Volume 124 — Arkansas Reports

Appéal from Polk Circuit Court; Jefferson T. Cowling) Judge; 1. A verdict should have been directed for defendant. The finding of the jury is in the very teeth of the physical facts. It was impossible for plaintiff’s foot to have been caught between the bumpers. The evidence shows that he was sitting on the step with his leg hanging down and his foot caught in a cattle guard. All the evidence must be considered together. 96 Ark. 500; 114 Id. 112.

Elliott, Chancellor; 1. The chancery court had no jurisdiction without a showing of fraud upon the county court. 44 Ark. 225; 47 Id. 80; 103 Id. 16; 105 Id. 212; 96 Id. 264; 48 Id. 544; 110 Id. 34; 113 Id. 442; 112 Id. 91; 170 S. W. 40. 2. No fraud was shown. 3. Act 279, Acts 1909, can not foe literally or strictly construed. 106 Ark. 518. If the law is properly construed defendants followed the law. 106 Ark. 39. Tall-man was not a contractor with the hoard.

W. Hendricks, Judge; 1. The oourt erred in refusing to permit appellant to prove by Wilson that it was the custom to retain injured employees on the pay roll until their could return to work, et'c. The court erred in its instructions. 1. The contract was fully established and was reasonable and based upon a good and valuable consideration, the compromise of a good right of action. L. R 5 Q. B. 449 ; 31 Ark. 631; 44 Id. 556; 43 Id. 172; 21 Id. 69. 2.

if. Humphreys, Chancellor; 1. The Chrane mortgage is a first and prior lien. Appellees’ lien is barred by Kirby’s Digest, § 5399. 68 Ark. 348. An unrecorded extension agreement could not keep appellee’s mortgage lien alive against strangers. 45 S. W. 980; 64 Ark. 317; 42 S. W. 408. 1.

<p>Prosecuting attorney — fees.—Where an injunction is obtained, preventing defendant from conducting a nuisance, under the terms of Act 109, Acts of 1915, no provision is made for the assessment of an -attorney’s fee as authorized by Kirby’s Digest, § 2620.</p>

No -bond for costs was filed and no affidavit for a warrant. Booneville is a city of the second class. Kirby’s Digest, § § 2488, 2490, 2476; 37 Ark. 405; 39 Id. 175; 111 Id. 51; 94 Id. 175. 2.

Instruction No. 2, given by the court, was erroneous for two reasons. The court undertook to tell the jury that a certain state of facts had been proven. Those facts were controverted by the pleadings and were contested in the trial. The court must not instruct the jury on matters of fact. The court also told the jury that those facts constituted a prima facie case showing that .plaintiff was not guilty of perjury. 76 Ark. 43. 2.

H. Evans, Judge; 1. The court did not inform appellant of his rights; that he did not have to testify against himself. 171 S. W. 862; 115 Ark. 390. 2. It was error to 'permit the justice to testify contradicting hd-s record. 159 S. W. 542; 89 S. W. 829. 3. The indictment is fatal -because it fails to allege that there was a game of dice played for money, or any other game, by Eason and Bryant. 91 Ark. 205; 1 Mich. N. P. 141. 4.

A. Falconer,- Chancellor; 1. Whether appellee be treated $s a surety or as a co-maker, his liability is the same. A surety is bound absolutely, unless he relieves himself in the mode pointed out in the statute. 113 Ark. 198.

Frierson, Chancellor; 1. The giving of the alleged notice did not discharge the liability to contribution, because (1), the notice was not sufficiently peremptory, or definite. (2) Jacobs, the principal, was insolvent at the time of giving the notice. (3) The notice was not properly served. (4) The statute has no application to the right of contribution between co-sureties, but applies solely to liability to creditors. Kirby’s Dig., § § 7921, 7922. 2.

Eaynie, Judge; The county is not liable. Kirby’s Digest, § 794; 52 Ark. 361; 100 Pa. St. 624; 37 Neb. 328; 21 L. B. A. 394; 45 Am. Bep. 402. The coroner in this ease exercised all the precaution the statute contemplates. The county is clearly liable for the fee. ’ 52 Ark. 361; 65 Id. 557; 74 Id. 183.

Knox, Special Judge; 1. Act 53, Acts 1905, is a special act limited in its operation to the St. Francis Levee District and to lands “bordering upon and near the Mississippi River.” Sections 1 and 8 specifically mention the St. Francis District; section 9 limits the act to lands bordering upon and near the Mississippi River. The act only applies to the St. Francis District.

'F. Lamb, Special Chancellor; 1. The contract is clear, complete and unambiguous, and it was not competent to show by parol testimony an additional consideration. 99 Ark. '223. 2. There was no assumption of the mortgage debt by Mott. 27 Cyc. 1344; 3 Pomeroy 2404; 2 Devlin on Deeds, 2072. 3. An acceptance of a deed subject to a specified mortgage does not imply a promise by the grantee to pay the debt. 47 Ark. 197; 90 Id. 426; 15 L. R. A. (N.- S.) 1087. 4.

