Volume 112 — Arkansas Reports

Humphries, Chancellor; STATEMENT BY THE COURT. The appellee and one Ausley were partners in the stave business in Faulkner County. Appellee furnished the money and Ausley produced the staves. In July, 1912, the parties had made about 80,000 staves and appellee had furnished $1,607.43.

Frierson, Chancellor; 1. The note sned on and the right to foreclose the trust deed was barred by the statute of nonclaim on October 24, 1908. Acts 1907, page 1170. The claim was never presented to the administrator and is barred. 92 Ark. 522; 94 Ark. 60. When the claim became barred by the statute of nonclaim, the right to foreclose or sell under the power contained in the deed of trust was also barred. Kirby’s Dig., § 5399; 64 Ark. 317. 2.

Shaver, Chancellor; STATEMENT BY THE COURT. The appellees brought suit in the chancery court of Miller County, Arkansas, to restrain the city of Texarkana, Ark., and Foster Rogers, its chief of- police, from enforcing a certain ordinance of that city, regulating the sale of cider by wholesale and retail. The- lower court issued a temporary injunction, which was made permanent on the final hearing.

Wood, Chancellor; 1. The levies for the taxes of 1869 and 1870, being made after the time prescribed by law, were void. 69 Ark. 567; 68 Ark. 341; 50 Ark. 390. A forfeiture and sale for nonpayment of taxes is void where the tracts of land are not separately taxed, and such tracts are sold en masse and for a lump sum. 29 Ark. 477; Id. 492-494; 30 Ark. 579; 31 Ark. 315; Id. 491; 61 Ark. 414, 415; 55 Ark. 109. 2.

E. Patterson, Judge; 1. It was competent to prove by parol testimony that appellant signed the application for stock and delivered it to the agent of the corporation authorized to solicit subscriptions, with the understanding and agreement that said application was not to be delivered to the company and was not to become operative as an application for stock nor to be a complete contract unless the appellant afterward decided to take stock in said corporation. 128 U. S.…

E. Jeffery, Judge; 1. At common law, Sunday is dies non juridicus, and all judicial proceedings which take place on that day are void. 29 Ark. 238; Kirby’s Dig., § 1538; 37 Cyc. 583; 20 Enc. PI. & Pr. 1190; 12 Am. Dec. 290, and notes; 48 Id. 387; 43 Am. St. Eep. 290; 25 Am. Eep. 627-8-9; 63 Am. St. Eep. 824; 37 Am. Eep. 466; 58 Am. St. Eep. 223; 35 Am. Eep. 131. .

The appellant filed her petition in the probate court of Scott County against appellee as the administrator of the estate of John Goset, deceased, for an allotment of dower out of that estate. The answer denied that the appellant was the widow of John Goset; denied that she was lawfully married to John Goset, as alleged in her petition.

<p>1. . Evidence — lease of lands — overflow—extent of overflow. — Plaintiff leased lands to defendant, with a stipulation for a reduction in the rent of a certain sum per acre for lands overflowed. The parties disagreed as to the number of acres overflowed. Held, when plaintiff admitted that there had been an overflow, and evidence was introduced as to the acreage overflowed, it was competent for witnesses to testify that the overflow in question was larger than general overflows, in the absence of any testimony as to the extent of general overflows. (Page 59.)</p> <p>2. Evidence — overflowed crops — identification—incompetency.—Testimony of a witness as to the extent of overflow was properly excluded, where the witness did not identify the crop about which he was speaking. (Page 60.)</p> <p>-3. Landlord and tenant — agreement to repair. — By the terms of a lease a landlord agreed to keep the buildings and fences on the demised premises in reasonable repair. Held, when the tenant made certain repairs, before he can recover for same- from the landlord he must show that the repairs were necessary, that the landlord failed to respond to a request to make the said repairs, or that the tenant reported the making of the repairs to the landlord or his agent, either of whom ratified the same, agreeing to pay therefor. (Page 61.)</p> <p>4. Trial — argument of counsel — removal of prejudice. — Where counsel for appellant objected to argument of opposing counsel, and the court admonished the jury to remember the evidence in the case. Held, the admonition of the court eliminated any prejudice that might have resulted from the argument. (Page 62.) .</p> <p>5. Appeal and error — failure of trial court to make a ruling. — A cause will not be reversed, when counsel objected to argument of opposing counsel, but the record fails to disclose that the trial court made any ruling on the point. (Page 63.)</p>

J. Driver, Judge; STATEMENT BY THE COURT. The plaintiffs, Harvey Chalmers & Son, instituted this action against J. R. and J. A. Bowen to recover the possession of about thirty tons of mussel shells of the alleged value of $600. The case was tried before a jury, which returned a verdict for the defendants, and the plaintiffs have appealed. The defendants were engaged in the business of cutting blanks for buttons from mussel shells.

E. Jeffery, Judge; STATEMENT BY THE COURT. This is an action instituted in the circuit court by W. A. Cunningham, as guardian of Sam and Jessie Moore, against J. N. Beakley, a former guardian of said minors, and United States Fidelity & Guaranty Company of Baltimore, Maryland, and American Bonding Company of Maryland, as sureties on the bond of Beakley, as such guardian.

