Volume 116 — Arkansas Reports

Shaver, Chancellor;; STATEMENT BY THE COURT. Walter P. and John E. Ritchie instituted this action in the chancery court against John J. Lentz, A. C. Stuart, State National Bank of Texarkana, Arkansas, and Merchants & Planters Bank of Camden, Arkansas, to enjoin them from paying a check drawn by W. P. Ritchie against the Merchants & Planters Bank for $2,000, payable to the order of John J. Lentz, and certified by the bank.

This is the second appeal in this case. The opinion on the former .appeal is reported in 104 Ark., at page 187, under the .style of Rare v. Fort Smith & Western Railroad Company, and reference is made to that opinion for a complete and detailed statement of the facts and issues involved in the present appeal.

W. Smith, Judge; STATEMENT BY THE COURT. A. J. Plumley was indicted for the crime of murder in the first degree in Columbia County for the killing of Ms son-in-law, Bynum Martin, and upon trial was convicted of murder in the second degree, and from the judgment he appealed. The facts are substantially: Bynum Martin was killed by being ¡shot with a shotgun on the 3d day of October, 1913, in front of the house of Witt Perkinson in Columbia County, Arkansas.

Appeal .from Lafayette 'Circuit Court; J. M. Carter, Judge; STATEMENT BY THE COURT.

The county court of Lonoke County formed certain lands therein into a drainage district upon the petition of the property owners. There were several remonstrances filed to the granting of the petition. The St. Louis, Iron Mountain & Southern Railway Company, among others, remonstrated against the establishment of the district.

Quo warranto; judgment of ouster against the respondent. 1. The question involved here depends upon the construction which should be placed upon the provisions of sections 17 and 50 of article 7, Constitution of 1874.

E. Evans, Judge; 1. Tbe court erred in sustaining the demurrer. The carpenter had a lien for his work. Kirby’s Dig., § 4970. The description was sufficient, but, if not a defective description, is no ground of demurrer. Kirby’s Dig., § 6136. 2. Mechanic’s liens may be enforced in the circuit court, although the amount is less than $100. 31 Ark. 486; Kirby’s Dig., § 4983.

Francis Circuit Court; J. M. Jachson, Judge; 1. No signals were given as required by § 6595, Kirby’s Digest. Failure to perform a statutory duty is negligence per se. Whittaker’s Smith on Negligence, 44. Negligence was the proximate cause of the injury. 4 A. & E. Enc. Law 925(b)-927(c). 2. No proper lookout was kept as the law provides. Kirby’s Dig., § 6595; 68 Ark. 32; 78 Id. 251; 64 Id. 236. 3. It was manifest error to direct a verdict. 66 Ark. 363.

Garland Circuit Court; Galvin T. Gotham, Judge; Appellee’s plea of contributory negligence is in itself an acknowledgment that he was guilty of negligence. 79 Ala. 223. The fire itself was enough to notify appellee that his wall left standing thirty feet high was dangerous. It was his duty to take such precautions as were necessary to protect the public. 2 L. R. A. (Ark.) 189, and authorities cited below.

II. Evans, Judge; The court ought to have directed a verdict for the appellant as requested. There was a total failure of proof to establish the fact of an injury.

F. Gautney, Judge; STATEMENT BY THE COURT. The complaint in this cause alleged that, on March 1, Í913, appellant executed to appellee a bond for a title, a copy of which was attached to the complaint and made an exhibit thereto, in which he agreed to convey to appellee certain lots in the .city of Paragould, Arkansas, on condition that appellee should pay Mm $25 cash and twenty-five notes, of $15 each, the first to be due on April 1, 1913, and the balance to be due on the…

Evans, Judge; STATEMENT BY THE COURT. This cause was tried upon the following- agreed statement of facts: “The county judge of Logan County determined to build a jail at Booneville and employed A Klingensmith, an architect of Fort Smith, to draw the plans and specifications and to superintend it. He was to receive 3 per cent for drawing plans and 'specifications and 2 per cent for superintending it.

