Volume 117 — Arkansas Reports

W. Hendricks, Judge; 1. The court erred in its charge to the jury. The two instructions given by the court are conflicting. One who suffers this stock to go at large takes the risk incident. He takes the permissage pasturage with its accompanying perils. 48 Ark. 369. 2. There is no obligation on the owner to keep grounds in safe condition against trespassers or stray animals. 57 Ark. 16.

F. Gautney, Judge; STATEMENT BY THE COURT. Appellants were petitioners in the Craighead County Court for the establishment of a drainage district in that county, which would have resulted, had the prayer of the petition been granted, in the formation of a large drainage district, which would have embraced several smaller districts previously icreated by orders of the county court of that county, and territory embraced in another district under process of formation by the…

Cowling, Judge; 1. The Missouri record could only be proved in the w-ay pointed cut by the act of ¡Congress. The papers produced at the trial were not properly .authenticated, and should not have been admitted in evidence. The marriage license itself was the best evidence, and in the absence of proof of its loss secondary evidence was not admissible. 72 Ark. 47; 49 Ark. 156.

Career, Judge; STATEMENT BY THE COURT. Appellee, ia corporation, successor to tbe partnership of S. G. Dreyfus & Co., sued for a balance claimed to be due upon a judgment and .alleged that a petition in involuntary bankruptcy was filed ag-ainst Maryman, wbo confessed in writing Ms insolvency and willingness to be ■adjudged >a -baMixupt, that he was duly adjudicated a bankrupt; that the said company succeeded to all the rights of S. G. Dreyfus & 'Co., which proved its claim…

Humphries, Chancellor; 1. If the granting clause in the deed bad contained the words “bodily heirs,” or “heirs of her body,” there would be no question but that the deed conveyed to Nevada P. Maynard a 'life estate only, with remainder in fee to appellant, ¡and that her husband ¡surviving would have no curtesy right in the lands. Kirby’s Dig., § 735; 44 Ark. 458.

Appeal frpm Clay Chancery Court, Eastern District; Charles D. Frierson, Chancellor; 1. An assessment which is not based upon the judgment of the assessor is capricious, arbitrary and void. 37 Cyc. 1009, note 28; 2 Pick. (Mass.) 391; 70 la. 87; 47 Mich. 282; Welty on Assessments, 235. 2. The acts of the Legislature, upon which the drainage assessments and taxes- in this case are based, are unconstitutional and void, because not based upon the value of the property itself.

A. Falconer, Chancellor; STATEMENT BY THE COURT. Walter 0 ’Kane instituted this action in the chancery •court against Lizzie O’Kane to enjoin her from cutting and removing'from a certain tract of land a walnut and pecan grove comprising between two and four acres. The facts are as follows: In 1912 Lizzie O’Kane obtained .a decree of divorce from Walter O’Kane. The latter owned at that time, among otter lands, a tract of bottom land comprising about 470 acres.

Carter, Judge; STATEMENT BY THE COURT. Appellee was injured on the Main ¡Street in the town of Gfurdon on April 28, 1913, by being run into or struck with .a bicycle, ridden by a .call boy in .the employ of the railway company, going ¡at the rate of from ten to fifteen miles an hour. It was his duty to call the different train crews as directed, there being three of four of them to be called each day.

J. Driver, Judge; STATEMENT BY THE COURT. This was .an /action by L. 0. Anderson against the St. Louis Southwestern Railway Company under the Employers’ Liability Act of April 26, 1908 (Fed. Stat. Ann. 1909 Supp., p. 584), to recover damages for injuries received by him while in the employ of the railway company as a switchman.

J. Driver, Judg'e; STATEMENT BY THE COURT. Appellee, a baby boy, eight (8) months old, was making a journey with his parents from his home in Mississippi by way of Memphis, Tenn., to visit his grandparents near Hughes Springs, in Texas.

Grace, Judge; STATEMENT BY THE COURT. Appellee brought ‘suit against .appellant, .a corporation, before .a justice of the peace upon five notes, for $100 each. A written complaint was filed, in which the notes were set out as five separate causes, of action.

<p>1. Game—interstate shipment—federal statute,—¡Section 3 of the 'Lacey Act (Act of 'Congress of May 25, 1900), concerning interstate shipments of game animals which have heen killed is violated when game which had heen lawfully killed in this State, is shipped into another State.</p> <p>2. Game—interstate shipment—conflict of laws—duty of carrier. —Appellees shipped game, that had been killed in this State, into Illinois. Under the Illinois statute, at the time it was shipped into that State, it was lawful to ship game into Illinois, and there was, therefore, no violation of section 5 of the act of May 25, 1900, known as the Lacey Act, in making the shipment into Illinois, and it was the duty of the carrier to protect the consignment from any unlawful seizure toy the authorities of the .State of Illinois.</p> <p>3. Game and fish—preservation—statutory provisions.—The rule of equality prescribed by ¡article 2, section 18, Constitution 1874,which prohibits the law-makers from granting to any citizen or class of citizens privileges, which, upon the same terms, shall not equally 'belong to all citizens, does not prevent the Legislature, in the enactment of laws for the preservation of game and fish, from exempting from the operation of such laws territory in which it is found unnecessary to impose any regulations.</p> <p>4. Game and fish—preservation—legislative power.—The Legislature has the .power to preserve the game and fish of the State and to make regulations which result in preservation. The Legislature may select territory where preservation is found necessary and prescribe regulations there, which are not imposed elsewhere.</p> <p>5. Game and fish-—preservation—legislative power.—The only justification for any regulation for ithe preservation of game and fish, is the necessity .for preservation in the State, and any unjustifiable regulation or exclusion in a given territory is obnoxious to tbe Constitution.</p> <p>6. Game and fish—preservation—equality of regulation.—AH measures for the .preservation of game must bear equally on all citizens, and whatever privileges are extended in tbe taking of game must' be open to all in equal degree.</p> <p>7. Game and fish—shipment of—discrimination—validity of statute.—Act No. 397, page 1131, Acts 1909, providing for tbe shipment of game out of certain territory in Mississippi county, held to be void, -being in violation of article 2, section 18, Constitution 1874, since i-t grants to tbe citizens of one county privileges denied those of other counties.</p> <p>8. Game and fish—preservation—invalid statute;—Act 397, page 1131, Acts 1909, being invalid, because in conflict with article 2, section 18, Constitution 1874, Kirby’s Digest, § § 3618, 3619 and 3630, being tbe general law on tbe -subject, are in full force and effect in Mississippi county.</p>

