Volume 122 — Arkansas Reports

The court erred in not granting the peremptory instruction asked 'by defendant. The principle governing the relationship of -Spear -and the bank is that of principal -and agent. 5 -Cyc. 493; 78 Neb. 334; 110 N. W. 1019; 126 Am. St. 604; 102 Mass. 503. 2. One who pays a gambling obligation by check can not recover from the bank * # # -even though the bank knows the purpose for which the check was drawn. 154 111. App. 74; Elliott on Co'nt., § 1019. 3.

A. Falconer, Chancellor; Little Flock * * * Church is not .an independent religious organization, but if she was, she was not of the primitive Baptist denomination, nor of .any other, but an “Ishmaelite.” She held her property as a church of the religious denomination of which, she was a member; she was part of an organization governed by a constitution, rules .and articles of faith, etc. 'Constitution, § 4. . Appellees are bound by the action of the council.

M. Elliott, Chancellor; There was fraud in the formation of the district in this; Bogle, Thomas & Lee and White & Watson entered into an agreement, which was unlawful and fraudulent, and was carried… Held: and there was no appeal; that was final. Appellees were not promoters. There was no conspiracy nor fraud, nor collusion.

Appeal .from Fulton 'Circuit Court; J. B. Baker, Judge; 1. Carroll violated the 'Contract ¡by failing to take “good care of the premises, ’ ’ and to pay the rent as he expressly stipulated. In fact, he did nothing that the contract states. He agreed to take “special good care of the orchard,” and to repair the fence. He is not entitled to damages by reason of Bowling failing to comply with his contract. 39 Ark. 344, 347; 72 Ark. 3.

L. Davis, Judge; 1. The facts do not justify a recovery in this case for negligence, and it was error to refuse to direct a verdiet. The undisputed evidence shows contributory negligence. This was one of those unforeseen accidents which are unexpected ¡and unavoidable. Only ordinary prudence and care is required by the law. 96 N. Y. -Supp. 45; 36 Ark. 607; 94 Id. 252.

S. Maples, Judge; 1. This case comes within Federal Employer’s Liability Act, and the evidence clearly shows it to be one of assumed risk. 233 IT. S. 492. No appliances were out of order or defective, nor was there any violation of the 'Safety Appliance Acts. 95 Ark. 560; 90 Id. 387; 56 Id. 232. Jerks and other movements in operating freight trains are common .and necessary.

W. Smith, Judge; STATEMENT BY THE COURT. The Monroe Grocer Company, limited, recovered judgment against one J. P. Gathright for $52.25. Execution was issued and levied by the constable upon certain' goods as the property of Gathright. R. G. Harper (appellee) instituted this suit against the plaintiff in execution and the constable to recover the possession of these goods.

II. Humphreys, Chancellor; STATEMENT BY THE COUET. The issues and such of the facts .as are undisputed are correctly stated by counsel for .appellees substantially as follows: On the 3d of August, 1909, the Bed Cloud Mining Company, of Bush, Arkansas, conveyed certain mining lands situated in Marion County by warranty deed to Paul A. J. Koehler and Dwight O. Wheeler for a consideration of $7-5,000.

S. Maples, Judge; The offense is barred by limitation. The plea of guilty was entered without advice of counsel, and without knowledge whether he was guilty or not of a crime. An appeal is a ¡matter of right. Acts 1905, Act No. 151, § 1. The action in praying an appeal was a withdrawal of his plea of guilty. It was within the discretion of the court to permit the withdrawal of the plea of guilty and be tried upon, a plea of not guilty, lié Ark. 234. 1.

Appellee sued appellant to recover on a life insurance policy. The appellant is a life insurance company organized under the laws of the. State of Illinois, and is authorized to transact business in the State of Arkansas. On August 14,1913, Robert P. Peak, of Readland, Arkansas, made 'application in writing to appellant for a policy of life insurance in the sum of $5,000, payable to his wife, Pearl S. Peak, as beneficiary.

Gotham, Special Chancellor; STATEMENT BY THE COURT. On the 15th. day of March, 1915, W. H. Hall filed a petition in the chancery court of Garland County to quash an execution issued in the case of O. Floyd Huff against J. H. Hall for the sum of $1,100. His petition alleges that on the 11th day of February, 1915, the said execution was delivered to the sheriff who threatened to levy the same upon the property of the plaintiff.

. Pulaski 'Circuit Court, Third Division; G. W. Hendricks, Judge; 1. After the lapse of the term, judgments can be set aside only under Kirby’s Dig., § 4431, or by bill of review in equity. 33 Ark. 454; 53 Id. 114; 97 Id. 317; 52 Id. 316; 89 Id. 163. The court had power to set aside the judgment. 2. There was no misprision of the clerk and no fraud shown. Nor was there any unavoidable casualty or misfortune shown, preventing a defense. 104 Ark. 48.

Humphries. Chancellor; Plaintiff was, ¡at the time of her husband’s death en-. titled to dower. She has never relinquished it and she was not barred by the decree in chancery, as her right to dower was not in issue, (34 N. J. L. 418), the leading case on this ¡subject.

