Volume 120 — Arkansas Reports

Appeal -from Saline Circuit Court; W. H. Evans, Judge; STATEMENT BY THE COURT. Edward F. Dunn instituted this action against the American Bauxite Company to recover damages for injuries received 'by 'him while in the employment of said company. In March, 1914, the American Bauxite Company was engaged in getting ore out of its mines in Saline County, Arkansas, and had been so engaged for several years.

A. Falconer, Chancellor; STATEMENT BY THE COURT. Appellant asks a review of the chancellor’s decree, adjudging him ¡guilty of contempt of court and striking his name from the roll of attorneys permitted to practice in the chancery court of ¡Sebastian ¡County, in effect disbarring him from the practice in that court.

E. Rowell, Special Judge; STATEMENT BY THE COURT. Appellee brought this suit to recover rent claimed to be due for certain premises in the city of Pine Bluff, Arkansas, for fifteen months, at $75 per month, under the terms of a written lease.

Haynie, Judge; It was prejudicial and improper for the prosecuting attorney in his argument to the jury to refer to the fact that appellant had taken a change of venue at all, but when, after -objection by the appellant to .such argument and the admonition by the court not to consider such argument, he fixed the injurious effects thereof in the minds of the jury by telling a laughable story, the point of which was an unmistakable reference to the change of venue, and which,…

W. Smith. Judge; 1. All tie shipments were interstate shipments, under contracts known as ‘‘Limited Liability” contracts. Written notice was required of loss, and action required to be 'brought within six months. Neither clause was complied with. There were two rates, either of which were optional with the shipper. Both provisions are reasonable. 57 Ark. 112; lb. 127; 54 Id. 223; 101 Id. 436; 111-Ark. 102; 129 S. W. 181; 101 Ark. 310; 227 U. S. 657. 1.

S. Maples, Judge; Counsel argue the points stated in the opinion, ¡but cite no authorities. 1. The testimony was conflicting, but there was sufficient legal evidence to sustain the conviction, and the jury’s verdict should stand. 109 Ark. 130; 109 Ark. 138. 2. Instruction 6 was correct, and has frequently been approved by this ¡court. 77 Ark. 334; 110 Ark. 606-611. Instruction 7 also was correct. 105 Ark. 608-613. 3.

Elliott, Chancellor; STATEMENT BY THE COURT. On November 19, 1908, Emmett Vaughan instituted this action in the chancery court against the Chicago, Rock Island & Pacific Railway Company to annul and set aside a deed because of no delivery and on account of nonperformance of ¡certain conditions alleged to he stated therein.

Cowling, Judge; STATEMENT BY THE COUKT. Charles Bull brought this suit against the railway company to recover damages for an alleged overcharge upon a shipment of freight from Cimarron, Kansas, to De Queen, Arkansas, and for damages alleged to have been caused to his live stock kept by the company in muddy stock pens at the point of destination, pending the adjustment of the freight charge.

B. Baker, Judge; STATEMENT BY THE COURT. E. Dalton, obtained a judgment on a promissory note on the 13th day of January, 1912, in the justice court for $161.60 against the appellee Jno. A. Gregory, the maker, and the appellants, Jno. G. Ray and Geo. H. James, the endorsers thereon.

Hot Spring Circuit Court; W. R. Evans, Judge; 1. The instruction numbered 3, given at appellee’s request, amounted to a peremptory instruction to find for the appellee.

The modification of instruction 14 was material and prejudicial. The testimony shows that appellee was notified that the master mechanic had forbidden the taking of the cars out on the track at night, and that the penalty for disobedience would be dismissal from the service.

Searcy 'Chancery Court; T. 71. Humphreys, Chancellor; 1. A vendee is entitled to the return of his money where the vendor is unable to produce the title contracted for. '20 Ark. 437; 47 Ark. 21; 86 Ark. 446. In this case the vendor failed to comply with his contract to convey the land by January 10,1913, by warranty deed with complete abstract certified up to date. It was not the intention of the parties to rely simply upon the warranty deed of the grantor.

Martineau, Chancellor; 1. The act is not unconstitutional on the ground that it seeks to divert common school funds to a purpose other than that for which they were raised. High schools are common schools within the contemplation of the act, a part of the common school system of the State. 25 Am. & Eng. Enc. of L. (2 ed.), 8; 35 Oyc. 812; 123 Mass. 304; 30 Neb. 815, 47 N. W. 284; 61 Kan. 792, 33 Pac. 654. 2. The act does not conflict with section 29, article 5, 'Constitution.