M. Jackson, Judge; STATEMENT BY THE COURT. The appellant and lids wife had been -separated about a month on account of domestic troubles. On the ,16th of February, 1914, she ivas killed. Appellant was indicted for ¡such killing, the charge being murder in the first degree. He was convicted and appeals to -this court.

Leah Friedman was the owner of a four-story brick building in the city of Fort -Smith, Arkansas, and in February, 1914, the building was damaged -and partially destroyed by fire. Mrs. Friedman had policies in eight insurance -companies, including the Fidelity-Phenix Insurance Company. The New York Life Insurance Company was the holder of a mortgage upon the property and was protected from loss by the policies of -insurance.

J. Driver} Judge; There was evidence which, if (believed by the jury, would have warranted a verdict of a lower degree than murder in the first degree, .and the court erred in failing to instruct the jury as to murder in the 'Second degree.

A. Falconer, Chancellor; Under the law the father is first -entitled to the custody -of his child. 37 Ark. 27. This rule is universally followed by this court, and there is no reason why it -should not be applied here. Of course, the. State, as parens patriae, acting through the -chancery -court, -can modify the rule, for good reasons shown, but this power is never -exercised to the child’s injury. The best interest of the -child -should always be -considered.

<p>Appeal from Woodruff Chancery Court; Edward D. Robertson, Chancellor;</p> <p>1. The ordinance was void, and the ratification gave it no validity. Dillon on Mun. Corp., § § 1301, 791-2; Pond on Pub. Utilities, § § 354-5, 348, 361-2; 16 Utah, 440; 160 Ind. 32; 7 S. D. 9; 71 Ark. 4; 86 Id. 1; 94 Id. 380; 109 Id. 90; 90 Id. 380; 93 Id. 490; 86 Id. 1; 71 Id. 4.</p> <p>■ 2. There is no estoppel. Dill., Mun. Corp., p. 797, § 777; 58 Ark. 271; 93 Id. 490; 83 Id. 276; 82 Id. 531; 126 la. 105; 117 Id. 258; 59 Cal. 517; 87 Wis. 496; 149 Mo. 36; 22 Mich. 104; Bigelow on Est. 754; 20 Wall. 655; 30 L. B. A. 848; 106 Mass. 549; Dill., Mun. Corp., p. 2455, § 1556.</p> <p>3. The city and taxpayers had a right to intervene. Dillon on Mun. Corp., § § 1579-80; 101 U. S. 601; 52 Ark. 545-7; 169 S. W. No. 12, Seitz v. Meriwether, 114 Ark. 289.</p> <p>(1) There was ample authority for the transaction with Bratton, but, if not, (2) interveners are estopped, and (3) a court of equity will not entertain a bill for affirmative relief, by parties who stood by quietly and persuaded and encouraged a party to put money into a proposition, and then take the property away without compensation, or return of the monev invested. 100 Ark. 588; 47 Id. 269; 67 Id. 36; 28’ Cye. 622; 22 W. N. C. 137; 216 Pa. 345; 5 O. St. 114; Dillon on Mun. Corp., § 1303; 94 Ind. 305; Kirby’s Dig., § § 5442-3, 5448; 4 Wheat. 316; 80 Ark. 125; 47 Ind. 407; 14 Pa. St. 83; 16 Cal. 256; 76 Ark. 60; 87 Id. 389; 98 Id. 42; 28 Utah, 25; 70 la. 202; 103 Ga. 483; 15 A. & E. Ene., p. 1084. He who seeks equity must do equity. 16 Cyic. 141; 46 Ark. 64; 34 Id. 630; 32 Id. 346.</p> <p>1. The council had power to sell. Kirby’s Dig., § 4436-5675; Dill., Mun. Corp., vol. 3, § 991; 84 Pac. 760; 67 Atl. 844; 47 Ark. 269; 68 Id. 39-66; 100 Id. 588; 176 Fed. 86-8; 31 Ark. 728; 27 Id. 572; 68 -S. E. 399; 81 Ark. 244. The doctrine of estoppel applies to towns and cities. 81 Ark. 244;.58 Id. 270, and oases supra. The intervener’s bill was properly dismissed.</p>

Cowling, Judge; 1. Defendant applied for the policies; they were delivered to her at her request .and she retained them. An acceptance is presumed. 86 Ark. 284; 89 Id. 416; 106 Id. 568; 102 Id. 146, 151. 2. Courts in (charging juries should not express or intimate 'an opinion as to controverted facts. 51 Ark. 148; 94 Id. 566; 68 Id. 39-68; 75 Id. 273-5; 47 Id. 269-287; 80 Id. 167. 3.

Garter, Judge; This is a clear case of discrimination, and the court erred in directing ¡a verdict. 192 Fed. 200; 110 Ark. 484; 102 Id. 551, Penal statutes apply only to intentional and wilful discrimination .and not to errors, mistakes or delays. Appellee was acting in good faith and thought it owned the line. 76 Ark. 124; 101 Id. 600; 100 Id. 546; 107 Id. 611; 58 Id. 490; 110 Id. 484; 192 Fed. 200; 109 Ark. '35; 103 Id. 564.