Henderson, Chancellor; The debt and deed in trust are now enforceable. If not now enforceable, tliey are not extinguished, but merely dormant until the holder is under no disability to enforce the same. Vol. 16, Laws of England, by the Earl of Halls'bury, p. 433, § 883; 21 Cyc. 1276, “Husband and’Wife,” and notes; 49 111. App. 163; 29 Ind. 564; 23 N. T. 527; IN. Y. City C't.,405; 76 Yt. 176. As to the reason for the rules as to marriage rights, see 50 Am.

W. HendricJcs, Judge; 1. There was at best 'but a mere technical surrender of the charter and demise of the Arkansas Cotton Oil Company. The Union Seed and Fertilizer Company has made no change in the operation of the mills, conducts the business at the same stand, with the -same force and in the same manner -as was heretofore done by the Arkansas Cotton Oil Company, and is, in fact, but a mere -continuation of the last named company.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee is the administratrix of the estate, and the widow, of A. C. Jacobs, deceased.

T. Gotham, Judge; STATEMENT BY THE COURT. Appellant advertised that he would give away an automobile under the conditions and in accordance with certain rules set forth in literature 'distributed by him.

Elliott, Chancellor; 1. The burden was on the appellees to prove their allegations. 6 Oye. 334-5, 367. Executed contracts are not cancelled except where the proof is clear and convincing, and never for fraud unless fraud is clearly shown. Ib. Old age, failing health and loss of memory, etc., are not alone sufficient to prove incapacity to make a will. 1 Bedfield on Wills 249. Whoever alleges mental incapacity must prove it. 25 N. Y. (11 Smith) 9.

Martineau, Chancellor on Exchange; 1. When the county court has once granted the privilege of keeping a public ferry, the privilege is exclusive within the distance prescribed by the statute, so long as it is exercised under the annual grant of license. 20 Ark. 561-3; 23 Id. 514; 36 Id. 467. There is no evidence of abandonment. 94 Ark. 192; 20 Id. 573; 95 Id. 466; lb. 353. 2.

Henderson, Chancellor; 1. The mortgage was void. It was a homestead and the wife did not join in the execution of the mortgage nor acknowledge it. 94 Ark. 107; 26 L. R. A. (N. S.) 574; 57 Ark. 242; 60 Id. 270; 64 Id. 493; 71 Id. 286; 144 111. 203; 118 Iowa 458; 41 N. W. 317; 33 Kan. 53; 22 So. 134; 18 Id. 318; 108 Ark. 297; 69 Id. 596; 80 N. W. 1087. The residence of the husband is the residence of the wife. 29 Ark. 280; 27 Miss. 704; 34 L. R. A. 287, and cases supra. 2.

Cotham, Judge; 1. The doctrine of res ipsa loquitur does not apply between master and servant. 79 Ark. 81; 51 Id. 479; 87 Id. 374; 46 Id. 555. 2. Appellee was guilty of contributory negligence. 70 Ark. 603 ; 36 Id. 149; 95 U. S. 439; 3 Labatt, Master and Servant, § 1251, note 8; 84 Ark. 377; 85 Id. 237; 96 Id. 461; 100 Id. 441; 77 Id. 405; Labatt, M. and S., vol. 3, § 1280. The danger was open and obvious. 4 Labatt, M. and S., § 1362-3. 3.

L. Ponder, Special Judge; STATEMENT BY THE COURT. The appellants instituted this suit in ejectment to recover certain lands. Appellants claimed title by virtue 'of a tax deed and adverse possession. Appellee claimed title under tax deeds. The appellants alleged that the tax deeds under which appellee claimed were invalid by reason of certain irregularities in the publication of the notice for the sale of the lands.

A. Cunningham, .Special Judge; STATEMENT BY THE OOUBT. C. C. Campbell, appellee, and nine others brought separate suits against the St. Louis, Iron Mountain & Southern Bailway Company, appellant, for damages for loss of their cattle alleged to have been caused by the negligence of the railroad company in transporting infected cattle from below the quarantine line across it and unloading them at Alicia, a point above the line from which their cattle became infected with the…

. The appellant was a United -States mail collector; and under an ordinance of the city of Fort Smith, in case of conflict, had the preferential right-of-way over the appellee in the use of the streets.

Shaver, Chancellor; STATEMENT BY THE COURT. This suit was instituted by the appellant against the appellee for alimony. She alleged that she was married to the appellee June 18, 1900, and that they lived together as husband and wife until December 15,1912, when the appellee, without cause, abandoned her, and that he had failed to support her; that he had considerable money and property, which she set forth in her -complaint. The appellee answered, admitting the marriage.