B. Baker, Judge; STATEMENT BY THE COURT. The appellee sued appellant, alleging, in substance, that appellant owned a certain electric light and ice plant in Pocahontas; that on the.8th day of November, 1912, appellant and appellee entered into a verbal executory agreement whereby appellant was to sell, and appellee to buy, the plant for the sum of $10,500, it being understood that appellant would do certain things, to wit, furnish a certified copy of the ordinance allowing…

E. Jeffery,, Judge; STATEMENT BY THE COURT. The appellee sued appellant in the Jackson Circuit •Court, alleging that she was the owner of a certain tract of land in that county through inheritance from her another and deed from her sister; that appellant was in the unlawful possession of the land, and she prayed for recovery of possession and damages.

Barker, Chancellor; 1. The time granted in the deeds of July, 1907, for cutting the timber had not expired by the express terms of the deeds as written, at the time of .filing these suits.

This suit was brought by the Laser Grain Company to recover damages alleged to have arisen from the negligence of the railway company in the shipment of twenty-seven car loads of peaches from designated points in this State to various points in other States. Some of the peaches were loaded in cars used for shipment of meat, the railway company furnishing them for the use.

83 Ark. 448, settles the law of this case in Arkansas. 50 Ark. 333. The practice is settled by 108 Ark. 184. Parol proof was admissible. 86 Ark. 74; 2 Cal. 105; 65 Ark. 53; 6 Wall. 499 ; 54 Ark. 270. See also 18 Ind. 24; 84 Kan. 856; 109 Ark. 563; 10 Pac. 858. 1. Parol proof was not admissible to ¡show that the Governor first approved the bill and then vetoed it. The record is conclusive. 60 Atl. 599; 210 111. 48; 71 N. E. 602., See also 6 Wall. 499. 2.

Circuit Court; G. W. Smith, Judge; Counsel review the evidence at length and contend that it wholly fails, aside from the testimony of Harper, tbe alleged accomplice, to connect appellant with the commission of the crime. And Harper’s testimony, uncorroborated, is not sufficient evidence upon which to base a conviction. Kirby’s Dig., § 2384. The judgment should be reversed and the cause dismissed.

H. Humphreys, Chancellor on Exchange; STATEMENT BY THE COURT. This is ¡an appeal from t’he decree of the Franklin Chancery Conrt ¡dismissing for want of equity the complaint of appellant filed in that conrt against the appellees, the prosecuting attorney of the Fifteenth Judicial Circuit and the Superintendent of the State Penitentiary.

Lea, Judge; 1. It is not erroneous to refuse to exclude all of the testimony of a witness, where part of it is admissible. 86 Ark. 23; 92 Ark. 421. 2. While evidence of one crime can not be introduced as a circumstance from which to infer guilt of the crime for which a defendant is being tried, yet if such evidence also tends to prove guilt of the crime charged in the indictment, it may be admitted. 117 Ark. 296.

W. Smith, Judge; STATEMENT BY THE COURT. Appellant was convicted of the crime of murder in the first degree for killing George Brian, upon an indictment regularly charging the offense, and which did not charge it was committed in the perpetration or attempt to perpetrate robbery, and from the judgment imposing the death sentence brings this appeal.

F. Gautney, Judge; 1. The statute which provides for the holding of elections in municipalities, also provides that “all elections shall he held and conducted in the manner prescribed by law for holding State and county elections, so far as the same may be applicable.” Kirby’s Dig., § 5433. It is clear also that only qualified electors are entitled to vote in (city elections. Kiriby’s Dig., § 5596.

W. Smith, Judge; 1. The indictment is insufficient in that the name of the1 party lagainst whom the order was drawn is not stated, iand there is no allegation that his name was unknown to the grand jury. The demurrer should have been sustained. Kirby’s Dig., § 2228. 2. Sam Stith, a witness for the State, testified that appellant’s name is Sam — better known ias George. One who signs his own name to a document or paper can not be held guilty of forgery. Kirby’s Dig., § 1714.

■Appeal from Clay 'Circuit Court, Eastern. District; J. F. Gautney, Judge; STATEMENT BY THE COURT. J. F. Carmen was indicted, charged with the crime pf incest committed by having carnal ¡knowledge of his niece, Ona Bnrtns, the indictment not alleging that he was a married man.

Lea, Judge; 1. It was not enough to warrant the conviction of appellant for assault with intent to rape if he only did some unlawful act in making preparation to commit the crime, and did nothing more in the actual perpetration thereof. The court erred in refusing to instruct the jury to that effect. 77 Ark. 37. 2.