At the September, 1914, term of the Sebastian Circuit Court, for the Fort Smith district, appellant was indicted for three distinct and separate offenses.

Cowling, Judge; Our statutes do not in terms define who are to be considered bastards, but at the common law, which prevails in this 'State except where altered by statute, they are defined to be children bom cut of wedlock. Kirby’s Dig., chap. 13; 2 Greenleaf on Evidence, Redfield’s Ed., § § 150, 151, and marginal notes. See, also, 1 B-ouvier’s Law Diet., Rawl’s Revision; 2 Kent, § 151. A child born in wedlock is presumed to be legitimate. 6 How. 550; 115 Fed. 124.

Reed, Judge; STATEMENT by the court. Suit was instituted by the ¡appellant .against the appellees before a justice of the'peace to recover for an alleged balance due on account for merchandise, ¡etc., alleged to have been furnished ¡on a ¡contract between appellant and appellee’s. At the hearing the appellant, to sustain its claim, offered certain ¡evidence which the justice •of the peace held to be inadmissible.

Abner Israel sned the Sovereign Camp Woodmen of the World for $400, which he alleged was due him on a beneficiary certificate in that order. The facts are as follows: William B. Bruce died in Fort Smith on June 29, 1914, leaving surviving him two minor children and his wife. He was at 'the time a member in good standing in the Sovereign Camp Woodmen of the World.

Wood, Chancellor; STATEMENT BY THE COURT. The Bradley Lumber Company bought certain lands situated in Bradley County, Arkansas, from C. C. Colvin in 1905, and in 1909 cut and removed the timber on said land. Oolvin obtained a deed from the State of Arkansas and sold 120 acres of it to the Bradley Lumber Company and resided upon the remaining’ forty acres.

Evans, Judge; STATEMENT BY THE COURT. George Brockman brought this suit against John Donnell, in the justice court in Franklin County to recover $1.50 for electric light service for the month of June, 1914. From the judgment against him, he appealed to the circuit court, where upon trial the court instructed a verdict in his favor, from which this -appeal comes.

W. Hendricks, Judge; STATEMENT BY THE COURT. Cora Long -brought this suit -against -the Knights of Pythias of North America, etc., a fraternal benefit assoeiation doing business in the State of Arkansas, upon a policy of insurance for $300, issued on the 28th day of May, 1906, to Tom Long, a member of one of its subordinate lodges, who died in Pulaski County on the 1st day of December, 1912, in good standing.in his lodge with his policy of insurance in full force and effect…

W. Smith, Judge; STATEMENT BY THE COURT. T. N. Jameson died in August, 1912, leaving him surviving his widow, the appellee, but no children. He -disposed of his estate by will, which was duly probated, naming the appellants herein as executors.

J. Driver, Judge;' statement by the court. Appellee, as administratrix of the estate of Isaac S, Adams, deceased, brought this suit to collect a benefit resentativ-es bearing relationship to said member of ad-the sum of $2,000, payable -at his death 11 to his legal representatives bearing relationship to said member of administrator or executor. ” . ' .

Cowling, Judge; STATEMENT BY THE COURT. Appellee brought this suit for trespass against appellant company for cutting 'and removing timber from the fractional southwest quarter of the southwest quarter of section 29, township 10 south, range 28 west, situated in Howard and Sevier counties, alleging that he was the owner and in the actual possession thereof, and had -been, since the 2d day of October, 1911.

Evans, Judge; The indictment charges no crime. The evidence is wholly insufficient to convict .and the instructions are ■ misleading. 1. The indictment sufficiently charges the crime. 60 Ark. 521; 79 Id. 293. 2. There is no bill of exceptions. It was not filed in time. 96 Ark. 175; 169 S. W. 790.

Reed, Judge; 1. The address of the message was defective, and it was delivered as soon .as possible. There is no proof of negligence. 2. This was .an interstate message, and there can be no recovery. 234 U. S. 542; 169 S. W. 946; 171 Id. 859. 3. Conflicting instructions should not be given. 95 Ark. 506. 1. Negligence was established upon the part of appellant in its failure to deliver as the law required. 55 Am.

F. Gautney, Judge; The court erred in sustaining the demurrer to the indictment. It is not necessary for the indictment to follow the language of the statute literally, but it is sufficient if it states the offense substantially in the language of the statute. Kirby’s Dig., § 2823; 77 Ark. 321; 93 Ark. 406; 94 Ark. 65; 97 Ark. 6; Kirby’s Dig., § § 2228, 2241-2-3; 102 Ark. 174; 100 Ark. 433, 414; 107 Ark. 36. 1.

M. Jackson, Judge; 1. Instruction No. 1, given at appellee’s request, was too broad in making the carrier liable “for all damages which may accrue to the property shipped,” even though such damages may be due to the inherent nature of the property. 6 Cyc. 381. ' It was also erroneous in imposing an absolute duty to ice the car. 41 Am. Bep. 696. 2. The only ground of negligence relied upon by appellee was the failure to furnish a car already iced.