Cotham, Judge; There is no proper hill of exceptions. The purported hill of exceptions is not authenticated by the signature of the trial judge, neither is its correctness attested by the parties by endorsement thereon as provided by law. Acts 1911, p. 192.

T. Cowling, Judge; STATEMENT BY THE COURT. C. W. Knig’lit instituted this action in the circuit court against Hatfield Special School District and V. B. VanDyke to recover the sum of $2,160.45, alleged to he the balance due him for erecting the Hatfield High School building.

Craighead Chancery Court, Western District; Charles D. Frierson, Chancellor; statement by the court.

Circuit Court; J. F. Gautney, Judge; 1. Under - the circumstances, appellant’s counsel had the right to infer that the trial would be deferred a day or two until he could return, and when appellant relied upon the information thus conveyed to him, and the court was informed of the circumstances, appellant should at least have been given an opportunity to procure other counsel and to participate in his own trial. 34 Ark. 727.

Martineau, Chancellor ; 1. Act 302 of the Acts of 1913, being a general law, affecting the whole State, and covering the entire subject of road improvements, necessarily repeals the prior special act under which the appellees assume to proceed, Act 402 of the Acts of 1909. See § § 86 and 33 of Act 302, Acts 1913; 158 S. W. 1075; 84 Ark. 329; 80 Ark. 411-415; 82 Ark. 302; 88 Ark. 324; 92 Ark. 600; 100 Ark. 500; 101 Ark. 238; 105 Ark. 79. 2.

S. Maples, Judge; 1. If the railroad company in building its road across the tract of land in question, treated it as Government land, made a survey across the same and filed its map and articles of association with the Secretary of the Interior, filed its map in the General Land Office and in the local land office before the homesteader had obtained á patent for it, made no effort to purchase the right-of-way from the homesteader, or to condemn a right-of-way across the…

Cowling, Judge; 1. Appellee bad sold and delivered the holly to the Kansas City Fruit & Produce Company, and the title passed to that company. 43 Ark. 353; 62 Ark. 592; 106-Ark. 477. See also 35 Cye. 317, note 47, and cases cited; 4 Elliott on Bailroads, § § 1414, 1426, ¡and cases cited. 2. According to the undisputed evidence, there can be no recovery. 3. The evidence wholly fails to show unreasonable delay.

Barker, Chancellor; statement by the court. Appellant Foster, as the beneficiary, and J. H. Franklin, as trustee, instituted suit in the Columbia Chancery Court, September 16, 1911, against the appellees to foreclose certain deeds of trust that were executed by one Eugene Burris to secure certain notes, one deed of trust and the note it was executed to secure being dated March 9, 1906, and the other dated 1st day of February, 1908.

<p>Railroads — injury to passenger or freight — attorney’s fees. — Where the cause of action in a suit against a railroad company is not based upon the violation of some statutory provision regulating the transportation of passengers or freight, the plaintiff is not entitled to recover an attorney’s fee, under Kirby’s Digest, § 6621.</p>

G. Knox, Special Judge; STATEMENT BY THE COURT. This suit was instituted on October 26, 1912, by George Wells against J. S. Kimbro to recover damages for an alleged breach of contract. Wells and Kimbro were competitors in business in the town of Monticello in Drew County, Arkansas, each owning and operating a lumber yard.

Martineau, Chancellor; 1. A misrepresentation hy a vendor of the quantity of land entitles the vendee to an abatement of the purchase price for the deficiency in the number of acres. 17 Vesey, Jr., 395; 61 Ark. 120; 19 Id. 102; 30 Id. 535; 47 Id. 148; 71 Id. 91; 100 Id. 28; 101 Id. 96. 2. The words “more or less” were not used, but the deed designates the number of acres. 47 L. É. A. 267; 19 Ark. 102. 1. There was no fraud nor misrepresentation as to the acreage.

Henderson, Chancellor; STATEMENT BY THE COURT. Appellees sued to recover a certain lot situated in the city of Hot Springs, and for an accounting for the rents thereon.

Appeals from Pulaski Circuit Court, Second Division; Guy-Fulk, Judge; STATEMENT BY THE COURT.

P. Henderson, Chancellor; 1. Appellee had notice of the suit against her tenant, and is bound by the judgment. 2. Her remedy was by appeal, and not in chancery. 3. The tax sale was valid, the lot being sufficiently described. Kirby’s Dig., § § 7027-7102; 41 S. W. 727; lb. 728; 87 Pac. 237; 25 Cal. 296; 23 Pao. 625; 3 Barb. Ch. 528; 49 Am. Dec. 189; 19 Wis. 397; 45 Cent. Ed. 204-205D. 1. Minor was not her tenant, and she was not bound by the judgment. 75 Ark. 1; 112 Am.

