Volume 113 — Arkansas Reports

W. Hendricks, Judge; STATEMENT BY THE COURT. • C. E. McCloskey instituted this action against E. N. Weigel to recover damages for false imprisonment. Held: at his peril. • Hale on Torts (1896 ed.), Hornbook Series, 244; 19 Cyc. 319; 33 Ark. 320. The evidence shows that appellee was held because there might have been other charges or warrants against him. If there were none, appellant, acting at his peril, was liable. 71 Ark. 241, and authorities cited; 2 Am. & Eng.

Cowling, Judge; STATEMENT BY THE COURT. Mrs. Maude Flannagan instituted this action against tlie Western Union Telegraph Company to recover damages for mental anguish on account of the negligent failure of the latter to deliver -a telegram sent by her.

Appellee was the plaintiff below, and alleged in its complaint, which was filed on October 10, 1913, that it had sold the defendants a gin outfit for the sum of $1,572, of which $524.04 had been paid in cash; the balance to be paid according to the terms of certain notes, made a part of the contract of sale, due and payable November 15, 1913, and November 15, 1914, respectively; that the defendants agreed to insure the property in ten days after its arrival in some good and…

Humphries, Chancellor; 1. School directors have-no right to lease a school building for any other than school purposes. Kirby’s Digest, § 7643; 35 Cyc. 943; 22 Am. Rep. 268; 32 So. 961; 37 AtL 853; 73 Pac. 509; 69 Ark. 204. 2. Taxpayers may enjoin such lease for other purposes. 69 Ark. 204; 73 Pac. 509; 15 Kan. 259; 22 Am. Rep. 268. ' 1. The directors had the power to make the lease. •Kirby’s Digest, § § 7613, 7614; 95 Ark. 26. 2.

Carter, Judge; STATEMENT BY THE COURT. This litigation involved a petition for the revocation of an order made by the county court of Miller County, which prohibited the sale of intoxicating liquors within three miles of thé main public school building situated on block 34 of the city of Texarkana, Arkansas, as per the original plat of said city.

E. Martinecm, Chancellor; 1. Appellant paid a good” and valid consideration for the note. One who takes a negotiable instrument in payment of a past due obligation of the payee, is an innocent purchaser for value. 1 Daniels, Neg. Inst., 636; 13 Ark. 150. 2. Threats of a civil suit do not constitute coercion. 109 La. 13; 155 Mass. 233; 76 Minn. 257; 71 Fed. 58. 1. Pinson was not an innocent purchaser for value before maturity. 2. The note was without consideration.

E. Jeffery, Judge; 1. The statements of the accounts sued on and made a part of the complaint having been duly verified, and appellees having failed to deny the correctness of the same under oath, appellant was entitled to judgment under the statute. Kirby’s Dig., § 3151. The verdict of the jury is wholly without evidence to support it. 2.

P. Henderson, Chancellor; An express trust can only be created in writing. 3 Pomeroy’s Equity (3 ed.), § 1006; 26 Ark. 240-429; 8 Words & Phrases, 7121, 7122. ' There is nothing in the relation of the parties that would authorize the inference that a trust was intended, or from which it could he implied.

M. Jackson, Judge; The requirement of the statute that notice shall be given of an intention to receive bids is mandatory, and no discretion is allowed or contemplated; and while mandamus will not lie to control a court in the exercise of its discretion, it will lie to compel an officer to perform a ministerial or executive duty. Acts 1911, p. 272, § § 1 and 2; Kirby’s Dig., § 5156; 33 Ark. 450.

J. Driver, Judge; STATEMENT BY THE COURT. The Burdette Cooperage Company, for the purpose of lifting, loading and otherwise handling logs at its plant, used a derrick, two of the principal parts consisting of a mast pole and a boom pole.

B.obertson, Chancellor; STATEMENT BY THE COURT. The Cross County Rice Company instituted this action in the chancery court under sections 649-660, inclusive, of Kirby’s Digest, to confirm its title to certain lands in Cross County. A. ~W. Bonner and the assignee of C. L. Sharp were made parties defendant. The complaint alleges that the plaintiff claims title to the lands described in the complaint by virtue of a deed from F. D. Rolfe and wife.

H. Evans, Judge; STATEMENT BY THE COURT. H. A. Copeland instituted this action against tbe St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employment of the defendant company.

H. Evans, Judge; statement by the court. Appellee was indicted for assault and battery, committed'upon the person of one Emmett Luton, and at his trial filed a plea of former acquittal before one N. B. Henderson, a justice of the peace.

S. Mofles, Judge; 1. This ease was here on former appeal. 152 S. W. 281. The bank was not an innocent purchaser for value. 103 S. W. 232; 1 Pac. 579; 108 S. W. 1068; 64 Am. St. 327. The burden was on the bank to show it was a purchaser for value without notice. The notes were mere wagering contracts. 8 Cyc. 236; 3 S. W. 805; 1 Daniel, Neg. Inst. (2 ed.), § 198; 126 S. W. 114; 111 Id. 888. 2.