The history of -the act goes back to article 3, section 8 Const. 1874. The Legislature in 1907 changed the date of the election to the 2d Monday in -September in -even years, etc. The Act of 1915 changed the date to the 1st Monday in November, 1916. The object w-as to combine State .and National elections. The terms of all officers expire October 30. This appeal involves the necessity of circuit judges running for election in 1916. 1.

8. Maples, Judge, STATEMENT BY THE COURT. Appellee sued the appellants for personal injuries, alleging that he was employed by appellants as a bridge man and was riding along on appellants ’ track on a motor car that ivas in charge of a fellow employee, appellee having no duty to perform in relation thereto; that the car, through the negligence of these employees, was allowed to collide with a sheep :by which it was violently thrown from the track, resulting in severe…

F. Gautney, Judge; 1. Norred wias a sub-contractor and was 'bound to perform the work according to the original contract. He was bound to 'know tbe terms iand conditions of the original contract, and it can avail him nothing to say he did not know what the contract was. 37 'Cye. 340; 39 N. W. 742-46; 55 Mo. App. 107-115. 2. Instruction 2 conflicts with 3 and 4.

E. Martineau, Chancellor; STATEMENT BY THE COURT. W. B. Worthen Company, a banking corporation organized under the laws of the State of Arkansas, instituted this action in the chancery court against Gladys G. Sanders, R. G. Ortagus, agent, J. A. Alexander, trustee, and the Exchange National Blank.

C. Trimble, Judge; 1. The county is not liable for prosecuting attorney’s fees for convictions on indictments in the circuit court, unless there is some express authority of law for same. Such authority must be expressly conferred by statute, and it will never be inferred. Kirby’s Digest, § § 2469, 2470; 44 Ark. 31-33; 10 Id. 467; 37 Id. 226; 37 Id. 228; 37 Id. 487; 102 Id. 106; 108 Id. 137. 2.

Coleman, Judge; 1. The county court had authority to make the contract. Art. 7, § 28, Const.; Kirby’s Digest, § 1375; Acts 1909, p. 902 .amending section 1499, Kirby’s Dig.; Kirby’s Dig., § § 7162-7167-7174, 1470 to 1483; 31 Ark. 571. The county court is the forum where the liability of all officers is settled and the direction of payment of all demands against the county is finally adjudicated. 14 Ark. 170; 22 Id. 236; 24 Id. 551; 44 Id. 225; 47 Id. 80; 52 Id. 362. 2.

The plaintiff, Eelley Harrison, brought suit for damages for personal injury, alleged to have been caused through the negligence of the appellant company by being struck with coal falling down the plain shaft of the •mine from unloading the cars, because of the dumping blocks being too low. It was also -alleged that the defective condition of the blocks was known to the defendant and that its pit boss agreed to'repair same.

E. Martineau, Chancellor; 1. Stuckey & Stuckey were equally interested with Norwood & Grant as to the fee under the original “Grant contract” providing for one-third of the recovery. If this is true that ends the controversy. 33 Ark. 548; 7 Id. 321. What one partner says is binding upon the other if within the scope of the partnership. A contract is construed most strongly against the party who wrote it. 84 Ark. 434 ; 90 Id. 88; 97 Id. 522.

W. Hendricks, Judge; The only question in this case is the right of defendant to a ¡directed verdict. § 6773 Kirby’s Digest is not applicable to street railways, .and the burden was on plaintiff to show that the horse was killed through the negligence of defendant. 77 Ark. 599. Plaintiff has wholly failed to make out his case. 1.

L. Davis, Judge; STATEMENT BY THE COURT. Appellee instituted this suit against appellant to recover judgment and to enforce a materialman’s lien against certain buildings and the land upon which the same were situated in the town of Morrilton, Arkansas.

Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; 1. One holding a judgment against -a debtor cannot have it set off against -a judgment in his favor where such debtor shows that all his personalty, including such judgment is less than the -amount allowed 'him by law as exempt. 7 N. D. 455; 66 Am. St. 670; Kirby’s Digest, § 6238; 68 Ark. 497; 47 Id. 464; 63 Id. 83.

■ Appeal from Chicot Chancery Court; Z. T. Wood, Chancellor; STATEMENT. BY THE COURT. This suit was instituted by the State, through the Attorney General and specially employed counsel, against the Greenville Stone & Gravel Company and the Green-ville Sand & Gravel Company, hereinafter designated as the companies, to recover for sand and gravel alleged to have been taken by the companies from the bars and beds of the Mississippi River.

F. Gautney, Judge; 1. The findings of the court are not supported by the evidence. 2. It was error to hold that any additional ¡claim for services in the quo warranto proceeding was barred 'by the allowance of $600 at the April term, 1911. The clerk simply made a misprision in writing the judgment. 3. The court erred in holding that the county court had no authority to employ counsel to defend the suit. Kirby’s Digest, § 6393; 50 Ark. 566.

F. Gautney, Judge; 1. The court erred in refusing to require the plaintiff to elect upon which count of his complaint he would stand. Liquidated damages, in the proper sense, are a positive debt, excluding evidence of actual damages wherever a breach is proved to which they apply. 5 'Sand. (N. Y.) 640 ; 22 Ark. 475; 31 Cyc. 652; 26 N. E. 348; 86 Pac. 624. 2. Plaintiff sued upon one contract and relied for á recovery upon another.

