Volume 114 — Arkansas Reports

Hadden Humphreys, Chancellor; statement by the court. This proceeding was begun to enforce liens for materials furnished for the building of a hotel on lots 123 and 124 in the city of Bentonville. Each of the appellees, the Benton County Lumber Company, the Builders’ Supply Company and C. O. Mitchell, filed complaints on May 31, 1911, in the chancery court of Benton County, and upon hearing, the cases were consolidated.

W. Hendricks, Judge; STATEMENT BY THE COURT. This was a suit by appellee against appellants on a written contract, dated September 9, 1909, for certain advertising cuts sold and delivered to them.

E. Patterson, Judge; STATEMENT BY THE COURT. B. S. Phillips obtained judgment against J. C. Colvin in the circuit court in an action on debt for the sum of $253.18. Subsequently, an execution was issued upon the judgment and levied upon forty-seven acres of land belonging to Colvin. The latter, after giving due notice of his intention to do so, filed his schedule claiming said land as his homestead, thereby being exempt from execution.

The duty of an agent is to follow the instructions of his principal. 100 N. W. 526. Of course, an agent -.may show that the damages are nominal, or very small, but not by demurrer. Story on Ag. (8'ed.) 281. In this case, appellant had a right to show to a jury that, had its agents demanded the additional premium insisted on the appellant would not have remained bound upon this risk. 44 N. W. 372; 79 la. 245. 2.

T. Humphries, Chancellor; 1. The ordinance was not properly published according to the Ordinance- No. 57. The Legislature never .amended the section as to notice. Kirby’s Dig. 5688; 110 Ark. 544. The act of 1913 did not legalize or cure acts of •officers acting without authority under void ordinances of a city. 59 Ark. 544. 2. Kirby’s Dig., § ' 5672, is mandatory. 97 Ark. 334-340. The objections were made in apt time. Ib. .344. It can not be ignored.

Martineau, Chancellor; STATEMENT BY THE COURT. This suit was instituted by the appellee, as receiver of the Valley Savings Bank, against appellant and others to cancel certain conveyances which he alleged constituted an unlawful preference in favor of certain creditors of the defunct bank. The facts are substantially as follows: The Valley Savings Bank was engaged in the banking and real estate business in the city of Argenta.

M. Jackson, Judge; STATEMENT BY THE COURT. Appellee was twice indicted for the offense, commonly designated “night riding. ’ ’ The first indictment is as follows, omitting the caption: “The grand jury of White County, in the name and by the authority of the State of Arkansas, accuse Will Scott, Vine Williams, of the crime of night riding, 'Committed as follows towit: The said Will Scott, Vine Williams, in the county and State aforesaid, on the 17th day of June, A. D. 1913,…

Elliott, Chancellor; STATEMENT BY .THE COURT. Appellant sued -appellee, and alleged that appellee was -a corporation engaged in buying and selling timber; that on the 7th day of March, 1910, appellant purchased of one Dave Moody certain timber lands in Arkansas County, and appellee agreed to advance the purchase money, same being $3,500; that the deed was to be made from the said Dave Moody to appellant, and appellant agreed to give appellee a mortgage on said land for the…

,. Appeal from Pulaski Circuit Court, Third Division; O. W. Hendricks, Judge; statement by the court. The complaint in this cause alleged that appellees were engaged in the laundering business in the city of Little Rock, some of the appellees being corporations, others being a copartnership and still others the individual business of the proprietors of the defendant laundries mentioned in the complaint.

Carter, Judge; 1. Complaints made by tbe appellee concerning ber injuries to visitors two weeks after tbe accident were not competent, and should bave been excluded. In tbe Jackson case, 93 Ark. 125, rebed on by appellee, the complaints were made immediately after tbe accident. Here they were too remote, and made, moreover, as tbe proof shows, after appellee bad decided upon a suit against appellant. 105 N. Y. 294, 59 Am.