The contract was in writing, plain in its terms, and oral evidence was not admissible to add to or vary it. 102 Ark. 326; lb. 515. 2. Delivery to the carrier for shipment is delivery to the consignee. 24 A. & E. Ene. L. (2 ed.), 1071; 83 Ark. 426; 98 Id. 495; 76 Id. 371. 3. The right to rescind must be done promptly. If the contract is entire the vendee must rescind the contract as a whole, and put the vendor in statu quo. 24 A. & E. Ene.

<p>1. Insurance — life insurance — waiver.—Where the insured had defaulted in the payment of premiums and had died, and the insurance company wrote him after his death that a loan secured hy the policy not being paid, it had entered the policy, as a purchased policy, and the cash value applied on the discharge of the loan, held, the letters did not establish a waiver of the forfeiture of the policy, nor show the policy to have been in full force up to the insured’s death. (Page 177.)</p> <p>2. Insurance — life insurance — waiver of forfeiture. — A forfeiture of a policy for nonpayment of premiums held not waived hy letters written by the insurer to the insured, in ignorance of his death. (Page 178.)</p> <p>3. Insurance — life insurance — forfeiture of policy. — Where an insurance policy provided for a forfeiture for nonpayment of premiums, the insurer need take no affirmative action to forfeit the policy. (Page 179.)</p>

In April, 1906, D. J. Young, as trustee for himself and others, who constituted a partnership, entered into a contract with Jesse A. Harp, lessee, whereby Young, as trustee for the parties constituting the partnership named, leased to Jesse A. Harp, the lands described, for the purpose of permitting the said Harp to enter upon the same to mine coal therefrom.

Carter, Judge; 1. It was error to direct a verdict for plaintiff. No' sufficient possession had been taken by the plaintiff before the lien of the attachment. 65 Ark. 33; 98 Id. 380; 100 Id. 431. 2. Defendant should have been permitted to introduce his evidence before a jury. The mortgage was not recorded, and its conditions were not broken. The mortgage was not properly acknowledged. 56 Ark. 511; 10 Wall. 650, 19 L. Ed. 1008.

H. Henderson, Special Judge; STATEMENT BY THE COURT. Appellant was the plaintiff below and stated his cause of action as follows: That prior to November 20, 1912, defendant had agreed with plaintiff to sell.plaintiff a certain electric light, ice tand power plant, which defendant then owned, situate in the town of Pocahontas, Arkansas.

Appellee, who was a colored woman, entered one of appellant’s cars at Sixth and Main streets in the city of Little Rock, and paid her fare as a passenger, and after riding about a dozen blocks she was told by the conductor that she would have to move and take a seat nearer the rear of the car.

Martineau, Chancellor; STATEMENT BY THE COURT. One A. S. Caldwell was the owner of a part of block 257, which was bounded on the north by Markham Street and on the east by Chester Street in the city of Little Rock, Arkansas, and on January 1, 1898, conveyed to George E. Dodge and B. S. Johnson, a portion thereof in the form of a parallelogram 50 by 140 feet, beginning at the northeast corner of the block, fronting on Markham Street 50 feet and on Chester Street 140 feet.

Appellant was the plaintiff below, and alleged in her complaint that she entered into a contract with Gr. W. Norris, a contractor, on the 8th day of January, 1912, whereby he agreed to build her a residence. It was alleged that appellee became surety for Norris upon the bond given by him for the performance of his contract. That under the terms of this contract Norris agreed to build the house for the sum of $3,165.

This being a summary proceeding and not an action at common law, the court’s finding has not the binding force of the verdict of a jury and the case must he heard de novo by this court upon the evidence. 26 Ark. 281; 32 Id. 553; 24 Cyc. 128-137. 2. Taking Nichols’ note was a ratification of the sale. 14 S. E. 444. 3. The sale was not void on account of the relations of attorney and client. 73 Ark. 575. 4.

The purpose of the act of 1905 was not to tax attorneys’ fees and penalties in all cases where suit is brought on insurance policies, but only in cases where no legal excuse exists, for the nonpayment by the company within the time provided by the policy.

<p>Appeal from Clay Circuit Court, Eastern District; J. B. Block, Special Judge;</p>

Carter, Judge; reversed on Miller’s cross appeal, Where there is any evidence, however slight, pertinent to an issue in a case, it is error to take it from the jury and direct a verdict. The court, therefore, erred in directing a verdict for the intervener. 89 Ark. 372; 73 Ark. 561; Const. Ark., art. 7, § 23; 37 Ark. 164; 76 Ark. 603; 76 Ark. 520; 77 Ark. 556; 84 Ark. 57.

Evans, Judge; 1. The photographs were not admissible in evidence. 91 Ark. 179; 69 N. E. 216; 9 Enc. of Ev. 780. 2. The exclusion of the testimony as to the lack of virtue of deceased was erroneous and prejudicial. Any testimony tending to show that some other person may have committed the crime is admissible. 100 Ark. 301; 140 S. W. 13; Wharton on Homicide (2 ed.), § 602; 21 A. & E. Enc. 229; 58 S. W. 1018; 48 Id. 980. 3.