Elliott, Chancellor; 1. The evidence clearly shows that the $6,600 in the Home Bank of DeWitt belong-s to the estate of J. J. Mewes, and his widow, therefore, is entitled to one-third of it as her dower. It is clear from the evidence that the true consideration which J. J. Mewes wa-s to receive for his interest in the lands was $25 per acre, aggregating $7,000. The rule is that the true consideration may be shown by parol, no matter what consideration is recited in the deed.

Gotham, Judge; STATEMENT BY THE COURT. The appellee sued .appellant for damages caused iby an injury to his cow, alleging that ‘ ‘ defendant negligently caused hay, grain and other feed stuff to be scattered upon iand near the railroad track in quantities sufficient to induce and toll cattle upon said land, and that said cow was attracted and tolled to said land and railroad track.

H. McGill, Special Chancellor; STATEMENT BY THE COURT. On December 5,1912, there was presented to the city council of Fayetteville a petition signed by ten resident owners' of real property within a proposed improvement district in the city of Fayetteville, praying for an improvement district. The petition described the property as follows: “Dickson street from the west line of the St. Louis & S. F. By.

Grace, Judge; STATEMENT BY THE COURT. Tom Jackson, a brakeman for the Pine Bluff & Arkansas River Railway Company, shot Lizzie Washington with a pistol while she was riding in .a passenger coach of the railway company. Lizzie Washington instituted this action against the railway company to recover damages' therefor. She testified siibstantially as follows: The Pine Bluff & Arkansas River Railway Company operated a train from Pine Bluff to Reydel. I lived at English.

F. Gautney, Judge; STATEMENT BY THE COURT. This is a suit for damages for personal injuries alleged to have been received by appellee on account of the negligence of some other servants of appellant company, with whom he was working in felling trees. Appellee notched the trees with an axe on the side in the direction the tree was expected to fall, and Lynne and Harbison were cutting the trees down with a cross-cut saw.

M. Jackson, Judg’e; STATEMENT BY THE COURT. Appellant was ’engaged in the automobile business in Little Rock and on December 25, 1909, sold to appellee, H. O. Penrose, an Overland automobile, for $1,645.30, and on the 29th. of the month, shipped the oar iat his request to Wheatley, Arkansas, over the Rock Island railroad, which issued a bill of lading showing it consigned to the order of shipper, Tedford Auto Company, notify H. O. Penrose.

Gotham, Judge; STATEMENT BY THE COURT. Appellee was the owner of certain, lots in the city of Hot Springs, and sued to recover treble damages on 'account of ¡certain shade trees growing thereon which were pulled up, and thereby destroyed, under the direction of appellant.

W. Hendricks, Judge; STATEMENT BY THE COUKT. Appellee Shelby 'entered into a contract, whereby he undertook to build ia street according to plans and specifications furnished by the Board of Commissioners of Street Improvement District No. 135 of 'the city of Little Rock, -and its engineer, E. A. Kingsley.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. B. T. Hastings and three other of appellants, ■brought /suit for an acloounting against J. C. January as guardian and curator of Sarah E. January, their relative, alleging his failure to account for certain of her estate that came into his hands by reason of his appointment as guardian.

Francis Circuit Court; J. M. Jackson, Judge; STATEMENT BY THE COURT’. Appellant was indicted for grand larceny alleged to have been committed by steialing five -hogs, the property of H. Loewer.

Grace, Judge; 1. Both, parties claim title through Isaac Adair, deceased. The complaint is sufficient. 53 Ark. 449 ; 79 Id. 532. The is-even years statute of limitations i.s applicable land did not commence to run as to the remainder-men until the death of the life tenant. The suit was brought within two years. 69 Ark. 539. 2. The grant created 'an -estate tail- under the earliest decisions. 3 Ark. 147-195.

This suit was instituted by appellant against the appellees upon certain promissory notes given for the purchase money of a certain stallion. The execution of the notes is not denied toy the ¡appellees. They denied that appellant was the innocent holder of the notes, and set up in their answer that the notes were obtained by fraud in this.