This is an action of ejectment by E. L. Carter against A. L. Goodson, Jacob Goodson and Mrs. Laura West, to recover the possession of the northwest quarter of the northeast quarter of section 6, township 4 north, range 20 west, 47.41 acres of land, in Yell County, Arkansas. The facts are as follows: The land in controversy was originally swamp land, and a patent therefor was executed by the United States to the State of Arkansas.

Supporting the proposition that the evidence does not sustain the verdict and that the court should have directed a verdict for the contestants, counsel say: (a) The will indicates that the deceased did not appreciate the relationship of those dependent upon him. He was suffering from senile dementia, lacked mental capacity and disposing memory, and was not capable of executing a valid will. 64 Ark. 351.

J. Driver, Judge; STATEMENT BY THE COURT. This is an action by ¡appellant against the appellee, administrator of the estate of August Peterson, deceased, to collect a claim for the balance due on account for intoxicating liquors sold to his intestate.

A. Falconer, Chancellor; STATEMENT BY THE COURT. A man named Frank Mier, or Miller, died intestate in Scott County, Arkansas, on April 11, 1911. He had been a resident of that -county for a number of years prior to his death, and, during all the time of his residence in that county, he lived with a woman named Lidmilla Miller, who was reputed to be his wife, and there was nothing in'their relationship which aroused even a suspicion to the contrary.

Pauline Overton, through her nest friend and father, J. S. Overton, instituted this suit against the appellant for personal injuries.

<p>Fixtures — sale of land — unattached chattels. — Appellee sold land to appellant; held, fence posts brought by appellee onto the land from another place, and never fixed in the ground, and a sprayer and harrow on the land were not fixtures, and did not pass to the purchaser with a sale of the land.</p>

Grace, Judge; 1. Doctor Smith should have been permitted to answer the questions propounded to him, the first three of which did not call for. any information acquired from the patient while attending her in a professional capacity .and necessary to enable him to prescribe for her; and as to the fourth question, whether it should have been answered or was privileged, depends upon whether it would disclose such information as was necessary to enable him to prescribe.

Humphries, Chancellor; J. M. Crone brought this suit to have a deed from Hammock to King declared a mortgage, alleging that he had purchased the land, 138 acres, from Hammock and borrowed .money from King with which to pay for it; that Hammock executed the deed to King, which was intended only to secure the repayment of the money to him, and that on the same day King executed to plaintiff a bond for title for the east portion of the land containing seventy acres, and also…

Martineau, Chancellor; STATEMENT BY THE COURT. Appellees were plaintiffs below in a suit brought to enforce a trust against certain lands in Pulaski County, formerly owned by their father, Silas Feild, who died in September, 1897, leaving him surviving, in addition to the plaintiffs certain other children and grandchildren.

Appellants sued appellees alleging they were partners engaged in business in the city of Little Rock, manufacturing and selling soda pop and kindred articles; that plaintiff and her husband sell soft drinks in said city, and that about October 21,1913, they bought from the defendants a case of their goods, and after same was delivered at her place of business, she lifted one of the bottles from the case, and was carrying it to the ice box, and, while so doing, in the…

M. Jackson, Judge; Under the act of 1901, there was an exception in favor of a person who bought for a friend, but there is no exception in the act of 1907. 102 Ark. 16, does not apply. 1. The word “order” is correctly defined in 29 Cyc. 1509. The agreed statement of facts does not support the indictment. Defendant never solicited any order. 102 Ark. 16 does not apply. 2. The act is highly penal and should be strictly construed. 53 Ark. 334.