Cowling, Judge; STATEMENT BY THE COURT. This suit wais instituted hy the appellee .as the -administrator -of the estate -of W. E. Sanders, deceased, against the -appellants, Prescott & Northwestern Ry.

F. Gautney, Judge; STATEMENT BY THE COURT. On the 17th of February, 1913, R. H. McDermott, acting for the directors of School District No. 55 of Clay County, made a written application to the National Union Fire Insurance 'Company for a policy of insurance, covering the school 'building and its contents. Tbe application, together iwith twenty dollars in payment of the premium, was delivered to T. A. Wynne, soliciting agent of the company.

W. Smith, Judge; The appellant, city, is entitled to one-half of the optional road tax collected within its limits under section 1, Act No. 230, Acts 1913. The statute is plain .and the term “one-half (%) of road funds of every kind, means what it says.” 92 Ark. 98; Cooley, Const. Lim. (7 ed.) 126, 236, 242; Kirby ’s Dig., § .§ 2922, 3016; 7223-7358, 7280; Art. 16, § 9 Const. The Legislature has full control over highways, streets and roads. 76 Ark. 25; 103 Id. 532.

Frierson, Chancellor; 1. The chancellor erred in overruling the defendants’ motion for decree pro confesso. Decree in favor of defendants .should be entered here on the pleadings. No reply was filed to the ¡answer ¡and ¡counter-claim as required by section 6115, Kirby’s Digest. A counter-claim is defined by Kirby’s Dig., § 6099. The action of the chancellor is clearly violative of section 6192 Id.; 25 Ark. 20; 25 Id. 105; lb. 86. 2.

S. Maples, Judge; STATEMENT BY THE COURT. This appeal is prosecuted by the Geiser Manufacturing Company from a judgment in replevin against it for the possession of certain mill machinery. It appears from the testimony that appellant sold to ft.

G. Trimble, Judge; STATEMENT BY THE COURT. These cases were briefed and tried together. ■ The grand jury of Prairie County returned indictments, one against the defendant W. L. Fox, charging him with embezzlement in January, 1913, of $5,000, in gold and silver, lawful money of the United States, from the Hazen Power & Light Company, of which he was secretary .and treasurer; and one against W. H. Fox, charging him with the embezzlement and conversion to his own use in…

M. Jackson, Judge; 1. A peremptory instruction to find for defendant should have been given. (1) The presumption prevails, when ia shipment is handled by two carriers, that the damage occurred while the goods were in possession of the last carrier. 73 Ark. 112; 76 Id. 589; 93 Id. 439; 91 Id. 97. The burden was on plaintiff first to show that the loss occurred while in transit. 4 Rul. Case Law, § 383; 25 Am. St. 59.

<p>Liquor — state-wide prohibition law — sale oe pure alcohol. — Act No. 30, p. 98, Acts 1915, known as the 'State-Wide Prohibition Act, made it unlawful “to manufacture, sell or give away * * * any alcoholic, vinous, malt, spirituous or fermented liquors * * * within the State * * Held,, the act did not repeal existing Jaws prohibiting the unrestricted sale of aJcohol, and did not exclude the sale of that article firom the prohibitive terms of the statutes.</p>

This suit wias instituted by the appellees against the appellants to recover judgment against appellants on a certain note executed to the appellee F. U. Halter, 'and to foreclose a mortgage on 163 acres of land in Conway County, executed to secure the note. The defense of appellants was payment, accord 'and satisfaction.

M. Jackson, Judge; STATEMENT BY THE COURT. This suit was instituted by appellee against appellant to recover on a policy of life insurance issued by appellant on the life of one Alberta.

Cowling, Judge; STATEMENT by the court. On.the 25th of November, 1914, the appellee filed before -a justice of the peace the following affidavit (omitting formal parts); “The plaintiff, W. F. Waites, states that the defendant, the Shawmutt Lbr. Co., is justly indebted to him in the sum of $133.49, for labor performed by plaintiff for the defendant for hauling -saw logs to defendants saw mill, etc.” Appellee prayed for judgment and an order of attachment.

Columbia Circuit Court; Charles W. Smith, Judge; STATEMENT BY THE COURT. This is a suit for damages by the administratrix, for the benefit of the estate land next of kin, for personal injuries, resulting in the death of her intestate, alleged to have been caused by the negligence of the lumber company in the maintenance of its track and operation of its logging train, of which deceased was engineer.

D. Shaver, Chancellor; 1. The delay was inexcusable and the damages were liquidated at $10 per day. Where parties by the terms of their agreement expressly provide whether the damages shall be liquidated or unliquidated, they will be so construed by the courts. 13 Cyc. 94, and note 35; 56 N. E. 892; 14 App. D. €. 180; 183 U. S. 662, 46 L. Ed. 378; 183 U. S. 661; 20 N. E. 504. The contract says liquidated damages and the intention of the parties govern; 30 S. W. 560. 2.

