Volume 118 — Arkansas Reports

<p>1. Drainage districts — overflow—liability of contractor. — The contractors who do the work upon a drainage district, sure not 'liable for overflow caused by the .improvement, except for negligence or unskillfulness in constructing the improvement.</p> <p>2. Appeal and error — instructions—effect of 'specific objection.— The rule that a request .for a correct instruction is tantamount to a specific objection to an erroneous one, does not apply when there has .been a specific .objection upon different grounds. A specific objection to an instruction amounts to a waiver of all other objections to it.</p> <p>3. Independent contractor — negligence.—An independent contractor is liable only for unskillfulness or negligence in his work which results in .an .injury ito a third party, tout he can pot escape liability on the ground that the method of construction which he employed, and which resulted in damage ,to the plaintiff was necessary for his own convenience in finishing his work in the time fixed toy the contract.</p> <p>4. - Drainage districts — overflow—liability of contractor. — A contractor constructing a drainage ditch, can not escape liability for damages to plaintiff’s land toy overflow, on the ground that the act causing the overflow was done at 'the direction of the district engineer, in the absence of a showing that the iaot done was a necessary part of the work, it appearing that it was done for the contractor’s convenience.</p>

W. Hendricks, Judge; The court erred in sustaining the demurrer to the special defense set up by appellant. This stipulation in the contract of employment is reasonable 'and just in its operation, is not inhibited by law, and is not against public policy. 82 Ark. 353; 63 Ark. 335; 67 Ark. 410; 89 Ark. 404; 90 Ark. 308; 80 Ark. 534; 94 Tenn. 94; 68 S. W. 549; 142 S. W. 826; 21 Wall. (U. S.) 268; 3 Wall. 107; 17 Id. 357; 7 Id. 386; 54 Ark. 222, 223; 111 Ark. 102.

Cowling, Judge; 1. The record title in plaintiff -being conceded, tbe defendant had the burden of proving Ml the essential elements of an adverse possession of such character as would ■overthrow this title and establish his own. 57 Ark. 97; 59 Ark. 626; 65 Ark. 422; 79 Ark. 109; 163 S. W. 783.

Cotham, Judge; There can he no recovery in this case because the message was interstate, and because appellee’s own negligence would preclude a recovery, even if the Arkansas mental anguish statute were not void as to interstate messages. Western Union Tel. Go. v. Brown, U. S. Sup. Ct., June 22,1914; 171 S. W. (Ark.) 859; 54 S. W. (Ky.) 825; 10-2 Ark. 246.

E. Jeffery, Judge; STATEMENT BY THE COURT. In February, 1913, tbe Isbell-Brown Company, a corporation doing business at Grand Ledge, Michigan, through its agent, the Munn Brokerage Company, of Lit-tie Eo.dk, Arkansas, called on the Stevens Grocer Company of Newport, Arkansas, .and obtained from it the following order: • “Lansing; Michigan, February 25,1913. “Isbell-Brown Company. ‘ ‘ Order No. 3486. “Have this day sold to Stevens Grocer Company of Newport, Arkansas, 125…

F. Gautney,.Judge; ' 1. There was a chattel mortgage on the rice insured, which the proof of loss admits. No agreement with respect to the mortgage was indorsed upon the policy, hence, under the provision in the contract, the policy was void, even if the mortgage had been satisfied before the loss. 62 Ark. 348. 2.

F. Gcmtney, Judge; STATEMENT BY THE COURT. Four indictments were returned against C. H. Davis by the regular grand jury at the November term of the Craighead County Circuit Court, for violating the liquor laws, charging him with 'Operating a blind tiger at 124 South Main Street, Jonesboro, Ark.

II. Evans, Judge; STATEMENT BY THE COURT. On the 8th day ¡of June, 1914, appellee, in company with his business associate, one George Brown, drove over to the cattle pens at the foot of East Sixth 'Street, Little Book, ¡and after remaining there for about an hour, they ¡started on their return home, driving west on said street in a one-horse wagon, Brown doing the driving.

F. Gautney, Judge; The case turns upon the meaning of the word “feloniously” used in describing the defendant’s action in receiving and having in his possession the stolen property.

Grace, Judge; STATEMENT BY THE COURT. Appellee .sued -appellant for personal injuries, alleging that .appellant maintained its railroad track upon a bridge 'constructed over Lost Chain Bayou; that the ■bridge was constructed of wood and timbers, with wooden bents -about fourteen feet apart, placed on mud sills which were placed on the surface of the ground below water which was about two or three feet deep; that -the bridge was improperly constructed, the bents and sills not…

E. Evans, Judge; A carrier is not liable for the statutory penalty for making an overcharge for a passenger’s fare which was due to an error or mistake on the part of the carrier ’s agent. 58 Ark. 490; 106 Ark. 599; Id. 170; 54 Misc. (N. Y.) 163; 155 App. Div. 798. The question whether the auditor intentionally made the overcharge was submitted to the jury in all the court’s instructions.