W. Hendricks, Judge; ■ 1. The complaint practically is barren of allegations required (by law. 3 Ark. 389, 592. Allegation of demand was necessary; its absence ground of demurrer. 3 Ark. 592; Newman PI. & Pr. (1871) 367. The demurrer should have been sustained. 1. The appeal should be dismissed and judgment entered here. The demurrer was properly overruled, as was the motion to set aside the judgment. Kirby’s Dig., § 3151; 46 Ark. 498; 95 Id. 403. 2.

Robertson, Chancellor; STATEMENT BY THE COURT. U. S. Bratton operated an ice plant at Augusta under the name of the Arkansas Public Service Company, •and a creditor sued and recovered judgment against Mm, and at the instance of tMs creditor ,a receiver was appointed for the concern, who took charge of its assets, including the machinery used in making ice.

Prairie Circuit Court; Eugene Lank-ford, Judge; STATEMENT BY THE COURT. This suit was brought by the receiver of the Des Arc Biank & Trust Company, hereinafter called the bank, against the appellant to recover the amount of .an alleged overdraft.

Grace, Judge; 1. The evidence does not support the verdict. It is too unsatisfactory and indefinite as ¡to the asportation; does no more than raise a suspicion, and is so completely lacking in convincing force as to a criminal intent, that the presumption of innocence stands undisturbed. 137 Ind. 474 ; 45'Am. St. Rep. 212; 85 Ark. 360; 91 Ark. 492; 100 Ark. 184; 96 Ark. 148. 2.

F. Barham, Special Judge; There was no appeal granted by the probate court, and the circuit court had no jurisdiction to try the case. The order granting the appeal could not be waived. 128 S. W. (Ark.) 855. Appellants entered their appearance generally and went to trial on the merits of 'the case in the circuit court.

Appeal -from Pulaski Circuit Court, Second Division ; Guy Fullt, Judge; STATEMENT BY THE COURT. On December 11, 1912, an agent of appellant made an oral agreement with appellee to purchase about twenty-two and one-half tons of cotton seed at $28.00 per ton, and notified appellant of the fact.

<p>Appeal from Garland Circuit Court; Galvin. T. Cotham, Judge;</p> <p>The case of Scott v. Patterson, 53 Ark. 52, settles the law of this case, we think. See also 52 Mo. 249; Fitch, Real Estate Agency, 119; 55 N. T. 319.</p>

Carter, Judge; 1. If appellants’ efforts in bringing about negotiations between appellee, .acting for himself, and Colter & Company, acting for their client, was the cause originating in a series of events which, without break in their continuity, resulted in the sale or exchange of the land, appellants, in contemplation of law, are the procuring cause of the sale, and are entitled to their commission. 76 Ark. 375; 84 Ark. 462, 467; 53 Ark. 49; 89 Ark. 203; 71 Conn. 590; 44…

Smith, Judge; 1. Plaintiff knew of the danger and risk and the mere fact of minority doeis not, of itself, create an absolute duty on the part of the employer to go through the form of instruction and warning, and is not liable for failure to do so. 104 Ark. 499; 56 Ark. 232; 1 Labatt, Master and Servant, § 291. The minor assumes all ordinary risks known to him. 73 Ark. 49-56; 39 Id. 37; 40 N. E. 80; 43 Atl. 106; 32 N. E. 654. ' 2.

There was no negligence on the part of the company or its foreman; the employee assumed the risk; 3 Laibatt, Master and Servant, § 1166; 53 Am. St. 127; 108 Minn. 199; 25 L. B. A. (N. S.). 362; 158 Ind. 634; 92 Ga. 77; 167 111. 156; 97 Ark. 486; 68 Id. 316; 160 Fed. 887. See, also, 144 Ky. 465; 184 Mass. 274; 106 S. W. 865; 147 TI. S. 238; 54 Ark. 389, etc., 1. This case - arose under the Federal Act. 106 Ark. 421. 2.

E. Patterson, Judge; 1. Proof without allegations is unavailing. 23 Cyc. 816; 29 Ark. 500; 76 Id. 146; 46 Id. 96; 41 Id. 393. 2. Proper notices were not given as required by law. Kirby’s Digest, § 7540; 105 Ark. 49; 104 Id. 298; 168 S. W. 1088. When every elector in district No. 64 signed the petition, that was sufficient notice. But the court had jurisdiction, notwithstanding n<o notice was given in District 64. Kirby’s Digest, § § 7545, 7544; 54 Ark. 134.

