonds issued by Drainage District No. 3.

Cowling, Judge; STATEMENT BY THE COURT. The appellee sued the appellants on insurance policies issued by them respectively for the amounts alleged in the complaint. The appellee alleged that he had complied with the provisions of the policies on his part and that the loss occurred by fire on the property of the assured; that the appellants had each refused to pay the amounts covered by their respective policies; that demand had been made on appellants for same.

J. Driver, Judge; STATEMENT BY THE COURT. The appellee sued appellant to recover the sum of $2,000 on a policy of insurance which she alleged was issued by appellant and delivered to her husband, Dr. W. T. Speer; that her husband complied with the terms • of the contract of insurance, and that he died on the 17th day of October, 1911, while the policy was in full force; that proof had been made of his death according to the terms of the contract of insurance and demand had…

Gow-Img, Judge; STATEMENT BY THE COURT. The body of the indictment against the defendant, J. D. Farrell, is as follows: “The grand jury of Pike County, in the name and by the authority of the State of Arkansas, accuse J. D. Farrell of the crime of murder in the first degree committed as follows, towit: In the county and State aforesaid, on the 18th day of September, 1913, one Rhoda Carter did unlawfully and feloniously commit suicide or self-murder by taking morphine and…

This action was commenced before a justice of the peace by J. E. Miller against Abner Greenspan to recover commissions claimed to have been earned by the former on the sale of certain Edison business phonographs, for which the defendant was general agent.

In July, 1907, certain fruit growers living near Greenwood, in Sebastian County, Arkansas, delivered to the Midland Valley Railroad Company for shipment, on different dates, three cars of peaches consigned to Adam Miller, in the city of New York. When the peaches arrived at their destination a considerable portion of them was rotten, and on that account had greatly deteriorated in value.

D. Frierson, Chancellor; 1. The court erred in dismissing appellant’s prayer for reformation of the notes. The evidence that the intention was to sign as president of the Hoffman Investment Company is not contradicted.

Garter, Judg-e; 1. The complaint alleges that the injury was caused by the call boy in the employ of appellee while going to make a call under its orders, and this sufficiently charges that he was in the discharge of his duty toward appellee and was acting within the scope of his employment. The complaint states facts sufficient to constitute a cause of action under the doctrine respondeat superior.

Cowling, Judge; 1. The indictment is demurrable. Tbe language of tbe act is not sufficient; tbe facts should be set out so defendant could know wbat to answer. 38 Ark. 543; lb. 519; 68 Ark. 251; 58 Id. 35; 80 Id. 310; 94 Id. 245. 2. Tbe prosecuting attorney’s remarks were prejudicial. 70 N. E. 27; 67 Id. 183; 74 Ark. 256; 38 Cyc. 1476. 3. Tbe letters evidence of wife were incompetent under tbe act. 4.

The original surveys by the United States control as to boundaries. 97 Ark. 193; 97 Am. St. 310; 110 Id. 910; 22 Fla. 515; 1 So. 149; 20 S. W. 673. 2. Quantity must yield to course and distance, which must give way to artificial and natural objects. 3 Ark. 57; 13 Strath. (S. C.) 132; 97 Am. St. 310; 11 111. 279; 95 Ark. 375; lb. 151; 64 Ark. 240. 3. Parol testimony was admissible to show the meaning of the parties. 12 A. & E. Ann. Cas. 296, and note; 95 Ark. 150; lb. 375. 1.

An agreement not to exercise a legal right is a valid consideration. Forbearance or surrender of a thing of value is sufficient consideration. 106 Ark. 1; 64 Ark. 637; 27 Id. 407. Mutual promises or undertakings constitute sufficient consideration. 83 Ark. 153; see, also, 99 Ark. 241; 33 Id. 97; 1 Id. 103. The consideration may go to a third party. 40 Ark. 69. 2. The burden of proving no consideration is on defendant. '35 Ark. 279; 33 Id. 97. 3.