E. Jeffery, Judge; STATEMENT BY THE COURT. J. H. Smith, sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries alleged to have been sustained by him while driving over its railroad at a public crossing. He alleges that his injuries were caused by the negligence of the defendant in maintaining the crossing.

F. Gautney, Judge; 1. The admissions of plaintiff .and the uncontradicted evidence show the truth of the publication, and the cause should be reversed and dismissed. 97 S. W. 55; 58 Ark. 105; 2 Atl. 524; 98 Pac. 286. The communication was privileged. 125 N. W. 272. It was not libelous per se. 46 la. 533'; 60 Id. 251; 78 , Kan. 711; 28 Minn. 162; 113 N. C. 203; 64 Tex. 354, and many others. 2.

Wood, Chancellor; STATEMENT BY THE COURT. The title to timber on about 4,000 acres of land is involved in this controversy.

Elliott, Chancellor; 1. Upon the allegation and proof by introduction of the note and Thane’s deposition, which remains uncontradicted, that there was a payment made and credited on the note on December 1, 1910, it was conclusively established that the note was not barred. 5 Ark. 551; 28 Ark. 27. 2.

The Legislature of 1913 passed an -act, numbered 212, ■applicable only to Lonoke and Prairie counties, wherein it created and -defined tbe geographical limits of four road improvement districts, said districts ¡being incorporated ■and respectively -designated as Road Improvement Districts 1, 2, 3 -and 4 -of Lonoke County.

Appeal.from Poinsett Circuit Court; J. F. Qcmtney, Judge; 1. Barker’s statement.to appellee after the accident was not a part of the res gestae, but a mere narrative of a past event, not an explanation nor illustration of the cause or manner of the accident, and the court erred in refusing to exclude it. 105 Ark.. 247. 2. Instruction 4 requested by appellant, should have been given. 100 Ark. 422; 104 Ark. 67. ... 3.

R. Haynie, Judge; 1. It is proven and not denied that this money deposited by appellant in the Texarkana Trust Company bank was of the public funds of Miller County, and that this company failed .and refused to pay it. It is admitted that defendants, were stockholders in the trust company both ait the time the deposit was made and when it failed. The bank knew that these were public funds because its cashier solicited the treasurer to make the deposit as treasurer.

Henderson, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellees against appellant to redeem 'certain lots in tbe city of Hot Springs from tbe appellant, the purchaser, at the sale foreclosing a lien for improvement district taxes due thereon.

Chancery Court; George T. Humphries, Chancellor; STATEMENT BY THE COURT. This ¡suit was brought by appellees, the widow and children of W. Gr. Jones, to have F. F. Jones, appellant, declared a trustee of certain lands, and to enforce & resulting trust for a one-half interest in their favor, after the administratrix attempted unsuccessfully to set the conveyance aside, under section 81, Kirby’s Digest, as made in fraud of creditors. J ones v. J ones, 107 Ark. 402.

H. Evans, Judge; statement by the court. Appellees left home to attend the funeral of a Mr. Mi- ' zell, who was the father of two o.f the appellees -and the nncle of the third. The funeral was to be near Malvern. Appellees attempted to take passage on one of appellant’s trains at Essex Park, which was a flag station for the train they attempted to go on.

L. Ponder, Special Judge; STATEMENT BY THE COURT. Gr. Gr. Dent, .-an .attorney at law, 'brought suit 'against the Peoples Bank of Imboden for the recovery of $1,440, claimed as compensation upon a contract for a yearly retainer for twelve years’ service as attorney for the bank, and $1,550 .as damages for breach of the contract alleged to have been made with him by the bank, to pay him for .attending to all lawsuits brought by or against the bank or for collections coming…

Cowling, Judge; STATEMENT BY THE COURT. Tomlinson Brothers, a partnership, brought suit against the City of Mena for $1,200, alleged to he due from the city for furnishing 150 lights at $1.60 each, for the months of April, May, June, July and August, 1913, under its 'contract with the city, made on February 28, 1913.

The indictment does not charge any offense under Kirby’s Dig., § 1814. It is fatally defective. Penal .statutes are strictly construed and the language of the indictments must .state facts, within the terms of the statute. 90 Ark. 1; 49 So. 615; 107 N. W. 927; 32 Atl. 617; 57-N. E. 109; 58 Ark. 35-38; 50 N. E. 106, etc. 2'.