W. Smith, Judge; 1. No inventory was taken within thirty days of issuance of policy. 52 L. R. A. 70; 85 Ark. 579; 82 Id. 476; 94 Id. 228 ; 65 Id. 240. 2. No ¡books were kept as provided by the terms of the policy. 52 L. R. A. 70; 65 Ark. 336; 94 Id. 228. 3. Books, bills, invoices, etc., were not produced and delivered as provided. 65 Ark. 336. 4. The policy was forfeited by false statements in proof of loss. 62 Ark. 350. 5. Policy voided by execution of deed, of trust. 6.

Cowling, Judge on Exchange; 1. There is a fatal variance between the allegations of the complaint and the proof. In action for slander plaintiff must prove the use of substantially the same words as those alleged in the complaint, it not being sufficient to prove the use of different words, though of the same import. 98 Ark. 312; 77 Id. 64. The overwhelming preponderance of the evidence is that defendant used no language derogatory to the character of plaintiff. 2.

<p>1. Appeals — time—limitation by legislature. — It is ¡beyond tbe ■power of the Legislature to pass a statute cutting off the right of appeal under .existing laws, but the Legislature has power to shorten the time fo.r taking appeals, where it did not attempt to cut off the right.</p> <p>2. Appeals — limitation upon time eok taking an appeal. — Under Act No. 62, .p. 205, Acts 1915, the time for taking appeals to the Supreme Court was shortened to six months from the date of the ■rendition of the judgment or decree to be appealed .from; the act became effective June 11, 1316. Held, under the act, appeals .taken from judgments or decrees, must be perfected within six months after the act became effective, even in the cases of judgments and decrees rendered prior to that time.</p> <p>3. Appeals — time for taking. — Appellant sought to appeal from a judgment rendered on February 4, 1915, and presented a prayer for an appeal to the clerk of the Supreme .Court on January .27, 1916. Held, that the clerk properly refused to grant the appeal.</p>

F. Gaivtney, Judge; 1. Where the existence at one time of a certain condition or state of things of a continuing nature is shown the general presumption arises that such condition or state continues to exist until the contrary is Shown by either circumstantial or direct evidence. 22 Am. & Eng. Ene. L. 1238-9, 4-b.; 29 Ark. 131; 34 Id. 707-711; 61 Ala. 19.

W. Emerson, Special Judge; Where no supersedeas bond is filed appellant has a right to dismiss his appeal under the statute. Kirby’s Digest, § 1229; 14 Ark. 164; 36 Id. 511; .85 Id. 30. The order of the lower court should be -affirmed with directions to render judgment absolute. 98 Ark. 304; Kirby’s Dig., § 1195.

1. The court erred in refusing to permit witnesses to testify as to the reputation of appellee as to his generally known habits, and in refusing to give instructions 1, 2, 3, 5 and '6 'and in giving the peremptory instruction.

F. Lamb, Special Judge; . 1. When an employer does discharge his duty by giving warning and instructions to his minor servant, he exonerates himself from liability for any injury that might result from the risks and dangers arising from the employment. 115 Ark. 380; 56 Ark. 237; 97 Id. 180; 1 Labatt on Master & Servant, Ch. 16, § 248, p. 562. 2. It was error to give instruction No. 3 for plaintiff.

Martineau, Chancellor; statement by the court. This appeal comes from a decree denying appellant a divorce.

A judgment by a court without jurisdiction is void. 105 Ark. 5. It can not be validated by revival nor by .appeal. 23 Cyc. 698. Certiorari is the proper remedy to quash. 73 Ark. 604; 52 Id. 213. An appeal not prosecuted does not bar the writ. 16 Tex. 590. Nor will .an ineffectual appeal defeat the right. 2 Phila. 215; 25 Ark. 25; 3 Corpus, Juris. 352. 2. An appeal means the removal of a suit from an inferior to higher court. 72 Ark. 475.

Robertson, Chancellor; 1. Leatherwood was the agent of the appellee, Wall in the matter of the payment of the prior liens on the lands, and he is bound by his acts. 31 Cyc., p. 1222. He acted for Wall after the draft was endorsed by him and delivered to Leatherwood as his agent for the purpose of discharging the liens. 31 Cyc. 1225, note; 67 Ark. 159; 53 S. W. 888. 2.

Appeal .from Conway Chancery Court; Jordan Sellers, Chancellor; 1. A homestead right is a privilege personal to the widow, which may be abandoned, and which carries to her no legal interest in the estate beyond this right or privilege, and is held upon condition of its being and remaining her home, whether in reality occupied or not. Const. Art. 9, § 6; 105 Ark. 652; 95 Id. 256; 79 Id. 412; 102 Id. 668; 79 Id. 410; 48 Id. '230; 65 Id. 68; 72 Id. 476; 65 Id. 68. 2.

Frierson, Chancellor; The rule is that the expense of ¡constructing a drain can not be assessed against particular lands to an amount in excess of the benefits received by such lands. 14 Cyc. 1061 and notes 41 and 42; lb. 1062 and note 50; 10 A. & E. Ene. L. 232; 120 111. 482. The Act of 1913 says the interest on the bond shall be included and added to the tax, etc., but does not authorize the levy of a tax to pay ¡such interest.

Circuit Court; George B. Haynie, Judge; STATEMENT BY THE COURT. William A. Burton sued tbe Kansas City Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employment of the company by reason of its negligence. The material facts are as follows: In -January, 1915, William A. Burton was employed as a section ¡hand by the defendant railway company.