S. Maples, Judge; 1. The Railroad Commission was without authority to enact the Order No. 3085 becanse there was no petition, signed by fifteen or more bona fide citizens residing in the territory to he affected hy the order, npon which to base such order. Acts 1907, p. 356, § 1. The words “bona fide citizen” as nsed in the statute mean a natural person. 2 Words & Phrases, 1164-69; 63 Ark. 543; 7 Cyc. 133. 2.

Smith, Judge; 1. Upon the showing made by the .appellant that the sheriff was a prosecutor of and prejudiced against the appellant, and was giving all the aid and assistance within his power to the prosecution in an effort to secure his conviction, his motion alleging these facts being duly sworn to by him, said motion to discharge the venire and said sheriff and to appoint a special sheriff ought to have been sustained. Kirby’s .Digest, § 2350; 91 Ark. 581. 2.

On the night of April 22, 1914, Frank Armstrong was killed by appellant in Cleveland County, Arkansas. Armstrong, .after a hard day’s work, being very tired, had retired early. Carroll Hopson had heard that Armstrong had been making some derogatory remarks about his (Hopson’s) wife. Hopson had married the appellant’s sister.

Eaynie, Judge; 1. As to the merits of the case, the judgment must be affirmed because .appellant has failed to preserve his rights by having his bill of exceptions authenticated and filed within the time allowed by the court. 117 Ark. 154. 2. A bill of exceptions does bring into the record the question .as to whether or not the foreman of the grand jury, who returned the indictment, was qualified to act.

M. Jackson, Judge; The court erred in directing 'the verdict. 105 Ark. 485. The directed verdict wais right. There is not a scintilla of evidence that the employee who threw the stone was, at the time, under ’the control of appellee, or that he was acting within the scope of his employment. 105 Ark. 487.

Barker, Chancellor; If section 3 of the act approved February 6, 1867, long .since dropped from our statutes iby the digesters, can be said not to have become inoperative by reason of non-usage (Endlich, Int. Statutes, § 495), the evidence does not warrant a decree for .appellee.

G. Hendricks, Judge; STATEMENT by the court. The .appellant sued the city of Argenta ’and Street Improvement District No. 11 of that city, which we will hereafter designate -as the district, 'alleging that he was the owner of certain lots in the city of Argenta on which there were six'store buildings fronting on East Washington Avenue for a distance of 140 feet. The lots are particularly described in the complaint.

Martineau, Chancellor; The plea of res adjudioata was not made -out: 1. The alleged record of the pleading’s and proceedings in the Nebraska court was incomplete ¡as ¡appears by the certificate of the clerk thereto attached. 9 Pet. 623; 70 Ark. 345; 72 Ark. 51; 78 Ark. 246; 90 Ark..200; 45 N. Y. 27; 3 Mo. 353. 2.

Martineau, Chancellor; 1. The use of the word “assigns” in a contract is sufficient to authorize -an assignment of a contract otherwise not assignable without consent.. 94 Ark. 461. The contract in this case is assignable, there being no provision to the contrary in the contract itself. 97 Ark. 513; 164 Mich. .539; 129 N. W. 701; 13 Wash. 502;. 43 Pac. 328; 111 Pac. 326. 2.

J. Driver, Judge; STATEMENT BY THE COURT. The city of Paragould enacted 'an ordinance prescribing a license fee of $15, and providing: “Every person owning, keeping or running any hackney coach, automobile or any other vehicle or conveyance for the transportation of passengers for hire within the limits of the city of Paragould is hereby required to take out and procure a license from the city clerk for each hackney coach, automobile or other vehicle or «conveyance soused.”…

Frierson, Chancellor; The statute, Act No. 279, Acts 1909, § 1, under which the district was organized, does not prescribe the terms of the notice; but, although not expressly so stated, it is necessarily implied that the notice shall correctly state the boundaries of the district, to the end that persons owning land in the district may be put on notice. 113 Ark. 566.

B. Balter, Judge; 1. 'The court’s direction to the jury to find for the appellee because “the plaintiff has failed to make out a case estabfishing the fact that she is the owner of one-half interest in the stock of drugs” was' erroneous because her testimony to that effect was undisputed. There was, therefore, some evidence to establish the issue in appellant’s favor, which should have gone to the jury. 89 Ark 368. 2.