Shaver, Chancellor; STATEMENT BY THE COURT. The Saline Development Company instituted this action against the Graysonia-Nashville Lumber Company to recover the value of certain timber which it alleged the defendant company cut from its land without paying therefor.

H. Evans, Judge; 1. The Arkansas mental anguish statute is void as to interstate messages, and the court should have directed a verdict for defendant in both eases. Western Union Tel. Co. v. Brown, 234 U. S. 542; Western Union Tel. Co. v. Compton, 114 Ark. 193; Western Union Tel. Co. v. Johnson, 115 Ark. 564. 2.

Evans, Judge; 1. Appellants and the St. Louis & San Francisco Bailroad Company were sued jointly, and both were served with process. When, on the tenth day of the term, the plaintiff -elected to take -a nonsuit, -or to discontinue the case .as to the railroad -company, this worked a continuance for the term, and the court erred in forcing appellants into trial -at that term.

The .appellant instituted this suit ¡against -the appellee to recover upon three promissory notes executed by appellee to the .order of the Vernon Advertising & Manufacturing Company (¡hereinafter designated as the Vernon Company). Appellant .alleged that the notes were endorsed by the payee to the appellant, being purchased by .appellant in the usual course-of business, 'before maturity and for value ¡and without notice.

M. Jackson, Judge; i 1. We should have been allowed to prove the insanity of the deceased rat the time he entered into the combat that caused his death. 76 N. Y. 426; 55 Id. 169; 95 U. S. 232; 109 Id. 101; 99 Mass. 317; 3 L. E. A. 486. 2. The “incontestable clause” bars all defenses after the lapse of time. Ill Ind. 462; 60 Am. Rep. 702; 11 N. E. 230; 173 Ind. 613; 89 N. E. 398; 91 Id. 230; 43 Ind.

Humphries, Chancellor; STATEMENT BY THE COURT. Appellant brought this suit to set aside certain alleged fraudulent conveyances made by Sam Fluke to Abby Rebecca Anderson, whom he later married and to her, his wife.

W. Hendricks, Judge; STATEMENT BY THE COURT. The appellant leased to appellee Wilhelm a building situated in the city of Argenta, for the term of five years, beginning January 1, 1913, at the rate of $165 per month, payable in advance; and appellee Schneider guaranteed the performance of the contract on the part of Wilhelm. For reasons hereinafter stated Wilhelm declined to pay rent, and Schneider was sued in his capacity of guarantor.

M. Jackson, Judge; STATEMENT BY THE COURT. The appellee sued the appellants in replevin for certain machinery used in conducting a cotton gin, sawmill and com mill.

Carter, Judge; STATEMENT BY THE COURT. Appellee, as 'administratrix of ithe estate of her husband, James Rodgers, deceased, instituted this suit against the appellant to recover damages to the estate ■and the next óf Mu, alleging that on the 29th of May, 1913, James Rodgers was in the employ of the appellant as a ■brakeman ou a train engaged in interstate commerce, and at the time of 'his death was acting as .a ¡brakeman ou said train; that the train arrived at Gurdon from…

F. Gautney, Judge; STATEMENT by the court. Appellee brought this suit against appellant, alleging that appelant was the sheriff of Crittenden County, Arkansas ; that on the 18th of October, 1909, in the common pleas court of Crittenden County appellee recovered judgment against the firm of A. D. Humphries & Son for the sum of $319.39, which with interest amounted to ■$340.95, .and costs of the action which amounted to $10.75; that on December 7, 1909, execution was issued in…

Trimble, Judge; STATEMENT BY THE COURT. On the 6th day of November, 1914, R. A. Plumlee and J. H. Plumlee, Jr., instituted- this action in the circuit court .against T. D. Bounds, H. C. Harris, H. E. Hearon, J. B. May and John S. Black, doing business under the firm name of May & Black, to set aside- a sale of certain lands under execution.

E. Arnold, Special Judge; STATEMENT OP PACTS. M. H. Dague sued the St. Louis, Iron Mountain & Southern Railway Company ito recover damages for the loss of certain property which he delivered to the railroad company at Newport, Arkansas', for shipment to Texarkana, Arkansas.

Francis 'Chancery Court; Edward D. Robertson, Judge; STATEMENT BY THE COURT. J. D. Henley instituted this 'action in the ¡chancery court against Mary E. Engler, Siam Engler and the Bank’ of Brinkley to obtain ¡specific performance of a contract for the sale of .land. 'The facts are as. follows: The plaintiff Henley made a verbal contract with Sam ¡and Mary Engler to purchase from them 160 acres of land in St. Francis County 'and agreed to pay therefor $2,100.