Reed, Judge; 1. In. a civil case the jury are the judges of the facts, but never the judges of the law. An instruction leaving to the jury to decide questions of law is erroneous. 49 Cal. 56; 40 Ky. 105; 80 Md. 214; 30 Atl. 904; 1 Mo. 97; 15 Id. 63; 88 Id. 150; 26 111. 438, 440-2; 18 Ind. 291; 25 Ind. App. 538; 40 Id. 156, 163-5. 2. All questions of law are exclusively for the court. 73 Ind. 577-9; 18 Id. 291; 11 Enc. PI. & Pr., 57-60;° 120 Ind. 6; 16 Am. St. 298; 16 Ind.

<p>Appeal from Greene Circuit Court; W. J. Driver, Judge;</p>

Smith, Special Judge; 1. The first instruction was abstract. 2. The court erred in giving plaintiff’s instruction No. 3. 201 Fed. 591. The Federal act governs. 229 ü. S. 146; 229 Id. 156; 130 Pac. 897. 3. The court should have directed a verdict for defendant. There was no negligence. It was the universal custom to make flying switches. 3 Labatt, Master &. Servant, ^ 1126, p. 2986. 4. The employee assumed the risk. 1 White on Personal Injuries, § 357. 1.

F. Gautney, Judge; STATEMENT BY THE COURT. Appellee alleged that on the 12th of April, 1909, he was the owner of an acre of land in Greene County, which he described, and that on the above date he conveyed the land to appellant by a deed which contained, among others, the following clause: “For and in consideration of the sum of one dollar and the stipulations hereinafter mentioned to me in hand paid by the St. Louis Southwestern Railway Company, the receipt of which is…

E. Jeffery, Judge; 1. The demurrer should have been sustained to the indictment. It was not good at common law, as no allegation of ownership appears. 48 Ark. 57-9; 66 Id. 65; 14 A. & E. Ene. L. (1 ed.) p. 12; Kirby’s Dig., § § 1923, 2227, subdiv. 2. 2. Reversible error was committed in the exclusion of material testimony. 117 N. W. 528; 110 Mass. 401; 118 N. W. 706; 108 S. W. 1131; 6 Atl. 619; 3 Cush. 558; 61 Atl. 9; 54 Pac. 502; 32 Am. Dec. 661; 104 N. W. 800. 3.

<p>Appeal from Clark Chancery Court; James D. Shaver, Chancellor;</p> <p>1. The deed was fraudulent and void. 22 Ark. 186; 20 Cyc. 439-440-441; 33 Ark. 338; 45 Id. 522; 20 Cyc. 446; lb. 447-8; 55 Ark. 582; 14 Id. 69; 20 Cyc. 449-452 ; 50 Ark. 320; 55 Id. 579; 58 Id. 453; 52 Id. 459; 47 Id. 301; 20 Cyc. 470-472; 31 Ark. 666; 20 Cyc. 764-5-9.</p> <p>2. A person is presumed to intend the necessary and natural consequences of his voluntary acts. 4 Cyc. 419; 68 Ark. 480, 481.</p> <p>3. Hahn at least had information to put him on inquiry. 50 Ark. 320; 55 Ark. 579; 58 Id. 453; 52 Id. 459; 47 Ark. 301; 20 Cyc. 470-472; 31 Ark. 666; 20 Cyc. 764-5-9, 771-2-7-9, 780-1-2-6; lb. 801, 802; Wait, Fraud. Conv., § § 9, 10, 382.</p> <p>4. Where the plaintiff has shown strong circumstances of fraud, the burden shifts to the parties to the fraudulent conveyance to explain the circumstances of fraud. 20 Cyc. 453-5; 7 Ark. 269; lb. 197; 20 Cyc. 763-6; 62 Ark. 267.</p> <p>5. Harris was insolvent. Kirby’s Digest, § 3313, 6297; 20 Cyc. 757.</p> <p>6. Appellant’s attachment is a lien which chancery will enforce. 1 Shinn on Attachments, § § 54, 87; 104 111. 180; 11 N. J. Eq. (2 Stock), 520; 6 Cray (Mass.) 520; 9 Minn. 108; 13 N. H. 53; Kirby’s Dig., § § 349, 360, 5152-3; 67 Ark. 325; 81 Ark. 73; Shinn on Attachments, § § 214, 415, 313, 664; 20 Cyc. 661, 690.</p> <p>7. Where a court of chancery has jurisdiction for one purpose, it will afford complete relief. 77 Ark. 576; 74 Id. 104; 75 Id. 55; 33 Id. 328; 23 Id. 746.</p> <p>7. McMillan and Mrs. Taylor were not innocent purchasers. Shinn on Att., § § 84, 87.</p> <p>1. There was no fraud. 32 Ark. 255; 23 Id. 258.</p> <p>2. Embarrassment is no proof of fraud. 26 Ark. 23; 41 Id. 225; 18 Id. 141.</p> <p>3. Fraud is never presumed; it must be proven.</p> <p>4. The chancellor’s findings should be sustained. 4 Crawford’is Dig., pp. 150-154; 110 Ark. 367.</p> <p>1. The levy of the attachment created no lien. Kirby’s Digest, § 360; 67 Ark. 328; 81 Id. 73.</p> <p>2. The evidence is not sufficient to prove that Hale was a party to any fraudulent intent on the part of Harris.</p>

Gotham, Judge; 1. The .court’s refusal to grant a continuance on the showing made was an abuse of discretion warranting a reversal. 2.