D.. Frierson, Chancellor; 1. The necessity of making just and full compensation to the owner of private property taken for public use is clearly established law in this State. The highway statute expressly provides for the assessment and allowance of compensation 'and damages for property so taken. Kfiriby’s Dig., § § 2996, 3001, 3002, 3003. See also art. 12, § 9, Const. 1874; Declaration of Rights, Id., § 22; 13 Ark. 198, 206, 58 Aim.

Shaver, Chancellor; The lands being wild and unimproved and the tax sale void, they were in the constructive possession of the plaintiffs and their .ancestor, the true owners, from the date of such sale. When the Legislature makes no exceptions in the statute of limitations, the court can make none. 64> Ark. 317.

• Appeal from Union Circuit Court; G. W. Smith, Judge; When appellee purchased from Bolding and received title in fee simple to the lot, the lesser leasehold estate was immediately merged into the greater, the house 'and machinery thereon became ¡a part of the realty, and not a proper subject for chattel or personal exemption. 16 Cyc. 665; 56 Ark. 57.

8. Maples, Judge; STATEMENT BY THE COURT. Appellants brought this suit to enjoin the collection of a judgment of the circuit court rendered against them as sureties on the retaining bond of E. Gr.

Falconer, Chancellor; 1. In order to constitute a valid and complete contract for the sale of land, there must he mutuality of obligation, as in other executory contracts. There must be both an obligation to -sell- and an obligation to buy. 29 Am. & Eng. Enc. of L. (2 e-d.), 593.

R. Eaynie, Judge; STATEMENT BY THE COURT. At the trial of this cause in the court below appellants offered evidence tending to show that they were the owners of a large pool near the (appellee’s station at Okolona. This pool was ¡about seventy-five feet wide and 125 feet long, -and of a depth ranging from two feet -to five feet. This -pool was used by -appellants as the source of w-ater supply in the operation of their gin.

W. Hendricks, Judge; STATEMENT BY THE COURT. John Nunley sued the St. Louis, Iron Mountain & 'Southern Railway ¡Company to recover damages to. a car of live stock'shipped over defendant’s line of railroad. The facts are as follows: On January 14,1914, John Nunley shipped -a ¡car load of horses and mnles from Russellville, Arkansas, to Argenta, Arkansas.

P. Henderson, Chancellor; 1. That provision of the Act under which the commissioners are attempting to establish and construct the road through the town of ¡Sheridan without first obtaining the consent of the land owners in said town is in ■direct conflict with the State Constitution, Art. 19, Sec. 27. See also 71 Ark. 556; 59 Ark. 116; Kirby’s Dig., % 5665.

B. Baker, Judge; STATEMENT BY THE COURT. James Cochran. died on the 26th day of May, 1911, leaving ¡an estate valued at $23,816.65. Annie P. C.ochran, his widow, received $5,207.40. Mrs. Herrn, the daughter of Cochran, received $9,304.62; and six ¡children and one grandchild of W. D. Cochran, deceased, the ison of James Cochran, deceased, received each the sum. of $1,329.23, or a total of $9,304.62.

trict; Bene H. Coleman, Judge; Tbe dower interest is liable for tbe payment of an inheritance tax under our statutes. 59 L. R. A. 807; 33 L. R. A. (N. ,S.) 230. While the authorities are divided, the better reasoning appears to be with appellant’s contention. This is not a tax on property, but a itax on the right of succession thereto. 100 Ark. 175.

II. Evans, Judge; 1. The 'Court ought to have granted ithe motion for change of venue. Its 'denial was an albuse of discretion for wlhidh the cause should be reversed.

Shaver, Chancellor; 1. Appellee was not an innocent purchaser. He had notice before he purchased, and is estopped. The timber was personal property. The burden of proof was on appellee to show that he was an innocent purchaser and he failed. The injunction 'Should have been granted. 75 Ark. 228; 80 Id. 86; 90 Id. 149; 82 Id. 455; 76 Id. 26; 66 Id. 167; 55 Id. 320; 2 Devlin on Deeds (3 ed.), p. 1342; 1 Pom. Eq.

R. H.aynie, Judge; 1. It was error to direct a verdict. The cause should have been submitted to the jury under proper instructions as to the unreasonable delay in maMng objections.

Smith, Judge; 1. There is no item of expense for the telegram or messenger fee and an action for mental anguish does not lie under our statutes for negligence in the transmission of an interstate message. 115 Ark. 564.

If plaintiff was entitled to anything he was entitled to $1,500.00. The complaint was sworn to; the answer was not verified. 60 Ark. 394; 31 Id. 161. An (affidavit is evidence. Kirby’s Dig., § 3146. The proof of the damage is ample. 31 Ark. 161; 116 Ark. 50. There is no proof of damage and the judgment should be reversed on cross-appeal and the action dismissed. No negligence whatever was shown.