Martineau, Chancellor; 1. Alteration of a petition for an improvement of this character, which is material, avoids the petition. 3 Am. & Eng. Ene. of L. 361, and notes; 3 Id. 360; 36 Ark. 136; 27 Ark. 108; 1 Ark. 117; 7á S. E. (N. C.) 801; 137 S. W. 619; 5 Ark. 377-380; 9 Ark. 122; 32 Ark. 166; 134 N. W. 251; 6 L. R. A. 469; 7 L. R. A. 743. Failure to publish the ordinance renders it void and inapplicable. McQuillin, Municipal Ordinances, § 697; 67 Ark. 30; 104 Ark. 298-301.

J. Driver, Judge; 1. Testimony as to the possibilities of injury to tbe other eye occasioned by an inflammation of the injured eye, was .improperly admitted, because such evidence was merely speculative. 76 N. W. 88; 96 N. Y. 305; 115 N. Y. 61, 21 N. E. 726, 12 Am: St. Rep. 775; 200 N. Y. 393, 94 N. E. 184. 2.

Eugene Lankford, Judge; STATEMENT BY THE COURT. Gr. C. Collins brought suit in replevin against Sam Malone to recover two mules, valued in the aggregate, at $250. The defendant denied that the plaintiff had a right of possession of the property. Gr. C. Collins, the plaintiff, testified: The defendant, Sam Malone, was a tenant on my place and,purchased from me the mules in controversy for the purpose of cultivating his crop.

Where a party has had a verdict instructed against him, on appeal the- evidence should he given its strongest probative force in Ms favor. 95 Ark. 560. 2. The testimony of W. N. Carpenter, attorney for appellant, was improperly admitted. Kirby’s Digest, § 3095. 3. In ejectment, plaintiff must recover upon the strength of his own title. 92 Ark. 84; 80 Id. 31. No patent was shown from the United States. 4. Appellee showed title by adverse possession. 98 ■Ark. 30; 49 Id. 266. 1.

Grace, Judge; STATEMENT BY THE COURT. Appellant was collector of the city of Pine Bluff, and by virtue of his office was ex-officio collector for all the improvement districts within that city.

Upon re-election, he qualified in the afternoon of October 31. His first term could not have expired before midnight of that day, and likewise, his second term did not expire until midnight of October 31, 1912. Constitution 1874, Schedule, § § 17, 20, 24, 26 and 29; 13 Ark. 654; 10 Ark. 497; 33 Ark. 421; 52 Ark. 265; 81 Ark. 258; 73 Ark. 418; 61 Ind. 584; 15 Peters (U. S.) 141; 18 Wall. (U. S.) 112.

J. Driver, Judge; 1. There was no legal evidence to sustain the verdict. The verdict should have been for defendant. Conceding that the occurrence of a fire shortly after the passing of a locomotive may be taken as presumptive evidence that the locomotive set out the fire, the further presumption that it was a case of negligence can not be indulged. 11 Wall. 438; 92 U. S. 281; 100 Id. 693; 113 Mo. 570. 2.

J. Driver, Judge; 1. The Lee Line discharged its contract and its liability Ceased when it delivered the goods at Cairo. If there is any liability it is from the wharfboat company. 20 Mo. App. 206; 29 Fed. 184; 88 Ala. 443; 10 L. R. A. 415. No notice was given of loss or damage. 67 Ark. 407. This was a reasonable stipulation. 63 Ark. 335; 70 Id. 401; 79 Id. 470; 82 Id. 353; 89 Id. 404; 90 Id. 308. 2. If any one was liable it was the wharfboat company. 20 Mo.

Cowling, Judge; STATEMENT BY THE COURT. This is a suit brought by the appellee as administrator of the estate of Leslie A. Old, deceased, for the benefit of the widow and her infant child, under the Federal Employers ’ Liability Act and its amendment of April 5, 1910.

Cowling, Judge; When the plaintiff showed that the defendant applied for the policies, showed the amount of the premiums, the policies themselves and a delivery thereof to the assured and her retention of them until the institution of this suit, he made out a prima facie case which shifted the burden to the defendant to show that she did not accept the policies, and the burden was not on the plaintiff to show that she did accept them. 33 Ark: 600; 57 Ark. 251-256; 72 Ark.…

Robertson, Chancellor; STATEMENT BY THE COURT. This is a suit in chancery by Emma King against J. F. Turner to set aside the sale of the lands in controversy made to Turner under a statutory foreclosure of a deed of trust.

W. Hendricks, Judge; 1. The act is not unconstitutional. It does not violate art. 2, § 3, Constitution, nor § 18, art. 2, of this State, nor the Fourteenth Amendment to the Constitution of the United States. The act is solely a police regulation, and States have the right to regulate, control or entirely suppress the liquor traffic.

Appellant sued to recover two bales of cotton, or their value, which appellee had purchased from one Forsythe.

T. Wood, Chancellor; STATEMENT BY THE COURT. This cause was submitted upon an agreed statement of facts from which it appears that the Chicot County Drainage District was created by a special act of the General Assembly, approved May 26, 1911, the same being Act No. 299.