Laney was a mere soliciting agent. His declarations are not competent to prove agency. 80 Ark. 228; 93 Id. 600; 97 Id. 420. Special agents must act strictly within the limits of their powers. 81 Ark. 202. 2. The peremptory instruction should have been given. The hooks were not properly kept. 65 Ark. 336. A soliciting agent can not waive a forfeiture. 85 Ark. 337; 98 Id. 166; 38 S. E. 541; 5 So. 116. 3. The iron safe clause must he complied with. 91 Ark. 310; 83 Id. 126. 1.

On the 29th day of November, 1910, the appellant executed his promissory-' note to the appellees for the sum of $2,008.17, due November 29, 1911, and bearing interest at the rate of 10 per cent per annum from maturity until paid. The note was negotiable, and payable at the bank of Russellville.

H. Evans, Judge; STATEMENT BY THE COURT. This is the second appeal of these eases to this court.

Hays, Judge; STATEMENT BY THE COURT. On the 11th of July, 1906, the appellee executed a timber deed to Hamlen & Sons Company, conveying all white oak, cow oak and burr oak timber growing on certain lands in Columbia County, Arkansas, for the consideration of $150.

F. Gautney, Judge; 1. The note was voidable in the hands of the insurance company. If it be said that appellant was relying upon Blankenship, and not upon the agents, still Blankenship was working with the agents, in their behalf, and to a great extent in their presence and hearing, and the insurance company was bound by the statements he made. • 14 Am. & Eng. Enc. of L., § § 155,156; 66 N. T. 562-567; 70 N. E. 27-29; 16 Cyc. 1025; Id. 1018; 20 Ark. 216-225; 97 Ark. 265-271.

Martinecm, Chancellor; STATEMENT BY THE COTJBT. Appellant brought three separate suits to foreclose chattel mortgages which had been executed by appellees in favor of Eagle & Co. to secure certain notes. These notes had been transferred by endorsement by Eagle.& Co. before maturity to appellant as collateral security for loans obtained by Eagle & Co. from appellant.

<p>1. Master and servant — injury to servant — negligent act of other servant — question for jury. — A brakeman on defendant railway company’s freight train, while carrying a block of ice from a refrigerator car to the caboose, threw the same from the train, and it struck and injured plaintiff, another employee of the railway company, who was standing on the ground. Held, it being the duty of the brakeman to see that no loose objects fell and injured persons near the track, and to assist in looking after the train, and plaintiff, being where he had a right to be, the question of the negligence of the railway company was one for the jury, (Page 279.)</p> <p>2. Appeal and error — refusal to give instruction. — It is not error to refuse to give an instruction covered by an instruction already • given. (Page 281.)</p> <p>3. Master and servant — injury to servant — contributory negligence. — A servant of a railway company is not guilty of contributory negligence, when he was injured by being hit by a piece of ice thrown from the train, when he was standing in a place where a reasonably prudent person might stand under like circumstances, and there was no custom of throwing ice from trains at that place. (Page 281.)</p> <p>4. Master and servant — injury to servant — permanent injuries.— Where plaintiff was injured by being struck by a piece of ice thrown from a moving freight train, evidence of permanent injury held sufficient to warrant a submission of that question to the jury. (Page 282.)</p> <p>5. Trial — disagreement of jury- — right of trial judge to direct jury as to verdict. — Where a jury has been unable to agree, the trial court may detail to the jury the ills attendant upon a disagreement, and the importance of coming to an agreement, and warn them not to be stubborn, but to lay aside all pride of opinion and consult with each other, and give due regard and weight to the opinion of their fellow jurors. (Page 284.)</p> <p>6. Trial — disagreement of jury — right of trial judge to direct jury as to verdict. — When a jury is unable to agree, the trial judge should not by threat or entreaty, attempt to influence the jury to reach a verdict. He should not, by word or act, intimate that they should arrive at a verdict which is not the result of their free and voluntary opinions, and which is not consistent with their consciences. (Page 285.)</p> <p>7. Trial — verdict—admonition of court — error.—In an action for damages against a railway company, due to personal injuries, the jury agreed that defendant was guilty of negligence, but could not arrive at a verdict as to the amount of the damage. Held, remarks of the trial judge, urging the jury to agree, were erroneous. (Page 286.)</p> <p>8. Appeal and error — harmless error. — The Supreme Court reverses only for errors which are prejudicial to the rights of the appellant. (Page 287.)</p> <p>9. Trial — admonition of court — harmless error. — Although the trial court, in urging a jury to agree upon the amount of damages in a cause, committed error, the cause will not be reversed when the verdict was reasonable, supported by the evidence, and it nowhere appears that the error was prejudicial. (Page 287.)</p>