The plaintiff (appellant here) filed its complaint in the Pulaski Circuit Court, alleging that it was a corporation under the laws of Missouri, and that the defendant (appellee here) was the Secretary of State; that the plaintiff, having complied with the requirements of the statutes to that end, was, on the 26th day of May, 1911, granted a license to do business in Arkansas; that thereupon it established a place of business in Pike County, and began the business which it…

E. Martineau, Chancellor; 1. Appellant was a bona fide holder of the note and mortgage, in the usual course of business for a valuable consideration before maturity and without any knowledge of any defense that could be made. Swift v. Tyson, 16 Peters 1; 85 111. 439; Acts 1903, No. 81, § § 57-8-9; 62 Ark. 595; 4 A. & E. Enc. Law, 221; 20 How. (U. S.) 343. 2. The chancellor relied on 62 Ark. 595, but overlooked the act of 1903, No. 81.

T. Gotham, Judge; STATEMENT BY THE COURT. The Citizens National Bank of Hot Springs instituted this action against C. C. Rush, C. G. Bryan and L. D. Cooper to recover the balance alleged to be due on a promissory note amounting to $1,532.58, with the accrued interest. The facts are as follows: The defendant Bryant and one Jacobs were partners engaged in the saloon business in the city of Hot Springs.

Barker, Chancellor; STATEMENT BY THE COURT. J. T. Cowling instituted an action in ejectment in the circuit court against W. W. Britt, Cleveland Britt and E. N. Payne to recover possession of a certain tract of land in Columbia County, Arkansas.

Grace, Judge; STATEMENT BY THE COURT. This suit is for damages for a personal injury to Chas. A. Washington, alleged to have been caused from the explosion of dynamite used in blasting out some piling from the railroad’s right-of-way in constructing a ditch or canal through it.

Carter, Judge; 1. Mental anguish damages are not recoverable in Oklahoma, where the default occurred. 2 Okla. 235; 115 Pac. 879; 77 Ark. 351; 92 Id. 219; 93 Id. 415; 94 Id. 89. 2. The provisions for a reduced rate are binding. 53 Ark. 434; 154 U. S. 1; 227 U. S. 639; 226 Id. 491; 35 A. L. R. 119; 191 U. S. 477. 3. Telegraphing between States is interstate commerce. Congress is supreme; its action is exclusive. The State is superseded. 24 Stat.

E. Jeffery, Judge; The indictment does not charge the necessary elements of an aggravated assault. Ear by’s Digest, § 1587; 41 Ark. 350; 100 Ark. 195. Instruction No. 11 was prejudicial error. 1. Rule 9 has not been complied with, 4 Crawf. Dig., p. 60, § 73-a. 2. The question of aggravated assault was properly submitted to the jury on the evidence.

W. Leslie, Special Chancellor; 1. One who comes into a court of equity must do so with clean hands. An administrator can not purchase at his own sale. 27 Ark. 637; 55 Id. 85; 33 Id. 575; 34 Id. 63; 46 Id. 451; 58 Id. 84. 2. An administrator and his attorney can not buy claims against the estate. 40 Ark. 393. 3. His hands must be clean. He is a trustee. 7 Ark. 516-19; 33 Id. 294; 53 Id. 150; 47 Id. 311.

Martmecm, Chancellor ; The act in question violates art. 19, § 9, of the Constitution, and is therefore void. Every word and phrase of a Constitution must be construed as adding something to the meaning of the instrument. 2 Ark. 250; 102 Ark. 218. It is not competent for the Legislature to limit its own powers. 48 Ark. 515; 44 Ark. 273. The word “permanent” does not always embrace the idea of absolute perpetuity. 8 Barb. 185; 2 N. J. E. 155; 136 U. S. 104.

M. Jackson, Judge; 1. Appellee was a bare licensee. There is nothing to indicate an invitation to an employee to use the path. The use was merely permissive, and those who used the path, took the privilege with its concomitant peril. 103 Ark. 226; 83 Id. 300; 33 Cyc. 758; 112 Ga. 668; 122 la. 360; 66 Oh. St. 509; 90 Am. St. 602; 3 Elliott on Bail-roads, § § 1251-1303; 4 Id., § 1579. 2.