Grace, Judge; 1. The intention of the parties govern and is usually conclusive as to whether a sum stipulated to be paid in case of breach of a contract is liquidated damages or a penalty; the question is one for construction. 8 Ruling Case Law, 560'; 56 Ark. 405, 413; 87 Id. 545, 553; 104 Id. 9-15; 73 Id. 432; 69 Id. 114; 104 Id. 9; 118 Ark. 492; 48 Pa. St. 450. It was error to refuse instruction No. 1 and in giving No. 8. 205 U. S. 105. 2.

J. Driver, This was an instructed verdict: All the evidence offered by plaintiff must be considered in the light most favorable to it. 96 Ark. 394. Where there is any evidence tending to establish an issue it is error to direct a verdict or take the case from the jury. 95 Ark. 359. The note on its face establishes the liability of appellees; “We promise to pay,” signed by two or more persons is the joint obligation of all of them. 4 Am. & Eng. Enc. Law, (2 ed.) 110-111.

II. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellees brought this suit to wind up the affairs of an alleged partnership, doing business under the firm name of The Harrison Lumber Company, and for an accounting, and asked the appointment of a receiver, alleging the insolvency of the partnership, and that W. J. Myers, a member of the firm, had wrongfully taken possession of the assets and books of account of the concern.

D. Shaver, Chancellor, STATEMENT BY THE COURT. This appeal is prosecuted from a decree establishing the validity of a paving improvement district in Texarkana, Arkansas.

E. Arnold, Special Judge; 1. The petition, as .amended, states a cause of action. Kirby’s Dig., § 2. There was no defect of parties. The State ex. rel., etc., was a proper party, plaintiff, for the public interest was affected. Kirby’s Dig., § 5156; 25 Ark. 444; 31 Id. 264. The individual taxpayers were proper parties. Kirby’s Dig., § 6008. The treasurer refused to join in the suit and refused to demand tbe money. 31 Ark. 175; 49 Id. 103; 30 Cyc. 78.

Martineau, Chancellor; STATEMENT BY THE COURT. One J. D. Tevis ¡borrowed from C-eorge M. Foreman $2,600, executing his promissory note therefor and a deed of trust to secure the same on certain lands. Tevis having failed to pay the money when due, this suit was instituted on the note and to foreclose the deed of trust. Judgment was entered against Tevis, and it appearing that during the life of the mortgage G-.

H. Humphreys, Chancellor on exchange; 1. The court erred in rendering judgment against appellant for $200.00 since there was a valid settlement between the parties. 75 Ark. 127; 95 Id. 523. Contract between husband and wife when fairly entered into are binding. 67 Ark. 15 and cases supra. 2. The court erred in granting appellee a divorce. If appellant was guilty so was appellee. 104 Ark. 381; 53 Id. 484; 44 Id. 429 ; 76 Id. 28; 87 Id. 175. 1.

Eaynie, Judge; 1. The judgment should be quashed for three reasons, viz: (1) The copy of the summons served on him by the constable was not signed by the justice of the peace who issued it. (2) The justice did not endorse thereon any of the requirements of § 4650 Kirby’s Digest. '89 Ark. 164, 95 Ark. 71; 42 Id. 166; 71 Id. 322; Kirby’s Digest, § 6381.

Monroe Circuit Court; Thomas C. Trimble, Judge; STATEMENT BY THE COURT. The ’Clarendon & Rosedale Packet Company sued- P. H. Joest for the purpose of recovering the value of 136 sacks of rice alleged to be worth $408 and to -have been lost by feason of the negligence of the defendant. The facts are as follows: The Clarendon & Rosedale Packet Company is a -corporation, and for some years had been engaged in operating a boat, between Clarendon, Arkansas, and Rosedale.

Haynie, Judge; 1. There was no waiver of proof of loss. To hind appellants it is necessary that it be-established that the person whose conduct is relied on to effect the waiver was, first, the agent of the companies, and, second, that he acted within the scope or the apparent scope of his authority. Foster had no- power to adjust losses or waive proof of loss; nor any authority to bind the companies by introducing Casey as an adjuster.

Henderson, Chancellor; 1. The property involved was received by the appellee “in consideration and by reason of the marriage annulled,” and, under the statute, should be restored. Kirby’s Dig., § 2684. The construction of this statute in McNutt v. McNutt, 78 Ark. 351; Harbour v. Harbour, 103 Ark. 273-283, was, in each case, upon facts differing from those presented in this case.

Cowling, Judge; The court should have given a peremptory instruction in favor of appellant. It is admitted that he is trustee for the estate of B. B. Clark, and there is nothing to show that he had authority as trustee to bind her estate in this matter. Moreover, the only way to obtain a judgment against the estate of a deceased person is to proceed against the administrator. Art. 7, § 34, Const.

Elliott, ’Chancellor; 1. The testimony fails to show that defendant was an habitual drunkard for more than one year. Her testimony, except as to an occasional spree, is not supported. Neither is her testimony as to cruelty and indignities supported by any testimony except by a daughter nine years old. 76 Ark. 28. 2. The evidence is insufficient to sustain the decree. The finding of a chancellor is merely persuasive. 41 Ark. 292. 1.