E. Jeffery, Judge; STATEMENT BY THE COURT. The complaint in this ease alleges that on the 19th day of August, 1911, plaintiff’s wife, Hallie Brown, was a passenger on defendant’s train from Brinkley to Newport; that she was seated in the fourth seat from the front in the rear ear of said train, and that one F. H. Kennedy boarded said train and was seated in the third seat from the rear of the same coach; that said train proceeded on its course from Brinkley until its arrival…

E. Jeffery, Judge; 1. There was substantial evidence sufficient to submit to the jury whether Hulsey was an accomplice, so as to require corroboration. Kirby’s Dig., § 2384; 36 Ark. 117-126; 50 Ark. 544; 64 Id. 250; 75 Id. 540; 105 Id. 19; 42 S. W. 301; 62 S. W. 749; 26 Id. 829; Kirby’s Dig., § 7754. 2. The officer, a deputy sheriff, was guilty of a misdemeanor. Kirby’s Dig., § 7765; 43 Ark. 367-371.

Robertson, Chancellor; The possession of Mrs. Emma C. Taylor as widow of ¥m, H. Brinkley was possession in right of dower until dower was assigned, and the statute of limitation would not run in her favor. 69 N. J. L. 27; 44 Ark. 490; 23 S. E. 233.

W. Hays, Judge; 1. Employees are required to use only ordinary care to prevent injury to stock. 89 Ark. 121. At least the question of negligence should have been left to the jury. 2. The statute allowing attorney’s fee is unconstitutional. 224 U. S. Sup. Ct. Rep. 354, 56 S. E. 799. 1.

Barker, Chancellor; 1. The city council had jurisdiction and authority to act on the second petition. Kirby’s Dig., § % 5667, 5717; 81 Ark. 208. The petition contained a majority in value. 2. A vendee in possession, though the deed had not been delivered, is competent to sign the petition. 69 Ark. 68. 3. A widow may, with the assent of the heirs, sign for property belonging to her deceased husband. 28 Cyc. 977. 4.

Garter, Judge; statement by the court. On March 7, 1912, J. B. Jordan applied to R. L. Blakeley, an agent of the Mutual Life Insurance Company, for a policy of insurance on his life in the sum of $7,000 in said company, payable to the children of Jordan, who were minors. He requested in his written application that the policy be dated on the 25th of March, and that the premiums, after the first, be payable on the 15th of September of each year.

Osceola District; Chas. D. Frierson, Chancellor; STATEMENT BY THE COURT.

Cotham, Judge; STATEMENT BY THE COURT. George Tanner brought this suit against the Arlington Hotel Company, a domestic corporation, to recover damages for injuries received by him while in its employment, and which were alleged to have been sustained by reason of the negligence of the defendant.

W. Hays, Judge; Counsel review the evidence and contend not only that it does not support the verdict, but also that the court ought to have directed a verdict for the appellant. The evidence clearly shows that Smith was the implied agent of a appellant in the purchase of the bolts from appellee; that he purchased as the agent of appellant, and that he was in so doing acting within the apparent scope of his authority.

Art. 7, § § 11 and 40, Const. Ark.; 74 Ark. 615, and cases cited; 78 Ark. 595; 83 Ark. 372; 89 Ark. 441. Although the complaint does not allege an indebtedness on any one note exceeding $100, proof was admitted without objection that the fourth note went to protest at an expense of $3.15, and the complaint will be treated as amended to conform to the proof. As so amended a cause of action is stated within the original jurisdiction of the court.

8. Maples, Judge; 1. The issues made by the pleadings involved matters of purely probate jurisdiction, and the circuit court should have sent the case to the probate court as having exclusive, original jurisdiction of the subject-matter. 90 Ark. 198; Const. Ark., art. 7, § 34; 81 Ark. 457; 48 Ark. 544; 49 Ark. 51; 51 Ark. 361; 67 Ark. 242; 99 Ark. 339; 98 Ark. 69; 97 Ark. 465; 90 Ark. 451; Kirby’s Dig., § 1340; Woerner’s Am.