Cotharn, Judge; This case is controlled by this court’s decision in the case of St. Louis & San Francisco Railroad Company v. State, 87 Ark. 562, and by the decision of the United. States Supreme Court in Hanley v. Kansas City Southern Railway Company, 187 U. S. 617. The case should be reversed and dismissed.

, Western District, W. J. Driver, Judge; STATEMENT BY THE COURT. This is an action upon a promissory note by J. W. Hammons against J. H. Harbison and Minerva Harbison and Gr. L. Lynch. The defendants filed an answer in which they denied that Hammons was the owner of the note sued on.

E. Jeffery, Judge; STATEMENT BY THE COURT. On the 3d day of February, 1913, Mrs. Lou Cook instituted this action in the circuit court against M. J. Compton, T. J. Hood, J. Arthur Porter, William A. Porter and C. H. Waugh, to recover upon a promissory note for seven hundred dollars, alleged to have been executed by them in her favor.

Meeksj Judge; Under the undisputed evidence the administrator’s sale was a nullity, by the provisions of the Constitution then in force, Const. 1868, art. 12, § 3. It was nearly seven years after his sale before she remarried or acquired any other-homestead. 47 Ark. 445; 48 Ark. 230; 56 Ark. 563. Having by remarriage lost her claim of homestead in the premises, she, nevertheless, still retained her widow’s right of quarantine. Kirby’s Dig., § 2704; 34 Ark. 63.

When the court on October 22, 1912, entered its judgment, it exhausted its power, and had no jurisdiction in the absence of appellant and without notice to it, to vacate that judgment, and enter up another and different one against it. The jurisdiction of a court ends with its final judgment, except as to motions for new trial or other method of reviewing the case provided by statute. 67 la. 175; 85 N. W. 22; 121 N. W. 27; 89 Pac. (Col.) 46; 2 Neb. 60. 2.

Cot-ham, Judge; 1. Where a continuance is sought on account of the absence of witnesses whose testimony is material to the defense, and not merely cumulative, and due diligence has been used to procure their attendance, and shown in the motion, it is an abuse of discretion and reversible error to refuse such continuance. 60 Ark. 576; 100 Ark. 301, 310, 311; 99 Ark. 394; Id. 547. 2.

Martineau, Chancellor; 1. The title to the bed of navigable rivers within this State is vested in the State in trust for the use of the public. 53 Ark. 314-319, 323.

In April, 1909, appellee and her husband adopted a baby boy, eleven months old. They named him Paul Cowardin. Paul died in the Orphan’s Home at Monticello, Arkansas, July 30, 1909, at 10 a. m. The superintendent of. the Home transmitted a message to appellant’s operator -at Monticello, addressed to appellee, at Bentonville, Arkansas. The message read as follows: “Paul Cowardin died this morning at 10 o’clock. Will be buried at 9. With heart full of sympathy.

Carter, Judge; statement by the court. This is an action by C. S.- Thompson against the O. A. Crenshaw Grain Company, brought in the circuit court on the 6th day of February, 1913, to recover damages for an alleged breach of warranty in the sale of a car of corn.

Gotham, Special Judge; STATEMENT BY THE COURT. Mrs. Jennie Maloney instituted this action against the Maryland Casualty Company to recover upon a policy of accident insurance in which she was named as the beneficiary. The facts are as follows: The policy was issued to Edward S. Maloney, the husband of Jennie Maloney, on the 12th day of January, 1912, for a period of three months. Before the policy expired, it was renewed for an additional period of three months.

A. Falconer, Chancellor; STATEMENT BY THE COURT. Appellant was the plaintiff below, and alleged in his complaint that a judgment had been obtained against him by fraud, .accident or mistake, and that he had a meritorious defense to said action, which he set out. Appellees demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action and that the court had no jurisdiction of the subject-matter.

Cowling, Judge; The agency and the fraudulent acts of the subagent being undisputed, appellant is bound thereby, and can not claim protection as an innocent purchaser for value. 161 S. W. 142; 75 Ark. 95; 76 Ark. 373; 71 Ark. 295; 57 Ark. 11. Trask had no authority to settle his individual debt with the property of the insurance company.

<p>1. Local improvement — bridge—public benefit. — A bridge for tbe use of tbe public is of benefit to tbe traveling public, and also of special benefit to tbe adjoining lands, and may be constructed ■from ,tbe proceeds .ol local assessments. (Page 195.)</p> <p>2. Local improvement — property included — action of city council.— Tbe action of a city council in including property in an improvement district, is, except when attacked for fraud or demonstrable mistake, conclusive of the fact that such property adjoins tbe locality to be affected by tbe improvement, within tbe meaning of tbe Constitution. (Page 1.95.)</p> <p>3. Local improvement — bridge—city.—Tbe whole of a city may be included in one improvement district for the construction of a public bridge. (Page 195.)</p>

N. Hutton, Judge; Since, as was held on former appeal, 105 Ark. 485, no cause of action was stated in the first complaint, the real facts were never in issue and were not passed upon by the court. The case was not disposed of on its merits, which is essential before a question can be res judicata. 83 Ark. 545; 89 Ark. 542; 23 Cyc. 1215; Id. 1232.