Elliott, Chancellor; STATEMENT BY THE COURT. This was a suit brought by the appellees against the appellants for legal services.

On tlie 3d of March, 1892, the United States of America, through its Secretary of the Interior, acting under the authority of an act of Congress, executed its lease to S. H. Stitt & Co. (a firm composed of S. H. Stitt, Samuel W. Fordyce and Albert D. Gaines), demising the ground and premises upon which the Arlington Hotel, in the city of Hot Springs, was situated. The act of Congress provided that no lease should be for a longer period than twenty years.

II. Humphreys, Chancellor; 1. - A lawful tender of principal and interest was made and kept good. This stopped the interest and the costs should have been adjudged against plaintiff. 4 Ark. 251; 17 Id. 648; 37 Id. 110; 30 Id. 505; 31 Id. 429; 34 Id. 582; 83 Id. 484; 93 Id. 497; 96 Id. 156; 68 Id. 505, 521. 2. Payment to the agent, Jones, was payment to plaintiff. It was her duty to make, the endorsement of payment on the note. 5 Ark. 558.

Cowling, Judge; STATEMENT BY THE COURT. Appellee instituted this suit against the appellant, and alleged in his complaint that he was in the employ of appellant as a water carrier and errand boy for a section crew operating on appellant’s road and was provided by appellant with a hand car as a means of transportation; that the place designated for him to stand was on the front of the hand car; that while so standing, and as the car was being run by the section crew, it was…

Coleman, Judge; 1. The deceased was not engaged in interstate commerce at the time of his injury. 229 TJ. S. 146; 233 Id. 473; 180 S. W. 443; 238 IT. S. 439; 181 S. W. 375; 177 Id. 465; 150 Id. 201. The Federal Act applies. Deceased was engaged in interstate commerce and there can be no recovery. 229 U. S. 146; 238 Id. 260; 233. Id. 473; 154 Pac. 1102; 36 TJ.

Martineau, Chancellor; 1. A person can not waive his exemptions by stipulations in an executory contract. 18 Cyc. 1450,1451, note; 45 Am. St. Rep. 763; 94 Tenn. 651; 86 111. 141; 25 Am. Rep. 301; Underhill on Landlord & Tenant, volume 2, p. 1446, § 842; 30 Ark. 56, 120; 72 Am. Dec. 741. 2. A lien can not be created in a lease on property acquired after the execution of the lease. 163 111. 546; 45 N. E. 414; 111 Ark. 362. 3.

8. Maples, Judge; 1. The court erred in directing a verdict for plaintiff. It was error- to exclude the testimony offered by de-' fendant, as it tended to show a good defense in that the renewal was obtained by false representations, and that plaintiff had knowledge of the fraudulent character of the original note. The issues should have been submitted to a jury. 89 Ark. 368; 92 Id. 569; 41 I'd. 249; 1 Daniel on Neg. Inst. (2 ed.), § 769. 2.

M. Jackson, Judge; ■1. The demurrer should have been sustained because plaintiff could not sue alone for breach of the contract. Giles was a partner and should have been joined as plaintiff. Kirby’s Dig., § § 5099, 6005; 106 N. E. '243; 1 Ark. 59; 31 Id. 175; 29 S; W. 313; 180 S. W. 499; 9 Cyc. 704; 46 N. E. 220; 5 Id. 83; 2 Dana (Ky.) 460; 38 Ark. 72; 19 Id. 566; 24 Id. 555; 110 TJVS. 215. 2.

D. Frierson, Chancellor; 1. The legal and equitable title never merged in Lilly by virtue of the conveyance. Nothing that Lilly and Holloway could do could divest the vendor’s lien. Kirby’s Digest, § 51. The case, 171 S. W. 144, is conclusive of this case. See also 105 Ark. 156; 27 Cyc. 1377-8, note '2 and B; lb. 1379, note D; 42 S. E. 5; 68 Am. St. Rep. 685. 2. The assignment of the notes was an ¡assignment of the lien. Kirby’s Digest, sec. 510; 68 Am. St. Rep. 691.

■ Appeal from Sebastian Chancery Court, Fort Smith District; Wm. A. Falconer, Chancellor; 1. The appellant was a surety and not a primary debtor. It was the duty ¡of the court to cancel the note ¡as to appellant and require its surrender to him. 54 Ark. 97; 34 Id. 44; 9 Id. 418; 14 Id. 218; 106 Id. 160; 73 Id. 484; 92 Id. 606. The release of Mrs. Harper released Tancred. 20 L. R. A. 712 and note; 52 Id. (N. S.) 368 and note; 7 Cyc. 732; 32 Cyc. 40, 201.

Though the payment was made to Matt Grey, as administrator of the estate of Mary A. Hare, deceased, it should be treated as a payment to him as curator of the estate of Ella Hare, upon the principle that where one acts in a dual capacity, the exercise of the power is referable to the true authority conferred. 98 Ga. 193; 26 S. E. 736; 95 Pa.