Frierson, Chancellor; 1. The court had jurisdiction. 12 L. R. A. 780; 6 Pom. Eq. Jur. § 750; lb. § 50; Bisph. Eq. § 370; 46 N. J. Eq. 477. 2. The defense of fraud is not sustained by the evidence. The representations were not false and fraudulent within the rule. 74 Ark. 53; 73 Id. 542; 95 Id. 136; 101 Id. 608; 47 Id. 148; 113 Id. 78; 2 Pom. Eq. 879, 876. 3.

II. Humphreys, Chancellor; 1. The obligation of the bond was fully discharged by performance. 79 111. App. 443; 43 ■ N. Y. App. Div. 158; 107 Pa. St. 206. The whole debt Was paid and the mortgage released. 4 Bui. 'Case Law “Bonds,” § 17. There was no liability on the bond whatever. 1. There was no mistake in the bond such .as would justify a reformation. 102 Ark. 326; 94 Id. 130; 101 Id. 22; 99 Id. 480; 83 Id. 131; 89 Id. 309; 81 Id. 166.

'Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge; STATEMENT BY THE COURT. J. W. Fuquay filed separate suits in the circuit court against the Milwaukee Mechanics Insurance Company and the 'Southern States Fire Insurance Company to recover on policies of insurance. The causes of .action were consolidated for trial.

F. Gautney, Judge; 1. ■ Before representations made amount to false pretense, they must be of a present or past fact. 42 Ark. 131-135; 11 Ark. 596; 12 Aik. 65. It is necessary, in a prosecution for false pretense, not only to prove the false representations, but also to show that such false representations induced the person defrauded to part with his property. 70 Ark. 30.

Coleman, Judge; STATEMENT BY THE COURT. This suit was instituted by the appellant against the appellees on February 23, 1915.

M. Jackson, Judge; 1. The court’s instruction on the plea of self-defense was erroneous and prejudicial, because the evidence 'did not warrant giving the instruction.

Appellant was convicted for violating an ordinance of the City of Hot Springs, requiring wholesale dealers in malt liquors to pay a license of $300, and appealed to the circuit court where he was again convicted, from which judgment this appeal is prosecuted. The ease was tried upon an agreed statement of facts and the ordinance fixing the license. By the terms of the ordinance, each wholesale dealer in malt liquors was required to pay the sum of $300 per year.

Robertson, Chancellor; STATEMENT BY THE COURT. Appellee brought this suit upon two purchase money notes, to foreclose a vendor’s lien retained in a deed conveying certain lands to appellants.

amount allowed by the circuit court was in excess of the amount in the treasury standing to the credit of the road district under the levy made by the county court for roads and bridges, and was without authority of law.

R. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellant brought .suit to recover judgment for the amount of a note executed to his order by appellee, and to foreclose a mortgage given to secure this note. The note and mortgage were filed as exhibits to the complaint.

Martineau, Chancellor; 1. Money which has been misappropriated to an innocent third party can not be recovered by the one from whom the funds were misappropriated. 180 U. S. 284. 1 Burr. 452; 25 L. R. A. (N. iS.) 631. The money here wais applied to the note before the garnishment. 67 Ark. 223-227; 56 Id. 473, 482; 103 N. E. 780. 1. The decree is right on the whole case and should be .affirmed. When the garnishment was served, the money was to the credit of Muse at the hank.

W. Hendriclcs, Judge; The disapproval of the “Item No. 10 — For Postage and Express, $2,000,” was in compliance with the requirements of the State Constitution, .and prevented it from'becoming a valid appropriation.

Appellees are not entitled to recover under the Act of April 4,1899, Kirby’s Dig., § 4457. Held: 71 Ark. 327 'and 74 Ark. 552, that before an attorney could enforce his claim for his fee, he would have to show that the assignment provided for by 'section 4457 had been filed with the papers in the suit and noted oif record, or that the defendant had actual notice of the assignment.

M. Jackson, Judge; 1. The court erred in 'directing the verdict. When appellant went to the station for the purpose of hoarding the train, he became a passenger, entitled to a safe place at which to hoard the train and had the right to assume that the railroad company had' provided such a place, and ¡that they would not expose him to unnecessary danger.