W. L. Duensing' died and his widow offered for probate a will, the fifth paragraph of which was as follows: “I give and bequeath to my two sons, Edward Maximilan and Frederick William, and my daughter, Christene Regine, married to F. Strube, children by my first wife, my farm in Prairie County, described as follows (here follows description of certain lands), in which farm they are to be equal owners.” The remainder of the estate was devised to his second wife and to his…

V. Bourland, Chancellor; 1. This is an action in ejectment, cognizable at law, in which court plaintiff brought his suit, deliberately, and in which court he ought to have been required to abide the issue. The case does not present “the peculiar equities” essential to the jurisdiction of a court of equity.

It amounted to nothing more than proposals and counter proposals, none of which were ever unconditionally accepted by either party. 67 la. 678; 56 Am. Eep. 371; 63 N. E. 140; 195 111. 384; 21 Wis. 306; 91 Mo. 287; 141 Mo. 213; 27 Pa. Sup. Ct. 366; 66 Kan. 282; 93 N. W. 1072; 132 Mich. 461; 9 Okla. 605; 142 Cal. 399; 83 S. W. 1077; 185 Mo. 335; 106 N. W. 227; 75 Neb. 241; 97 N. W. 358; 17 S. D. 432; 84 S. W. 265; 119 IT.

Elliott on Contracts, Vol. 1, p. 25; 113 S. W. 703; 18 N. W. 172; 101 U. S. 822; 134 S. W. 942; 54 Pac. 101; 130 S. W. 541.

W. Hendricks, Judge; While the amount which might be recovered in this case is indeterminate, yet there is a basis provided for ascertaining definitely the amount to be recovered. There is certainly a contractual relation between the defendant and the State of Arkansas, the obligation of which attached when he embarked in business in this State, and we can see no good reason why an action for a penalty will not support attachment.

D. Frierson, Chancellor; STATEMENT BY THE COURT. November 30,1887, W. H. Sollis executed a mortgage to the American Mortgage Company on a certain tract of land in Greene County to secure á note of the mortgagor of the same date. He afterward conveyed the same land to appellant and the heirs of her body, warranting the title against all lawful claims except the mortgagee ’s. After this Sollis died.

S. Maples, Judge; STATEMENT BY THE COURT. On the 20th of August, 1913, appellant instituted this suit in the Madison Circuit Court to recover upon the following instrument: ‘ ‘ For value received I turn over $545 worth of my jack and horse accounts to H. IT. Martin, and agree to make them all good at collection time, all due August 15, 1913.

DeBois, Special Judge; STATEMENT BY THE COURT. Appellee instituted tliis action against appellant to recover damages for tlie death, of his intestate, which, it was alleged was caused by the negligence of appellant. The facts are substantially as follows: An inspector of appellant lived at Brinkley, Ark., and used a speeder on the tracks of appellant in the discharge of his duties.

<p>Appeal from Desha Circuit Court; Antonio B. Grace, Judge;</p>

<p>Appeal from Pulaski Circuit Court, Second Division ; Guy Fulk, Judge;</p> <p>Where tbe owner of an automobile furnished it with a chauffeur to another for hire, the owner is liable in damages for the negligence of the chauffeur where the passenger has no control over the chauffeur other than to tell him where to go. 44 L. R. A. (N. S.) 113; 140 N. W. 184; 87 Ala. 610; 7 So. 666; 72 Ark. 579; 105 Ark. 477; 131 Cal. 129, 52 L. R. A. 205; 46 Ga. 420; 86 Ga. 274; 105 111. 364; 168 111. 514; 8 Ind. 157; 24 Ind. App.'583; 42 la. 246; 38 L. R. A. (N. S.) 973; 75 la. 314; 109 la. 455; 145 S. W. 155; 147 Ky. 506; 77 Me. 540; 85 Atl. 48; 109 Me. 521; 98 Md. 43; 140 N. W. 184; 62 Miss. 568; 189 Mass. 287; 181 Mass. 416; 196 Id. 524; 185 Id. 126; 124 Id. 24; 204 Id. 110; 166 Id. 268; 168 Id. 12; 160 Id. 374; 64 N. H. 361; 66 N. Y. 11; 203 Id. 198; 67 N. Y. Supp. 76; 62 Id. 1086; 36 Ohio St. 86; 11 Atl. (Pa.) 642; 149 Wis. 528; 74 Atl. 387; 47 N. J. L. 161-167; 116 U. S. 366-380; 12 Prob. Div. 58; Wood on Master & Servant, § § 287-317.</p> <p>The relation of appellees to appellant’s intestate was not that of a common carrier of passengers, bound to exercise extraordinary diligence for the safety of the passengers, but rather that of bailor and bailee, bound only to the exercise of due care and diligence in the performance of the duty imposed upon him by that character of contract, i. e., to such care and skill as prudent and cautious men experienced in the business are accustomed to use under similar circumstances. 73 Atl. 324; 79 S. E. 77; 49 N. W. 838; 25 Cyc. 1513; 130 S. W. 136-140; Hutchinson on Carriers, § 96; 77 Conn. 688; 44 111. App. 97; 77 Conn. 688; 69 L. R. A. 561; 86 S. W. 318.</p>

The parties to this litigation entered into the following contract: “License for Special Connection. “This agreement, made this 20th day of November, 1908, by and between the Home Water Company, of Little Rock, Ark., its successors or assigns, hereinafter known as the water company, and Jones House Furnishing Company, of Little Rock, Ark., their heirs, successors or assigns, hereinafter known as the licensee. “Witnesseth, That the water company hereby licenses and grants…

F. Gautney, Judge; STATEMENT BY THE COURT. The appellants are the regularly elected and qualified directors of Special School District No. 33 of Greene County.