<p>Appeal from Lawrence Circuit Court, Eastern District; W. A. Cunningham, Special Judge;</p> <p>Burke exceeded Ms authority in drawing the draft in the name of Ms principal, payable to himself. 18 L. R. A. 663; 199 111. 151; 59 L. R. A. 657; 194 111. 157, 56 L. R. A. 564; 53 Ark. 136; Id. 208; 105 Ark. Ill; 92 Ark. 315; 70 Ark. 401; 62 Ark. 33; 52 Ark. 253; 124 N. W. 236; 76 N. W. 792; 77 N. E. 295; 31 Cyc. 1643.</p> <p>A traveling salesman of a wholesale house is a general agent, and Ms acts within the scope of Ms business, though in violation of instructions, will bind his principal, unless parties dealing with him have notice of limitations upon Ms authority. 48 Ark. 138. One who holds another out to the public as his agent is bound by Ms acts. 57 Ark. 203.</p> <p>Burke did not exceed his apparent authority in this case. While declarations of an .agent are not admissible to prove agency, yet, if the agency be otherwise prima facie proved, or admitted, as in tMs case, they become admissible in corroboration. This would admit the statement to appellee by Burke that he was required or permitted to take an acceptance as he did. 31 Cyc. 1656.</p> <p>Persons dealing with an agent witMn the apparent scope of his real authority, will be protected. 52 Ark. 203; 49 Ark. 320.</p>

W. Hendricks, Judge; STATEMENT BY THE COURT. T. H. Bunch Commission Company (hereinafter called tbe Bunch Company) instituted this suit in ithe circuit court against John W. Sharpe, alleging that Sharpe was indebted to it in the sum of $600 damages growing out of sales of hay from Sharpe to it, the ground of the attachment being that Sharpe was a non-resident.

Lea, Judge; Argues' on tbe merits of tbe cause. No bill of exceptions was filed in time. 96 Ark. 175; 169 S. W. 790. There is nothing for this court to decide.

P. Henderson, Chancellor; STATEMENT by the coubt. The General Assembly of 1911 passed Special Act No. 113, which was .an act to declare Benton, Arkansas, a city of the second class and for other purposes. The city council of the city of Benton, proceeding upon the assumption that the act was valid, and constitutional, passed an ordinance requiring property owners to construct sidewalks and curbs.

T. Cost on, Special Judge; STATEMENT BY THE COURT. The defendants, Jordan Stokes and others, were indicted for unlawful hunting under section 3599 of Kirby’s Digest, which provides that it shall be unlawful for any person who is a non-resident of the State of Arkansas to shoot, hunt, fish or trap* at any season of the year. Section 3601 imposes a fine for a violation of the statute.

J. Driver, Judge; STATEMENT BY THE COURT. This is an action brought by Verney V. Howell, as a widow, in behalf -of herself .and the next of kin of W. M. Howell, against appellant to recover damages for the death of her husband, which occurred on the 11th day of December, 1911.

S. Maples, Judge; 1. Recoveries for mental anguish, solely are not allowable under the interstate act. 234 U. S. 542; 114 Ark. 193; 171 Id. 859. The authority of Congress is supreme. 122 U. S. 347; 105 Id. 460; 203 Fed. 140. 2. The mental anguish sued for is not such as is recoverable under the Arkansas statute.' 83 Ark. 39. There is no error in the instructions, and the verdict is not excessive. 38 Cye. 1612; 82 Ark. 164; 151 S. W. (Tex.) 904; 85 Ark. 263; 91 Id. 475.

A. Falconer, Chancellor; STATEMENT BY THE COURT. This cause was heard upon an agreed statement of facts, from which it appears that a private corporation had for some years operated the waterworks plant which supplied the city of Fort Smith with water, and this plant was acquired, under the authority of a special act of the General Assembly, by a district known as Water District No. 1, which had been organized for the- purpose of acquiring this plant.

Humphries, Chancellor; Appellant’s failure to bring into the record the oral testimony heard at the trial, calls for an .affirmance. 38 Ark. 481; 45 Ark. 242; Id. 313; 35 Ark. 230; 58 Ark. 134; 83 Ark. 426; Id. 77; 80 Ark. 74; 81 Ark. 427; 100 Ark. 266.

A. Cunningham, 'Special Judge; 1. Instruction 5 is erroneous. There is no evidence tending to show that the ditch discharged any water upon appellee’s land. 2. There is no evidence on which to base instruction 7. 3. Instruction 8 errs in allowing an award of full damages based upon a permanent injury to the lands, and also damages sustained to the crop of 1912 on the same lands. This error was not cured by requiring a remittitur.

Martineau, Chancellor on exchange; 1. Irrespective of the will as sucih, or of its revocation, a valid and consummated contract existed between the testator and appellant, whereby he was. to have her estate at her death conditioned upon his paying her debts and supporting her during the rest of her natural life, in the fulfillment of which contract she executed the will in question.

Appellant was indicted at the November, 1914, term of the Crawf ord circuit court, charged with the crime of murder in the first degree, alleged to have been committed by shooting one Bose Mullens with a gun. The ■shooting occurred on August 18, 1914.

JEL. Humphreys, Chancellor; 1. Appellee, Flora Ogle, is not entitled to any part of the reward. Where a reward is offered for the capture and conviction, or for the capture, of an offender, the mere giving of information which enables others, acting independently of the informer, to make the arrest, is not sufficient to entitle the informer to share in the reward. 28 N. E. 1022; 122 Pia. St. 115. See, also, 50 Cal. 218; 191 111. 610, 61 N. E. 456, 85 Am.

E. Beloate, Special Judge; STATEMENT BY THE COURT. This is an application to compel the collector, by mandamus to accept in payment for taxes, certain county warrants which had been refused by him because they had not been presented and registered' at the calling in of the warrants of the county by the county court.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellants borrowed $2,000 from the First National Bank of Huntsville, with which to purchase a stock of merchandise for their partnership of Harrison & Neal Bros., and executed, the following note therefor; Date “$2,000.00 Huntsville, Ark., Nov. 30, 1912.

Martineau, Chancellor; STATEMENT BY THE COURT. Held: is not “taxes” within the meaning of the law, and that while “they are laid under the taxing power, and are, in a certain sense, taxes, yet, they are a peculiar class of taxes, and are not within the meaning of that term as it is usually employed in our Constitution and statutes.” 59 Ark. 513-531; 89 Ark. 513.

Cowling, Judge; The contract stipulated that the premises were to be delivered to appellant on August 1, 1913.