It takes away .all jurisdiction of justices of tbe peace as to misdemeanors. Const., art. 7, § 40; Kirby’s Dig., § 4555; Gantt’s Dig., § § 3720, 1642, 1224-6, etc.; 34 Ark. 197. 2. It gives municipal courts jurisdiction to sit as examining courts. Const., art. 7, § 40. 3. It extends beyond the geographical boundaries of the cities covered by it.

D. Frierson, Chancellor; STATEMENT BY THE COURT. This suit was instituted by the plaintiff, a taxpayer, owning lands in the St. Francis Levee District, to restrain the board of directors from issuing certificates of indebtedness amounting to $95,670.00.

Appeal -from Mississippi Circuit Court; Chickasawba District; J. F. Gcmtney, Judge; 1. No levy was made according to law. Bouvier Law Diet., “Levy”; Words and Phrases, p. 4104; 5 Ark. 377; 29 Id. 277. 2. No -legal -and valid return of the execution was made. 60 Ark. 185; 118 Ark. 349; Kirby’s Dig., § § 4620-4621. 3. Appellee had no right to take and approve the bond.

The court erred in its instructions. 89 Ark. 402, 96 Id. 213; 117 Ark. 210; 234 U. S. 541. The judgment should, in no event, have exceeded $50. 2. ‘ The failure to receive the telegram was due to plaintiff’s own acts. 87 Ark. 579; 55 Id. 510; 58 Id. 157. The jury found negligence. Defendant did not plead the interstate act. Appellee is entitled to judgment at least to $50.

E. Martin&cm, Chancellor; .statement by the court. This appeal challenges the power of the Little Bock Chamber of Commerce and its Industrial and Development Committee, to grant or give the funds and property donated to the Chamber of Commerce for the promotion of -the general welfare of the Cities of Little Rock and Argenta, the County of Pulaski and the State, in educational, commercial and industrial ways, for subsidizing and establishing a boat line for the navigation of…

<p>1. 'Local improvement — streets and sidewalks — notice and proposal for bids — contract.—The contract fox certain paving and sidewalk construction being unambiguous, and the notice and proposal for bids containing the approximate amounts of the different kinds of paving, they can not he construed to be a part of the contract, and having been omitted therefrom, must be considered only as belonging to the preliminary and antecedent negotiations.</p> <p>2. Local improvement — streets—changes.—A street improvement district must permit the contractor to put down ,all of, and the kind of, paving provided hy the contract and designated hy the engineer, as long as the contract continues in force, and oan not, under -the guise of making alterations under a section of the contract, take a substantial portion of the work from the contractor, and deprive him of the benefit of the work, by awarding it to others.</p> <p>3. Local improvement — paving district — streets—right of contractor to compensation. — •'When a street improvement district takes a portion of the work from the contractor, for reasons set out in the contract, and lets the same to others, the original contractor may recover from the district the difference between the cost to the district and the contract price.</p>

<p>Appeal from Lonoke 'Circuit Court; Eugene Lank-ford, Judge;</p> <p>The interest was not paid until after it was due, and there was a written consent in the note that the time of payment may be extended without notice. 54 Ark. 97-100; 34 Ark. 44. The judgment should be reversed.</p>

C. Rodgers, Special Judge; 1. Appellees had no lien under §§ 4966-4967, Kirby’s Digest, for the purchase price of the horses, as against the claims of third persons. 104 Ark. 130; 52 Id. 273; 76 Id. 273, 91 Id. 218; 52 Id. 458; 45 Id. 136; 57 Id. 13; 64 Id. 132. The lien exists only ,so long as the property is in possession of the vendee. It was error to direct a verdict for ¡appellees. 1.

Worthington, Judge; 1. It was error to admit evidence of a custom. 86 Ark. 356; 92 S. W. 1081. 2. The evidence was insufficient and the indictment was bad. 67 Ark. 308; 93 Id. 81; 95 Id. 48; 94 Id. 242; 80 Id. 314; 12 Id. 608; 38 Id. 579 ; 47 Id. 49'2; 29 Id. 68; 27 Id. 360; 86 Id. 356; 12 So. 584; 59 Miss. 179; 66 L. R. A. 604; 30 N. C. 271; Kirby’s Dig. § 1732; 13 Ark. 681; 86 Ark. 353; 106 Ark. 488; 18 B. Mon. 35; 10 Tex.

Ap-peal -from Boone 'Circuit 'Court; John I. Worthington, Judge; STATEMENT BY THE COURT.

H. Evans, Judge; The State wholly failed to prove the corpus delicti. The presumption is that the fire was either the result of accideut «or some providential.cause. 253 Mo. 487; 98 Miss. 723. The court erred in permitting W. T. Shuffield to state to the jury that the ham was set ou fire. The appellant did not place his character in issue and hence it could not he assailed. 14 Cent. Digest, .Sec. 839, p. 1487; 165 S. W. Tex. 194.