M. Jackson, Judge; 1. Mrs. Owens, if she had lived, would have been entitled to maintain an action for damages. Kirby’s ■ Digest. § 6289; Cont. Art. 9. § 7; Acts April 28, 1873, March 19, 1895, and March 19, 1915; 93 Ark. 42. On her death the right to sue vested in appellants. Ib. She had the right to sue her husband for tort. 88 Conn. 42; 89 Atl. 889; 52 L. E. A. (N. S.) 185; 140 Pac. 1022, 52 L. E. A. (N. S.) 189; 154 S. W. (Tex.) 322.

The company having failed to cut and remove the timber expeditiously, forfeited all rights, and plaintiffs were entitled to recover for all timber cut after the notice was given. Plaintiffs instructions 1 and 2 should have been given without modification. The court erred in giving defendant’s request No. 2. No time was specified in the contract and hence appellee had only a reasonable time to cut and remove the timber. 99 Ark. 112; 120 Ark. 165; 118 Ark. 94; 111 Ark. 253.

Worthington, Judge; The admission of the testimony and the submission of the question whether plaintiff carried a side line was prejudicial to the rights of defendant. 178 S. W. 403; Webster’s Diet. 1953. There is no evidence to sustain the verdict and the instructions were prejudicial. 1.

Martineau, Chancellor; STATEMENT BY THE COURT. The question alone of the right to the benefit provided in a policy issued, to Prince Bedford, a member of the Knights of Pythias of North America, etc., an Arkansas Fraternal Insurance Society,'is involved in this appeal. The policy was issued on April 10, 1906, to Prince Bedford and none of the parties to this suit were named as beneficiaries therein; later the names of appellants were written in the policy as beneficiaries.

J. Driver, Judge; STATEMENT BY THE COURT. This appeal is prosecuted by Henry Woolbright from a judgment for assault with intent to kill one B. F. Palmer. It appears from the testimany that bad feeling was engendered as the result of appellant’s- failure to win a law suit brought in the justice court by him against Palmer, Ms tenant.

- L. Davis, Judge; statement by the court. A. S. McCray brought this suit for the collection of certain renewal commissions, alleged to be due him under the terms of his agency contract for writing insurance for appellant company.

This was a suit upon a 'contract and it was error to allow testimony to show a tort by conversion .of the property. One can not sue upon contract and recover in tort. 69 Ark. 209; 76 Id. 335; 64 Id. 213; 70 Id. 319, 325; 67 Id. 1; 49 Id. 94. The court improperly instructed the jury. 1. Whether the issue was one of contract or of tort, . the matter grew out of the same facts and could be plead in the same suit. Acts 1905; 83 Ark. 288; 86 Id. 130. 2.

Martineau, Chancellor; The appellant -contends. (1) That the only contract or agreement it had with appellee was that it was to accept a deed-for the equity in the lands-in satisfaction of its judgment. It never assumed the mortgage or agreed to pay it and did not assume it by purchasing the equity. (2) The alleged contract to convey twenty-one acres was within the statute .of frauds. The court erred in granting relief under the cross-complaint.

J. Driver, Judge; 1. The policy and note embody the contract of the parties. 96 IT. S. 234; 187 Icl. 335;. 104 Ark. 294; 75 Id. 814; 160 Fed. 646. 2. On August 9, 1914, 102 days after the third premium became due, and default in payment of the note, all rights of .the-, insured and beneficiary ceased and determined without notice. 74 Ark. 507; 85 Id. 337; 160 Fed. 646; 104 Ark. 288; 81 Id. 145; 79 Id. 38; 75 Id. 25; 74 Id- 507;' 65 Id. 240.

J). Frierson, Chancellor; STATEMENT BY THE COURT. This suit involves the title to a certain tract of land in Crittenden Coutnty, ,A|rkansa|s. In January, 1891, J. F. Earle, who owned the land, died and the title to the land descended to his only children Ben R. and Ruth. They were nonresidents of Crittenden County. In 1903 Ben conveyed his undivided interest to his sister, Ruth Earle (now Nelms).

M. Jackson, Judge; 1. The court erred in its charge to the jury and in • refusing defendants prayers No. 1 and 8. 120 Ark. 530; 98 Ark. 135; 98 Id. 232;'109 Id. 402; 54 Id. 588; 51 Id. 244. T. Howie was insane. 103 Ark. 196; 76 Id. 286; 118 Ark. 226. 2. There is no error in the court’s instructions. 89 Ark. 230; 81 Id. 205; 71 Id. '299; 104 Id. 417; 79 Id. 172; 78 Id. 574; 89 Id. 24; 105 Id. 213; 101 Id. 353; lb. 469; 76 N. Y. 426; 11 N. E. 620; 91 Id. 230; 43 Ind.