Lea, Judge; 1. Instructions 5 and 6, requested by appellant, correctly stated tbe law, and should have been given. 99 Ark. 558; 105 Ark. 218. 2. When the prosecuting witness, while testifying, used violent and denunciatory language toward the appellant, speaking of him as a dirty cur, unfit to run at large, it was reversible error in the court to refuse to rebuke such language. 88 Ark. 237; 10 Cox, C. C. 25; 1 Wharton, Crim. Law, 638; 229 Mo. 620; 30 Am. & Eng.

W. Wells, Judge; 1. The court erred in admitting incompetent testimony of the alleged custom, some of -which was admittedly mere hearsay, and none of which shows any knowledge on the part of the company’s officials of any such custom, hut, on the contrary, their testimony is positive that they had no knowledge of the custom. 77 Ark. 405; 44 L. R. A. 687; 108 Ark. 437. 2. The court should have directed a verdict for the appellant.

H. Evans, Judge; 1. The testimony as to the location, etc., of the wash place had no connection with this case at all, and its admission only tended to confuse and mislead the jury. It should have been excluded. 2. The argument of appellee’s attorney was not justified by the evidence.

Frierson, Chancellor; 1. One who wrongfully obtains a patent by fraud or through mistake, becomes a trustee for the equitable owner of the title, and the statutes of limitation do not begin to run, nor can the doctrine of laches apply, until the cestui que trust has knowledge of his rights or is apprised of facts from which arose the trust. 44 Ark. 454; 49 Id. 93; 84 Id. 12; Perry on Trusts, etc. (6 ed.), § § 168, 169,170; 46 Ark. 25; 58 Id. 84; 20 Mo. 541; Wood on…

J. Driver, Judge; STATEMENT BY THE COURT. This suit was instituted by appellee against appellant to recover damages for personal injuries. Appellee alleged that bis injury resulted from negligence of appellant in operating its train without an electric headlight as prescribed by tbe statute of 1907, and without keeping a lookout as prescribed by tbe statute of 1911.

Appellee instituted this suit in the probate court for allotment of dower. She alleged that she was the widow of Samuel Younger, who died April 19, 1911, being then a citizen of Sebastian County, Arkansas, and possessed of a large amount of personal property, which was set forth in a schedule attached to the petition. She alleged that she was entitled to one-third of the property described; that defendants had failed to comply with her request for assignment of dower.

Pulaski Chancery Court; John E. Martineau, Chancellor; STATEMENT BY THE COURT. This suit was instituted by appellant against the appellees to rescind a trade involving an exchange of real property between appellant and appellees.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellant instituted this action against the appellees, alleging that she rented them certain lands for which they agreed to pay her, for the year 1911, the sum of $999; that they had paid her the sum of $405, leaving a balance of $593.63, for which she asked judgment. The appellant set up a written contract evidencing the lease, signed by the appellees.

J. Driver, Judge; STATEMENT by the court. This is a suit by Cinda Williams and Ed Williams against Susie Williams to recover the possession of a team of mules valued at five hundred dollars. Cinda Williams for herself testified substantially as follows: I am the owner of the mules in controversy. In the year 1906 I purchased two mules from J. M. Hawks, and later on swapped these two mules, with their harness, for the mules in controversy, and gave twenty dollars in exchange.

Shaver, Chancellor; STATEMENT BY THE COURT. This is an action in the chancery court by appellees against appellants to foreclose a deed of trust on certain lands situated in Nevada County, Arkansas. ■ The facts are substantially as follows: C. S. and T. J. Blake were the owners of certain lands in Nevada County, Arkansas. In 1911 they owed J. M. Barr $266, which was secured by a mortgage on a part of said lands.

T. Humphries, Chancellor; 1. The grant was purely for a public highway, and since -appellees, by their own act, terminated its use as a public highway, the fee reverted to the Maxfields, and was conveyed by them to appellant discharged of any right or easement in favor of appellees or of the public. 24 Ark. 102-108; 50 Ark. 467. 2. No easement exists in favor of the appellees.

Watson, Special Chancellor; The third clause of the will intended to create a trust in the executrix for the use of appellant and Freddie Kay Palmer, the executrix' being granted a life estate in the whole of the property. If she sold and disposed of any part of it, it was only for and during her lifetime. At her death it descended as provided in the will. 51 Ark. 61J 52 Ark. 113; 6 Peters 68; 93 Ü.