J. Driver, Judge; This was an action at law and the liability for costs is controlled by statute. Kirby’s Digest, § 965; 46 Ark, 552. A plaintiff in ejectment who recovers part only of the property sued for, is entitled to his costs. <35 Kans. 46; 116 N. C. 843; 117 Id. 13; 150 Pa. St. 516; 83 Tex. 355; 144 Cal. 430; 15 Ore. 484; 49 Id. 324; 210 Fed. 604; 131 Id. 989.

'Counsel review the testimony as to the age of appellant and insist that the chancellor’s finding is contrary to the weight of the evidence, and that since his findings of fact are merely persuasive, the decree ought not to be sustained. 75 Ark. 72; 77 Ark. 216. 2. Appellee is not entitled to a decree because she held no record title conveying even color of title. Wild and unoccupied land is in the constructive possession of the true owner. 74 Ark. 383.

Henderson, Chancellor; 1. In the absence of a showing that a pool hall is a nuisance a city has no right to declare it one or suppress it or prohibit its maintenance, 116 Ark. 390. 2. The license fee is unreasonable and the ordinance is void. 52 Ark. 301; 112 Id. 28. 3. It is void also as a means of raising revenue. 83 Ark. 355. The provisions of the ordinance are discriminatory in requiring the hall closed at 9 p. m. 85 Ark. 513. ‘ 1.

• This is an action for malicious prosecution brought by Emmett Morris against M. Gr. Price and P. B. Bumgardner. The action is based upon the following facts: The defendant P. B. Bumgardner became postmaster of the city of Port iSmith, Arkansas, on March 12, 1910. His commission expired on March 12, 1914, but he held over until July 15,1914. When he became postmaster the plaintiff was a clerk in the office but after four months Bumgardner made him foreman of the work room.

Trimble, Judge; 1. There is a fatal variance between the indictment and proof. 6 Ark. 165; 6 Id. 540. 2. The remarks of the court were prejudicial. 51 Ark. 147; 17 Cal. 146; 73 Ark. 568-573. 3. There were error's in admitting evidence and allowing leading questions. Kirby’s Digest, § 3136. One crime cannot be proven by allowing evidence of another. 39 Ark. 278; 37 Id. 261; 73 Id. 262; 68 Id. 577; 111 Id. 457; 100 Id. 321; 91 Id. '555; 38 Id. 221. 4.

E. Evans, Judge; 1. The suit was prematurely brought and penalty and attorney’s fees should not have (been allowed. The • judgment should have been for defendant on the grounds that the suit was prematurely brought. 92 Ark 387; 59 S. W. 61; 130 Id. 769; 131 Id. 406; 98 Ark 137; 104 Id. 129. 2. The preliminary proof of loss was not a compliance with the provision of the policy. 79 Ark 481; 77 Id. 27; 79 Id. 475, 484 ; 75 Atl. 1037. 3.

Appellee sued appellant to recover damages for personal injuries alleged to have been sustained while employed in appellant’s coal mine. Appellee testified as follows: I have been working in coal mines since 1887, and have been working in appellant’s mine for seven or eight years before I was injured. On the morning of the accident, my room was full of coal, and I did not go to work as usual.

The case should have been dismissed on appellants’ motion upon the testimony of appellee.

L. Davis,, Judge; STATEMENT BY THE COURT. This appeal comes from a judgment of the circuit court declaring invalid Rural Special School District No. 6 of Yell County.

II. Evans, Judge; 1. There was error in giving the State’s instructions Nos. 10,11,13 and 20. They were not applicable to the facts and calculated to mislead the jury. 36 Ark. 127. '2. There is also error in Nos. 17 and 18. It is not true, as a matter of law that one who fights and returns and fights, is guilty of a felony; that depends upon circumstances and does not preclude the plea of self-defense. 3. The 19th and 22d are also error.

Eaynie, Judge; STATEMENT BY THE COURT. Tbomas Duffey sued tbe St. Louis, Iron Mountain & ¡Southern Railway ¡Company to recover damages sustained by him while a passenger on one of defendant’s passenger trains,,alleging that bis injuries were caused by tbe negligence of the defendant and its servants.

It is directly opposed to the law as declared by this court. 95 Ark. 506; 105 Id. 623. This error was not cured by giving instruction No. 4, for defendant which correctly states the law. These instructions are conflicting and this court can not say which the jury followed in arriving at their verdict.

Elliott, Chancellor; The burden of proving bis legal 'residence in Arkansas was on the appellee, and this burden he has failed to discharge.. Having built for himself and wife a home at Paris, HI., ¡refusing to sell it because he wanted it for his home, his domicil was there. “The presumption is that a married man’s ¡domicil is with ¡his wife and family. ” 10 Am. & Eng. Ene. of L. 23; 111 Mass. 382; 25 Kan. 103; 29 Ark. 280 ; 54 Ark. 172.