A. Falconer, Chancellor; STATEMENT BY THE COURT. On the 12th day of January, 1911, one C. 0. Holland entered into a eontraet with Emma Scott and Ella Bradley for the purchase of certain lots in the town of Boone-ville.

M. Jackson, Judge; STATEMENT BY THE COURT. The Southern Coal Company, a corporation doing business at Memphis, Tenn., sued C. C. Edwards, H. E. Watson, J. M. Devlin, T. E. Devlin and W. D. Raywinkle to recover $358.37, for three cars of coal sold by plaintiff to Kensett Ice and Gin Company, a partnership alleged to be composed of the defendants as members.

Cotham, Judge; STATEMENT BY THE COURT. In September, 1912, Joe Wilson was convicted of a misdemeanor and fined by the judge of the Pike Circuit Court. T. P. Rogers, at that time, was the sheriff of the county. He permitted Wilson to return to his home in Montgomery County without having paid the fine and costs, and without giving any security for the payment of same.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant was a remonstrant -against the establishment- of -a drain-age district in Mississippi County -and from the -order of February 3, 1913, -of -the -county court establishing the district, attempted to take an appeal.

B. P rid fly, Special Judge; 1. The court should have sustained the demurrer. No value of the money is alleged. When grand larceny is charged as the crime intended to he committed, an allegation of the value of the property becomes material, .and a failure to allege it to be of valué sufficient to constitute grand larceny makes the indictment fatally defective. 66 Ark. 110. 2. The evidence does not sustain the verdict.

Wood, Chancellor; STATEMENT BY THE COURT. F. H. Boyd owned a certain 'tract of land in Ashley County upon which he had placed a ¡mortgage to the New England Security Co., for five thousand ($5,000) dollars.

A. Cunningham, Special Judge; STATEMENT BY THE COURT. This suit was instituted in favor of Charles Hager, a minor, by his next friend, A. P. Hager, against the St. Louis, Iron Mountain & Southern Bailway Company for injuries alleged to have been .sustained by reason of said railway company’s conductor unlawfully ejecting .him from one of its trains at Dupo, Illinois.

J. Driver', Judge; The court erred in permitting appellee to testify that ■she had been offered a certain price for her land, and in refusing to strike that part of her testimony from the record. 15 L. R. A. 591, and cases cited; 27 Mich. 386; 15 Ene. Ev. 451-H and note. The testimony was hearsay and incompetent.

Frierson, Chancellor; STATEMENT BY THE COURT. This action was instituted in 'the 'chancery court by Malissa Brown against W. D. Polk for allotment of dower in a certain tract of land which she alleged was owned by her husband in his lifetime, and sold by 'him during coverture without relinquishment of her dower rights. The facts are as follows: There is in the record a deed-from Henry Brown and Malissa C. Brown, his wife, to John T. Miller and H. C. Redwine.

E. Jeffery, Judge; A railroad company is not guilty of negligence in starting its- train as soon as a passenger gets on board, •and before he has reached bis seat. 6 Cyc. 613; 212 Pa. 29; 17 Col. App. 410; 50 S. W. 843; 102 Ky. 600. Where there was no -evidence that the jerk or jar was other than is usual in starting up a train, defendant was entitled to an instruction withdrawing the question of negligence as to such jerk of the train, from the jury. 72 S. W. 717.

J. Driver, Judge; STATEMENT BY THE COURT. The appellant drainage district was created by Special Act No. 368 of the Legislature of the session of 1907. It was made a body corporate, authorized to construct sucli drains and levees as were found to be necessary in the prescribed territory, given the right of eminent domain and the power to levy ¡and collect assessments for the purpose of construction of the improvements.

It was error to exclude the city ordinances sought ■to he introduced by the appellant. It was in proof that the car was running at the rate of twenty miles per hour, and that the place of the injury was within the city limits. The speed ordinance was admissible. Running a vehicle at a rate of speed in excess of that prohibited by an ordinance or statute is negligence. Section 1859 of the ordinances was clearly relevant .and material.

Martineau, Chancellor; The real qne-stion to he determined in this case is whether or not the appropriation is for the purpose of “defraying the necessary expenses of government,” within the meaning of the Constitution. If it is not a necessary expense of the government of the State, it is obviously the duty of the court to declare the act void as having failed to receive two-thirds vote of each house of the General Assembly.

<p>Appeal from Fulton Circuit Court; R. E. Jeffrey, Judge on exchange;</p> <p>The mere quashing of a summons is not a final order or judgment, and is not appealable. 34 Neb. 5, 51 N. W. 299; 109 N. W. 752; 31 Kan. 218; 43 S. W. 436; 102 Ky. 370; 77 111. App. 203; 406 N. E. 1073; 166 111. 451; 103 S. W. 1134, 83 Ark. 371; 138 S. W. 876; 144 S. W. 522; 14 Ark. 424 ; 85 Bac. 626, 30 Utah 449; 52 S. E. 64, 139 N. C. 446; 149 Fed. 406; 42 So. 610; 132' Fed. 414; 164 Fed. 492 ; 50 S. E. 1055; 60 S. E. 136; 53 So. 503; 72 S. E. 189; Id. 515.</p>

Meeks, Judge; STATEMENT BY THE COURT. Plaintiffs brought an 'action of ejectment for certain lands in Randolph County, claiming to be the owners of two-thirds thereof ias children and heirs of their mother, Dixie LeSieur, who died in 1900, leaving surviving her, plaintiffs and Ethel Cowdry, her only heirs at law. 1 Defendant denied that plaintiffs were the heirs of said Dixie LeSieur, and that he was in the unlawful possession of the property, and alleged further that Sarah…

Robertson, Chancellor; 1. An undisclosed principal can not enforce a guaranty running to the ¡agent alone. 2 Meohem on Agency, (2 ed.), § § 2059, 2069; 1 Brandt on Suretyship & Guaranty, (3 ed.), § 133; 20 Cyc. 1399, and notes 16 and 17; Id. 1429, and notes; 22 Ark. 543; 123 Mass. 28; 2 Brandt, Suretyship & Guaranty, (3 ed), §-748; 32 Cyc. 123, par. 3; 5 Yerg. (Tenn.) 193; 45 Mo.