This is an action for damages for personal injury to appellee suffered in a collision between the passenger train of the St. Louis, Iron Mountain & Southern Railway Company, on which appellee was conductor, and a local freight train of the St. Louis Southwestern Railway Company at the crossing of the tracks near Clarendon.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant was indicted for the crime of impersonating an officer, and upon his trial was convicted 'and given a sentence of two years in the penitentiary. The proof on the part of the State was made hy the prosecuting witness, Os Martin, Ben Fears, with whom the prosecuting witness was hoarding, and Lela Mann, a sister of'the prosecuting witness.

J. Driver, Judge; STATEMENT BY-THE COURT. The appellant was indicted at the December, 1912, term of the Greene Circuit Court for assault with intent to kill. He entered his plea of guilty, and the cause was continued until the December, 1913, term of the court. At that term the prosecuting attorney asked that the appellant be sentenced.

<p>Appeal from Madison Chancery Court; T. H. Humphreys, Chancellor;</p>

J. Driver, Judge; 1. Tbe court erred in its charge to tbe jury defining. tbe crime of assault with intent to commit rape, in omitting from sucb definition the necessary element of present ability to commit the offense. Under the rule prevailing in this State, there can be no assault without, first, an attempt, aud, second, present ability to carry the attempt into effect. Kirby’s Dig., § 1583; Id., % 2009.

The appellant was indicted for murder in the first degree, and was convicted of murder in the second degree and sentenced to twenty-one.years in the penitentiary for the killing of one'Wesley Munn, and has duly prosecuted this appeal. Jess Whitley and Wesley Munn were rival suitors for the hand of Miss Bessie Baty. The young men and the young lady mentioned lived in the town of Des Arc.

J. Driver, Judge; STATEMENT BY THE COURT. Appellees sued W. F. DeLong to replevy a promissory note. The order of replevin contained a capias clause, under which DeLong was taken into custody.

<p>Appeal from Lawrence Circuit Court; H. L. Ponder, Special Judge;</p>

Cowling, Judge; The court erred in admitting the testimony introduced by the State as to appellant’s acts of gaming in order to prove vagrancy. All the essential acts -of vagrancy alleged must be clearly shown. 119 Ga. 427; 46 S. E. 628; 110 Ga. 915; 36 S. E. 293; 108 Mass. 17; 60 S. W. 880; 145 ■ Ala. 682; 40 So. 88; 52 Ga. 574.

The testimony of the witness, Mabel Lynch to the effect that she heard the deceased talking over the telephone on Wednesday night before the killing to some person unknown to her, was incompetent and should have been excluded. 12 Cyc. 423 ; 3 N. Y. Cr. Rep. 483; 31 Tex. Cr. Rep. 349, 20 S. W. 753. See, also, 1 R. C. L., 477, § 13; 74 Pac. 275; 94 Ark. 404. 2.

F. Gautney, Judge; STATEMENT BY THE COURT. The appellant filed in the Craighead County Court a petition setting up that at the October term, 1910, the quorum court of that county had appropriated the sum of $10,000 to secure the location of one of the Agricultural schools provided for by Act No. 100 of the Acts of the General Assembly of 1909; that the trustees of said school had accepted the offer made to secure the location of the school in that county, and had located the…

Frierson, Chancellor; reversed as to Mitchell; affirmed as to Spence; 1. On behalf of appellant Spence, we 'Contend: (1) The act contemplates two separate attorneys, or one attorney to act in two separate and distinct capacities. Acts 1909, p. 429, § 21.

Reed, Judge; 1. Agency can not 'be proved by tbe declarations of tbe alleged agent. 86 Neb. 519, 125 N. W. 1072; 31 Ark. 212; 33 Ark. 251; Id. 316; 44 Ark. 213; 46 Ark. 222. 2. If appellee knew that Martin Cotton-had bad no experience in handling. stallions, be assumed tbe risk of injury to tbe mare. 3.