H. Evans, Judge; The State wholly failed to prove the corpus delicti. The corpus delicti must be proven. 253 Mo. 487; 161 S. W. 705; 98 Miss. 723 ; 54 So. 241. The court erred in permitting hearsay evidence to go to the jury, it being prejudicial to appellant. 45 Ark. 232; 45 Ark. 135. The motion for new trial should have been granted •because the jury were permitted to leave the courthouse without receiving admonition from the cdurt. 68 Ark. 403.

Henderson, Chancellor; 1. The payment by appellee was voluntary with full knowledge of all the facts. He cannot recover, 49 Ark. 71; 72 Id. 555; 86 Id. 178; 95 Id. 501; 200 U. S. 492; 192 Id. 259; 35 Pac. 138; 173 N. Y. 55; 18 N. E. 488; 2 East. 469 ; 28 Pac. 1001; 47 Fed. 427; 5 Pac. 436.

The juror Mays isbould have been excused. He had formed an opinion. 102 Ark. 183; 69 Id. 322. The court did not err as to the juror, Mays. 101 Ark. 443; 103 Id. 21; 85 Id. 64; 91 Id. 582. '

II. Coleman, Judge; STATEMENT BY THE COURT. Tbe appellant, ¡an insurance ¡company, brought ¡suit against J. N. Jaggers, as principal, and the .sureties on Ms bond given to secure the faithful performance of Ms duties ¡as local fire .insurance agent to T. A. Manning, as general agent for the Security Fire Insurance Company.

B. Shaver, Chancellor; 1. The county court had no jurisdiction to make the allowances, because no advertisements for bids for the bridges nor material was made; and no contract let according to law. All the safeguards of the Constitution and statutes were ignored. 112 Ark. 550 ; 94 Ark. 311; 109 Id. 11; Kirby’s Dig. § 555. The orders of allowance and the scrip were void. 54 Ark. 645 ; 98 Id. 490 ; 61 Id. 74. 2.

<p>Pool halls — giving employment to minors. — Giving employment to a minor in a pool hall is not permitting the minor to visit or to frequent or congregate with others there, within the meaning of act 98, page 62, Public Acts of 1911.</p>

F. Qcmtney, Judge; Tbe circuit court of the Chickasawba district had no jurisdiction to hear a case appealed from the county court sitting at Osceola. Osceola is the county seat. Acts 1901, sec. 5, p. 139. The act does not create two judicial districts so far as the county conrt is concerned. 27 Ark. 202; Acts 1910 p. 143, sec. 17. An appeal from the county court to the circuit court must be tried in tbe division where tbe county seat is located. 96 Ark. 274.

and is removed by the mortgagor to another State, the mortgagee may enforce his mortgage in the latter State against third parties who may have acquired rights in the property, applies only where the property was removed without, thé consent of the mortgagee. 31 Ark. 32; 73 Ark. 16. There is no proof that appellee consented to the removal of the property beyond its control, or that it ever was beyond its control.

M. Jackson, Judge; In an indictment for larceny the allegation of the ownership of the horse must be proven. 73 Ark. 32; 97 Ark. 1; 55 Ark. 244; 108 Ark. 418. The proof is not sufficient to fix the ownership of the horse in Jerome Jarard. The closing argument of the prosecuting attorney was highly prejudicial and outside the record. 58 Ark. 368; 58 Ark. 473; 61 Ark. 130; 63 Ark. 174; 65 Ark. 625; 70 Ark. 305; 72 Ark. 427. The ownership of the property was sufficiently proven.

Cowling, Judge; The court erred in refusing to give the first instruction requested it being a concise statement of the larw and also a caution to the jury. 92 Ark. 481.

<p>Appeal — failure to abstract transcript. — Ap. action, on appeal will be affirmed where the appellant fails' to file an abstract of the transcript, as required by rule 9 of the 'Supreme Court.</p>

Appeal .from White ¡Chancery Court; John E. Martineau, Chancellor; STATEMENT BY THE COURT. J. A. West instituted this action in the chancery court ¡against Mary C. West.

Section 990 of Kirfby’is Digest does not apply to this class of cases. The word “demand” as therein used does not embrace a mere legal right of action to enforce a ¡civil penalty. 9 111. App. 39; 18 Wis. 166, and cases cited. The sheriff .and 'clerk would not be permitted, even if 'that section applied, to multiply their alleged demands ¡and collect costs on 363 imaginary “demands,” where but one existed. 107 Ark. 450.

