Volume 119 — Arkansas Reports

Benton Circuit Court; J. 8. Maples, Judge; 1. This was an 'absolute contract of sale in writing; the title passed to defendant on delivery. Bish. on Cont., § § 322, 329, 333; 7 A. & E. Ene. (2 ed.) 142; 30 Id. 168; 35 Cyc. 655. All the instructions of the court on the theory e£ a conditional sale on trial were erroneous. 6 A. & E. Ente, (2 ed.) 449. 2. The contract was in writing. Oral testimony was inadmissible to vary or contradict it.

Tbe evidence does not ¡support tlie verdict. Improper evidence was -adduced. 95 Ark. 233, 238; 74 Id. 300, 256, 259, 260; 102 Id. 435, 438. Beadle was never released, and it is not ¡shown that Faulkner ¡assumed the payment of the commission. 102 Ark. 407, 409, 410. 2. Even if Crawford orally ¡assumed the payment of Beadle’s debt, the promise is within the statute of frauds. 102 Ark. 407. 3. It was error -to refuse to receive the first verdict. 40 N. T. Sup. Ct. 271; 22 Erne.

A. Falconer, Chancellor; 1. The mortgage wa,s void. It wia,s made with fraudulent intent to cheat, hinder and delay creditors and the surety company was privy to such fraud. Kirby’s Dig., § § 3374-5; Bigelow, Fraud. Conv. Rev. Ed. 291; 20 Cyc. 462; 151 Mo. 86; Bump. Fr. Conv. (3 ed.), 200; 301 U. S. 141; 14 Ark. 69-75; 55 Id. 579, 582; 23 Id. 735, 744; 50 Id. 314; 46 Id. 122, 127; 50 Id. 314-318; 99 Id. 45; 57 Id. 569; 31 Id. 666. 2.

W. Meeks, Judge; STATEMENT BY THE OOTJRT. The petition asked for .the establishment olf the drainage district to include the territory designated, situated in Lawrence and Randolph counties, that an engineer be appointed to make the survey and report to the county court.

M. Jackson, Judge; STATEMENT BY THE COURT. J. B. Tukey, a traveling salesman, .bought a ticket from Batesville to New Augusta, Arkansas, on the 31st of July, 1913, and changed cars at Newport. When he attempted to board appellant’s train, there wtas a woman passenger in front of him .and he and the other passengers, who were all impatient, were detained while the /brakeman waited for the lady to .search in her bag for a ticket, which she feared was lost.

Smith, Judge; Under the facts sdiown in evidence, the train operatives had the right to presume that appellee would get out of the way, until they saw him, or .shonld have seen him, in the attitude of preparing to write; ¡and, when that occurred, it was entirely too late to prevent the injury. 90 Ark. 403; 107 Ark. 218, 220.

W. Smith, Judge; 1. This case is not affected .by the “lookout” statute,” but falls under the rule governing 'liability in cases of discovered peril. Deceased was an admitted trespasser and guilty of gross negligence. The only question is, did the engineer exercise ordinary care to avoid the accident after he .discovered the peril of deceased.

Where no rights of a third person are involved, it is not necessary for a material man to file his affidavit for a lien punctually iwibhin the ninety days allowed by law. 30 Ark. 568; 51 Id. 203; 49 Id. 475; 21 Id. 192; Kirby’s Digest, § § 4976, 4981. 2. 'The appellee is estopped iby her agreement to execrate a mortgage. 20 A. & E. Ene. L. (2 ed.) 386; 77 Ark. 590. 1. The statute must be complied with or there is no lien.

F. Lamb, Special Chancellor; T.be ordinary rule is not disputed that one partner can not charge 'another for services rendered the partnership unlesis by special agreement; but there are exceptions to this rule which ¡are well recognized, ¡as that Where it can be fairly and justly implied from the course ¡of dealing between the partners, or from circumstances of equivalent force, that one partner is to be compensated for his services, his claim therefor will be sustained. 24…

F. Gautney, Judge; 1. Under the ordinary rules of the Law Merchant, White, by accepting the draft, became liable to the bank. By his acceptance he affirmed to all subsequent holders that Burke had authority to draw. 62 Barb. 101; 3 Burr. 1354; 1 W. Bl. 390; 60 Minn. 189; 51 Am. .St. 519. If a bill be drawn >by one professing to act as agent of the drawer, the acceptance admits his handwriting and authority as agent to draw. Daniel on Neg. Inst.