8. Maples, Judge; STATEMENT BY THÍJ COURT. This action was commenced before a justice of the peace by A. J. Decker against H. L. Stroud to recover the sum of $375.

J. Driver, Judge; reversed. The cause should be reversed because of a fatal variance between the allegation in the indictment as to the location of appellant’s house, and the proof thereof. The place or house of the appellant was descriptive of the offense, and should have been proved as alleged. 62 Ark 459; 63 Ark 312; 64 Ark 188; Id. 235.

Meeks, Judge; STATEMENT BY THE COURT. Appellees are physicians and surgeons, and in that capacity attended the families of both appellants, and made settlement of their accounts as such with them oh June 1, 1910.

Humphries, Chancellor; STATEMENT BY THE COURT. J. C. Copeland, an insolvent merchant of Marion County, Arkansas, on the 4th day of January, 1913, executed a general deed of assignment for the benefit of creditors, naming T. L. Bond' as assignee. The deed included all of his property except certain articles of personal property, described in the schedule attached, which he claimed as exempt.

Martineau, Chancellor; . STATEMENT BY THE COURT. The owners of real property in the vicinity of Broadway Street, in the city of Little Rock, desired to secure the building of a bridge across the Arkansas River at the foot of that street. To this end they organized an improvement district for the purpose of assisting the county of Pulaski in its construction.

H. Henderson, Special Judg’e; The verdict was clearly a finding by the jury in favor of the counter-claim for damages interposed by the appellees, and such finding settles the rights of the parties, regardless of the form of'the verdict. The counter-claim was :a general plea that inured to both, and a verdict in favor of either defendant inured to the .benefit of the other also. 71 Ark. 1; 36 Ark. 491.; 11 Ark. 512; 17 Ark. 37L

F. Gautney, Judge; STATEMENT BY THE COURT. The appellant instituted this action in the circuit court of Greene County, alleging substantially as follows : That it is a public municipal corporation, with full power and authority to establish, open and widen streets and alleys for public purposes within its -corporate limits; that the defendant is the owner in fee of a certain tract or parcel of land in the city of Paragould, which it describes, said real estate being located…

Grace; Judge; STATEMENT BY THE COURT. This is an appeal from a judgment of the Jefferson Circuit Court, denying appellants’ petition for a mandamus. The facts as disclosed by the pleadings and the agreed statement of facts in the record are substantially as follows: In January, 1914, H. B. Fienberg and divers other persons filed in the county court of Jefferson County their several .applications for license to sell intoxicating liquors in the city of Pine Bluff.

The- alleged articles of incorporation in the clerk’s office were inadmissible. Acts 1905, p. 319; Kirby’s Dig., § 845. The stockholders did not become a corporation until after the articles were filed as prescribed by law. 35 Ark. 144; Ib. 365. The proper way to prove the corporate existence is by the certificate of the Secretary of State. 35 Ark. 144; Ib. 365; 132 Fed. 41; 62 Pac. 386; 70 N. W. 302; 55 Mo. 310; 55 Barb. 45; 46 Ind. 142, etc. 2.

E. Martineau, Chancellor; STATEMENT BY THE COURT. This action was brought by appellants as Board of Improvement for Street Improvement No. 136, of the City of Little Rock, against Jacob Trout, et al., to collect an improvement .district assessment on' certain real estate. Appellees defended on the ground that in making the improvement the board of improvement had taken and used certain curbing belonging to appellee Trout, and that he was entitled to pay therefor.

E. Martineau, Chancellor; The power to lay off and open streets and alleys has been given by the Legislature to municipal corporations alone. Kirby’s Dig., § § 5664, 5665. An improvement district is not a municipal corporation, nor the agent of -the municipal corporation within which it is organized. 5.5 Ark. 148. Statutes conferring the power to open streets and alleys must be strictly construed. If improvement districts can open alleys under our law, they can open streets.