M. Jackson, Judge; STATEMENT BY THE COURT. Henry Wrape ¡Company instituted this action in ejectment against Sarah I. Cox and F. E. Cox to recover forty acres of land in White ’County, Arkansas. The plaintiff acquired title to the land by mesne conveyances from the State of Arkansas. The immediate grantor of the plaintiff was the ¡Steeher Cooperage Works, a corporation. That corporation conveyed the land to the plaintiff by a quit claim deed executed on May 18, 1910.

B. Haynie, Judge; STATEMENT BY THE COURT. Appellant Medicine Company, a foreign corporation, of the State of Texas, made a contract August 16, 1912, with appellee and his sureties, for the .sale of certain medicines to be supplied by it at a certain price delivered to appellee Daly, to be sold by him in Nevada County, and the .proceeds accounted for according to the stipulations contained in the contract.

M. Jackson, Judge; 1. It was error to direct a verdict. There was some evidence to prove the issue for plaintiffs. 33 Ark. 350; 39 Id. 491; 89 Id. 368. The uncontradicted evidence and indebtedness of $1,148.56 secured by the deed of trust. 2. The cases 66 Ark. 393 and 50 Id. 256 do not apply here.

R. Haynie, Judge; The evidence is insufficient to sustain the verdict. Jim Allen’s testimony should have been' excluded. He was not shown to have been beyond the jurisdiction of the court. No proper foundation was laid. 84 Ark. 178; 73 Id. 406; 63 Id. 130; 68 Id. 441; 66 Id. 545. The testimony taken before the examining magistrate was not identified. 1. Jim Allen’s testimony was properly admitted. He was shown to be beyond the jurisdiction of the court. 1 Gr.

Cowling, Judge; STATEMENT BY THE COURT. T. J. Harvill, the owner of a saw mill was indebted to A. B. Gardner a blacksmith and millwright and horseshoer in the sum of $50.85 for repair work on a wagon and shoeing horses. Plaintiff filed an itemized account of his work done, with the circuit clerk within the time required by the 'Statute. Then he instituted this action before a justice of the peace to enforce his lien against the property.

This suit was brought by the administratrix of the estate of J. W. Carland, deceased, to recover $192, the benefit provided in the policy of health and accident insurance issued to her intestate.

T. Humphries, Chancellor; 1. It is clear the money loaned was Mrs. Page’s. It was error to hold that the contract of ’February 12, was a mortgage and that Cockrum had the right to redeem. A full breach of the original mortgage had been made. The mortgage and note had been merged in the Chancery decree. The deed vested in Mrs. Page the fee simple title. Time was of the essence of the contract.

R. Haynie, Judge; 1 Under the whole of the evidence given in this case appellant was entitled to a peremptory instruction in its favor. Appellee had ample time to have notified the auditor or conductor that she had a ticket for a flag station. 84 Ark. 436; 64 S. W. 905; 18 Id. 866; 106 Ga. 826. 2. ’ There was no evidence of any physical injury and no damages should have been allowed for mental 'anguish. 67 Ark. 123; 88 Id. 454.

Cowling Judge; The policy sued on provides that, ‘ ‘ This .covenant is executed in consideration of the compliance on the part of this Guest with the constitution and by-laws of this fraternity now existing or hereafter legally amended, all of which are a part of this 'covenant.” The by-laws thus mentioned became by operation of law a part of the insurance contract. 52 Ark. 202, 206; 55 Ark. 210, 212; 80 Ark. 419, 21; 81 Ark. 512, 514; 105 Ark. 140; 24 Fed. 97; 110 la. 642;…

C. Trimble, Judge; 1. The judgment does not follow and conform to the verdict. 23 Cyc. 825; 47 Ark. 126. 2. The verdict is excessive. The hank was merely a judgment creditor and asked for an execution on the judgment; it did not direct what property should be levied upon. 17 Cyc. 1572; 66 Ark. 562. 3. ' There was no competent proof as to the profits of the business. 17 Cyc. 1578; 86 Ark. 486. 4. Boswell was, at least; a de facto officer. 38 Ark. 150; 25 Id. 344.

Appeal- from Craighead Circuit Court, Jonesboro District; J. F. Gautney, Judge; STATEMENT BY THE COURT. The Legislature of 1911 passed an. act creating the Cache Biver Drainage District (Act No. 457, Special Acts ©f 1911, page 1245).

B. Baker, Judge; STATEMENT BY THE COURT. Appellant sued appellee to recover the sum of $26,-775.81 with the accrued interest, the amount alleged to be due him as treasurer of Running Lake Drainage District, by appellees.

L. Davis, Judge; ■ . 1. The evidence is insufficient to support the verdict. The testimony of the prosecutrix is supported by no evidence whatever. 6 'Cal. 221; 65 Am. Dec. 506. 2. The motion in arrest should have been sustained. Defendant was charged with rape, he could not be convicted of carnal abuse. 54 Ark. 664; 50 Id. 330; 44 Id. 265; 93 Id. 168; 83 Id. 379; 75 Id. 574. ' 3.

Jefferson T. Cowling, Judge on exchange; 1. There is no sufficient proof of the fact that Hall was intoxicated, or that the conductor or brakeman knew it or discovered it, before the assault, and the instructions given for plaintiff: go too far in defining the duty of the conductor to act before there was evidenced some of the outward signs of drunkenness. 'Conductors can not act arbitrarily and without due care. 95 Ark. 624; lb. 506; 105 Id. 624. 2.