E. Jeffery, Judge; The statute provides that the surety on a note may .request the holder to bring suit against the principal, and if he fails to do so within thirty days from the time of written notice, the surety will be exonerated from liability. Kirby’s Dig., § § 7921, 7922. There is no contention that written notice was given; hence, there is no release under the statute.

V. Bourlancl, Chancellor; 1. The record conclusively shows that the property was bought and paid for by Mrs. Mayers. The fact that the deeds were made to her, while not conclusive, raises a strong presumption in her favor, which can only he overcome by the clearest and most positive proof.

Reed, Judge; STATEMENT BY THE COURT. The appellees, who were partners in the live stock business, sued the appellant for failure to furnish cars, alleging that they had 129 head of cattle ready for shipment, and that they made application to the appellant, through its agent at Pyatt, in Marion County, for three stock cars; that the agent informed them that the cars would arrive upon a certain date; that on that date they drove their cattle to the station, or made preparation…

Cowling, Judge; STATEMENT BT THE COURT. E. K.. Lyman, in January, 1913, was engaged in the retail liquor business in Mena. He bought a large part of his stock from the appellant, and on the 6th of May, 1913, he was indebted to appellant in the sum of $733.89. Appellant sent its agent to Mena to collect this balance due on account.

. Tire appellant sued appellee for damages arising out of personal injuries.

F. Gautney, Judge; STATEMENT BY THE COURT. The attorney for the incorporated town of Corning filed an information with the mayor, charging the appellee with the crime of running a house of assignation contrary to the ordinances of the town. Appellee was convicted by the mayor and appealed to the circuit court. In the circuit court he was tried by a jury, who returned a verdict of guilty against him, assessing his fine at the sum of $25.

Hays, Judge; STATEMENT BY THE COURT. L. J. Scruggs instituted this action in the circuit court against the city of El Dorado and Sewer Improvement District No.… Held: in many cases, to be a virtual taking without compensation of water rights or riparian privileges. 50 L. ft. A. 564; 72 Conn. 531; 145 111. 23; 45 N. T. 365; but the outflow of sewage was shown to have rendered the stream unfit for use for any purpose. In none of these cases was the sewage treated or purified.

W. Reed, Judge; STATEMENT BY THE COURT. This is an .action by C. W. Shepherd against the St. Louis, Iron Mountain & Southern Railway Company to recover damages alleged to have been .sustained in a shipment of cattle from Bergman, Arkansas, to Kansas City, Missouri.

At tbe general election in 1910, Frank Irvin was elected road overseer of Center Township in the Greenwood District of Sebastian County, Arkansas. The statute provides that his term of office shall be the same as that for township and county officers. See Act No. 177, Acts 1905, approved April 18, 1905. Irvin entered upon the discharge of his duties as such road overseer, and continued in said office until his death, some time in October, 1912.

S. Maples, Judge; 1. Pearl Knowles was an accomplice. 95 Ark. 233; 27 L. E. A. (N. S.) 872. Proof of a confession of guilt made hy the accused is not alone a sufficient corroboration of the testimony of the accomplice. Kirby’s Digest § § 2384, 2385; 36 Ark. 117; 43 Ark. 367. 2. In a prosecution of this character, marriage of the accused in fact must he proved, and also the fact of his being married at the time the intercourse was alleged to have been committed.

.This is an action by J. A. Watkins and Baldy Vinson, * a firm of lawyers, against E. P. Ladd, to recover $250, alleged to be due for an attorney’s fee. Tbe suit was commenced in tbe justice court, where judgment was rendered for the defendant,' and tbe plaintiffs appealed to tbe circuit court. This cause, with others, was set for trial in tbe circuit court on tbe 5th day of June, 1913.

Evans, Judge; STATEMENT BY THE COURT. Appellee was the plaintiff below, and alleged in his complaint that he was a citizen and resident of the State of Missouri, and that on' the 17th day of August, 1912, he became a passenger upon one of defendant’s freight trains for the purpose of being transported from Gibson, Missouri, to Mount Vernon, in the State of Illinois, and that on said day, and while the car in which he was a passenger was being switched from one track to…

Cowling, Judge; STATEMENT BY THE COURT. This was a suit in ejectment -brought by W. P. Feazel, J. I. McNutt and D. B. Sain against appellants to recover a certain half section of land situated in Howard County. Both parties claim title from the same source, one, G-. W. Faulkner. There was a jury trial and verdict and judgment for appellees, from which judgment appellants prosecuted this appeal.

W. Wells, Judge; The damages were inadequate to compensate plaintiff for the injury. The court erred in admitting the evidence of Doctor Harris and in giving the seventh' instruction. The jury found defendant guilty of negligence and the cause should be remanded for a new .trial only as to the amount of damages. Ann. Cas. 1912, D. 588. 1. A new trial is not .allowed on account of the smallness of damages in an action.for injury to a person.