District; Eugene Lankford, Judge; STATEMENT BY THE COURT. This ¡suit was brought by appellant to collect $19.20, alleged to have been wrongfully required paid by him to the appellee who was court stenographer, for a transcript of the testimony in the case of Mullett v. Clarendon Electric Light é Ice Co., tried in the Monroe circuit court.

8. Maples, Judge; 1. There is no motion for new trial in the record. 2. It is -doubtful that there is a sufficient authentication of the bill of exceptions even as to Smith. Mr. Fuller’s term of office had expired when he signed the ■agreement as to the correctness of the bill of exceptions. Had he authority to do -so? The -alleged bill of exceptions was not signed either by Longan or his counsel.

Frierson, Chancellor; ■ 1....The franchise or charter granted to the water company constitutes a contract bétween the company and the city for the benefit of the inhabitants thereof. 76 II. S'., 9 Wall. 50; 70 L. R. A. 770; 27 L. R. A. 514. A consumer may maintain suit to compel a water company to furnish water at the rate stipulated in the contract between the company and the municipality. 1 L. R. A. (N. S.) 958; Id. 963. 2.

E. Jeffery, Judge; The court erred in sustaining the demurrer. 170 S. W. 245. The order sustaining the demurrer was not a final judgment, and no appeal would lie. Kirby’s Digest, § 1188; 99 Ark. 496; 102 Ark. 380; 83 Ark. 371; 94 Ark. 119 ; 44 Ark. 344; 30 Ark. 665.

<p>Appeal-—parties—who may appeal.—Only -those who were parties to a suit at -the time final judgment was entered in the trial court have a right to prosecute an appeal to the Supreme Court.</p>

Cowling, Judge; STATEMENT BY THE COURT. This is a suit for damages for personal injury to plaintiff’s eyes, alleged to have been caused by steam escaping through the negligence of the railway company in permitting the steam line of the train to be charged at the time his duties required him to disconnect the train from the engine and when a defective test valve, or one not in working order, failed to disclose that the pipe was charged. , The answer denied any negligence as…

Cowling, Judge; I. The court erred in allowing appellee to testify as to 'the non-access of her former husband. The law is well settled that neither the husband nor the wife shall be allowed to deny sexual intercourse. Jones Com. on Ev., vol. 1, p. 464; 112: Ky. 888; 66 S. W. 1036; 6 A. & E. Ann. Cas. 816 (notes); 2 Enc. Ev. 240; 3 MacArthur (D. C.) 64. 2.

Cotham, Judge; The court abused its discretion in refusing to grant a continuance as requested by plaintiff. 69 Ark. 368; 59 Ark. 162; 60 Wis. 293; 99 Ind. 296; 62 Tex. 65. It is not error to overrule a motion for a continuance on account of the absence of witnesses, if the motion fails to state where the witnesses reside, or what is expected to be proven by them. 93 Ark. 290; 71 Ark. 62; 74 Ark. 44; 91 Ark. 567.

Shaver, Chancellor; STATEMENT BY THE OOUBT. Fred Tate, in 1910, owned eighty acres of land in Little River County, this State, and that year through a real estate broker in San Francisco met one Z. P. Beach-hoard and made a trade of lands with him on the 21st day of September, exchanging the Arkansas lands for property in California. On the next day Beachboard borrowed from Tate $400 on the Arkansas land and gave a deed of trust thereon to secure the payment of the loan.

Martineau, Chancellor; The burden was upon appellees to prove adverse possession, commencing with all of its elements on or before August 1, 1904, and continuing with all of its elements for seven years. 80 Ark. 19; 65 Ark. 426; 42 N. E. 431; 46 So. 635; 84 N. E. 893; 107 Ark. 374. The only attempt at proof of notoriety, Storthz ’ testimony that he told Harp at the time he purchased from Williams and Crusoe, that he was the sole owner, was inadmissible. 77 Ark. 309.

Haynie, Judge; STATEMENT BY THE COURT. The appellant was -convicted -of the crime of assault with intent to kill one Dick Choate, and he has duly prosecuted this -appeal. On the part of the State, there was -evidence tending to show that on the night o»f October 23,1-914, Dick Choate, who was a deputy constable, and John -Strange, a special deputy, and W-alter Crowell, the regular .constable, passed the appellant’s restaurant.

F. Oautney, Judge; STATEMENT BY THE COURT. The Spartan Hosiery Mills, .one of the appellees, obtained a judgment against the appellant on account for merchandise in the sum ef $79.28. This judgment was rendered by the justice of the peace on the 4th day of April, 1914. Appellant appealed to the circuit court. The second division of the circuit court in Clay County convened on the 25th of May following.

Grace, Judge; STATEMENT BY THE COURT. The facts of this case are correctly and succinctly stated by counsel for appellee, as follows: The appellant owns a ferry and hack line operating between Arkansas City, Arkansas, 'and Lamont, Mississippi, which constitutes .a necesary link in the chain of transportation from Pine Bluff, Arkansas, to Greenville, Mississippi.

District ; W. J. Driver; Judge; 1. No negligence is shown. The uncontradieted evidence is that the shipment was .accepted subject to interference by high' waters, and that every effort was made to carry it to its destination.. The delay, however, even if negligent, did not malee appellant liable.