Grace, Judge; STATEMENT BY THE COURT. Appellant (brought this suit for commission for the sale of oertain. real estate upon the 'following contract: “Pine Bluff, Ark., March 12, 1912. “I agree- to pay to W. M. Worthen, the sum of $1,000 — as M'S -commission deal mow pending between myself and T. -C. -Sheen, -of St. Louis, -said commission to be paid either in city property nr in lands or a note either wiay we may agree to — this is on condition that said deal is finally…

Evcms, Judge; 1. No warning order was issued, nor personal service had. The record fails to show that any legal proof of publication was made of any warning order. The court acquired no jurisdiction and the circuit court had none on appeal. 87 Ark. 313; 40 Id. 124; 50 Id. 433. 2. The defendant only appeared specially- to take an appeal and waived no errors as to jurisdiction. 77 Ark. 412. 3.

<p>Certiorari 'to Hempstead Circuit Court; B. G. Eaynie, Judge;</p> <p>1. The .Circuit judge had no power or authority to make the order. Kirby’s Dig., § § 2832-3; 163 S. W. 1173; New Standard Dictionary, p. 2559. “Competent Tribunal” means a court >of justice. 2 Words & Phrases, 1362; 2 Ark. 229; 30 Id. 764; 38 Id. 213; 86 Id. 259; 103 Id. 571; 23 Cye. 543-5; 26 IT. S. (L. Ed.) 1111; 2 Words & Phrases, 1678; 23 Cye. 543.</p> <p>2. Neither judge nor court hais the power to order the issuance of a subpoena duces tecum for the production of the books for inspection. Kirby’s Digest, § 2838; 75 Ark. 455; 32 Id. 553; 49 Am. St. 557; 16 L. E. A. (N. S.) 1062; 40 Cye. 2168; 128 Am. St. 749; 40 Cye. 2170; 6 L. E. A. (N. S.) 325, note; 12 Id. 636; 31 L. E. A. (N. S.) 835; 15 Cyc. 429.</p> <p>3. Should the order be carried out the integrity of the poll books would be destroyed and they would be useless as evidence. 50 Ark. 85; 11 Am. 'St. 787; 49 Id. 557; 16 L. E. A. (N. S.) 1062; McCrary on Elections, § § 471-4, 480-1.</p> <p>4. Before a subpoena duces tecum will be ordered for books,- it must appear that they contain material evidence. 66 Ark. 229; 37 Am. Eep. 426; 128 Am. St. 749, note; 41 U. S. (L. Ed.) 87; 40 Cyc. 2169; 31 L. R. A. (N. S.) 835. As ’to whether or not the writ is really a subpoena d. t. see 16 L. R. A.-(N. S.) 1062.</p> <p>- 5. Certiorari is the proper remedy. 29 Ark. 173; 38 Id. 159; 39 Id. 126; lb. 347; 61 Id. 605; 69 Id. 587; 73 Id. 604; 80 Id. 200; 103 Id. 571; 109 Id. 100; 50 L. R. A. 787; 7 Id. (N. S.) 512.</p> <p>1. This application was made to the .circuit judge in vacation under Kirby’s Dig., § § 3074 to 3078. The circuit judge in vacation has. power to make the order. Kirby’s Dig., § § 2883, 3074 to 3078. The provisions of these statutes were fully complied with. See Kirby’s Dig., § 1125, and 73 Ark. 270; Kirby’s Dig. § 2838. The only competent evidence are the ballots and certificate showing how each elector voted. The production of the poll books does not interfere with the secrecy of the ballot or certificates.</p> <p>2. The books, when produced, are under the control of the court, and the control of the election commissioners ceases. 75 Ark. 452.</p> <p>3. The .circuit court had jurisdiction over the contest by appeal, and had authority to make any necessary order for preserving the ballots and using them as evidence. 86 Ark. 272; Kirby’s Dig., § 2838; 81 Ark. 543.</p> <p>4. Nothing in section 2838, Kirby’s Digest, is mentioned with reference to pol books, but only the ballots and certificates. 'There is no statute requiring poll boohs to be kept secret.</p> <p>5. The petition for subpoena d. t. is specific as to the particular books desired.</p>

Grace, Judge; STATEMENT BY' THE COURT. This is an appeal from a judgment for $20,000.