D. Shaver, Chancellor; 1. In establishing the Highway and Bridge District, the Legislature has attempted to give jurisdiction ■and control to the .commissioners, of the district, over such parts of ¡the public roads therein as they may select, not exceeding sixty 'miles in the .aggregate length of such roads which they may take charge of and improve.

T. Wood, 'Chancellor; 1. Appellee bank is estopped from laying any claim to- the $1,853 under the circumstances. Through its architect it represented at the time it called upon appellant 'that it would owe to the contractors upon the completion of the building under the contract, including that item, the sum of $4,155.50, and upon the faith of those representations appellant fulfilled the contract .at an expense exceeding the total amount -represented to be due. 2.

Appéal from Benton Chancery Court; T, II. Humphreys, Chancellor; 1. The. notice of the sale of the land was actually published, but the certificate -of the clerk iat the end or foot of the delinquent fist does not -show that fact. The failure of 'the clerk was a mere irregularity or omission of duty, from taking advantage of which appellee is barred (by the two years’ -statute of limitation. Kirby’s Dig., § 7114; 46 Ark. 96. 2.

L. Davis, Judge; STATEMENT BY THE COURT. On the 5th of May, 1915, Hon. M. L. Davis, judge of the Fifth Judicial 'Circuit, called a ¡special term ’of the Conway 'Circuit Court to ¡meet on the 18th of May. The call recited that Sam Bell was accused of murder 'and [confined in jail, and that the call was made for the purpose of investigating ¡and disposing of the charge.

M. Jackson, Judge; The court erred in 'overruling appellant’s motion for a continuance, he having used 'all due diligence to procure the attendance of the absent witness. 100 Ark. 310; 99 Ark. 394; 99 Ark. 547; 60 Ark. 565. The evidence is not sufficient to support the verdict of the jury. 34 Ark. 632; 13 Ark. 712; 16 Ark. 499; 34 Ark. 720.

B. Haynie, Judge; STATEMENT BY THE COURT. Appellant instituted this suit .against the appellee to recover for demurrage on two certain cars, and unloading one of said cars, the ¡amount of $33.

Elliot, Chancellor; STATEMENT BY THE COURT. On the 23d day of May, 1914, Marion Erwin intermarried with Ruth Turner.

Pulaski 'Circuit Court, Third Division; G. W. Hendricks, Judge; reversed, as to appellant Plater; STATEMENT BY THE COURT. The Bank of Rogers was 'a banking corporation doing business in Benton County, Arkansas. By virtue of the provisions of Act No. 113 of the Acts of 1905, it was designated .as a depository of the public funds of Benton County.

Haynie, Judge; 1. The court erred in excluding the amended answer and testimony offered in support thereof. The amendment, /and the testimony offered in support of it, was material to appellant’s defense, and could not have been prejudicial to appellees as .a matter of surprise. Its exclusion was clearly an abuse of discretion. Kirby’s Digest, § 6145; Act 141, Acts 1907, § 1.

H. Evans, Judge; STATEMENT BY THE COURT. Mrs. H. C. Fordham instituted this action against the Brotherhood of American Yeomen, a fraternal benefit society, to recover upon a benefit certificate issued by it to Arthur L. Fordham and payable to the plaintiff.

II. Arnold, Special Judge; A proceeding under the three-mile liquor law is in the nature of an election, and not in the nature of a suit between parties. 40 Ark. '290; 104 Ark. 436; 70 Ark. 178; 51 Ark. 164. There is no expressed authority rendering judgment against remonstrants under the three-mile law. Kirby’s Dig. § § 5128-5132; 95 Ark. 83.

Shaver, .Chancellor; 1. The facts of this case are identical with those in 118 Ark. 316. The Trust Company was not the agent of appellant to collect the payments on the notes.. It was the agent of appellee, Sharkey. 64 Ark. 119; 111 Id. 263; 141 S. W. '205; 102 Ark. 427; 109 Id. 107; 111 Id. 263; 55 Id. 347; 89 Id. 435; 105 Id. 152; 75 Id. 170; 105 Id. 446. 2.

Francis 'Chancery Court; Edward D. Robertson, Chancellor; 1. The record proves that Joseph Holuib, Sr., the father of .appellant, .at the time he entered upon the property in controversy, did so under contract with Han D. Titus, to purchase the same, and the deed subsequently executed by Titus to him was in pursuance of this contract. 2.