V. Bourland, Chancellor; STATEMENT BY THE COURT. In April, 1909, the Hiawatha Smokeless Coal Company, operating a coal mine in Scott County, was by the chancery court on the application of some of its stockholders, the company being insolvent, placed in the hands of a receiver to be wound up and its assets distributed.

Garter, Judge; STATEMENT BY THE COTTBT. This suit was brought by the Presbyterian Church, •through its trustees and elders in Prescott,… Held: and improved it as such, their possession has ripened into title by adverse possession. 86 N. W. 515; 122 S. W. 403; 136 Ind. 20; 4 Mason 326; Freeman on Co-Tenancy & Partition, § 224; 13 Serg. & R. 358; 13 Me. 337; 20 N. W. 320-329; 144 Mo. 192; 50 S. E. 450, 138 N. C. 35. See, also, 2 Enc. of L. & Pr., 461; 24 Am. St. Rep. 934.

W. Meeks, Judge; 1. A judgment against the partnership in favor of the appellees is a prerequisite to a valid judgment against the garnishee. 62 Ark. 616; 70 Ark. 127. A writ of garnishment must have a judgment to support it. 31 Ark. 652. 2.

Cowling, Judge, We think the trial court erroneously construed the purport of the decisions of this court in liquor selling cases to be that where one, with money furnished 'by ■another, purchases intoxicating liquor'of an unlicensed dealer then, no matter whether he is acting solely as agent of the party who furnished the money and is not interested in the liquor or its sale, or not, the party making the purchase is guilty, notwithstanding the party for whom it is bought…

Cowling, Judge; STATEMENT RY THE COURT. Appellant was tried upon tbe ■charge of unlawfully selling liquor, and the State offered evidence tending to show that he had made two separate sales, but the proof concerning one of these alleged sales shows only that he .procured whiskey for another, .and this proof is insufficient to sustain a conviction for making a sale. See Woods v. State, 114 Ark. 391.

Garter, Judge; 1. The evidence does not support the verdict. The only crime shown is at most manslaughter. Kirby’s Dig., § § 1777-8. No malice is shown. 93 Ark. 409. 2. The court erred in its charge to the jury. 104 Ark. 397; 93 Id. 409. 3. The remarks of the judge were prejudicial. 108 Ark. 129. 4. Improper evidence was admitted. 1. The evidence is amply sufficient to sustain the finding of the jury. 109 Ark. 130, 134; lb. 138, 150. 2.

Cowling, judge; Tbe instructions given by the court ignored the fact that it was appellee’s duty to ascertain whether the soliciting agent had .any authority ether than to solicit subscriptions. “One who deals with a special agent is bound to ascertain the nature and extent of his authority. ’ ’ 74 Ark. 561; 23 Ark. 411; 101 Ark. 75.

<p>Appeal from Sebastian Chancery Court, Greenwood District; J. V. Bourlcmd) Chancellor;</p>

Elliott, Chancellor; STATEMENT BY THE COURT. Appellant was the plaintiff in the action below, which was a suit in ejectment to recover an undivided half-interest in a certain tract of land situated in Arkansas County.

Frierson, Chancellor; STATEMENT BY THE COURT. In March, 1913, H. J. Hale, as trustee for W. P. Hale, and F. B. Hale, as trustee for Osceola Cotton Oil Company, instituted an action in the chancery court against Hattie Davis, Frank Davis, Mattie Davis and Robert Davis, tó foreclose a mortgage on real estate.

Frierson, Chancellor; 1. The contract is too uncertain and indefinite to support specific performance. 85 Ark. 3. 2. It can not be made certain by other proof. 85 Ark. 4. 3. The refusal of the wife to relinquish dower was a good defense. 6 Pom. Eq. 794. The complainant should be remitted to his legal remedy. Ib. 4. No effort was made to have the contract reformed. 85 Ark. 4. 1.