<p>Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, J udge;</p>

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. In a foreclosure proceeding against personal property to enforce the collection of an account, the circuit court has no jurisdiction unless the mortgagee has complied with the statute requiring the delivery to the mortgagor of a verified statement of his account, etc. Kirby’s Dig., § 5415; 92 Ark. 313; 65 Ark. 316.

It needs no citation of authorities to show that the court erred in permitting the witness McGuire to read to the jury a copy of a letter purporting to have been written to the appellant, without requiring' a proper foundation for the introduction uf a copy instead of the original letter. 2. It was error to permit this witness to detail transactions and conversations between himself and a party claimed by him to have been the agent of appellant.

Shaver, Chancellor; The intention of the Legislature was, we think, that the proviso to the statute as amended should apply only where the city limits were extended so as to include a portion of the territory of a common school district.

Reed, Judge; STATEMENT BY THE COURT. The facts of this case are precisely similar to the case of Gordon N. Peay et al. v. Searcy County, 104 Ark. 133, except that the record, in the above case shows that the appellant Peay presented his account, for witness fees now claimed, to the county court of Searcy County for allowance without having the circuit court to certify the amount to the county court for allowance; and on the former appeal we held that the county court was…

At the January, 1913, term of the county court of Perry County a petition was filed by the legal voters of that county “for the removal… Held: the contestants filed a petition, addressed to the board of canvassers, in which they set up that there were irregularities in the election, and illegal votes cast in certain townships, and that the returns as made by the election officers did not show a correct statement of the vote as actually cast, and prayed that the ballots of…

J. Driver, Judge; STATEMENT BY THE COURT. Appellant was convicted at the September, 1913, term of the Poinsett Circuit Court of the crime of rape, under an indictment which charged him with that crime and also with the crime of carnal abuse. The prosecutrix testified on the trial in part as follows: “I am eleven years old; live with my father, Alonzo Johns, and Jeff McCracken and his wife, who is my sister.

DuBois, Special Judge; STATEMENT BY THE COURT. In the fall of 1911 the commissioner of public buildings for Monroe County, acting under the orders of the county court, entered into a contract with the appellant for the purpose of erecting a courthouse at Clarendon. The proposed contract had been approved by the attorney for the county, and had been signed by the commissioner for the county.

Elliott, Chancellor; STATEMENT BY THE COURT. Appellant, who was the owner of a large amount of land within the limits of Kirsch Lake Drainage District, instituted this suit against the commissioners of the drainage district as such,' and against E. J. Hahn and W. B. Carter, partners doing business under the firm name of Hahn & Carter, to whom the commissioners had let a contract to construct and dig the main canal and laterals for the district, and the Bank of Pine Bluff as…

The appellees sued appellant, alleging that they were passengers of appellant and connecting carriers, from Helena, Arkansas, to Dallas, Texas; that they delivered to appellant their trunk to he transported as baggage between those points, and that appellant failed to deliver the same to appellees. They alleged that the value of the trunk and contents was $425.40.

Grace, Judge; STATEMENT by the court. Samuel W. Peebles brought this suit against the Eminent Household of Columbian Woodmen to recover on a benefit certificate issued to him. The latter is a fraternal insurance society organized under the laws of the State of Georgia, with its head office in the city of Atlanta, and its governing body is called the “Eminent Council.” The membership of the association is organized into local lodges, which are governed by the Eminent Council.

Evans, Judge; 1. Tbe evidence fails to show that Thompson and Drennan or their successors in title owned the land in question at any time, in this, that it fails to show that it was at any time land as distinguished from river bed. The statute relied on by. appellees, Kirby’s Dig.', § 4918, is therefore not applicable.

E. Patterson, Judge; STATEMENT BY THE COURT. H. E. McLemore was indicted for the crime of larceny, charged to have been committed by stealing a cow belonging to C. H. Murphy, in Union County, Arkansas.