W. H. Cook, a ¡citizen of Lonoke County, Arkansas, died on the 13th day of February, 1913. A few days after his death the following instrument (omitting merely formal opening and conclusion) was offered for probate as Ms last will and testament, towit: “Section One.

■ The court erred in consolidating the causes. Necessarily the husband and wife must both testify for themselves and for each other. 86 Ark. 130. 2. In order to recover, two things must be established. (1) Negligence of defendant and (2) that this negligence wias the proximate ¡cause of the injury. Plaintiffs failed in both respects. 3. Evidence as to the presence of gas at other times and places was not admissible. 19 Ind.

Appellee filed the following claim or statement of account against the -estate of G. W. Frazier, in the probate court of Arkansas Coun'ty: To one-half interest in on-e gin stand............$ 80.00 To .one-half interest in one boiler............... 60.00 To one-half interest in one engine............... 45.00 To on-e-third interest in American p-umip......... 20.00 To one-third interest in one rice drill............ 21.00 To -one-third interest in one Derring binder......…

F. Gautney, J udge; STATEMENT BY THE COURT. Proceedings were instituted in the county oourt of Gr-eene County fey the State of Arkansas, for the use of certain drainage districts in that county, and W. C. Thompson, as treasurer of said -county; the districts, on behalf of which the proceedings were brought, having all been established under the general drainage statutes of this State; sections 1414 et seq., Kirby’s Digest.

E. Jeffery, Judge; 1. The gist of the offense is knowledge that the property was stolen. It is so charged in the indictment. There must ¡be proof of knowledge and intent to deprive the true owner of the property. Instruction No. 3 was misleading. 34 Ark. 446; 58 Id. 578. 2. The testimony of an accomplice must be corroborated, unless confederacy be proved aliunde. Wharton, Cr. Law (8 ed.), § 982a. 1. Instruction No. 3 was correct. 92 Ark. 587, 593. 2.

Henderson, Chancellor; 1. The transfer to equity was improper because the questions involved were purely legal. 93 Ark. 376; 92 Icl. 46; 100 Id. 399. , „ 2. The public administrator of Pike County, Missouri, is not shown to have jurisdiction.. Mo. Stat. 1909, vol. 1, § 302; 115 Am. St. Rep. 472, 477; 198 Mo. 174. 3. The probate court of Hot Spring County, had no jurisdiction. The law was not complied with and its orders are void on collateral attack. 70 Ark. 343.

A. Falconer, Chancellor; STATEMENT BY THE COURT. Appellants instituted this action in 'the chancery court against appellees for the purpose of setting aside a deed executed by John H. Queen, now deceased, to his son, Albert Queen, .also deceased.

Francis Circuit Court; J. M. Jackson, Judge; 1. The ¡city had no power to borrow money in the absence of -express .authority in the Constitution or from the Legislature. Kirby’s Digest, § § 5436-7, 5442-3; 1 Dillon -on Mun. -Corp. (5 ed.), § § .289, 290; 19 Wall. 468; 89 Ala. 641; 102 Iowa 69; 117 Md. 122; 29 Am.' Cases 73; 29 La. Ann; 973; 37 N. J. L. 191; 6 Ann.

Barker, Chancellor; STATEMENT BY THE COURT. Appellant brought this suit against the Fair Association to enjoin as a nuisance the beeping of horses in a stable erected on the fair grounds near her home in the town of Waldo.

43 Ark. 361. The necessity for regulating and the power to prohibit public places of amusement where games are played has long been recognized. 5 Ark. 412; 13 Id. 752; 16 Id. 489; 44 Id. 134; 46 Id. 497; Acts 1911, p. 62; 109 Ark. 429; Kirby’s Digest, § 5438; 70 Ark. 221; 34 Id. 372. 1. The only authority to enact the ordinance to suppress the game of pool is found in Kirby’s Digest, § 5438.

Wood, Chancellor; Appellant’s right to prevail in this suit depends upon the construction given to the “expeditious clause” of the deed. That clause was construed in Earle v. Harris, 99 Ark. 112, in favor of appellant’s contention. The evidence fails to disclose any reasonable excuse for the failure to remove the timber.