Frierson, Chancellor; STATEMENT BY THE COURT. The appellees filed their petition, setting up that the west fractional half of section 34, township 9 north, range 8 east, ¡containing 223.32 -acres, was sold in 1910 under a decree of the chancery court for the -alleged nonpayment of taxes due the Sit. Francis Levee District for the year 1909, ¡and that ¡appellants were the purchasers at that sale.

R. Haynie, Judge; STATEMENT BY THE COURT. This is an action for statutory penalty under section 6620 of Kirby’s Digest, which makes any corporation operating a railroad in this State liable to a penalty for taking or receiving any “¡greater compensation for the trans- • portation of passengers than is allowed by law.” The plaintiff alleged that he was a passenger on defendant’s train from Prescott to Boughton; that he applied for a ticket to Boughton, for which the agent…

Appeal -from Crittenden Guaneery Court; Charles D. Frierson, Cbaneellor; 1. Our -Constitution oonfer-s exclusive jurisdiction .as to taxes, roads and bridges, etc., upon tbe county court. Art. 7, § 28, -and Amend. No. 5, Kirby’s Dig., § § 7227-8, 7273. 2. The act in question is unconstitutional and void, as an attempt to usurp the jurisdiction of the county court and vest it in a board created by the Legislature.

Cowling, Judge; 1. The evidence is not .sufficient to support a verdict under the “Federal Employer’s Liability Act,” and the decisions of this court and the United States Supreme ■Court construing same. 233 U. S. 573; 234 Id. 725; 231 Id. 222; 229 Id. 265. Negligence must be proyed. 100 Ark. 467; 110 Id. 36. No negligence on the part of the company is proven. 105 Ark. 161; 102 Id. 581; 179 U. S. 658.

J. Driver, Judge; 1. The special term of court was not 'legally organized.

Sha- ■ ver, Chancellor; 1. Appellant not having given the Texarkana Trust Company any authority to collect any part of the principal of these notes, and having no knowledge of its custom of requiring deposits to -meet payments, and he having purchased the note before any of these deposits were made, he is not bound thereby. 64 Ark. 119; 111 Ark. 263. After the purchase, the note was in the possession of appellant, ¡and not in the possession of the Trust Company.

W. Hendricks, Judge; 1. It was. within the power of the appellee on the 29th day ¡of February to retell the bill of lading by wire and to direct the railway 'company to deliver the lumber to the Continental’ Lumber Company, which undertook to pay the appellee’s ¡claim in full. ■ Instead, appellee sold rto 'another company for ia much smaller sum. It was the duty -of appellee to minimize its loss. 67 Ark. 371; -78 Ark. 366; 80 Ark. 228; 96 Ark. 78; 102 Ark. 246. 2.

Hendricks, Judge; STATEMENT BY THE COURT. The. appellee (plaintiff below) sued appellant Daniels, alleging that it entered .into a contract with him whereby.it leased to him ia certain stea-mboat for -a period of.ninety days; that Daniels agreed to pay'for the use o,f the boat $300 for the first thirty days, $400 for the ■second thirty days-, and $400 for the third thirty -days, making a total of $1,100; that Daniels entered into a bond, with appellant E. Ó.

J. Driver, Judge; STATEMENT BV THE COURT. S. E. Martin filed her petition in the probate court of Mississippi County, alleging that James W. Martin, prior to 1894, was seized of an estate of inheritance in certain tracts of land in Mississippi County; that in the year 1894 and previous thereto he had executed deeds conveying said lands to the defendants; that plaintiff was the wife of James W. Martin at that time, and that she did not sign or acknowledge any of these deeds;…