Gotham, Special Judge; STATEMENT BY THE COURT. Marvin McGough appealed from a conviction for manslaughter in the Drew County Circuit Court, on an indictment for murder in the first degree, alleged to have been committed by killing one Guy Ferguson with a gun.

8. Magpies, Judge; 1. It is presumed that 'the law is well known and equally within the knowledge of all persons, and assertions of law, though false, are regarded as mere expressions of opinion and can hot be made the basis of an action. 20 Cyc. 19; 44 L. Ed. U. S. 1095; 66 N. T. 483; 13 N. W. 242; 5 Hill (N. T.) 303; 39 Am. Dee. 436; 68 Id. 653. Everybody is expected to know the law and the legal effect of a written instrument. 46 Am. Rep. 357; 44 Pae. 944; 69 Ind. 1. 2.

<p>1. Contracts — security for performance — recovery.—Appellee deposited ¡¡>250 as an advance payment, or in the nature of security, for the performance of his undertaking on a contract entered into with appellant, to be held by appellant until the expiration of the contract period or unless the contract be cancelled, when it was to be returned to appellee, less any damages that were sustained by appellant by reason of appellee’s failure to perform the contract. There was no formal cancellation of the contract. Held, appellee is entitled to a return of the deposit at the end of the contractual period less any amount owed appellant for loss or damages sustained by nonperformance of (the contract. (Page 314.)</p> <p>2. Contracts — deposit—security for foeformance — burden of froof.— Where A. deposits money with B. to secure his performance of a contract entered into by them, with a stipulation for its return at the end of the contractual period, less any damage suffered by B., caused by A.’s failure to perform, the burden is upon B. to show any damage sustained by him, and in the absence of proof of damage, A. will be entitled to the return of the whole amount deposited, at the end of the contractual period. (Page 314.)</p> <p>3. Contracts — breach—measure of damages. — B., a dealer in automo-' biles, contracted with A., whereby A. agreed to purchase from B. a certain number of cars, and sell the same. Held, B.’s damages for A.’s failure to perform the contract is the amount of his profits, if any, which B. lost by reason of A.’s breach of the contract. (Page 315.)</p>

Frierson, Chancellor; STATEMENT BY THE COURT. The appellee was the owner of 320 acres of land, described as follows: West half of section 6, township 3 north, range 7 east, in Crittenden County, Arkansas.

Barker, Chancellor; STATEMENT. BY THE COURT. J. L. Davis brought this suit against the Martin Stave Company to recover the sum of three hundred dollars, the value of a quantity of red oak timber which he alleges was wrongfully cut from his lands by the Martin Stave Company. In its answer the Martin Stave Company admitted that the plaintiff was the owner of the lands from which the timber was cut, but denied that it wrongfully cut the timber therefrom.

Henderson, Chancellor; STATEMENT BY THE COURT. This proceeding was instituted ¡by James E. Purcell within twelve months ¡after ¡attaining full -age, to ¡set aside a decree and to exercise his right to show cause against it in the cause of J. F. Shoemaker and D. Gann against James Purcell, Jr. The facts are as follows: On the 5th day of February, 1891, James Purcell executed, in favor “I have this 21st day of April, 1899, duly served the within by delivering a copy of the…

M. Jackson, Judge; 1. There are only two questions in this appeal, (a) Was there such fraud practiced in procuring the note as would have vitiated it in hands -of the original holder, and (b) did appellant pay a valuable consideration for the note? 2. The note was not void for fraud.. 3.

Evans, Judge; STATEMENT BY THE COURT. Appellant was convicted of the offense of grand larceny, under an indictment charging him with stealing a certain steer, the property of one D. Jordan. The evidence in the case was circumstantial, and its sufficiency is challenged upon this appeal.

Hays, Judge; statement by the court. Appellant’s intestate, S. Z. Kimball, was killed by a north-bound passenger train upon appellee’s railroad, at the station of Waldo, at which place the railroad tracks run practically east and west, and the train which killed him was running east. The last seen of deceased prior to his death was at the Skinner Hotel, about ten minutes before the arrival of the train.

H. Evans, Judge; STATEMENT BY THE COURT. Appellee was the plaintiff in the trial below, and alleged in his complaint that he was on one of appellant’s railroad cars, assisting in distributing ties along its tracks, for the purpose of repairing the tracks, and was working with one of appellant’s other servants in the performance of that duty; that appellant had negligently so constructed the track as to leave a number of trees standing near the track, some of them being…

Martinecm, Chancellor; STATEMENT BY THE COURT. The General Assembly of 1907 passed an act creating. the Fourche Drainage District (Acts of 1907, page 1112), and among other things said act provided for a hoard of assessors to assess the 'benefits, and provided any person aggrieved by the assessments of said hoard of assessors should have the right within twenty days to appeal to a court of competent jurisdiction for the correction of any erroneous or unjust assessment.