1. That the widow having died before her dower was assigned, and without assenting her claim or right to have dower assigned, she was not vested, immediately upon the death of her husband, with an estate of such character as would pass ¡at her death to her heirs or legal representatives. Kirby’s Digest, § 2709; Tiedeman -on Beal Property, § 85; 61 Ark. 61; 84 Id. 558; 15 Pet. (TJ.

Evans, Judge; STATEMENT BY THE COURT. This is a suit by the prosecuting attorney, in the name -of the State, for the use of Logan County, to recover from the Logan C-ounty B.ank, as principal, and the sureties on its bond and certain stockholders a judgment for $17,099.59, for funds alleged to have been deposited by the county treasurer with the 'bank as the depository of the public funds.

Martineau. Chancellor; STATEMENT BY THE COURT. B. C. Morris and others instituted this action in the chancery court against J. T. Lyon and ethers restraining the latter from in any manner interfering with the property or school affairs of School District No. 65 in White County, Arkansas.

M. Jackson, Judge; 1. The statute of limitations began to run from the date of the last payment on the notes, by any one of the joint makers or obligors. 68 Ark. 399; 34 Id. 44; 20 Id. 171; 50 Id. 229; 88 Id. 108; 64 Id. 80. Payment of interest or part of principal by one of the joint obligors of a note does not lessen or release any one of makers of a note. Kirby’s Dig., § 5080. 2.

J. Driver, Judge; STATEMENT UY THE COURT. Appellee sued to recover the amount of three notes, of $500 each, payable to his order and executed by “Morris & Company, per L. A. Morris.” After several amendments to the complaint, the canse was submitted to the jury under a complaint alleging that Morris & Company was a business owned by .appellant which she permitted her husband to conduct for her.

Robertson, Chancellor; 1. The decree of divorce did not destroy the dower right. Kirby’s Dig., % 2694; 4 Barb. 192; 205 N. Y. 355; 98 N. E. 488; 30 A & E. Ann. Cas. 553. The right of dower is not dependent upon the woman being the wife at the time of the husband’s- decease. 197 111. 144; 166 S. W. 547.

Reed, Judge; STATEMENT BY THE COURT. On the 3d of August, 1913, the Missouri & North Arkansas Railroad Company was in the- hands of receivers .and being’ operated by them. R. M. Warner was in their employ .as station ¡agent at Lesle, Arkansas. He was also agent for appellant* Wells Fargo & Company Express. The office ¡of the latter -company was maintained in -connection with that -of the receivers, at the railroad depot. Doctor Sheridan lived -at Leslie, Arkansas.

A. Falconer, Chancellor; STATEMENT BY THE COURT. J. N. Loveless instituted this (action in the chancery conrt against C. A. Davis and his wife ¡to rescind a contract for the exchange of lands between them bn account of the .alleged false representations made by the defendants to the plaintiff.

Coiv-Img, Judge; 1. The proof was sufficient to .show that Crump was a justice of the peace, authorized to, and did, perform the marriage ceremony between appellant and Eula Hamilton. 2. The testimony cf the witness Taylor alone is sufficient to establish the fact of the second marriage and to justify the introduction of the marriage license. 112 Ark. 47.

8. Maples, Judge; STATEMENT BY THE COURT. Appellant brings this appeal from a judgment of conviction for violation -of the “Full 'Crew Law” or “Three Brakeman Act” of Arkansas, Act No. 116, of the Acts of 1907, in Benton County, by operating a freight train, consisting -of more than twenty-five loaded freight oars and a caboose, over its line of road in said -county, with a crew of less than three brakemen.

8. Maples, Judge; 1. This action did not arise out of .any of the provisions of Act No. 88 of 1911, and the 'doctrine of comparative negligence -was, therefore, erroneously injected into the case.

Garter, Judge; 1. Neither a special school district, nor its hoard ■of directors is authorized by the statute to sue. Kirby’s Dig., § 1990. Being a penal statute and in derogation ■of the common law, it must be strictly construed. 59 Ark. 356; 65 Ark. 532; 82 Ark. 251. As between the special school 'district and the trust company, the relation of lender and borrower existed.