<p>1. Evidence — physical condition of plaintiff — expert opinion. — In an ■action for damages against a physician for negligence in improperly setting and treating plaintiff’s leg which had been broken, it is competent for the plaintiff to testify that on a certain date the leg became dislocated, the .same 'being a matter of ordinary observation and not a matter exclusively of expert or scientific knowledge.</p> <p>2. Negligence — physicians—negligent treatment. — In an action for damages against ta physician for .negligence in the setting and treatment of plaintiff’s broken leg; held, under the pleading and proof an instruction was correct which charged the jury that if the physician failed to use reasonable care and diligence either in the diagnosis, treatment or the giving of instructions to the plaintiff or his attendants, and if such failure resulted in the injury .to plaintiff’s leg, of which, he complains, without the fault of the plaintiff, then the defendant is liable for damages.</p> <p>3. Physicians — treatment of patients — duty of care. — A physician or surgeon in the treatment oif patients is not .required to exercise the highest skill possible; he is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and ■ exercised, by members of his profession in good standing, practicing in the same line, and in the same general neighborhood or in similar localities; he must use reasonable care in the exercise of his skill and learning, and must act according to his best judgment in the treatment of Ms patients.</p> <p>4. ¡Damages — physicians—negligent treatment of patient. — The basis ifoir awarding damages in an action by a patient against a physician for improper treatment, is such damage the jury finds from a consideration of all the evidence, would fairly and reasonably compensate plaintiff for his injuries, and the elements of damage to be considered .by the jury, are plaintiff’s .loss of time, loss of earning power, bodily pain and suffering which he has been compelled to endure, mental anguish resulting from the negligence, .and any future suffering or inconvenience which he must suffer by reason of such negligence.</p> <p>5. Negligence — physicians—treatment of patient — contributory negligence. — In an action for damages caused .by negligent .treatment by the defendant physician, the burden is upon the defendant to prove plaintiff’s contributory negligence, and the plaintiff will not be held to have been .guilty of contributory negligence in disobeying instructions .in the absence of a showing that he received any instructions from the physician, which it was the physician’s duty to give Mm; and the plaintiff can not recover when his condition resulted from his failure to properly take care of himself.</p>

M. Jackson, Judge; The testimony of the three veterinary surgeons shows that it was impossible for the hogs to have 'Contracted the cholera after they left Green Forest, hut that they must have been infected with it at the time they were 'shipped. This testimony is undisputed, and the jury had no right arbitrarily to disregard it. 57 Ark. 413; 96 Ark. 504.

<p>I. Bills of exception — judge's signature — signed when. — A bill of exceptions may be signed by the judge in vacation, .if done within the 'time specified in an order of the count entered at the trial term.</p> <p>X. Bills of exceptions — filing.—The filing of a 'bill of exceptions is not a judicial act, but constitutes merely the making of a record of past transactions, and therefore may be done in vacation.</p> <p>3. Bills of exceptions — time foe filing — succeeding teem. — Kirby’s Digest, § 6222, provides that the time allowed by the trial court for filing a bill of exception must not be beyond the succeeding term. Appellant was given one hundred and twenty days in which to file a bill of exceptions; he filed the same within the time specified, but in the meantime, a succeeding term of court had come on, but when the bill of exceptions was filed the court was holding an adjourned session. Held, under the statute the bill of exceptions was filed on time.</p> <p>4. Bills of exceptions — time foe filing. — The only limitation, under Kinby’s Digest, § 6222, upon the power of the court at the trial term to extend the time for filing a bill of exceptions, is that it must not Tun beyond the succeeding term, and the fact that the term is unduly extended (by adjournments over from time to time does not prevent the extention of the time up to the limit of the number of days fixed by the court’s original order.</p>

M. Jackson, Judge; Tbe court erred in sustaining tbe demurrer. In ■the eye of tbe law tbe parties were guilty of larceny in every county into which tbe stolen property was carried. Kirby’s Dig., § § 2090, 2091, 2095; 54 Ark 621; 58 Ark 513; 97 Ark 414; 11 Wharton’s Crim. Law, Kerr’s Edition, § 1166; 74 Pac. 1086; 63 Pue. 596; 11 Cush. 483; 1 Car. & P. 127; 2 Russell, Crimes, 329; 15 L. R. A. 722; 14 Id. 559.

M. Jackson, Judge; STATEMENT BY THE COURT. Appellant was indicted by the grand jury of White county for violating what is known as the “Pandering Act”, Act. No. 105 of the Acts of the General Assembly of 1913.

J. Driver, Judge; Under the agreed statement of facts, the sale having been made on an island at a point east of the main channel of the Mississippi river, it occurred in the State of Tennessee, and not in Mississippi County. The court had no jurisdiction. 40 Ark. 503, 506, 507; 30 Ark. 43; 134 S. W. 624. Arkansas and Tennessee have concurrent jurisdiction over crimes committed on the river.

■Appeal from Craighead Circuit Court, Jonesboro District; J. F. Gautney, Judge; STATEMENT BY THE COURT. Appellant brought this suit in the justice court against E. K. and S. M. Nutt, upon two promissory notes fox $150 each, 'dated February 3, 1913, one due April 3 and the other June 3, after date. Defendants failed to appear in the justice court and judgment by default was rendered against them from which they appealed.

Grace, Judge; The .suit was not instituted 'within one year after the alleged canse of action accrued, nor within one year after the date appellees became aware of their canse of action against appellant. The canse of action is barred, and the court ought to have directed a verdict for appellant. Act 193, Acts 1907, p. 453, 464, § 21.