F. Gautney, Judge; STATEMENT BY THE COURT. The appellee sued appellant, alleging that it was operating a railroad from Poplar Bluff, Mo., to Piggott, Ark.; that appellee purchased a ticket at Poplar Bluff for Pollard, on appellant’s line;, that she and her four children were passengers on the train; that appellant unlawfully permitted drunken persons to get on the train, and that they abused appellee, cursing her, tearing up her basket and scattering its contents over the…

B. Priddy, Judge; 1. Tbe judgment and order of tbe county court were not void and can not be attacked collaterally, but only directly by appeal. 23 Cyc. 1074, 1088; 100 Ark. 63; 66 Id. 113; 43 Id. 328; 152 TJ. S. 327; 10 Peters 479; 5 Ark. 424. 2. Appellees are barred. 115 Ark. 88; 89 Id. 604; 52 Id. 213. 1. Certiorari is a direct proceeding to quasb a void order. 123 Ark. 205; 123 Ark. 298.

Prohibition to Crittenden Chancery -Court; Chas. D. Frierson, Chancellor; STATEMENT BY THE COURT. Held: it appearing from the answer filed herein by the defendants that they claim the right only to build their fence within the original meander line ,of the lands owned by them within the peninsula formed by Horse Shoe Lake, and the State of Arkansas admitting of record that the defendants have the right to build and construct their…

Haynie, Judge; 1. There was fraud, irregularities, misconduct of voters and judges, etc., sufficient to destroy the integrity of the returns and vitiate the election. 41 Ark. 123; 59 Id. 270; McCrary on Elections (2 ed.) § § 199, 303, 184, 441, 442; 86 Ark. 259; 50 N. H. 140; 63 111. 401; 11 Kans. 308. 2. The election judges were not appointed at the county seat. Kirby’s Digest § \ 2764, 2765. 3.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT BY THE COURT. Appellees in the first above styled case, brought suit to renew the order of sale of certain lands, decreed to he sold under a foreclosure of a mortgage, in the case of J. W. Robinson,.et:al., trustees v. Mary E. Rlanton, et al, the day of sale of said lands in the original decree having passed and it being necessary to appoint a new commissioner for the púrpdse.

Shaver, Chancellor; STATEMENT BY THE' COURT. The issues involved in the appeal in each of these cases is the same and on that account one opinion may serve in both cases. Each case was begun in the chancery court by the owner of property in an improvement district in the city of Texarkana, Arkansas, .to set aside the statutory foreclosure sale made by the board of com-. missioners of the improvement district and to quiet their title.

Trimble, Judge; 1. It was error to direct a verdict. The evidence' was conflicting and presented disputed questions which should have been presented to a jury. 17 Ark. 478; 88 Id. 164; 100 Id. 629. 2. It was error to refuse to permit Walls to testify as to the consideration of the note and in excluding the check. The judgment is contrary to the law and the evidence.

Stay-ton, Special Judge; 1. This suit is based upon the Federal Employers’ Liability Act, and liability must be determined by it. 229 U. S. 146; Boberts, Injuries Interstate Employees, § 30; Thornton, Fed. Employers’ Act (3 ed), 4 45. This is but a re-enactment of the common law liability of the master. 233 U. S. 492; 234 Id. 725.

False statements merely promissory in character can not be made the basis of an action for fraud and deceit. 121 Ark. 23; 91 Ark. 324.; 241 111. 521; 24 L. R. A. (N. S.) 733; 25 S. E. 529; 15 Ind. 11; 92 Va. 1. 2. An action ex delicto and one ex contractu can not be joined in tbe same complaint. Kirby’s Digest, § 6079; 23 Cyc. 415; 69 Ark. 209; 82 Mo. 242; 35 Id. 483; 34 Ind. 72; 31 Pac.* 259. 3.

Appellant and appellee are lumber corporations organized under the laws of the State of Arkansas. Appellant had its principal place of business at Fourche, and the appellee its principal place of business at Bigelow, in Perry County. Appellant instituted this suit against the appellee in the Perry Circuit Court to recover damages growing out of an alleged violation by the appellee of a written contract between appellant and appellee entered into on the 3d day of August, 1905.

M. Jackson, Judge; 1. The court erred in its rulings' as to the admission of testimony. 1 Wharton on Ev., § 20; 42 Ark. 542; 5 Enc. of Ev. 15, and nóte, 523, and note 24. Witnesses must state facts. 24 Ark. 250. Opinions of witnesses having knowledge of particular facts are admissible as to value. 91 Ark. 128; Rogers Expert Testimony 13, and note 3. See, also, 10 Enc. Ev., p. 637; 34 Ark. 480; 99 Id. 604. 2.

The court had no jurisdiction for want of proper service. The motion to dismiss should have been granted. Kirby’s Digest, § § 6074, 4555, 4558; 59 Ark. 593; 77 Id. 412; 84 Id. 573; 63 Id. 30. 2. By filing a counterclaim, appellant did not waive his objections, nor make the court his forum. Kirby’s Digest, § 6093; 57 Ark. 500; 70 Id. 505; 80 Id. 339; 88 Id. 153; 95 Id. 118; 108 Id: 283; 31 Id. 345; 55 Id. 312; Kirby’s Digest, § 6231. 3.