Jachson, Judge; 1. The testimony of R. B. Campbell as to the experiment made by .him was erroneously admitted. Such testimony is not admissible unless the experiment was made under substantially the same conditions as existed at the time of the. accident. 115 Ark. 101. 2. Counsel contend that the court erred in refusing to give instructions 21, 22 and 24, as stated in the opinion, but cite no authorities. 3. The court erred in refusing to direct a verdict for the appellant.

Martineau, Chancellor; 1. The notice of the submission was not given by advertisement in a newspaper as required by statute. 2. The amendment did not receive the number of votes requisite for its adoption.

H. Humphreys, Chancellor; Supporting appellee’s motion to dismiss the appeal because appellant has accepted benefits under the decree inconsistent with the appeal, counsel cite 47 Ark. 320; 53 Ark. 515; 53 N. E. 765; 2 Standard Enc. of Proc. 211, 212; 57 Pac. 261.

H. Evans, Judge; STATEMENT BY THE COURT. The appellee, a seventeen-year-old boy, came from Louisiana to Dexter, Arkansas. He sat down by the side of a oattle guard at night to rest a little while and went to sleep. He sat down on the second cross-tie. He was on the right side going toward® Pine Bluff. He indicated how he was sitting. He did not know when he went to sleep. The next thing he knew was when the train hit him. He did not hear any whistle or bell or anything.

Appellee having rightfully been ejected from the train at Hazen, because of his refusal to pay fare except from that point on to his destination, -could not create a new contract by -purchasing a -ticket at Hazen and ignore the implied contract he entered into by boarding the train at Brinkley. 47 la. 82; 29 Am. Rep. 458; 16 L. R. A. 55; 132 Mass. 116; 42 Am. Rep. 432.

F. Gautney, Judge; Counsel raise no question in this case as to the consolidation. For argument otherwise see Davis v. State, supra. Every objection raised here was disposed of in the Davis case. No point is made -as to the consolidation, but that having been done by appellant’s consent, he could not complain. Silvie v. State, 117 Ark. 108.

J. Driver, Judge; The court should have directed a verdict for the defendants.

A judgment necessarily follows the pleadings and proof, and takes its coloring 'and meaning from the pleadings. Originating in a justice of the peace court, it was only necessary to file an affidavit for replevin and get an order of delivery.

<p>1. Contracts—expiration—renewal.—Where a contract for the lease of land has expired, in order to show an oral agreement to renew the same, ¡the ¡language used, in order ¡to operate as a renewal of the contract, must be sufficient, either by express reference to the . terms of the old contract or the statement of new terms to amount to .a complete contract.</p> <p>2. Contracts—lease of land—statute of frauds.—An oral contract of lease of land is taken out of the statute of frauds, when the lessee complies with the terms by paying rent for the years actually occupied, and making valuable improvements upon the land.</p> <p>3. Contracts—lease of land—statute of frauds.—In order to take an oral contract of lease of land out of the statute of frauds, there must be substantial expenditures in the way of performance of the contract over and above the mere .occupancy of the land, and payment of rent for the .period actually occupied.</p> <p>4. Contracts—statute of frauds-—substantial part performance.— ' 'Substantial .part performance operates to take an oral contract of lease out of the operation of the statute of frauds, tout partial execution does not have that effect.</p> <p>5. Appeal and error—review—statute of frauds—question raised, how.—Where plaintiff has plead the statute of frauds, and duly , saved exceptions to the overruling of an objection to the introduction of testimony 'tending to take the contract out of .the operation of the statute, it will be held that .the issue of the statute may be reviewed on appeal.</p>

Plaintiff was employed by the defendant as a laborer and commenced work on the rip track in November, 1911. The rip track is 'the place where they put bad order cars for repairs; there are a number of these tracks at the Argenta yards, 'all in a body.

II. Evans, Judge; 1. This case falls within the rule that the servant assumes the usual and ordinary risks incident to his employment. 41 Ark. 382, 383; 104 Ark 489. If the hose was attached in a defective manner, it was necessarily patent to the appellee, and he assumed the risk. 58 Ark. 125; 65 Ark. 98.

Cotham, Judge; Under our present laws, neither the county court, nor circuit court on appeal has any discretion to refuse the creation of a new school district, if the law is complied with. The statute is imperative, .and it was the duty of the court to form the new district. Endlidh, Int. Stat., 422-5, § § 306, 312, 315; 91 Ark. 5; 36 Mo. 278.

McCaleb, Special Judge; 1. The signed order and note, dated January 5,1913, left it optional with appellee to fill the same. Until he accepted same .and bound himself to fill it, there was no contract. 47 Ark. 519; 90 Ark. 131; Id. 184; 97 Ark. 613; 95 Ark. 421; 100 Ark. 510. 2. Until the order had been 'accepted, though it contained a condition that same was not subject to countermand, it could be countermanded. 96 Ark. 616; 110 Ark. 128; 98 Ark. 621. 3.

Worthington, Judge; STATEMENT BY THE COURT. Riley Rawlings, appellant, was indicted as Riley Rollins, jointly with Abe Curry, for forgery of -a cheek and littering the forged instrument. He was tried separately, the court instructed a verdict in his favor on the charge of forgery, and he was convicted for uttering the forged instrument, 'and from the judgment has appealed.

M. Jackson, Judge; 1. The plaintiff, being .an infant, eonl-d sue only by guardian or next friend. S'he had no right to bring the suit in her own name, and the court had no jurisdiction. The statute is mandatory and jurisdictional. Kirby’s Dig., § § 6021, 6022; 9 Am. & Eng. Ann. Cas. 1114; 71 Ark. 258; 50 Ark. 480; 63 Ark. 155; 55 Ark. 29; 87 Ark. 184. 2.