H. Evans, Judge; STATEMENT by the court. Appellee recovered damages against appellant for personal injuries sustained by Mm wMle in its employment.

H. Evans, Judge; STATEMENT BY THE COURT. The Grant County Bank and the Citizens Bank, both located in Grant County, sought to be designated as the depositary of the public funds of that county, and each filed a proposition in writing with the clerk of the county court of that county.

F. Gautney, Judge; 1. The evidence does not sustain the verdict. Even from plaintiff’s own testimony, the verdict is contrary to the physical facts as developed in the evidence. 158 S. W. 996; 154 S. W. 219. The burden was on him to support the allegations of the complaint by a fair preponderance of the evidence. 157 S. W. 384. 2.

W. Smith, Special Judge; STATEMENT BY THE COURT. These cases have not been consolidated, yet they involve the same questions and may be considered and decided together. Calloway & Huie were the attorneys representing the petitioners in the formation of the Terre Noir Drainage District in Clark County, and the appellant Ayers was the engineer employed to make the preliminary survey.

<p>Appeal from Prairie Chancery Court, Southern District; John M. Elliott, Chancellor;</p>

M. Jackson, Judge; In the absence of an agreement that the title shall meet the approval of a certain attorney, the seller is only required to furnish a merchantable title. Warvelle on Vendors (2 ed.) 363. A marketable title is one which is unclouded by a reasonable doubt as to its sufficiency to enable the purchaser to hold the property in fee simple. In this case there was an unbroken chain from the United States to the appellant. 63 Ark. 548.

<p>Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor;</p> <p>1. If the complaint states any cause of action within the jurisdiction of the chancery court, it should have retained jurisdiction and granted complete relief. 87 Ark. 210; 92 Ark. 28; 99 Ark. 438; 75 Ark. 52.</p> <p>The allegations of the complaint make a case for rescission and cancellation of the alleged contract, within the jurisdiction of the chancery court. 96 Ark. 263; 1 Pomeroy’s Eq. Jur. (3 ed.), § § 170-2; 4-Pomeroy’s Eq. Jur. (3 ed.), § 1377; 24 Am. & Eng. Enc. of L. (2 ed.) 627-8; 10 N. J. Eq. 146; 114 Fed. 395; 140 Pa. St. 510.</p> <p>The contract, as to the interest of the minor appellants, is a nullity; hut, being an entire and indivisible contract, it is void as to all the appellants. 90 Ark. 272; 81 Ark. 549.</p> <p>Specific performance of the contract is impossible, hence rescission should be decreed. 24 Am. & Eng. Enc. of L. (2 ed.) 611, 612; 50 Wis. 625.</p> <p>2. The chancery court had jurisdiction because of the allegation of the minority of the appellants, John Cecil Blanton and Annie Mabel Blanton, and should have granted relief. 33 Ark. 425; 53 Ark. 45; 85 Ark. 106.</p> <p>3. Equity has inherent exclusive jurisdiction of trusts, whether express, implied or resulting, and over trustees, independently of statute. 45 Ark. 482; 50 Ark. 71; 101 Ark. 455.</p> <p>4. The injury alleged, and the wrong being committed, is a continuous one, for which there is no adequate remedy at law. Appellee’s entry, however wrongful, was by the consent of the tenant in common, who was trustee for the other tenants. Equity looks to the facts and will not permit a wrong to go without a remedy. 30 Am. & Eng. Enc. of L. (2 ed.) 290; 83 Ark. 150; 95 Ark. 21; 22 Cyc. 834; 95 Ark. 246; 5 Pomeroy’s Eq. Jur., § 514; 93 Ark. 392; 92 Ark. 260; 95 Ark. 23.</p> <p>5. On finding that the complaint stated a cause of action at law for damages, it was error for the court to dismiss the complaint for want of equity, with leave to bring a suit at law. Kirby’s Dig., § § 5991-1282; 73 Ark. 462; 87 Ark. 211; 74 Ark. 484; 82 Ark. 51; 85 Ark. 208; 88 Ark. 106; 77 Ark. 238.</p> <p>6. The allegations of the complaint show that appellee is so using her interest in the wall as to injure and destroy the property of appellants, and- to deprive them of the use thereof. This affords grounds for equitable jurisdiction. 92 Ark. 538; 95 Ark. 23; 83 Ark. 153; 22 Cyc. 834; Cooley on Torts (2 ed.) 440, 722, 723.</p> <p>1. The allegation in the complaint of misrepresentation and overpersuasion, or undue influence, is a mere conclusion. The means of information with reference to the property was as accessible to the appellant as to the appellee, and, such being the case, both will be presumed to have informed themselves, and, if they have not done so, they must abide the result of their own carelessness. 31 Ark. 170; 30 Ark. 686; 11 Ark. 58; 26 Ark. 28; 19 Ark. 522; 47 Ark. 335.</p> <p>Unless the representations were not only false and fraudulent and made with intent to mislead the vendor, but also such as could not have been discovered to be such by reasonable care and diligence, and were rightfully relied upon in the belief that they were true, the vendor has no right of rescission. 46 Ark. 245. The remedy at law is adequate and complete; but if it were not, appellant, having made no offer to place appellee in statu quo, nor to return -any part of the' consideration, is in no position to invoke the aid of equity. 25 Ark. 196; 6 Pomeroy’s Eq. Jur., § 688; 53 Ark. 16.</p> <p>Mere inadequacy of consideration is no ground for the cancellation of a contract. 23 Ark. 737.</p> <p>2. Appellant is in no position to urge that the act of appellee in entering into the contract was a fraud upon the rights -of the minor plaintiffs, because their rights and her authority were as well understood by the mother as by appellee, and she was an active participant in whatever fraud was committed. She owns an undivided half interest in the wall, and under the will has the use and control of the other half until the minors are of age. It is such a contract as the law authorizes. The probate court has authority to order its execution for the benefit of the estate of the minors.</p>