<p>1. Practice — transcript of proceedings — rule on stenographer. — The Supreme Court has no power to grant a rule on the stenographer of a circuit court to compel him to furnish a transcript of the •proceedings had in .the trial in the circuit court. (Page 372.)</p> <p>2. Practice — transcript.—The Supreme Court has power to compel the clerk of a trial court to send up a transcript of the record of •that court. (Page 373.)</p>

Francis Circuit Court; J. M. Jackson, Judge; 1. There was a misjoinder of parties plaintiff. The policy of insurance was an instrument for the payment of money, and was assignable, on which the assignee should sue alone. 98 Ark. 340; 37 Id. 556; 47 Id. 541; Kirby’s Dig., § § 509-600. The demurrer and motion to strike was the proper practice to reach the error. 19 Ark. 602; 21 Id. 186; 25 Id. 327; 33 Id. 497-501; 93 Id. 215. 2.

W. Wells, Judge; . STATEMENT BY THE COURT. Appellant instituted this suit against the appellee in the Bradley Circuit Court, alleging that Mattie Thompson was the mother of Gladys Thompson, a girl child of the age of five years; that Gladys Thompson was the daughter of Tom Thompson, deceased, and his surviving heir at law; that Tom Thompson was, on the 27th day of October, 1910, an employee of the appellee lumber company, and was injured and killed by the negligence of the…

Martineau, Chancellor; STATEMENT BY THE COURT. More than fifteen citizens of the town of Benton, Saline County, Arkansas, presented a petition to the Railroad Commission of Arkansas, in which they stated that they were shippers and patrons of the St. Louis, Iron Mountain & Southern Railway Company, and that the depot of said company at Benton had been recently destroyed by fire; that the company was preparing to build a new depot on the old site, which was on the extreme…

W. E. Cole was a member of the order of Brotherhood of Locomotive Firemen and Enginemen (the appellant), a fraternal organization doing business in this State on a lodge basis, and maintained by the assessment of its members. W. E. Cole held a benefit certificate or policy for $1,500, which at his death was payable to J. C. Moss, a half-brother.

Martineau, Chancellor; STATEMENT BY THE COURT. Appellants, as executors of the will of Abe Stiewel, deceased, instituted this action in the. chancery court against appellees, who are devisees and legatees under the will. The object of the complaint is to have a construction of the will and the directions of this court as to the duty and power of the executors in selling, mortgaging, and leasing the lands of their testator.

Carter, Judge; STATEMENT BY THE COURT. Appellee sued appellant to recover damages for the wrongful death of her husband, O. E. Gibson. This is the second appeal in the case, and the opinion on the first appeal is reported in 107 Arle 431, under the style of St. Louis, I. M. (& S. Ry. Co. v. Gibson.

W. Hendricks, Judge; STATEMENT BY THE COURT. This suit was brought by the appellee to recover of the sureties upon a bond of Pat W. Snodgrass, lessee, the rent for certain premises in Little Rock which he had failed to pay.

~ Wood, Chancellor; STATEMENT BY THE COURT. J. T. Edrington executed a bond for title to J. A. Hargis for sixty acres of land on April 25, 1893, for the consideration of $40 in cash and a promissory note due November 1, 1893, for $70 bearing interest at the rate of 10 per cent per annum from date until paid.

<p>1. Seduction — marriage of parties — suspension of prosecution.— Kirby’s Digest, § 2044, providing for the suspension of a prosecution for seduction after marriage between defendant and the female alleged to have been seduced, does not apply after a judgment of conviction has been entered in the circuit court. (Page 439.)</p> <p>2. Appeal — stay of proceedings under judgment. — An appeal does not vacate a judgment, but only serves to stay proceedings thereunder. (Page 439.)</p>

Martineaú, Chancellor; 1. The county court did have authority to transfer the land for the consideration named in the deed. Kirby’s Digest, § 992; 50 Ark. 447. 2. The mere fact that the county could have gotten more cash money from some other source does not render the transfer fraudulent. The disposition of real estate of the county is solely within the discretion of the. county court. 73 S. E. 706; 11 Cyc. 462; 103 Ind. 306; 2 N. E. 544; 61 S. E. 23; 130 Ga. 23. 1.

E. Jeffery, Judge; 1. Tbe company is not responsible for negligence of physicians and surgeons at the hospital, if it used ordinary care in selecting them. Instruction No. 1 for plaintiff was error. 98 Ark. 399; 106 Id. 442. 2. The company did not fail nor refuse transportation when requested, nor was it liable for not so doing. 79 Ark. 484. 3. The book of rules of the hospital department should not have been admitted as evidence. It had no tendency to prove any issue.

Frierson, Chancellor; STATEMENT BY THE COURT. On August 13, 1912, G. W. Sanders and J. F. Ogles filed their complaint against W. H. O’Barr and C. C. Jarrett; on August 31, 1912, D. V. Glover .and Paul M. Will filed their complaint against the same defendants; and on September 8, 1912, Alvis Hogan, Russ Howerton, Charley Hayden, W. R. Winn and Albert Yincent filed their complaint against the same defendants, all in the chancery court for the Eastern District of Clay County,…

The defendant, Charley Hall, was indicted for the crime of murder in the first degree, charged to have been committed by shooting John Williams. Lee Rhodes, for the State, testified: John Win-jams, a white man, and Layton Fulton, a negro, had a difficulty about some stock, and the negro knocked him down with a stick. Williams left the scene of the difficulty, and came on down to a neighbor’s house and got a-.shotgun. I approached him and tried to get him not to go back.