There is absolutely no evidence tending to prove involuntary manslaughter, nor iany evidence to sustain such a, verdict. 71 Ark. 459; 99 Id. 188; 32 Id. 552; Kirby’s Digest, § 1779; 21 Cyc. 760-2. 2. It was error for the court to instruct the jury on involuntary manslaughter.

Appeals from Mississippi 'Chancery Court; Charles D. Frierson, Chancellor; 1. As 'to the appeal bond. The court erred in overruling the demurrer to that part of t'he complaint which sought a recovery against the sureties upon the ¡bond given upon appeal from the judgment of the county court in the election contest .to the circuit court. The judgment under section 2862, Kirby’s Digest, is self-executing and as such is not subject to stay or supersedeas. 106 Ark. 433; 153 iS.

M. Jackson, Judge; 1. It was error to refuse the modifications to the instructions requested by defendant, as asked by the plaintiff. The .modifications asked merely embodied the rule that carriers must be careful not to invite or to- mislead passengers into alighting at an improper or dangerous place.

Haynie, Judge; STATEMENT BY THE COURT. The facts -are substantially as follows: The appellant is -a negro. On the 10th of February, 1915, there was at his house what the witnesses designate in the record as a festival, to which the negroes in-the neighborhood were invited, iand where they had a supper and dance.

E. Jeffery, Judge; STATEMENT by the court. Appellant instituted tikis action against tke appellee, alleging that he was a passenger on appellee’s train, and that while on such train there was a collision through the negligence of the agents of the appellee 'by which he was seriously and permanently injured. He specifically described his injuries, and prayed for damages for pain and suffering and for loss of earning power, etc., in the aggregate in the sum of $40,000.

Mar-Uneau, 'Chancellor; 1. The policy issued in Alabama on property in Arkansas, is void as to the surety, being in violation of Kir-bv’s Digest, § § 4363, 4364, and Acts 1905, p. 780. 29 Ark. 386; 47 Id. 378; 34 Id. 762; 81 Id. 599. Where an illegal contract has ¡been made, no court will grant relief, but leaves the parties where it finds them, if they have been cognizant of the illegality. 67 Ark. 480; 81 Id. 41; 98 S. W. 711; 95 Ark. 552; 129 S. W. 797.

F. Gautney, Judge; 1. No right of transfer exists, under our statutes, from a special to a common school district. Kirby’s Digest, § 7639; lb. § § 7607, 7668-7669; Acts 1909, 947; 102 Ark. 411; 60 Id. 124; 65 Id. 427; 97 Id. 71. The provisions for transfer ¡apply only to common school districts. 120 Iowa, 119; 35 Cyc. p. 850, note and cases supra. There is no law authorizing such .a transfer. Declaration No. 1, asked by appellant, should have been given.

W. Hendricks, Judge; STATEMENT BY THE COURT. Appellee brought this suit in justice court for damages for the killing of a hunting dog and recovered judgment, from which appellant appealed to the circuit court, and upon trial there again recovered judgment for $50, from which appellant prosecutes this appeal. It appears from the testimony that plaintiff passed near defendant’s home, about 10 o’clock in the morning, and hitched his horse by the pasture 250 yards from the house.

J. Driver, Judge; 1. The evidence does not show the ownership of the hogs -as alleged in the indictment. '2. Edgar -Smith testified that his hogs disappeared aibout the 1st of September, 1914, while the proof on the part of the appellants is positive to the effect that the hogs found in the possession of Sidney Johnson, in Missouri, were taken there -by him aibout the 1st of June, 1914.

Frierson, Chancellor; 1. The court ought to have sustained appellant’s demurrer, interposed after the evidence was in, to the ■allegations of the answer as to the purported oral agreement to disregard the will. The effect of allowing this defense and the evidence to sustain it, is to convey the real estate of the decedent by an oral agreement. 55 Ark. 74.

Mar-tineau, Chancellor; STATEMENT BY THE COURT. Appellant was a planter and merchant ¡at Endora, Arkansas, during the years in- which the cotton involved in this litigation was shipped. The appellees were commission merchants in Memphis.

Gotham, Judge; 1. We are not unmindful of the rule of law upheld in this State'that a child can be guilty of negligence only when he possesses ¡sufficient intelligence to realize the effect of his acts; but this doctrine, under the evidence, can have no application to this case.