E. , Jeffery, Judge; STATEMENT BY THE COURT. William Ingram sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries sustained ¡by him while helping to load some 'bridge timbers on a flat car.

H. Evans, Judge; STATEMENT BY THE COURT. These suits are for damages for personal injuries ■alleged to have ¡been caused by the .assault of an employee of the railroad company, .a porter on the train, on appellees passengers thereon. Frank Patterson .and Andrew Jackson boarded the train at Pine Bluff, after purchasing tickets, the one to • Dermott and the other to Noble Lake.

Haynie, Judge; STATEMENT BY THE COURT. Appellee brought this suit in the justice court for $50.75 damages to a carload, of Irish potatoes, shipped from Chicago to it at Texarkana. Judgment was rendered by default in the justice court, and the ease was appealed to the circuit court. The president of appellee company testified that the Irish potatoes were bought through Earle Brothers of Chicago, and shipped with ¡bill of lading attached to draft allowing inspection.

J. Driver, Judge; 1. Appellant is not estopped by the former judgment. The question ns to loss of time and diminished earning power was not adjudicated in the former suit, and hence is not res judicata. 66 Ark. 343; 96 Id. 89; 97 Id. 456; 62 Id. 76; 2 Black on Judg., § 609, p. 925; Wells Rep. Adj., § 14, p. 18; 66 Ala. 345; 86 N. W. 317; 35 So. 306; 29 Id. 847; 86 S. W. 47. 2.

The case of Crutcher v. C., O. 1. There is now no reason for the rule that notice of special damages must be given before shipment. Van Zile on Bailm. & Oar. (2 ed.), § 494; C. Cyc. 450; 24 S. W. 353; 51 So. 863; 60 S. E. 477; 64 Id. 413; 30 L. B. A. (N. S.) 483-8; 71 S. E. 71; 4 Bui. Case Law, § 215, p. 747; 91 S. W. 1121-22; 142 Id. 629.

The appellee alleged that on August 23,1913, he purchased of the Hunt-Berlin Coal Company at Memphis, Tennessee, a carload of coal; that the coal company delivered the ear to appellant for shipment to Mesa, Arkansas; that at the time the ear of coal was delivered to appellant, appellee, through his agent, the Hunt-Berlin Coal Company, notified appellant that the purpose for which the coal was to he used was for fuel to run an engine to generate power with which to pump water…

Petition for Certiorari; An order of adjournment made by the court in these words: “Ordered that court adjourn until .... ” and signed by the judge, is a final ¡adjournment of the term of court then in 'session. No order thereafter made by the judge adjourning the court to a day certain can give life to the term so previously adjourned, 'and ¡any proceedings had in said court iso ¡adjourned the second time to a day certain is coram non judice and void.

A justice of the peace is not fa competent juror. 69 Ark. 449. Defendants peremptory challenges were exhausted. Kirlby’.s Dig. § 2367; 69 Ark. 322. 2. Kirby’s Dig. § 1892 embraces two crimes, one “knowingly .administering” and the other “maliciously exposing” poison, etc. The court erred in its charge to the jury. 129 N. W. 234. •Confesses error in the selection of a justice of the peace as a juror. 98 Ark. 327; 69 Id. 449.

H. Evans, Judge, statement by the court. The appellant was convicted of the crime of resisting ■an officer in violation of an 'ordinance of the city of Malvern prescribing, 'that if any person .shall knowingly and wilfully obstruct or resist 'any sheriff or other ministerial officer in the service or execution of, or in the attempt to iserve or execute, any writ, warrant or process, original or judicial, in discharge of :any official duty, in case of ¡felony, or in other…

Cot-ham, Judge; statement by the court. The appellant instituted 'this .suit .against the appellees, alleging that he was the owner 'of pant of a lot in the .city .of Hot .Springs, Arkansas, .and that While he was engaged in putting in a plate glass front in the ’building thereon, in December, 1911, the appellees ■unlawfully entered upon the lot and forcibly removed the plate glass front and wilfully and negligently destroyed the ¡same, to appellant’s actual damage in the…

Appeal froim Polk Circuit Court; Jefferson T. Cowling, Judge; 1. The 'court erred in refusing peremptory instructions asked. There was no question for the jury as to the architect’s fraud or mistake. 88 Ark. 213. 2. The court should have given the peremptory instructions ais to concrete, roof, cornice, plastering, ventilators, lumber, etc. The architect was the final arbiter. 48 Ark. 522; 68 Id. 285; 79 Id. 506 - 83 Id. 136; 88 Id. 213. 3.