Appellant brought suit on a promissory note executed by appellee, dated at Cincinnati, December 28,1908, for $9,053.00, payable to its order, at its office one day after date. Certain credits were endorsed on the note and there was a prayer for judgment for $7,350.98, the balance due thereon.

Elliott, Chancellor; 1. Where one occupies land under a parol contract with the 'owner, and makes Valuable improvements, the ease does not fall within - the statute of frauds. The statute of frauds can not in courts of equity be made a means -of fraud. The doctrine .of part performance is well established in -this State. 1 Story, Eq.

E. Martineau, Chancellor; STATEMENT BY THE COURT. R. H. Moore instituted 'this action in the chancery court against the German National Bank to recover from it the amount of a certificate of deposit, á true copy of-which is as follows: “German National Bank, Capital $750,000. “No. 538. “$4,000.- “Little Rook, Ark., January 14, 1913. “R. H. Moore has deposited with us four thousand ($4,000) dollars., payable to the order of self twelve months after date with interest to…

E. Patterson, Judge; STATEMENT BY THE COURT. Appellee brought.-suit 'against appellant for treble damages for cutting timber from the southwest quarter of the northeast quarter of section 28, township 16 south, range 22 west, in Columbia County, claiming to be the owner thereof and alleging that the land was wild and unimproved, and that the timber was cut and removed wilfully and without right.

D. Frier-son, Chancellor; STATEMENT BY THE COURT. . Maude McCoy brought suit for partition of the estate of Jacob H. Cooper, her father, against his other children, naming them, and alleged that she was the sole surviving child of his marriage to Caroline Cooper and owned a one-seventh undivided interest in the lands described; that four of the children were minors and had a claim of homestead in the lands, which should include only forty acres, which was alleged to be of…

P. Henderson, Chancellor; STATEMENT BY THE COURT. Appellees brought this suit to cancel a lease executed by their mother, Lydia A. Gaines, life tenant of the property, and by their father, Abner L. Gaines, as guardian for the then mirier children of the marriage. Appellant and appellees are the owners of a three-story brick building between Central Avenue and Valley streets in the city of Hot Springs, which is centrally located and substantially constructed.

One of appellant’s locomotives ran over appellee on the night of the 3d of September, 1911, and so crushed his arm that an amputation at the shoulder was neceessary. Appellee alleged and proved that he suffered great pain and anguish, as well as loiss of earning capacity, and, in the trial, from which this appeal is prosecuted, recovered a judgment for the sum of $3,000.00.

W. Hendricks, Judge; STATEMENT BY THE COURT. The appellee instituted this .suit against the appel'lant on a promissory note in the sum of two thousand dollars. ($2,000). The appellant denied that it was indebted to the appellee ; denied that the note .sued on was executed by it. It alleged that the note was drawn by one McCain, without authority, and negotiated and the proceeds used by him without the knowledge of appellant.

Garter, Judge; STATEMENT BY THE COURT. The appellant sued the appellee on a policy of life insurance. It was alleged that appellee was 'liable under a contract with the Arkansas Life Insurance Company, on a policy issued by the latter on the. life of one Grant Stewart on April 28,1913. Stewart died March 14,1914. The appellant was the beneficiary in the policy.

Robertson, Chancellor; STATEMENT BY THE COURT. M. E. West instituted this action in the chancery court against Cotton Belt Levee District No. 1 and the board of directors and treasurer of said district for the purpose of enjoining and restraining them from proceeding to enforce 'the collection of an assessment against a certain tract of land belonging to the plaintiff which, he alleged, was unlawfully assessed against his land.

E. Martineau, Chancellor; STATEMENT BY THE COURT. On the 25.th of February, 1914, a contract was signed by the appellant and the appellee, which, omitting formal and unnecessary matters, provided as follows: “That for and in consideration of the purchase for cash by the party of the second part of two hundred (200) shares of the capital stock of party of the first part, amounting to five thousand dollars ($5,000), party of the first part hereby agrees with, and guarantees…

Martineau, Chancellor; STATEMENT BY THE COUBT. The appellants brought ejectment against appellee to recover possession of three tracts of land situated in Lonoke County, Arkansas. The parties to this litigation claim under the will of Grov. James P. Eagle, who died a widower and childless, and undertook, by his will, to dispose of all property owned by him.