Cowling, Judge; STATEMENT BY THE COURT. H. B. Wilson instituted this action against the Kansas City Southern Bailway Company to recover damages for the negligence of the defendant’s servants ,in permitting fire to escape from its right-of-way, whereby his-pasture was burned and destroyed. The plaintiff had leased the land on which the pasture was (burned; subsequently the owners of the land were also made parties to the action.

H. Evans, Judge; The petition did not contain a majority of all the electors of the district, to be “divided.” Kirby’s Dig., § 7544; Acts, 1891, p. 194. District No. 8 was not divided, ■and it took a majority of the electors of District No. 8 to give the court jurisdiction. 54 Ark. 134; 105 Ark. 47; 102 Ark. 401. The circuit court followed the statute. Kir’bv’s Dig., § 7544; 54 Ark. 134.

F. Summers, Special Judge; Under the act of May 31, 1909, this court will consider all errors prejudicial whether exceptions were slaved or not. A continuance should have been granted. Defendant was diligent. The refusal was a flagrant -abuse of the ’discretion of the court. 60' Ark. 564; 71 Id. 182; 100 Id. 301; 73 Id. 180. Two days is not a reasonable 'time. 12 Cyc. 503, 536; 95 Ark. 273; 50 Id. 49. 2. The court erred in admitting the evidence of J. B. Kittrell.

'Appeal from ‘White Circuit 'Court; J. M. Jackson, Judge; The county -court has no power to detach, or take away, a part of a -single school district and add it to a common school district. 60 Ark. 124; Kirby’s Dig., § ), 7668, 7540-7543.

W. Smith, Judge; There was no evidence to sustain the verdict. The guilt was not proven 'beyond a reasonable doubt. The evidence is sufficient. 109 Ark. 130 ; lb. 138.

<p>1. Municipal corporations — local improvement districts — officers— liability. — In the 'albsence of a statute making them liable, an action 'Willi not lie against a municipal corporation or local improvement district, ior the officers thereof, the same being agencies of the iSitate for governmental purposes.</p> <p>2. Sewer improvemet districts — taking of private property — compensation. — iSewer improvement districts may be formed in cities, . and outlets therefor secured outside the corporate limits of 'the city, and as the Constitution forbids the taking of private property for public use without just compensation, the grant of the Legislature to cities and towns to- form isewar improvement districts, and to obtain an outlet therefor, outside the corporate limits of such municipality, imposes upon such corporation the correlative duty to make just compensation for property so taken.</p> <p>3. Municipal corporations — polluting stream — sewage — liability — compensation.—The turning of sewage by a municipal corporation into a stream to the injury of lower riparian owners, is within the constitutional provision requiring compensation for damaging property for public use, and the damages should be assessed on the theory of a permanent taking under the right of eminent domain.</p> <p>4. Sewage — pollution of stream — measure of damages. — The measure of damages to a riparian owner from the use of a stream as an outlet for sewage, by a municipal corporation, is the difference in the value of the land before and after the stream wias so used.</p> <p>6. 'Sewers — nuisance—duty of municipal corporation. — It is the duty of a municipal corporation, to so maintain its sewer system, and the outlets thereof, so that they shall not be a nuisance to property owners.</p> <p>6. Sewers — treatment of sewage chemically — duty of commissioners. — Where it appeared to have been practicable, and could be done at a reasonable cost, held, it was the duty of certain sewer commissioners, to so treat the sewage in the septic tank, as to destroy the odors thereof, and render the same otherwise unobjectionable, and that it was the 'duty of the municipal corporation to maintain the -sewer system in that manner.</p> <p>7. iSewers — nuisance—evidence.—Evidence held to show that a septic ■■tank, as maintained by a city, constituted a nuisance by reason of odors arising therefrom, and the nature of the material discharged into a stream, and that the statutes authorizing the construction and maintenance of sewer systems, did not contemplate or authorize the maintenance of nuisances.</p> <p>8. Sewers — nuisances—limitations.—The fact that sewers are of permanent construction, does not render the nuisance, if any, permanent, also, and when a sewer system was ,so constructed and maintained as to constitute a nuisance, the nuisance is of a continuing or recurring nature, and an action by plaintiffs on account of the nuisance is not barred by the three-year statute of limitations.</p> <p>9. Nuisance — maintenance of sewer — equitable relief — equity jurisdiction. — Where the 'construction and maintenance of a sewer constitutes a nuisance, the municipal corporation, sewer district, ■or their officers, may be enjoined from creating a nuisance, or to abate one already created by them.</p> <p>10. 'Sewer districts- — commissioners—authority—control by city.— The object of the organization of a sewer district and the authority of its board of commissioners is limited to the construction of the sewer and paying for same; and when the improvement is completed it 'becomes subject to the control of the city.</p>

H. Evans, Judge; STATEMENT BY THE COURT. Appellee brought suit against William Kilpatrick on a promissory note for $4,000, alleged to have been executed by said Kilpatrick as consideration for the sale of a certain tract of land conveyed to him on the 9th day of April, 1912, by ia warranty deed.