Haden Humphreys, Chancellor; statement by the court. ■ Appellee instituted this suit against appellant in the Benton Chancery Court, stating, in substance, that on the 4th day of April', 1910, William Frazer was the owner of certain lands which were on that day sold to P. J. Sharpe in consideration of $900; that at that time Sharpe paid $200 in cash and agreed to give a mortgage on other lands or a vendor’s lien on the land purchased for the balance of $700, which was…

Circuit Court; 'John W. Meeks, Judge; STATEMENT BY THE COURT. This is a suit by the State for use of Bandolph County against the town of Pocahontas for fines and penalties imposed by the mayor’s court and collected and paid into the town treasury, the county claiming that the fines and penalties were imposed for violations of the State laws and required to be paid into the county treasury.

Arkansas Circuit Court, Northern District; Eugene Lanlcford, Judge; 1. Appellant had the right to rely upon the sheriff’s return as true, and since he did not discover the error until immediately before the trial, too late to procure either the attendance or the deposition of the absent witness, and since the testimony of Bradford was of the utmost importance to appellant, it was a manifest abuse of discretion to deny appellant’s motion for a continuance. 2.

D. Frierson, Chancellor; STATEMENT BY THE COURT. This suit was brought to enforce a lien for materials furnished the contractor for remodeling appellants’ home in the town of Corning, Arkansas. The lots belong to the wife, and the contract was made with one T. J. Evans, who was to furnish the materials and complete the work for a certain fixed price. He purchased the lumber from appellee company to be used in the building.

Grace, Judge; STATEMENT BY THE COURT. This action was brought to recover the penalty provided by section 7946 of Kirby’s Digest for the wilful refusal of a telegraph company to send a message, the message tendered for transmission by the appellee being as follows: ‘ ‘ C. M. Andrews, McGehee, Ark. “Please advise why you can not get a civil answer out of your agent here. If you ask him anything he has to curse you out.

Saline Circuit Court; W. E. Evans, Judge; 1. The record, we think, .conclusively show-s' the incompetency of the venireman, G. D. Smith, to sit as a juror, because of his having read in a newspaper what purported to he the original confession made by the defendant and had formed a fixed opinion as to his guilt. 45 Ark. 165, 170; 13 Ark. 720; 19 Ark. 156; 1 Bishop, Or. Proc. § 910; 8 Cal. 359; 40 Cal. 268; 56 Ark. 381, 402; 69 Ark. 322; 102 Ark. 180; 140 Am. St. Rep. 1086. 2.

Appeal form Garland Circuit Court; Galvm T. Cot-ham, Judge; 1. The act in providing that it shall not apply to railroads less than one hundred miles in length, discriminates against railroads of .greater length, and denies to them the equal protection of the law. 183 U. S. 79, 111; 184 U. S. 540, 562; 165 IT. S. 150, 159; 124 Tenn. 1; 129 Mo. 163; 225 Mo. 561; 212 111. 418; 105 Minn. 256.

Gotham, Judge; 1. The judgment should have been vacated for unavoidable casualty and misfortune. Kirby’s Digest, § 4431, subdiv. 417; 23 Cyc. 943, 2 Oh. Dec. 64-5; 97 Ark. 117; 85 Id. 385; 59 Id. 162. Tihe way the judgment was obtained has every ear-mark of legal fraud. 102 Ark. 669. 2. The question is not res adjudicata. 52 Ark. 316. The proceeding is an independent action under section 4433 Kirby’s Dig., .subdiv. 4-7, 4434; 89 Ark. 163; 3 Oh. St. 445.

Robertson, Chancellor; STATEMENT BY THE' COURT. Appellants, who were the plaintiffs below, alleged in their complaint that they were subscribers and users of electricity furnished by the Marianna Electric Company, the appellee, which company was the defendant below.