<p>Appeal from Pulaski Circuit Court, Second Division; Guy FulTc, Judge;</p> <p>1. Parol testimony is inadmissible ito contradict the terms of- a valid written instrument. Greenleaf on Ev., § § 275-277; 153 IT. S. 224; 117 Id. 582; 17 Oye. 647 ; 50 Ark. 393; 25 Id. 191; 24 Id. 20; 36 Id. 487; 37 Id. 110; 83 Id. 163; 49 Id. 285; 20 Id. 293; 127 S. W. 882; 115 Fed. 397; 31 L. E. A. (N. S.) 235.</p> <p>This ease does not fall within the rule as held in 76 Ark. 140; 82 Id. 219, or 100 Id. 360.</p> <p>The agreement attempted to be proven by parol was certainly “contemporaneous” and inadmissible. Oases supra.</p> <p>Parol evidence is admissible to show that a note was never delivered as a final or completed transaction, or that there was mo consideration for it, or that the consideration had failed. 1 Greenleaf on Ev. (15 ed.), § 284; 100 Ark. 360; 105 Id. 281; 82 Id. 219; 76 Id. 140.</p>

<p>1. 'Contracts—contract of agent—liability.—A church corporation' authorized its building committee to procure architect’s plans and specifications for a building not to exceed a certain sum in cost. Held, when the committee entered into a contract with appellee architect for plans and specifications covering .a building of an estimated cost far in excess of the amount authorized the church will not be liable on the same.</p> <p>2. Contracts—agency—contract in excess op authority—liability op agent.—Appellants as agents for a religious corporation, entered into a contract with appellees for work in excess of the authority conferred by the corporation. In an action against the appellants personally on the contract; heild, it was error to instruct the jury that they were personally liable, without submitting to the jury the issue of whether appellees knew that appellants were exceeding their authority, when there was no personal undertaking on the part of the appellants.</p> <p>3. Principal and agent—exceeded authority—liability of agent.— If the party with whom an agent deals has full knowledge of the lack of authority of the agent, and there is no express undertaking on the part of the agent to make himself personally liable, he does not become liable merely because of the fact that he exceeds his authority.</p>

Frierson, Chancellor; statement by the court. Appellee is a grandson of W. F. Hubbard, who died in Mississippi County in the fall of 1913, leaving surviving him his widow .and the following 'Children: Mrs. Halttie McMahon, Mrs. Mays, Mrs. Huggins, Mrs. Déan and Clarence Hubbard, Sr. Mrs. Hattie McMahon was the mother of appellee, and Clarence Hubbard, Sr., was the father of Clarence Hubbard, Jr.. Mrs. McMahon died leaving surviving her, .as her sole heir at law, the appellee.

65 Ark. 426. The court ¡erred in refusing to instruct the jury that the burden of proof was on the defendant to prove adverse possession, and ¡also in charging the jury that -the “burden of proof is upon the plaintiff and he must establish his case by ¡a fair preponderance -of the evidence.”

Martineau, Chancellor; STATEMENT BY THE COURT. The .la-st Legislature, hy concurrent resolutions, 'authorized the appointment, by the presiding officers of both bouses, of two joint committees for the purpose of investigating certain State departments and institutions.

M. Jackson, Judge; STATEMENT BY THE COURT. The appellee sued the appellants for a commission as real estate broker, alleging that appellants, on the 20th day of October, 1909, placed in his hand for sale a section of land in White County; that appellants agreed to pay him 5 per cent commission on the purchase price for securing a purchaser for the lands; that appellee did procure one W. P. Porter to buy the land at $13 per acre, and that appellants were indebted to him in…

Frierson, Chancellor; The period of limitation did not ¡begin to run until Rhodes had repudiated his trust ¡and notified the ¡appellant that he would not grant the accounting, which was in June, 1910. Therefore, conceding that ¡equity in ¡applying the doctrine of laches, follows by ¡analogy the period ¡of limitation, and that this period, in this case, would be three years, plaintiff is not barred by laches. 135 U. S. 621; 73 Fed. 374; 7 N. C. 139; 9 Ark. 527.

Rose, Special Chancellor; STATEMENT BY THE COURT. March 1, 1887, the Arkansas General Assembly passed an act to provide for the collection of overdue taxes from corporations doing business in the State. Acts of 1887, p. 33; Kirby’s Digest, § § 7204 to 7213, inclusive. It was amended by an act of May 30,1911, as to the 'compensation to be paid to counsel employed to assist the Attorney General. Acts of 1911, p. 324.

E. Patterson, Judge; STATEMENT BY THE COURT. J. E. Langston instituted this action against W. H. Matthews and J. E. Lawton and O. B. Blase to enforce a mechanic and materialman’s lien. The facts are as follows : W. H. Matthews and J. E. Lawton rented to C. B. Blase a small frame house at four dollars per month to be used as a barber shop.

Frierson, Chancellor; 1. The court erred in overruling the motion to strike the case from the docket. There being no affidavit for appeal in the record, the burden was on the defendant to show 'affirmatively not only that an affidavit was filed, ibut ialso that it was filed before the appeal was granted. 222 S. W. 489; 124 S. W. 1028; 92 Ark. 219; 93 Ark. 275. 2.

Cowling, Judge; 1. If the defendants got possession of the mine in ¡had fiaith and for the purpose of injuring or defrauding the plaintiff in his property rights, he was entitled to a ’ verdict, and the court erred in refusing to so instruct the jury. Fraud vitiates every transaction. 32 N. Y. 275; 1 Hun 303; 48 N. Y. S. 130; 1 Ind. App. 293; 42 la. 81; 93 Ind. 480. 2.

M. Jackson, Judge; STATEMENT BY THE COURT. The appellee, in her own behalf and as administratrix of the estate of James Belcher, deceased, and in behalf of Viola .and Esther Belcher, minors, instituted this suit against the appellant, alleging that plaintiff’s intestate was sitting upon the ends of the crossties upon which defendant’s track was laid a 'short distance from the town of Kensett; that defendant’s servants negligently ran a train at a high rate of speed over said…