Appeal froim Grant Circuit Court; W. II. Evcms. Judge; STATEMENT BY THE COURT. This cause is revived liere in the name of Amis, appellant’s administrator, because of her death pending the ■appeal.

F. Gcmtney, Judge; There is no ambiguity in the statute. The words, “judgment creditor,” were used in their legally accepted sense, and that this is true is shown by the words joined to them hy the conjunction “or,” the words “heir, de-visee, legatee. ’ ’ To hold that the phrase, “judgment creditor,” embraces the class of claims, such as accounts, notes, etc., which, when presented to the probate court, might be partly allowed, such partial allowance making a judgment…

Mar-tinecm, Chancellor; STATEMENT BY THE COURT. The Fourche Drainage District was created hy special act of the Legislature approved May 28,1907, Act No. 420, Acts of 1907, page 1112. The ¡above act was amended ¡by an act approved April 6,1909, Acts of 1909, page 304. Both the original act and the ¡amendatory act were expressly repealed by Act No. 127, approved March 3, 1913, Acts 1913, page 534.

Cowling, Judge; 1. Where ¡a contract is nnambignons it is the duty of the court to construe it and declare its meaning and effect, and not the province of the jury. 171 S. W. 140; 67 Ark. 553; 2 Parsons on Oont. (8 ed.), 492, 610; Clark on Oont. (Hornbook Series), p. 564; 81 Ark. 337. 2.

Grace, Judge; 1. Tlie indictment is sufficient. Martin was an officer and held a place of profit and trust under the laws of this State. Kirby’s Digest, § 1602; Acts 1909, p. 1155. The indictment follows substantially the language of the statute. 1. The employment of an engineer by the board did not constitute him an officer under the law.

Cowling, Judge; 1. It was error to allow the filing of the amended and substituted complaint. 38 S. W. 703; 94 Id. 277. 2. There was no consideration for the checks. The evidence shows this, and the verdict is entirely unsupported by the evidence. 70 Ark. 385; Ruling Case Law, “Appeal and Error,” § 167. 1. The infant, and not the next friend, is the real party. The defendant entered his appearance and filed an 'answer. 90 Ark. 316; 101 Id. 124; 71 Id. 258; 157 IT.

Elliott, Chancellor; 1. The decree was void because it included an attorney’s fee as part of the debt. 76 Ark. 151; 77 Id. 357. 2.' The commissioner’s sale and the execution sale are both' void for want of legal notice. Kirby’s Digest, i 4923 ; 74 Ark. 474. 1. The decree recites that the cause was heard upon the complaint, etc., “and other proof.” The “other proof” is not contained in the transcript. 80 Ark. 74; 94 Id. 115; 98 Id. 266. 2. The appeal should be dismissed.

Mar-tineau, Chancellor; STATEMENT BY THE COURT. The Saline River Railway Company instituted this action in the chancery court against the Railroad Commission and the prosecuting attorney of the Tenth Judicial Circuit of this State to restrain them from further proceeding to compel said railway company to operate its line of railroad.

Butler, Judge; STATEMENT BY THE COURT. R. W. Duckworth sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries sustained by him while in its employment. He was employed by the railway company as a mechanic and worked in its shops at McG-ehee, Arkansas. The shops at McG-ehee are situated 150 or 200 yards southeast of the passenger depot and are on the east side of the main track.

This ca.se presents a single issue, Are the tracks, rails and ties of a .street railway company nnder a franchise assessable for bridge taxes nnder the Act of 1909, page 325? This court, in Lenon v. Brodie, SI Ark. 208, finally .and completely determined this issue. This decision is .sustained by the 'great weight of /authority. 1 Page & Jones on Taxation by Assessments, § 601; Hamilton on Law of Special Assessment, § 284 f. f. 2.

W. Hendricks, Judge; 1. Appellee (being la nonresident of this State, and having failed to file the bond for costs required by law, after motion made to require such bond, the cause should have been dismissed in the lower court, and should be dismissed here. Kirby’is Dig., § 959. 2. The justice ¡of the peace court was without jurisdiction.