Robertson, Chancellor; STATEMENT BY THE COURT. On February 25, 1911, the State of Aransas recovered a judgment against appellants, who were sureties on a bail bond in the Woodruff Circuit Court for $500, and on April 3, 1911, a proclamation was issued by the Governor of the State relieving appellants from the payment of the judgment, or any part thereof.

E. Jeffery, Judge; statement by the court. This was an action in ejectment and the complaint contained the following allegations: That the plaintiff, Theresa Sills, is the widow of William Simmons, deceased, and is not the owner of a homestead in her own right.

Frierson, Chancellor, STATEMENT by the court. The Memphis Telephone Company instituted this .suit, in the Osceola District of the Mississippi Chancery Court, against the Southwestern Telegraph & Telephone Company, the Tri-State Telephone Company and R. C. Rose, on November 10, 1911, asking damages for an alleged breach of the contract.

Stay-ton, Special Judge; STATEMENT BY THE COURT. The complaint in this cause alleged that the plaintiff, Richard A. Yates, was employed by the St. Louis, Iron Mountain & Southern Railway Company on the 11th day of April, 1912; that the said railway company had employed the defendant, Virginia Bridge & Iron Company to do certain construction work in building a bridge, near Judsonia, Arkansas, and that the plaintiff was employed by tbe said railway company at tbe sum of $2.65…

M. Jackson, Judge; Appellee has failed to establish a cause of action under the statute. His ground of recovery is too remote, intangible and visionary. The right to recover under the mental anguish statute has been limited by this court to “the real ills, griefs and sorrows of life.” 106 Ark. 559; 83 Ark. 476-480; 96 Ark. 218; 98 Ark. 347; 101 Ark. 491. This case comes within the rule announced in Western Union Telegraph Company v. Long, 90 Ark. 203.

<p>1. Appeal and error — failure to bring up testimony. — Where a cause was tried upon oral testimony, the Supreme Court will not review the rulings of the lower court, where the testimony is not brought into the record by bill of exceptions, or otherwise. (Page 509.)</p> <p>2. Appeal and error — failure to abstract pleadings.- — -Where the pleadings have not been abstracted, the sufficiency of the allegations therein, can not be passed upon, on appeal. (Page 510.)</p> <p>3. Mortgages — mortgagee in possession — rents and profits.- — The liability of a mortgagee for rents and profits, depends upon whether or not he took possession and held the property as mortgagee. (Page 510.)</p>

M. Jackson, Judge; In its instruction on the question of insanity the court laid down a wrong test for the guidance of the jury, when it stated: “Before the defendant can be ex- cused on the ground of insanity, the jury must believe from the evidence that the defendant was at the time of the killing without sufficient reason to know what he was doing, or had not sufficient reason to know right from wrong, or that, as a result of mental unsoundness, he had not then sufficient…

The language of the statute unquestionably gives each party to a suit the right to present all his evidence, and anything less than that is, to that extent, a denial of the full right assured under the law. The refusal of the court, therefore, to allow appellant to finish its case amounted to a denial of the right of trial, and was reversible error.

E. Jeffery, Judge; This case comes within the exception to the general rule that delivery to the carrier is delivery to the consignee, viz: Where there is something remaining to he done in order to complete the sale, the title to the property remains in the. vendor, and where the vendor undertakes to make delivery at a distant point, he assumes the risk of the carriage, and the title to the property will not pass until delivery is actually made. 32 Md. 344; 3 Am.