J. Driver, Judge, 1. A discharge in bankruptcy of one obligor does not discharge the others. Bankruptcy Act 1898, section 16a; 5 Cyc. 401, and note 50. 2. The oral promise to pay the debt after discharge was .sufficient to revive the debt. 27 Ark. 619; 33 Id. 651; lb. 84; 44 Id. 108. Since these decisions our Legislature has enacted section 3655, Kirby’s Digest. This is very similar to section 5079.

W. Smith, Judge; 1. The vacancy of the building .avoided the policy ipso facto. 109 Ark. 324; 2 Clements on Fire Insurance, 367; 5 So. 768; 42 N. W. 630; 65 Kara. 373; 69 Pac. 345; 69 ,S. W. 42; 27 Id. 122. 2. The local agent had no authority to waive an express provision of the policy. 19 Cyc. 782; 22 Pac. 1010; 7 N. Y. Supp. 589. 3.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p>

Shaver, Judge; STATEMENT BY THE COURT. On Miay 13, 1912, the Board of Waterworks Improvement District No. 2 of Mena, Arkansas, filed suit in the Chancery Court of Polk County against unknown owners of real estate in the district for the purpose of collecting delinquent taxes which ¡became due on the 29th of March, 1912, .and were delinquent on the 29th of April, 1912.

Cowling, Judge; STATEMENT BY THE COURT. This appeal has been prosecuted from a judgment pronounced upon the verdict of a jury finding appellant guilty of the crime of carnal abuse, and fixing his punishment at imprisonment in the penitentiary for the period of one year. Appellant has not favored us with any brief in the case, hut we have carefully considered the errors assigned in the motion for a new trial.

The defense of lack of consideration and fraud was not established. The burden was on defendant, for ■fraud is never presumed; it must be proven. 92 Ark. 509; 78 Id. 87; 77 Id. 355; 38 Id. 419. The note imports a consideration. Recovery is not defeated by mere inadequacy of consideration. 99 Ark. 238; 138 2. The consideration was proven. It need not pass to the maker of the note; it may pass from the payee to a third party. 40 Ark. 69.

Saline Circuit Court; W. H. Evans, Judge; 1. Instruction No. 2, holding defendant to the ‘ ‘ highest degree of care” as to station or platforms is.1 not the law. Elliott on Bailroads, p. 406, par. 1590; 65 Ark. 255; 96 Id. 311; 167 S. W. 486. 2. This is not a case for exemplary damages. 53 Ark. 7; 77 Id. 115. 1. Appellee was a passenger and the carrier is, in effect, prima facie responsible for the smallest negligence.

JET. Evans, Judge; STATEMENT BY THE COURT. The plaintiff brought suit for damages against the railroad company, alleged to have been caused' by the negligent construction of its roadbed and diverting the water from its natural course-and overflowing Ms lands.

Evans, Judge; 1. The law of this ease with reference to the provision in the bill of lading that notice should he given in wilting, within thirty-sis hours after the arrival of the shipment at place of delivery, of damages thereto, has been settled by this court on former 'appeal, namely, that such notice is reasonable, and a condition precedent to recovery. 105 Ark. 406, and authorities cited. See also 90 Ark. 313, and oases cited.

Evans, Judge; 1. No notice was 'given as required by the hill of lading. The provision was reasonable. 105 Ark. 406; 90 Id. 314; 82 Ark. 353; 107 Id. 48; 108 Id. 115; 100 Id. 37; 93 Id. 430. The court should have found for defendant. 1. The delivering carrier inspected, 'knew and saw the damaged condition of every car. Notice was unnecessary, as the carrier had knowledge. 101 Ark. 172; 105 Id. 332, 412; Hutch, on Car.

Henderson, Chancellor; STATEMENT BY THE COURT. Samuel C. Watt instituted this action in the chancery court ¡against the Bankers’ Surety Company and Thomas J. Prichard to recover on a building contract. Several other persons filed interventions claiming liens on the ¡building for materials furnished by them Which were used in -the -construction of it.

W. Meeks, Judge; STATEMENT BY THE COURT. This is the .second appearance of this ¡cause here, a statement of which ¡appears in the former opinion wherein the complaint was held ¡sufficient. Held: as already said, the complaint sufficient and reversed .and remanded the case for further proceedings.

Lea, Judge; STATEMENT BY THE COURT. Appellant was indicted for murder in the second degree alleged to have ¡been committed by running down and killing James H. Harrod, with an automobile, npon Hie streets of tbe city of Little Rock. He was f ounid guilty of involuntary manslaughter and .sentenced to ninety days ’ imprisonment in tbe penitentiary, and from the judgment of conviction prosecutes tbis appeal.