<p>Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;</p> <p>1. The description in the deed of trust, as against a third person, is not sufficiently definite. Kirby’s Dig., § 5407; 6 Cyc. 1022; 52 Ark. 278; 57 Id. 152; 41 Id. 70; 43 Id. 350; 140 N. W. 401; 71 S. W. 713; 66 N. Y. S. 665; 7 Oh. St. 197; 7 Col. 426; 4 Pac. 45; 76 la. 553; 41 N. W. 310; 77 Ga. 365; 37 la. 374; 58 Miss. 126.</p> <p>2. A bond for costs should have been filed. Kirby’s Dig., § § 959-61.</p> <p>The property was sufficiently described. 39 Ark. 394; 6 Cyc. 1022; note 25; 127 N. C. 508; 55 la. 421; 7 N. W. 675; 108 Mich. 114; 65 N. W. 604; 52 Ark. 278; 57 Id. 152; 54 Ark. 158; 51 Id. 410; 52 Id. 278; 42 Minn. 151; 43 N. W. 849; 66 Ala. 258; 7 Ind. App. 475; 34 N. E. 30; 26 Neb. 181; Jones on Chat. Mort. (2 ed.), 54; 161 S. W. 183.</p>

; STATEMENT BY THE COURT. The appellee, a domestic corporation, with its principal place of business at Fort Smith, Arkansas, brought suit in the circuit court of Sebastian County against appellants to recover upon a judgment' obtained against W. C. Person and others in Oklahoma for $1,553.22.

W. Hendricks, Judge; STATEMENT BY THE COURT. This suit was instituted to recover damages against appellants, for the alleged alienation of the affections of the appellant’s husband, Joe Weber. The appellee married Joe Weber, the only child of appellants, in the city of Little Rock, on the 22d day of November, 1910, and they lived and cohabited together as husband and wife, until the 30th day of August, 1911, when there was born to them a male child.

<p>1. Judgment — assignment.—There is no statute authorizing an assignment of a judgment of the Supreme Court. (Page 488.)</p> <p>2. Judgments — assignment—title—enforcement.—The rights of a judgment-creditor may be transferred to another, so as to carry the right to enforce the judgment, such assignment does not vest the legal title in the assignee, but he can enforce the judgment in the name of his assignor. (Page 488.)</p> <p>3. Judgments — assignment—negotiabilities.—A judgment is not negotiable and the assignee takes the assignment subject to all the equities between the parties to the judgment. (Page 488.)</p> <p>4. Judgments — power of court — payment—remedy.—The Supreme Court has power over its own judgment and process, and upon proof of the payment of the judgment, it will issue an order quashing .and process erroneously issued thereon. (Page 489.)</p> <p>5. Judgment — enforcement—jurisdiction of chancery court.' — The chancery court has jurisdiction to prevent the enforcement of a judgment of the Supreme Court, where the petitioner, against whom it was rendered, establishes grounds for equitable relief. (Page 490.)</p>

The circuit court had no jurisdiction, because the justice of the peace had none. The amendment stated an entirely different cause of action. 35 A. L. E. 581; 24 Ark. 177; 10 Id. 326. 2. The burden was on defendant to establish its counter claim. The court erred in modifying instruction 1, as asked. Further, the court’s instructions were contradictory. 1.

District; Daniel Hon, Judge; 1. The construction of the bridge has been a detriment and has not been an advantage to the railroad company’s property. Local assessments rest solely on special benefits to the property assessed. 50 Ark. 116; 64 Id. 555. If not benefited, property is not subject to assessment. 68 Ark. 376; 69 Id. 68-73.

Humphries, Chancellor; 1. An insane person who holds the legal title to lands may redeem within two years, but the statute is not broad enough to extend the right to an insane person who only has an equitable title, where the title is in a trustee. Kirby’s Dig., § § 7095, 5056. 2. When ’the trustee is barred by limitation, the cestui que trust is also barred.

E. Patterson, Judge; 1. Where the defense is suicide within two years from date of policy, proofs of death showing that the cause of death was suicide is prima facie evidence thereof. ' Best on Ev., § 273; 44 N. E. 1099; 64 Atl. 903; 27 S. E. 29; 120 Fed. 475; 130 Wis. 61; 22 Wall. 793; 181 U. S. 49; 84 Cal. 570; 79 Fed. 46. 2. Self-destruction means suicide. 105 Fed. 172; 150 TJ. S. 468; 29 111. App. 437. • 3.

Martineau, Chancellor; STATEMENT BY THE COURT. On August 5, 1913, the Union Trust Company, as trustee for A. D. Cohn, brought suit in the Pulaski Circuit Court against W. F. Armstrong, doing business under the firm name of Armstrong Shoe Company. We shall hereafter designate the Union Trust Company, appellee, as lessor, and W. F. Armstrong (the Armstrong Shoe Company), appellant, as the lessee.