<p>1. Bills and notes — endorser and endorsee — relationship.—A debtor delivered two post-dated checks endorsed by himself, to his creditor, and the latter deposited them in a bank, with the understanding that they were not taken in payment, but if paid by the drawer the proceeds were to be applied on the debt; held, where the debtor knew when he endorsed the check that the drawer had no funds in the bank, and the creditor merely placed them in the bank until the drawer should have funds enough to meet the checks, and the drawer never made such a deposit, the facts do not establish the technical relationship of endorser and endorsee between the debtor and creditor within the rules of the Haw Merchant. (Page 536.)</p> <p>2. Bill and notes — antecedent debt — payment.—The check of a debtor taken by a creditor for an antecedent indebtedness is not payment or satisfaction of the debt, unless the parties agree it shall have that effect. (Page 536.)</p> <p>3. Bills and notes — check—no funds — knowledge—payment—notice of dishonor. — A. drew a check on a bank in which he had no funds, the payee of the check with knowledge of the facts endorsed the check and delivered it to B., his creditor, who also had knowledge of the facts; held, B. did not receive the check either as an absolute or conditional payment of the endorser’s debt, nor was the endorser entitled to notice of the dishonor of the check. (Page 537.)</p> <p>4. Bills and notes — request to hold up check — waiver of notice.— A request to the endorsee of a check by the payee and endorser, to hold up the check a few days as an accommodation to the drawer and endorser, is sufficient to warrant a finding of waiver of notice of presentment, nonpayment and protest. (Page 537.)</p> <p>5. Bills and notes — waiver of notice — proof.—Waiver of demand and notice of nonpayment, when not endorsed on' the instrument, can be shown by facts and circumstances aliunde. (Page 538.)</p>

J. Driver, Judge; STATEMENT BY THE COURT. The appellant sued the appellees to recover damages for personal injuries sustained by him when the horse that he was riding fell into a trench dug by the appellees in the town of Osceola. The appellees were contractors, engaged, under a contract with the sewer commissioners of the town of Osceola, in putting in a sewer system.

F. Gautney, Judge; STATEMENT BY THE COURT. Appellant instituted this suit against tbe appellee in the Clay Circuit Court, and on the 3d day of April, 1913, filed his amended complaint, in which he says: “That he is the owner in fee of the following described lands lying in the Western District of Clay County, Arkansas, towit: The alley running east and west through block 5000 of the Matthews Addition to the town of Corning, Arkansas ; one-half of the street east of the said…

<p>1. Evidence — best evidence — written rules of corporation. — Where a carrier has written rules governing the transportation of freight, the written rules are the best evidence, and oral testimony by the carrier’s agent as to the rules is incompetent. (Page 552.)</p> <p>2. Carriers — loss of freight — liability.—Where plaintiff delivered freight to the local agent of defendant carrier for immediate shipment, and the agent received the property and placed it on defendant’s steamboat, hut the clerk of the steamboat refused to carry it, because of a rule of the carrier against transporting it, and had the freight taken from the boat, and the same was lost before it was redelivered to plaintiff, the carrier will be responsible to plaintiff in an action for damages for loss of the property. (Page 553.)</p> <p>3. Appeal and error — instructions—prejudice.—Although an instruction is erroneous, a cause will not be reversed, where the rights of the appellant were not prejudiced by the giving of the instruction. (Page 553.)</p>

<p>1. Evidence — physicians-—competency.—Kirby’s Digest, § 3098, which provides that a physician shall not be allowed to testify as to information acquired from his patient, in a professional character, was enacted as a matter of public policy to prevent physicians from disclosing to the world the infirmities of‘their patients, without their consent. (Page 559.)</p> <p>2. Evidence — -attending physician — competency to testify. — Deceased made application for life insurance, and the regular physician invited another physician to visit the insured with him for a joint examination. Held, the assisting physician is within the spirit of the statute, making the testimony of an attending physician incompetent, and he was properly prohibited from testifying as to the deceased’s state of health at the time of his examination. (Page 560.)</p> <p>3. Appeal and error — competency of witness — exclusion of testimony — harmless error.- — Where the record does not show expressly or by necessary implication, that the court sustained an objection to a question asked a witness, on the ground of the incompetency of the witness, the refusal of the court to permit counsel to propound the question is not prejudicial error, where it does not appear what was expected to be proved by the witness. (Page 562.)</p> <p>4. Insurance — life insurance — representations by insured — burden of proof. — In an action on a life insurance policy, which expressly provided that all the insured’s statements should, in the absence of fraud, be deemed representations and not warranties, the issue of the falsity of insured’s representations, is a matter of defense to be pleaded, and the burden of proving the fraud is upon the insurer. (Page 562.)</p> <p>5. Insurance — life insurance — misrepresentations and omissions— validity of policy. — Where a life insurance policy provided that the answers in the application therefor should constitute representations merely, held in an action on the policy that a misrepresentation or omission to answer will not avoid the policy, unles3 wilfully and knowingly made with intent to deceive. (Page 564.)</p> <p>6. Appeal and error — admission of improper testimony — harmless error. — The erroneous admission of incompetent testimony contained in a letter is not prejudicial when the party objecting thereto, by its own testiomny, proved the contents of the letter. (Page 570.)</p> <p>7. Insurance — life insurance — attorney’s fees. — The object of Act of 1905, page 307, allowing a reasonable attorney’s fee, in actions 'on a policy of life insurance, is to permit plaintiff to procure the services of a competent attorney or firm of attorneys, and does not contemplate the employment of two attorneys or two firms of attorneys. (Page 570.)</p> <p>8. Attorney’s fees — reasonableness.—In an action on a policy of life insurance, when a recovery of $10,000 was had against the insurance company; held, the sum of $1,000 was a reasonable attorney’s fee, and where the trial court allowed a fee of $2,000, the judgment will be modified to that extent. (Page 570.)</p>