H. Evcms, Judge; STATEMENT BY THE COURT. B. E. Allen 'brought this suit against the railway company for damages for loss sustained on a shipment of .a oar load of hay from Braggs Oklahoma, to Benton, Arkansas, whioh the consignee refused to receive because of an overcharge of freight demanded by the company of $24.02, on account of which, while the charge was being adjusted, several days elapsed for whioh demurrage charges were made and paid, and the hay had to be…

Frierson, Judge; 1. The court had no jurisdiction to adjust the accounts ; that was a matter for the hoard of directors of the district. 5 Pom. Eq. Jur., § ■§ 342, 346. The hoard of directors are not shown to have been guilty of any illegal, wrongful or dishonest official .acts. No fraud is shown. 106 Ark. 310. There was no misappropriation of funds or illegal payments. 114 Ark. 289. • 2.

M. Jackson, Judge; There is no evidence that appellant violated the terms of the agreement, and the 'burden of proving a 'breach of the contract was on appellee. The proof as to the advertising matter certainly is not sufficient. Bnt if there had been a breach in that respect, appellee is in no position to complain after having received and appropriated the benefits under the contract.

Evans, Judge; STATEMENT BY THE COURT. Plaintiff brought this suit against tbe railway company for damages for personal injuries alleged to Lave been caused by tbe negligence of said company in failing to provide steps to tbe waiting room of its depot building at Mnlberry, Arkansas.

Humphries, Chancellor; 1. The complaint stated a cause of action. The title of a delinquent owner is cut off only by the tax deed, and it is the tax deed only that is prima facie evidence Of the validity of the tax sale.

Instruction 6 is abstract :and misleading, ignores all the admitted facts and makes the street car supreme in the street, protecting it almost absolutely from liability. 32 :So. 797; 44 Fla. 354; 14 Ky. Law Rep. 663; 99 Me. 149; 99 Mo. 509. 2.

Frierson, Chancellor; 1. In this case the distinction between a deed and a mortgage or deed of trust is to be observed, in this: If one sells and conveys land by deed to another, and a third party, with knowledge of such sale, afterward buys the same land from the grantor in the first deed, he obtains no interest in the land, even though the deed was not recorded, but this is not true of a mortgage.

<p>Appeal from Pulaski 'Chancery Court; John E. Mar-tineau, Chancellor;</p>

Frierson, Chancellor on exchange; 1. Liability can not ¡be fixed upon this appellant on account of the conduct or the knowledge of Hooten and Going. They at no time in the transaction acted or assumed to act for the bank, or in their capacity as directors or officers of the bank. 57 Fed. 20; 118 Fed. 789; 6 Am. & Eng. Ann.

H. Evans, Judge; STATEMENT BY THE COURT. This is a suit by the administrator of the estate of B. D. iSteel, for damages to his estate and to his widow and children, for personal injuries to him, alleged to have been caused by the negligence of the railroad company, and to have produced his death. The answer denied the allegations of the complaint and pleaded as defenses thereto assumed risk and 'Contributory negligence on the part of deceased.

II. Evans, Judge; 1. The taxing .authorities of Saline County should have taxed each separate tract of land involved in this appeal ¡according to the market value of that tract. Article 16, § 5, Constitution; Kirby's Dig., § 6974; 62 Ark. 461, 463. As ¡to what constitutes “market value,” see 49 Ark. 381, 390; 25 N. J. Eq. 144-147; '27 Atl. 1057; 30 Pac. Ill, 49 Kan. 17; 6 Sup. Ct. 801, 805; 117 IT. S. 379; 29 L. Ed. 924; 38 Atl. 108, 90 Me. 193; 74 S. W. 370, 373; 101 Mo.

; Jefferson T. Cowling, Judge; statement by the court. Appellee brought suit against appellant for $25 in the justice’s court, .and from the judgment there against him, appealed to the circuit court, where upon a trial ■anew, judgment was rendered in his favor, from which this appeal has-been prosecuted.

Frierson, Chancellor ; 1. Horse Shoe Lake is an unnavigable body of water, and plaintiffs-’ title extended to the middle of the lake, as abutting owners. 82 Ark. 367; 88 Id. 37; 92 Id. 39; 104 Id. 154; 36 Barb, 102; 95 N. C. 331; 59 Am. Rep. 242; 39 Ark. 409.