The board acts in a representative capacity and its powers are prescribed by statute. It had no power to allow Speer & Dow $1,250 for their services, and no right to make the additional contract and discount the bonds or reduce the amount to be paid for them. 143 Pac. 1145; Laws of Oklahoma, 1909, eh. 32, Art. 2; 11 Cyc. 467-468; 84 N. W. 822; 2 Bans. 115; 3 Okla. 281; 41 Pac. 592; 44 Ark. 437; 23 Pac. 713; 18 S. E. 374; 73 N. W. 845. 2.

J. Driver, Judge; 1. The sale was conditional, the legal title being reserved in Bertig Bros., and it was error to ¡admit testimony to contradict the written instrument. 78 Ark. 569; 91 Id. 319; 2 Wig. on Ev. § ■§ 897, 898; 82 Ark. 286; 81 Id. 595; 86 Id. 169; 11 Cyc. 724, 728. 2. The articles did not become fixtures. 27 Ark. 332; 62 Id. 450; 73 Id. 227; 56 Id. 52; 93 Id. 77. It was error to direct a verdict.

M. Barker, Chancellor; One partner cannot foreclose for his pro rata of á partnership debt. 110 U. S. 215; 93 Ark. 451. The testimony shows a failure of consideration and false representations.-

Henderson, Chancellor; The ordinance is void for the reasons that: 1. The act was void. 2. It was a special act. 3. If intended as a general act no method of adoption by counties or cities outside of Independence County was provided. 4. It was purely a revenue measure. 5. The occupations themselves could not be licensed, and if they were there was discrimination both in licensing and taxation. 112 Ark. 17. 6.

Knox, Special Judge; 1. The verdict is contrary to the evidence, because there was no binding contract. It was too indefinite and uncertain as to distance the logs were to be hauled and the price to be paid. Tiedeman on Sales, § 45; 1 Mechem on Sales, § 209; Benjamin on Sales, ■§ 69; 97 Ark. 613. 2. There was no mutuality in the alleged contract. 100 Ark. 510; 96 Id. 184; 64 Id. 398; 6 L. it. A. (N. S.) 431; 20 Id. 899.

<p>1. Deed of trust — transfer of note — cancellation of trust deed — effect.—Certain notes were given secured by a deed óf trust, aiffi one of them was transferred to plaintiff who was a Iona fide purchaser thereof,,for value before maturity, said note being endorsed to her. Held, the’action of the original holder of the said notes in cancelling the trust deed, and releasing the lien, did not operate to „ defeat the lien held by the plaintiff to secure her note.</p> <p>2. Principal and agent — ratification of agent’s act. — Before one can be held to have ratified any unauthorized act of one who assumes to be his agent, the principal must have knowledge of all the material facts upon which said agency is predicated, and ignorance of such facts renders the alleged ratification ineffectual and invalid.</p> <p>3. Principal and agent — unauthorized act — ratification.—When the principal has the knowledge as stated above, and remains silent when he should speak, or accepts some benefit which he obtains by virtue of his reputed agent’s acts, he cannot thereafter be heard to deny the agency.</p> <p>4. Principal and agent — unauthorized act — ratification.—There is no ratification if at the time it becomes known that the agent exceeded his authority, the principal has put it beyond his power to return or restore the benefits received, or if without his fault conditions are such that he cannot be placed in statu quo, or repudiate the entire transaction without loss.</p> <p>5. Principal and agent — ratification of agent’s act — cancellation of trust deed. — Plaintiff held a note secured by a certain trust deed. Plaintiff’s agent undertook to release the lien retained in the trust deed, and held, plaintiff, by her conduct, ratified the agent’s act.</p>

There was .a well-constructed crossing 15 to 25 feet wide in the middle of the street. Act No. 36, Acts 1905, amending ^ 6681 Kirby’s Digest and IB. § § 6682, 6683; Act No. 301, Acts 1907, § 1. The council had passed no ordinance under this act. The court erred in its instructions.

This appeal is prosecuted by the railroad company from a judgment against it for $25 damages- for injury to a horse of appellees.

F. Oautney, Judge; 1. Possession under a donation deed gives title under the two year statute, although the deed is void. Kirby’s Digest, § 5061; 92 Ark. 30; 84 Id. 614; Kirby’s Digest, § 5056; 73 S. W. 559; 41 Id. 542; 26 Id. 649. Appellant was a minor and this suit was filed within two years after appellant became of age. 1. The seven years statute, Kirby’s Digest, § 5056, Can not apply, nor does section 5075.

M. Jackson, Judge; The evidence does not support the verdict. There was no breach of duty on the part of appellant. 29 N. E. 825; 106 Ark 436; 76 Id. 69; 88 Id. 292. The appellant was liable for failure to use ordinary care in furnishing a.reasonably safe place on which to work. 117 Ark. 204; 90 Id. 226; 105 Id. 401. The trestle was the place furnished by appellant on which appellee was required to work.