Johnson, 'the soliciting freight agent for the Frisco railroad, had no authority to enter into any such contract as is alleged by appellee; but -even if he had made the contract alleged, it would not have been binding. He had no authority to make a contract contrary to the provisions of the tariff. 106 Ark. 237; 100 Ark. 22; Barnes on Interstate Transportation, § 446. 2.

Shaver, Chancellor.;' 1. There was in effect no judgment. The actual judgment rendered, if it can be termed a judgment, was for $2.50 and $1.00, and nothing else. It is, therefore, meaningless and void. 2. The judgment failed to provide, as required by the statute, Kirby’s Dig., § 5700, 'that the owner should be allowed ten days in which to pay the judgment, before the commissioner should proceed to sell.

Elliott, Chancellor; The complaint states a mere conclusion of the plaintiff, without any facts to justify that conclusion, and is not 'sufficient to justify the granting of a divorce. 105 Ark. 194. The testimony fails to cure the insufficiency of the complaint.

S. Evcms, Judge; STATEMENT BY THE COURT. Eddie Davis, a minor under twelve years of age, and Genie Denham, a minor under five years of age, each brought suit by his next friend for the penalties denounced by section 6620, Kirby’s Digest, against railroads for charging and collecting a greater rate of passenger fare than the law permits, one having been required to pay more than the rate of 'half fare for his journey, and the other, Genie Denham, having been charged half…

The act is void, becanse of variance between the subject expressed in the title and the provisions of the act. Art. 5, § 20, Const. 1874; Cooley, Constitutional Lim., 173; 25 Ark. 289; 66 Ark. 575; 13 Lea (Tenn.) 162; 44 Cent. Dig. “Statutes,” § 136; 65 Barb. (N. Y.) 473; 1 Idaho, 338; 74 Pac. 962; 7 Words and Phrases, 6041; 51 Pac. 72, 73; 6 Kan. App. 314; 72 Tenn. 1, 13; 67 Pac. 444 ; 64 Kan. 78; 54 Mo. 17, 33; 14 Am-.

Martineau, Chancellor; 1. The note was void under the terms of the written contract of lease. 99 Ark. 193. 2. Tie note was void because tie consideration for wiici it was given failed. Wien tie notes were executed by appellant, tiere was an implied warranty on tie part of appellee tiat tie plant was and would continue to be suitable and usable for tie purposes for wiici it was leased. 24 Cyc. 1201; 9 Cyc. 369; 11 Conn. 432; 11 Joins. 50. 3.

Reed, Judge; STATEMENT BY THE COURT. Tbe appellees were engaged as engineer and fireman by tbe appellant, and at -about 7:30 o’clock on tbe morning of tbe 18th day of Jannary, 1912, they rode in one of tbe appellant’s engines over a tramway, wbicb' was used in connection with, appellant’s saw mill, and in crossing a bridge in said tramway spanning a creek near Leslie, Arkansas, tbe bridge gave way at or near its center and tbe engine fell into tbe creek, a distance of about…

Frierson, Chancellor; STATEMENT BY THE COURT. O. G. Price brought this suit to recover possession of two lots in the town of Rector, claimed by virtue of a commissioner’s sale under a judgment for the collection of delinquent taxes in Drainage District No. 1 in Clay County. The defendant filed .an answer and cross-complaint admitting the sale by the commissioner and that the land had thereafter been conveyed to appellant as alleged, but denied his ownership and title.

■ Appeal from Boone Circuit Court; George W. Reed, Judge; STATEMENT BY THE COURT. This suit was brought by appellee for damages for the value of a steer alleged to have been carelessly killed by appellants while roping him.

Carter, Judge; STATEMENT BY THE COURT. Appellees, C. D. Gibbs and the Arkadelphia Milling-Company, -commenced suit on the 7th day of July, 1913, against the -appellant, in -which, they alleged the existence of an indebtedness on account of white oak staves sold and delivered by them to the defendant of the value of $450.