The appellant was convicted of seduction. The prosecutrix testified that she was nineteen years old. She had known appellant since she was ten or eleven years old. They were sweethearts. He first began going with her in the summer or fall of 1910, and continued to do so until November, 1912. She and Taylor were engaged to be married in February, 1912. Taylor asked her to be his wife and she agreed to do so.

Cowling, Judge; STATEMENT BY THE COURT. At the July term, 1913, of the Little River Circuit Court, the School District of Ogden, acting under the authority of Act 376 of the Acts of 1911, as amended by Act 238 of the Acts of 1913, filed its petition to condemn 8.14.acres of land owned by Frank Smith. The cause was tried on the 18th of July, 1913, and the jury assessed the compensation to be paid by the school district at the sum of $2,500.

Grace, Judge; STATEMENT BY THE COURT. „ Appellants, plaintiffs below, instituted this suit against the appellee, defendant, alleging that they had a contract for digging a ditch with the Karsh Lake Drainage District; that “it became necessary to carry one of the drainage ditches through the track of the defendant, and the directors of the district and the plaintiffs called upon the defendant to permit the ditch to be constructed through its track, the same to be bridged at…

W. Hays, Judge; STATEMENT BY THE COURT. Frank Daniels was convicted in the Union Circuit Count of a misdemeanor, and the judgment for the fine and costs amounted to $41.10. The appellant was one of Daniels’s attorneys in the circuit court.

W. Wells, Judge; STATEMENT BY THE COURT. Ben Blake instituted this action against the Western Union Telegraph Company to recover damages for mental anguish alleged to have been suffered by him on account of the negligent delay in delivering a telegram to bim.

Garter, Judge; This suit is based on section 2, Act 46, Acts 1909y page 103. This is an exact copy of the Texas statute construed in 87 S. W. Rep. 1144. When the Legislature adopts a statute of another State which has been construed by the courts of that State, the interpretation also is adopted. 78 Ark. 346; 98 Id. 125; 104 Id. 417; 82 Id. 334. Where a land owner permits Johnson grass to grow on his own land he can not recover.

M. Jackson, Judge; STATEMENT BY THE COURT. Appellant sued to recover damages under the following complaint: “That the defendant, C. E. Stacy, and Charles N. Wilkes were engaged in the general merchandise business, under the firm name of Wilkes & Stacy, during the year 1911; that on the 29th of October the defendant sold to this plaintiff his entire interest in said store, this plaintiff thereby succeeding to said business of Wilkes & Stacy, for the sum of $3,640 (which was…

Elliott, Chancellor; The only question in this case is whether the mistake in the description of the land invalidated the formation of the district. The law plainly requires that the petition shall describe the territory to be included, and shall be accompanied by a plat,, etc. Proper notice is jurisdictional. Act 402,1909, p. 1153; 104 Ark. 298. 104 Ark. 298, was based upon different grounds. Kirby’s Dig., § 5665; Acts 1909, p. 1153.

• Appeal from Jackson Chancery Court; George T. . Humphries, Chancellor; 1. The appellant’s lien under the mortgage is superior to the lien of the State for the fine and costs. Kirby’s Dig., § 2467; 35 Ark. 445; 59 Id. 213. The State has no lien on after-acquired property. 50 Ark. 112. 2. Outside the 'State the authorities are uniform that the mortgage is the superior lien. 1 Jones on Mort. (6 ed.), § § 468-472; 92 Ga. 746; 131 Id. 668; 20 111. 57; 55 la. 245; 32 Ark. 258. 1.

Martinecm, Chancellor; The bond in force at the time the policies were can-celled is the only one liable to the insured. Even though policies were written during the term of appellant’s bond between March 1, 1912, and March 1, 1913, the claims for unearned premiums arose and accrued after March 1, 1913, and the appellee, Home Life & Accident Company, only is liable. 91 Ark.- 43-51; 76 Ark. 410; 115 Fed. 69; 97 Ark. 553.

Mandamus to Clay Chancery Court; Charles D. Frierson, Chancellor; STATEMENT BY THE COURT. In the case of Stephens v. Stephens, 108 Ark. 53, the decree of the chancery court was reversed and the cause remanded with directions to that court “to vacate its decree cancelling and annulling the deed in question.” Upon the filing of the mandate petitioner here asked to be made a party plaintiff to that suit.

This suit was brought by appellant against R. A. Bishop to collect a negotiable promissory note for $600 made to the Bank of Midland on May 3, 1912. The maker of the note denied that the appellant company was the owner thereof, and also plead payment. It appears from the testimony that the Mammoth Vein Coal Company, appellant, did business with and kept money on deposit in the Bank of Midland, and had on July 29, 1912, three or four thousand dollars in that bank.

Martineau, Chancellor; STATEMENT BY THE COURT. The city council of Little Rock, upon a proper petition of the real estate owners in a certain locality, passed an ordinance laying off the territory described and creating Bridge District No. 1 for the purpose of aiding the county in building a free bridge across the Arkansas River, a navigable stream more than 400 feet in width, the middle of which is the boundary line between the cities of Little Rock and Argenta, one end of…