B. Baker, Judge; 1. The amended complaint stated no' cause of action. Its allegations are not.sufficient to authorize the judgment. 10 Kan-s. 131; Kirby’s Digest, § 6096; 67 Ark. 184; 82 Id. 196; 49 N. T. 261. 1. The court had jurisdiction and the complaint stated a cause -of action. There was no motion for a new trial and no bill of exceptions. Appellant makes no showing at all for a reversal. 67-Ark. 426; 62 Id. 431; 59 Id. 215. , ' 2.

P. Henderson, Chancellor; 1. An estate by entireties, after a divorce, and the conveyance by the wife of her interest to third parties, becomes subject to partition. Kirby’s Dig., § 4423; 61 Ark. 388; 63 Id. 289; 66 Id. 305. A divorce destroys an estate by entirety. 55 L. E. A. (N. S.) 396; Bishop on Mar. & Div. (5 ed.), '§ 716; Freeman on Cotenancy (2 ed.)., § § 76, 92; 136 S. W. 127; 168 Id. 1178; 108 Id. 9; 109 Md. 690; 72 Atl- Eep. 414.

Martineau, Chancellor; STATEMENT BY THE COURT. Sarah Phillips made a will in which she named her son, William James Phillips, as executor and trustee.

Smith, Judge; statement’ by the court. The appellees, as executors of the estate of T. N. Jameson, deceased, 'commenced this action ¡by- filing their petition in the Columbia probate court, asking that court to appoint commissioners to allot dower out of the. estate to Mrs. Isadore Jameson, the appellant.

F. Gautney, Judge; 1. The evidence is insufficient to sustain the verdict. The proof shows that the money in bank belonged to her. No fraud was alleged or proved. 2. No judgment was ever recovered against W. R. Loyd. 1. Where a wife permits her husband to use her funds as a basis of credit, she is not permitted to claim it as against her husband’s creditors. 107 Ark. 458; 86 Id. 486'; 84 Id. 355. 2. There was no contest over the debt.

D. Frierson, Chancellor; 1. Johnson did not pay the taxes, penalty and cost on the land in question for the year 1911 to the collector or his deputy. Acts 1909, No. 262; 93 Ark. 400; 35 Id. 509. The failure to pay was the party’s.own neglect; it is not shown that the error was that of the collector. 35 Ark. 508; 70 Id. 500; 92 Id. 630; 99 Id. 139; 105 Id. 40; 114 Id. 551. No penalty was paid, .although the land was delinquent more than thirty days. 62 Ark. 188. 2.

Colemcm, Judge; 1. Testimony as to the custom on other railroads was admissible. 105 Ark. 392; 20 Atl. 517; 57 Ark. 76; 20 S. W. 808; 122 IT. S. 194 and 200 other cases. 2. There was a total failure of proof to show any negligence. 3. Instruction No. 3 for plaintiff as to the duty of the company to provide “a safe shovel board” was error. No such duty rests even upon carriers of passengers.

B. Eaynie, Judge; STATEMENT BY THE COURT. Appellant who was regularly licensed by the Miller County Court to keep a public ferry -across Eed Eiver, a navigable stream from a point on the western bank, opposite the -town of Fulton in Hempstead County, brought this suit against M. J. Munn, et. at., to collect penalties denounced by the law (3582 Kirby’s Digest) for operating a ferry across navigable streams without procuring a license therefor.

J. Driver, Judge; The effect of the contract is that appellees individually promised for a valuable consideration, that in the event the county did not redeem the warrants that they would do so. 22 Cye. 495 ; 9 Id. 580-583; 1 App. Cas. (D. C.) 223; 93 HI. 599; 35 Am. Rep. 641; 18 S. E. 640; 6 Words & Phrases, 5675. The court erred in sustaining the demurrer. The contract simply bound appellees to pay in scrip of Mississippi County.

Elliott, Chancellor; STATEMENT BY THE COURT. Appellant Morgan Company brought suit on June 30, 1914, against .appellees upon a note of the Buena Vista Veneer Co., dated January 5, 1914, and caused an attachment to be issued against certain property transferred by 'said company to Charles W. Elmes, which transfers were alleged to be fraudulent and prayed to be set aside as made in fraud of creditors. On September 29, 1915, the S. II.

D. Frierson, Chancellor; • 1. The mortgage did not cover individual indebtedness. This was a joint contract; a unilateral contract, and Pugsley could not sue alone. .Kirby’s Digest, § § 4420, 6010; 27 Cye. 1044, C; lb. 1564, b; 8 Id. 88 v;'l5 Ene. PI. & Pr. 528; 9 Cye.. 655, 656, note 40; 5 A. & E. Enc. Law, 956 (5), b; 67‘Ark. 27; 93 Id. 447; 91 Id. 10. 2.