Frierson, Chancellor; 1. The court erred in retaining jurisdiction of the cause, and in rendering ia final decree dismissing the complaint for want of equity. Adverse possession and the seven years ’ statute of limitations were pleaded in the answer, plaintiff’s title was denied, .and also that he was a tenant in common; and proof was introduced to establish the plea, sufficient, if not controverted, to establish an .adverse ¡holding of the land.

Instruction 1, given at ¡appellee’s request, does not correctly ¡state the law. It is immaterial whether the train was scheduled to stop' at Wheatley for passengers or not; ¡the fact is that it did stop there, and took on passengers when there were any waiting. The conductor was ¡bound to see appellant if he looked in the direction of the platform, for she was in plain view.

Elliott, Chancellor; 1. The only ditch involved in this case is the “new ditch, ” as it is called. ¡Since this snit was filed, Dohbs has acquired title to the land on which the “old ditch” was constructed. The decree takes away from him lands which belong to Mm without any 'Compensation. The error is prejudicial. 103 Ark. 312-315. No condemnation proceedings were ever instituted.

Frierson, Chancellor; If ithe land involved here bordered on a nonnavigable lake at the time of the original survey in 1847, appellant has title under his riparian rights between parallel lines to the center of the lake as it existed at the time of the Government survey. 88 Ark. 37'; 82 Ark. 367.

W. Smith, Judge; 1. The materiality of the evidence on which, perjury is assigned, must be established by the evidence, and can not be left to presumption or influence. 32 Ark. 197; 32 Iowa 403; 99 Ark. 631; 64 Id. 474; 86 Id. 525, etc. The alleged false testimony was not material. 1. The court left it to the jury to say whether the testimony was material or not. 88 Ark. 115-118. 2.

W. Wells, Judge; 1. Tlie plea of res adjudicata can not be sustained. The judgment in ejectment was rendered before the issuance of the patent. The compliance with the homestead laws and the issuance of >a patent constituted a new title never adjudicated. 106 Ark. 125, 131; 98 Id. 33; 94 Id. 221; 39 Id. 120 ; 55 Id. 286; 8 Ark. 344; 95 Id. 438; 71 Id. 491; 149 Fed. 694; 6 Id. 379; 4 OHa. 272; 3 Id. 649; 114 U. S. 47; 116 Id. 48. 1.

Henderson, Chancellor; STATEMENT BY THE COURT. This suit was instituted toy the appellee against the appellant to rescind and cancel a contract which appellee alleged was entered into ¡between the parties, and which is as follows: “It is agreed by and between Joe Leroy and Undine Harwood wherein the said Joe Leroy agrees to sell to the said Undine Harwood northwest quarter of tire northeast quarter of section 14, township 3 south, of range 19 west, lying in Garland County,…

Holland, Special Judge; STATEMENT BY THE COURT. Appellant was indicted, charged with the crime of stealing a cultivator, the property of Clin T. Brewer, alleged to be of the value of $15. The indictment was in correct form. He was convicted of the crime of petit larceny and prosecutes this appeal. The proof on behalf of the 'State tended to show that one Brewer owned the cultivator and had owned the same for about sis years.

W. Wells, Judge; 1. In all blood-poisoning cases caused from without, there must he ,a chain of causation from the accident to death, which must have its origin in an abrasion of the skin or wound of some ¡kind. 85 Fed. 401; 97 N. W. 91; 11 L. R. A. (N. S.) 1069; 8 Id. 68; 5 Id. 926. Where there is no abrasion or wound, there is no septi-caemia, ¡and there can be no recovery. 154 Fed. 484; 11 L. R. A. (N. iS.) 1069; 8 Id. 68.

Reed, Judge; 1. Tbe icomplaint ¡alleged, and the answer expressly denied, that appellant was a corporation. The corporate character of appellant was thus put in issue, and it devolved upon the appellee to prove the same. There was no attempt to prove that appellant was a corporation, but on the contrary, appellant’s evidence showed that it was a co-partnership. The peremptory instruction requested by appellant should have been given. 28 Ark 263; 13 Ark 462; 84 Ark 277. 2.