Carter, Judge; 1. The real question involved was as to whether or not the policy was in force and a binding contract when its possession was obtained, and whether it was in full force at the time of the death of the insured.

<p>Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>Appellant was convicted of the crime of carnal abuse of the person of one Birdie Honnell, and appeals to this court.</p> <p>Mr. Honnell, the father of the prosecutrix, died in August, 1911. Appellant was appointed guardian of the prosecutrix, who at first resided with her sister, and soon after appellant was appointed her guardian the prosecutrix went to his home to live with appellant and his wife. After sh$ had lived with them twenty-two months, owing to a disagreement between the prosecutrix and appellant’s wife, appellant took her and her younger sister to live with their sister in Little River County.</p> <p>The prosecuting witness testified,, in substance, that she was fourteen years old. The appellant had had sexual intercourse with her during the time she lived in his home ten or eleven times. The intercourse commenced the first month after she went to live with appellant, and continued until the witness went to live with her sister.</p> <p>It was shown that after appellant had carried the prosecutrix and her little sister to live with their sister, Mrs. Broomfield, that he stated in the presence of Broom-field that no one could say that he had mistreated the girls, and that he also made the remark that they ‘ ‘ could ruin him if they were a mind to, but he believed'they never would do it. ’ ’</p> <p>A doctor testified that he had examined the prosecutrix in October, 1913, and found the hymen ruptured; found such a condition as he would expect to find if a woman had had intercourse.</p> <p>Appellant testified, denying that he had had sexual intercourse with the prosecutrix, and denying the remarks attributed to Mm while he was at Broomfield’s.</p> <p>The appellant, after he was indicted and arrested on this charge, demanded that a physical examination be made of the prosecutrix, and he offered to prove that he demanded that such examination be made, but the court-refused to admit such testimony.</p> <p>The appellant offered to prove that immediately after the term of court at which he was indicted he insisted that the prosecutrix be required to undergo an examination by a competent physician to determine whether she had had sexual intercourse and permission to have such examination made was then refused.</p> <p>Appellant was aske'd, on .cross examination, the following question: “Didn’t you state to Judge George, in the presence of Mr. Ed Jones, down here in the courthouse, that the reason you brought the children back down here was that your wife was jealous of the oldest girl?” Witness answered, “No, sir.” A witness, Judge George, was then asked whether or not he (Fakes) “stated to him in-the presence of Ed Jones, that his wife was jealous of the oldest girl?” The witness, over the objection of appellant, was permitted to answer that Fakes did state that his wife was jealous of himself and Birdie (meaning the prosecutrix). The appellant duly excepted to the rulings of the court.</p> <p>A witness, Ed Jones, stated that in a conversation appellant had with Judge George he stated the reason he wanted to turn the little girls over to their relatives was that his wife was jealous of the older girl and it caused trouble 'between them. He also stated, in the same conversation, that this girl (the prosecutrix) would not obey his wife, and that his wife could do nothing with her.</p> <p>In the opening argument, George Steel, specially employed counsel for the State, argued that Birdie Honnell was corroborated by Ed Jones and N. A. George in their statements as to Fakes’ saying his wife was jealous of the older girl. Appellant objected to the argument on the ground that the testimony might be considered only for impeachment. In the closing argument for the State the prosecuting attorney also argued that the prosecutrix, Birdie Jones, was corroborated by the testimony of Jones and George. The appellant again objected, on the same ground as above, and excepted to the ruling of the court in overruling his objection to the argument. .</p> <p>Among other prayers for instructions appellant presented the following: “7. You are instructed that the evidence of Ed Jones and N. A. George should not be considered by you as in any manner tending to establish the guilt of the defendant in this case. It may be considered by you only for the purpose as it may tend to impeach the defendant. ’ ’ The court refused to grant this prayer, and appellant duly excepted.</p>

On the 27th day of September, 1912, C. J. Lincoln Company shipped over appellant’s line of railway an empty alcohol barrel to Walter Priest, who lived at Ward, a station on appellant’s line. There was nothing on the waybill to show that the barrel had had inflammables in it. The barrel was sent by the shipping clerk of C. J. Lincoln Company to the depot of appellant company at Little Rock, and it was received there by the appellant and shipped over its line to Ward.