This appeal is from a judgment against it as surety upon a contractor’s bond for the erection of a six story building for appellees, the owners, upon the northwest corner of Main and Fourth streets, in the city of Little Rock.

Robertson, Chancellor; 1. The testimony shows that appellant paid a valuable consideration for the interests of Yessie, Inez and Birdie. There was no testimony that he did not pay W. C. Bobbitt also a valuable consideration for his interest. In the absence of proof to the contrary, the quitclaim deed is sufficient to vest Shapard with all the interest and title of said W. O. Bobbitt. 44 Ark. 153; 86 Id. 368. 2.

P. Henderson, Chancellor; 1. The gist of this case is that these parties were to exchange lands if their title was good and each was to be given a reasonable opportunity to show that the title was good. Appellants made and furnished an abstract showing a merchantable title according to contract.

H. Evans, Judge; 1. A verdict should have been directed for defendant. This is a clear case of assumed risk. Where the duty is delegated to the servant himself of making his own working place and appliances safe, or to determine the sufficiency of the appliances or material which he has to use, then he assumes the risk -of any danger arising from the use of such working place, appliances or material.

M. Horton, Special Judge; 1. Oonnty courts are empowered to review all allowances made at previous terms, and if illegally made to reject warrants issued upon them, and also to reject warrants otherwise illegally or fraudulently issued. Kirby’s Digest, § § 1175,1179; 99 Ark. 173; 83 Id. 229; 33 Id. 740; 37 Id. 649, 53'2; 25 Id. 261; 33 Id. 788. This was a claim to be verified and submitted to the county court. Kirby’s Digest, § 988. 2.

No recovery could be had on a quantum meruit. An appropriation to pay for legal expenses was necessary; none was made. It was the duty of the prosecuting attorney to bring the suit for the county and it was an abuse of the discretion of the county court to employ an attorney and pay him. There was really no liability by the.county. Kirby’s Digest, § 1499, as amended by Acts 1909; 34 Ark. 369; 26 Id. 37; 7 Am. & Eng. Enc.

Appellant instituted this action against appellee before a justice of the peace to recover the -sum of $30, the purchase price of a shipment of furniture ordered (by the latter from the former. Appellee admitted the indebtedness but pleaded a set-off of $28.45, being an amount alleged to 'be due it as commissions by appellant on account of goods sold for appellant. Appellee stated that it had tendered appellant $1.55, the difference between the two claims.

Court; Jas. Cochran, Judge; STATEMENT BY THE COURT. Appellee 'brought this suit against appellants for damages resulting to his horses from an infectious disease negligently communicated to them.

C. Trimble, Judge; STATEMENT BY THE COURT. This appeal is prosecuted by the State from a judgment of the lower court granting appellee a new trial. He was cashier of the Bank of Hazen and indicted and convicted of making false entries on its books of account with the felonious intent to defraud the bank.

Cowling, Judge; 1. The right to a judgment for costs is conferred by statute and is based not upon contract but upon the right given by statute. 84 Ark. 187; 95 Id. 85. The Constitution exempts certain personal property from execution for debt arising upon contract. Const. Art. 9, § § 1 and 2. A judgment for costs is not a debt upon contract. Kirby’s Digest, § 965; 84 Ark. 187.

W. Hendricks, Judge; 1. A verdict should have (been directed for defendant. Plaintiff was carried by her station, Kensett, throug’h her own negligence; and the evidence shows no negligence whatever of any of defendants’ servants. It is the duty of a passenger to ascertain the station of his destination; whether the train stops there; and to notify the officers of the train where she desired to stop.

M. Martin, Special Chancellor; 1. The demurrer should have been sustained as appellees’ pleading and proof both show that the suit was not prosecuted in the name of the real parties in interest. Kirby’s Digest, § 5999; 51 Ark. 293. The property was never the property of the deceased. The mortgage and notes were payable to M. J. and O. L. Cunningham, Jr. and were never in the hands of the deceased, nor assets of his estate. 18'Cyc. 191, p. 1014. 2.

M. Horton, Special Judge; 1. The county court had authority to call in and cancel the warrants. See authorities cited in Izard Go. v. Vincennes Bridge Go., 122 Ark. 122 Ark. 557. 2. Only one building commissioner is allowed by law; and certainly compensation could not be allowed to two separately. The allowance to Williamson is void for want of authority either in the county or circuit court. Kirby’s Digest, § § 1012, 1024; 68 Ark. 347; 116' Ark. 65.

■Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor; 1. There was no. consideration for the notes; they were given as accommodation paper at the request of the president of the hank to cover certain overdrafts permitted by the cashier of the bank. These overdrafts when paid or secured were to be credited on the notes as paid. The evidence shows that the notes have been paid and should be cancelled.

Haynie, Judge; 1. Outside of the confessions of defendant there is no evidence whatever to sustain a conviction. The evidence as to the confession was not competent. The so called confession was not free and voluntary. Kirby’s Digest, ■§ 2385 ; 77 Ark. 581. 2. 'The instructions are erroneous. To warrant a conviction upon an extra judicial confession there must be independent evidence of the crime. 107 Ark. 581.