H. Rowell, Special Judge; 1. A verdict .should have been directed for appellant. There was no evidence to sustain the verdict. Plaintiff violated the rules of the company which caused the accident. 100 Ark. 526, 533; 97 Id. 443. Stewart’s testimony is absolutely contradicted by. the physical facts. 100 Ark. 380; 157 Fed. 347; 86 Pac. 472; 74 Kans. 256. Failure to obey the rules was negligence. 100 Ark. 380; 140 S. W. 544; 120 Ark. 61; 52 Ark.

The judgment in this cause on the first ¡appeal was affirmed. 106 Ark. 421. A writ of error was granted and the Supreme Court of the United States reversed the judgment. 238 U. S. 243.

M. Jackson, Judge; 1. The court erred in excluding from the jury all evidence of plaintiff’s fraud, unfaithfulness and dishonesty in discharging the duties connected with the agency; and in refusing to instruct the jury that if proven it was a 'defense to the suit. Where an agent is guilty of fraud, •dishonesty or unfaithfulness, in the transaction of the agency, such conduct is a 'bar to the recovery of wages or compensation by him. 96 Ark. 451. 2.

Haynie, Judge; 1. The trustees had ho standing under the law to administer .the estate. Kirby’s Digest, § § 1-12, 25, 54; 39 Cye. 249, et seq. 2. If the trustees had any authority with respect to claims against the estate, they never exercised it. 39 Cyc. 307. 3. Whatever authority the trustees had was superseded ¡by the appointment of the administratrix. 18 Cyc. 58; 89 Ark. 553; Act No. 438, Acts 1907. 4.

J. Driver, Judge; The only power granted county courts was to change, or alter the boundaries of special school districts, not common .school districts. County courts have no power to change the boundaries of common school districts. The act is very ambiguous; its title and text are inconsistent and conflicting, and its different sections seem to conflict. It is a special act applicable to Greene County only.

<p>Appeal from Lafayette Circuit Court; Geo. B. Haynie, Judge;</p> <p>1. ■ Witness Morris was not an accomplice. The instruction on the question of accomplice is correct. 64 Ark '253.</p> <p>2. Our prohibition law is constitutional. 156 IT. S. 1; 226 Id. 192; 152 Id. 133; 211 Id. 31; 232 Id. 138; 187 Id. 607; 225 Id. 623; 226 Id. 192; 69 So. 652; 210 Fed. 378; 33 Me. 558; 54 Am. Dec. 639; 205 U. S. 93; 68 So. 993; 179 Ala. 51; 177 Id. 149; 8 App. Ct. Rep. 386; 62 So. 365; 67 Id. 651; 82 Kan. 756; 109 Pac. 183; 140 Id. 49; 109 G-a. 373; 47 L. R. A. 36; 77 Am. St. 384; 83 S. W. 254.</p>

F. Gautnev, Judge; A verdict should have heen directed for defendant. The alleged contract or agreement is clearly within the ■statute of frauds. The court was of the opinion that what BrOwn .said to him about suing Halford was sufficient consideration moving to Brown to bind him to pay Halford’s debt, but this is not the law. 20 Cyc. 192 (3) and cases cited.

Barker, Chancellor; 1. Only $41 was due on the mortgage debt, and this was settled by the collection of rents by a mortgagee in possession. Young had no lien by contract and no ‘ ‘ other indebtedness” after-incurred could be tacked to the mortgage debt past due. If the mortgage debt had not been paid by the rents, then only $41 and interest was due, and the land could only be sold for that amount. Morgan’s sons owed nothing for board.

M. Jachson, Judge; STATEMENT BY THE COURT. Appellee brought this suit to recover the value of two cases of shoes which it was alleged the carrier failed to deliver. Prom the judgment against it in the justice court the railroad company appealed, and, upon trial, the circuit court directed a verdict against it, and from the judgment thereon this appeal is prosecuted. It appears from the testimony that appellee ordered by telegraph two cases of shoes from Geo.

Elliott, Chancellor; STATEMENT BY THE COURT. This -suit was instituted by the appellee against the Hazen Creamery Company, -a corporation, and appellants, the president and .secretary, respectively,' of such •corporation, to foreclose certain mortgages and to obtain a personal judgment against the appellants for certain sums amounting in the aggregate to $5,000, evidenced by a promissory note for that sum dated March 10, 1914.

I. Worthington, Judge; STATEMENT BY THE COURT. W. J. Short sued the i^etna Insurance Company to recover upon a policy of fire insurance issued by it upon a stock of goods. The material facts- are as follows: W. J. Short was a merchant at Heber Springs, Arkansas, dealing in hardware, queensware, furniture, farming implements, wagons and machinery. Originally he had something like $8,000 insurance on his stock, including the policy in question.

The proof shows the relationship of principal and agent. This relationship established, the law requires the highest degree of candor, honesty, fidelity and absolute good faith. Cooley on Torts (2 ed.), p. 615; 82 S. E. 381; 142 Pac. 1029; 29 111. 75; 95 Am. Dec. 568. Appellee by Ms conduct violated every principle of law and fidelity.