<p>State contracts — competative bids — constitutional limitation. — Act 321, page 1463, Acts 1913, providing for the lending of the plates of the Supreme Court Law Reports, and providing for the sale of the printed volumes, held, to he in violation of art. 19, section 15 of the Constitution, which provides that all the State printing, binding, etc., shall be performed under contract, to be given to the lowest responsible bidder therefor.</p>

W. Hendricks, Judge; STATEMENT BY THE COURT. Held: and the supplies furnished. It will be observed that the proposition submitted by appellants was a joint one, and the account was kept upon the books of the Little Rock Furniture Manufacturing Company; and it will also be observed that the proposition was addressed to the Eating and Lodging Committee, and it was accepted by that…

Martmeau, Chancellor; statement by the court. Appellants filed their bill in equity setting up that W. B. O’Neal and G-. M. O’Neal owned an undivided two-thirds interest in certain lands in White County, Arkansas, therein described, and an undivided three-fourths interest in certain other lands; that Dona O’Neal was the wife of E. E. O’Neal.

Robertson, Chancellor; statement by the court. This was an action brought by appellant company, a corporation, to foreclose a deed of trust on a certain tract of land therein described. The complaint alleged the execution of this deed of trust for the purpose of securing five notes aggregating $980 and all advances made during the years of 1911 to 1915, inclusive.

F. Gautney, Judge; 1. Tbe contract involved here is not within the statute of frauds. 56 Ark. 629; 54 Ark. 202. 2. Neither is it a contract contrary to public policy. The interests of the public are- in no wise injuriously affected thereby, and there is no proof whatever that the taking out of appellant’s spur track on the day that he commenced business was necessary for the interest or welfare of anybody, save possibly that of appellant’s competitor. 75 S. W. (Mo.) 915. 3.

59 Ark. 626; 100 Ark. 71; 100 Ark. 555; 101 Ark. 409. The court, therefore, erred in refusing to submit the question of adverse possession to the jury. 87 Ark. 170; Id. 496; 90 Ark. 150; 104 Ark. 274. There was no issue of fact for. the jury’s determination. Appellant’s own testimony shows that he was holding possession under a mistake, with the intent of claiming only what his deed called for. 59 Ark. 626, 628; 72 Ark. 498.

The court’s instruction construing part A of section 8 of the policy, is in direct conflict with instruction 1, given at appellant’s request, the latter instruction following literally the language of the policy. The policy means literally what it says.

The first instruction was abstract and misleading. The issue in the case was not an unproved, undisputed mistreatment of an unoffending passenger, but whether or not the motorman wrongfully ejected him; whether the plaintiff provoked or invited the ejection and whether the motorman used more force than was necessary in ejecting him. 14 Ark. 530; 69 Ark. 130; 37 Ark. 591; 77 Ark. 569; 85 Ark. 394; 80 Ark. 165.

Wood, Chancellor; 1. If defendant knowingly took advantage of Tusheck’s belief that he was purchasing the Fritz timber, the court should grant relief under the principle announced in Hubert v. Fagan, 99 Ark. 480. See also 100 Ark. 565; 101 Ark. 558; 102 Ark. 187. 2. The mistake here proved is unilateral, and the prayer is for rescission.