McCaleh, (Special Judge; STATEMENT BY THE COURT. F. A. Fry brought this suit in the justice court against S. M. Nutt upon a due (bill and alleged that said 5. ¡M. Nutt was due him the sum of $45 with 6 per cent interest,' “from.being the date the said defendant wias paid the first money upon Ditch No. 2 of the G-reene and Lawrence Drainage District, and that he had failed and refused to pay the same, etc. ’ ’ The due bill reads: “November 30, 1911, due F. A. Fry $45, to be…

Henderson, Chancellor; STATEMENT BY THE COURT. On May 30,1913, T. J. O’Neil instituted this action in the chancery court against the Lyric Amusement Company, C. J: Horner, R. Woodward, Missouri Lumber Company, Klein Raint Company, J. O.’ Rush and William Bor-man to foreclose a ¡mortgage given by the Lyric Amusement Company on its lease-hold interest in a certain building in Hot 'Springs, Arkansas, and to have said mortgage declared a prior lien to the claims of the other…

District; Paul Little, Judge; 1. The court erred in not quashing the indictment. The indictment must be brought into court, presented by the foreman of the grand jury and filed with the clerk. The special judge had no authority to receive the indictment. Kirby’s Digest, § 2226; 33 Ark. 815; lb. 180; 24 Id. 626. 2. The verdict was contrary to the laiw and the evidence.

Humphries, Chancellor; 1. The burden was on the plaintiff to show that at the time he made the deeds he did not possess sufficient intelligence to understand and appreciate the nature of Ms act, iand to show any fraud or undue influence on the part of the defendants inducing the execution of the deeds. 27 Ark. 166; 70 Ark. 173, 'l74; 97 Ark. 450; 22 Cyc. 1109-1112.

Grace, Judge; STATEMENT BY THE COURT. This is an appeal from ia judgment for $10,000 recovered by appellee against the appellant for the alleged negligent ¡killing of her ¡husband, Robert M. Wiseman. The facts are substantially as follows: Wiseman was employed by appellant as a car repairer at McG-ehee, Arkansas. He had been engaged in such work for several months.

J. Driver, Judge; STATEMENT BY THE COURT. Appellee brought this suit against the appellants on a promissory note for $1,155 payable to the order of M. W. Cobbs,' bearing interest at the rate of 10 per cent per annum from maturity until paid, signed by the Morton Mercantile & Handle Company, through Wm. M. Isom, its president and manager. The note was indorsed by Rolfe, Block, Cobbs and R. P. Sallee.

Mar-tineau, 'Chancellor; 1. The court erred in vacating the deed of trust from Doctor Scott to his wife. There was no testimony other than the deposition of Mr. Ketehum,the attorney for appellee. The insolvency of Doctor Scott is not shown, hut if conceded, the decree should he reversed on authority of 76 Ark. '252.

8. Maples, Judge; 1. The complaint shows on its face that the contracts out of which this litigation developed were wagering contracts and contrary to public policy.

Ingram, Special Judge; 1. This appeal is prosecuted to settle the law. Is there fatal variance between the allegation in the indictment iand the proof? We think not. Our statutes are very liberal and provide that no indictment is sufficient, nor is the judgment, etc., affected by any defect not prejudicial to the substantial rights of the defendant. Kirby’s Dig., § 2229.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant Tanner purchased from the appellee, Johnson, a team of horses and executed a note for $2'25, bearing interest at 10 per cent, per annum from date until paid. It was recited in the note as follows: “The title to stock retained till note is paid. ’ ’ Tanner was a tenant on Johnson’s place and he claims that Johnson had sold cotton belonging to him which amounted to enough to pay the note.

Haynie, Judge; STATEMENT BY THE COURT. Appellees .sued the appellant, alleging in substance, that one Hamisey was, at the May term, 1913, of the district court of Bowie 'County, Texas, in seven different indictments, charged with the illegal sale of whiskey, which was a felony under the Texas laws, and hail was fixed in each case at $100; that Hamisey had executed 'bond for his appearance; that the appellee Davis Wakin was the step-father and appellee Sarah Wakin the mother…

Cowling, Judge; 1. A continuance should have been granted; defendants were unduly hastened to trial. 94 Ark. 545. ’2. The evidence is legally insufficient to support the verdict. 3. An alibi was proven. 4. The court erroneously excluded testimony material to the defense. Kirby’s Digest, § 3135. 5. The remarks of the State’s counsel were prejudicial. Argues the facts and contends that the evidence is ample to sustain a conviction, and that there are no errors of law. 1.

Trimble, Judge; STATEMENT BY THE COURT. The appellee instituted this action against the appellant for damages for personal injuries. He alleged that he was a passenger on appellant’s train from Brinkley to ■Clarendon.