H. Evans, Judge; 1. The proof of loss was not satisfactory as to total and permanent disability. Nor is there proof in the record of the fact. Besides appellee abandoned his first claim that he had tuberculosis and undertook to show that he had interstitial nephritis. 2. The verdict is contrary to the evidence. Total disability was not shown from any cause. The verdict is contrary to law also.

J. Lea, Judge; STATEMENT BY THE COURT. Tbis was a suit instituted by the appellee .as administrator of the estate of T. W. Edmondson, deceased, against the appellants to recover damages for the benefit of the widow and next of kin for the alleged negligent killing of Edmondson.

Henderson, Chancellor; STATEMENT BY THE COURT. These appeals involve the correctness of the decrees of the Pulaski and Grant Chancery Courts, the one requiring the receiver of an insolvent 'bank to pay from the ■moneys on hand at the time of its failure the full amount of certain drafts collected by it shortly before its failure to the drawer bank, to the exclusion of the general creditors, and the other denying the drawer of the draft such right to the payment of the amount…

J. Driver, Judge; 1. A similar contract was construed by this court in 115 Ark. 166. Williams was not appellant’s agent, and the company was not engaged in business in Arkansas. The facts proven and the contract show a sale of the goods to appellee and not an agency. 181 S. W. 1183; 2 A. .& E. Ann. Cas. 309; 161 Fed. 223; 18 L. E. A. (N. S.) 139, 140; 40 S. W. 393; 98 Tenn. 244. Names go for title; the contract really operates to transfer title and was a sale.

Coleman, Judge; 1. The payment of $200 eleven months after the note was due was not a sufficient consideration for the. alleged agreement of release.. 96 Ark. 20; 26 Id. 160.

W. Smith, Judge; 1. Martha Bross w-as seized in fee -simple of the realty -sought to 'be taxed. That was the plain intention of the will and devisor. 31 Cyc. 1091; 3 Kerr -on Real Property, 1814; 20 Gratt (Va.) 692; 1 Underhill on Wills, 650. 2. The power of appointment conferred upon Mrs. Bross in the will of her husband authorized her to dispose of the devised estate by will.

M. Jachson, Judge; STATEMENT BY THE COURT. Separate suits were instituted 'by the appellees against appellants to recover on two' promissory notes, each for the sum of $800. The form of the notes was as follows: “$800.

Cowling, Judge; 1. The court erred in refusing the defendant permission to prove, or attempt to prove, that the prosecutrix had a lover, and that the charge was made in order to shield that lover. The motives of the prosecuting witness may be shown. 2 Ene. Ev. 246; 33 Cyc. 1455; 125 S. W. 921; 116 Id. 872; 58 Ark. 353; 49 Id. 439. The exclusion was highly prejudicial. 2. It is error to single out testimony of accused and stress it in the charge to the jury.

The rule of uniformity and equality in taxation was violated. There was discrimination; the assessment was arbitrary and not according to value. Cooley, Const. Lim. (4 ed.) 616; Kirby’s Dig., § 7008; 5 Ark. 204; 19 Id. 360; 25 Id. 295; 32 Id. 37-42; 49 Id. 336-349; 49 Id. 518, 522, 530; 62 Id. 461-465; 1 Wash. St. 46; 70 Id. 48; 68 Id. 623; 77 Id. 315; 88 Fed. 350; 210 Id. 867; 62 Id. 548; 101 XL S. 153, and many 'other decisions. Discrimination was proven. 37 Wis. 75. 2.

Elliott, Chancellor; STATEMENT by the court. This controversy arose over the right to cut timber from certain lands in Cleveland County. Appellant brought suit, claiming to be the owner of the white and cow oak on the lands, suitable for stave bolts, and prayed an injunction against the defendant' to prevent his further cutting timber therefrom.

Martineau, Chancellor; 1. The decree is a final order within the meaning of onr statute. 52 Ark. 224; 88 Id. 590; 100 Id. 496; 25 Id. 420; 28 Id. 92; 44 Id. 46; 30 Id. 73; 79 Id. 473; 28 Id. 92; Kirby’s Dig., % 1188. 2. The decree was erroneous because (1) the court was without authority to make the order after term time touching the custody of children.

B. Priddy, Judge; 1. There is not one word of testimony to sustain the verdict. Appellant was charged with selling — not buying — whiskey, and there is no testimony that he sold any. This court never adopted the scintilla rule; there must be a preponderance. 118 Ark. 352. There was no ‘«‘sale.” 23 Cyc. 284. The verdict should have been set aside. 106 S. W. 1125; lb. 23; 207 Mo. 619. 2. The jury disregarded the court’s instructions. 18 Pick. (Mass.), 13; 54 la. 628.

C. Trimble, Judge; STATEMENT BY THE COURT. In October, 1914, appellee was in the employ of the appellant as fireman on one of its engines. Appellee, while engaged in his work on one of the engines that had been sent to help clear the track of a derailed train, was sitting on his seatbox watching for signals that the engineer was unable to see on his side of the engine because of a curve at that point in the track.