Frierson, Chancellor; 1. The description in the deed] from Schultz to DeMoss wlais had ¡and the deed was void. Besides it was never shown that Schultz had title. The deed was not recorded ¡and. was not notice. Appeliamit did not hold under iSchultz and was not hound to look for adverse ■claims. 69 Ark. 95; 76 Id. 525; 2 Devlin, Deeds (2 ed.), § § 712, 713; 59 Penn. St. 167-171.

Demands against a ¡county must be verified according to law. Kirby’s Dig., § § 988, 1453, 1179. Counity courts are expressly prohibited from ¡allowing any greater isum than is actually due in money. 47 Ark. 80; 44 Id. 437; 31 Id. 552. On appeal the circuit 'court Can only render such judgment as the county court should have rendered. 90 Ark. 195; 52 Id. 502. The affidavit is a prerequisite to the allowance of the claim.

Curl, Special Chancellor; STATEMENT BY THE COURT. The facts as stated by 'the chancellor are substantially as follows: On the 12th day of April, 1911, the defendants, Agatha M. Goodlet, Janette Frisby, William Becker, Jr., deceased, Margaret Brock, Lucy Becker, Mamie and Frank Becker, minors, by guardian .and next friend, Agaitha M. Goodletlt, and Edward Donnelly, Lawrence Donnelly, Dorothea Donnelly, minors, by their father and next friend, E. C. Donnelly, filed their suit…

F. Gcmtney, Judge; STATEMENT BY THE COURT. Y. S. Sharp land H. D. White, partners ¡ais Sharp & White, instituted this /action in the ¡circuit /court against the Southwestern Telegraph & Telephone Co. to recover penalties under /our statute fox ¡alleged 'discrimination /against them /by the defendant in furnishing telephone service.

W. Wells, Judge; STATEMENT BY THE COURT. The appellees executed as principal ¡and sureties, a series of notes to the Hamburg Bank, dated December 16, 1909, in a ¡stum equal to $50 each, with 10 per cent interest from ¡date ¡till maturity -and hearing 10 per cent ¡after maturity until paid, the last note being payable March 16, 1914.

Elliott, Chancellor; 1. The .appellant is mot estopped. The question ,of the validity 'and legality of the decree upon which the appellee, George LaCotts’ title is based, was not passed upon or acted on by this 'court, on the former appeal. The question is not res adjudicata. 50 Ark. 190; lb. 338; 97 Id. 611; 21 Id. 364; 105 Id. 5.

E. Evans, Judge; STATEMENT BY THE COURT. Appellee alleged in Ms complaint that on the 10th of January, 1914, hie was engaged as a laborer in •helping to construct extensive mill isheds for tbe appellant company 'and tihiait in the construction of these .sheds the appellant company had negligently (and carelessly caused the carpenters constructing them to place the joists on which the roof rested without any bracing of any kind whatever to support the same, the only support…

Cowling, Judge; STATEMENT BY THE COURT. This is ¡a suit by the appellee .against the appellant to recover damages for alleged negligence in carrying appel-. lee 'beyond her destination .and. in refusing to keep a fire in its waiting room at such a .season of the year when it was sufficiently cold to make .a fire necessary for ¡appellee’s comfort.

W. Wells, Judge; The evidence does not make out a case of liability. The testimony of the engineer as well as that of the fireman, was consistent, and uneontradicted, and their testimony shows that the killing of the stock was unavoidable. No negligence is .shown. 80 Ark. 396; 89 Ark. 120. The verdict of the jury is justified by the evidence and will stand.

H. Humphreys, Chancellor; 1. The father, unless he is incompetent or unfit, is the natural ¡guardian and entitled to the custody and control of his minor children. Kirby’s Dig., § 3757; 32 Ark. 96; 95 Ark. 355; 37 Ark. 30. Even as against the mother, he is generally -allowed the ¡custody of the children. 82 Ark. 461. 2. The evidence fully makes out a .ease in favor of the appellant.

F. Taylor, Special Judge; 1. Parol evidence alone, if of satisfactory character, is recognized in this State ias sufficient to warrant a mmc pro tunc entry of a judgment. 40 Ark. 224; 78 Ark. 364, 115 Am. St.'Rep. 42; 75 Ark. 12. As to degree or character of proof required, see above cases, also 84 Ark. 100, 106, and cases cited. 2.

Gotham, Judge; There were three qualified directors of the district, as appears by the evidence. No previous written notice was given of the meeting at which appellee claims to have been elected; and the meeting in which Powell participated was called, not for the purpose of electing a teacher, but for the specific purpose of signing the notices of the annual school election, and for that purpose only.