District; J. F. Gautney, Judge; STATEMENT BY THE COURT. This suit was instituted ¡by appellee against appellants to recover damages alleged to have been sustained by him through the negligence of the appellants in operating an electric fan without having the same protected by a guard.

Robertson, Chancellor; STATEMENT BY THE COURT. In December, 1913, appellants, under the power conferred in various deeds of trust held by them, advertised for sale the lands embraced in those deeds.

Elliott, Chancellor; 1. The chancellor failed to follow the directions of this court, and the decree should he reversed with directions to enter a decree against appellant, Vaughan, in the sum of $1,000, and order same to he distributed pro rata between the stockholders. 110 Ark. 39-42. There is no error in the decree.

H. Crawford, Special Judge • Appellant relied on representations df agents for ap-pellee, and without reading the contract signed the same. If, through inadvertence or fraud of the agents of appel-lee, párts of the contract were left .out, parol evidence was admissible to show that the 'contract sued on was not the contract entered into by appellant. 94 Ark. 577; 55 Ark. 115; 88 Ark! 385; 116 Ark. 545. . . '!.

Mar-tineau, Chancellor; 1. It was error to dismiss that part of the complaint of the appellant praying for a judgment over against G-arner for the sum of $1,951.02, and, to consolidate that, part of appellant’s suit seeking to recover the $1,707.75 from Hicks. The court had jurisdiction to. determine whether Hicks wa,s trustee, and if he held the latter sum for the plaintiff.

Vaughyn, Special Judge; While it is made the duty of the prosecuting attorney to represent the county in its litigation, it is clearly the duty of the county judge to see that the county’s interests are protected, and to this end, it is within the power of the county judge, even though the prosecuting attorney is willing and ready to serve, to employ other attorneys, if he deems it necessary, to protect the interests of the county.

Frierson, Chancellor; STATEMENT BY THE COURT. Appellees 'brought this suit to enforce a vendor’s lien against certain lands in Crittenden County, which they sold to John Blackwell and wife, and conveyed to her by a deed reciting the consideration of $4,000 punchase money, the receipt of $1,000 thereof and retaining a lien for the remaining $3,000, evidenced by three promissory notes for $1,000 each, due January 1, 1912, January 1, 1913, and January 1, 1914.

It is error on the-part of the trial court to direct a verdict, where there is any legal evidence to sustain the issues in favor of the party against whom the verdict is directed. 63 Ark. 94; 76 Ark. 520 and cases cited; 95 Ark. 359. And in testing the sufficiency of the evidence, this court will give it the strongest probative force of which it is susceptible. 57 Ark. 461, and cases cited; 66 Ark. 363; 76 Ark. 520. 2.

M. Jackson, Judge; 1. .Section 7548, of Kirby’s Digest (Act April 1, 1895) does not apply to special school districts organized under the act of 1869 as amended by Acts 1909 and 1911; therefore, the county court is without authority to dissolve a special school district.

R. Haynie, Judge; 1. Instruction No. 7 (quoted in the opinion) is erroneous. It was the duty of the court to construe the contract, and its terms should not have been left to the jury. The five days’ vacancy,which occurred from the time Taylor moved out until the house was destroyed by fire, is a matter which should have been declared by the court as forfeiting the policy. 62 Ark. 348. 2.

Cowling, Judge; In view of the distance appellant lived from the place of trial and the proof of his illness submitted with the motion, it was an abuse of discretion to refuse a continuance, and to force the case into trial in the appellant’s absence. • 42 Ark. 273; 38 Ark. 512. Intent is an essential element of this offense.

G. Trimble, Judge; 1. Appellants review tbe evidence and contend that it is not sufficient to sustain a ¡conviction even of Yates, the alleged owner of the ¡hogs, and especially not suffi-' eient to convict Kennedy and Helmering, who were hired to work for him, in that it does not establish a felonious intent nor establish ownership of the hogs in Scott. 2.

Coleman, Judge; statement by the court. This suit was begun in the Independence Circuit Court by the appellant against the appellees to recover interest -claimed to be due Independence County from the Citizens Bank & Trust Company (which, for convenience, we will ¡hereafter designate as the bank), -while acting as county depository.

The circuit court had no jurisdiction to hear the cause. This was an ex parte proceeding, and it was improper to allow appellee, the grandfather, to become a party thereto and to appeal from the judgment of the probate court to the circuit court. In a proceeding of this kind, the 'guardian, who occupies a fiduciary relation, and the minor, who is the real party in interest, are the only persons who can he aggrieved iby the order or judgment of the prohate court.