Volume 127 — Arkansas Reports

Martineau, Chancellor; 1. The phrase “preliminary expenses” negatives the idea of completed work. The engineer’s claim was excessive, the allowance being excessive. The allowance is greatly in excess of what properly can be considered a preliminary expense under the opinion on the former appeal. 2. This applies also to the claims of the attorneys. Of the other claims, those of Dickinson, Lenon, Morris, Watkins et al., as secretary and directors, should not have been allowed.

B. Baker, Judge; STATEMENT BY THE COURT. On the 20th day of June, 1911, Mrs. Catherine Hargus died leaving two sets of children, three by her husband, Hargus, and several children by her former husband Hayes. She owned a valuable estate consisting of real estate and personal property. Frank Hargus was appointed administrator of her estate. He moved out of the State without administering the estate of which he was appointed administrator.

E. Martineau, Chancellor; STATEMENT BY THE COURT. Appellees instituted this action against appellants in the chancery court to have certain shares in the Arkansas Anthracite Mining Company, a domdstic corporation, declared to be preferred over the stock in that corporation held by appellants. The material facts are as follows: In the early part of 1905 and for some time prior , thereto the business of mining coal was in a very prosperous condition in the State of Arkansas.

Shaver, Chancellor; 1. The ordinance evidences a wrongful exercise of the police power of the city. It is arbitrary, unnecessary and unreasonable and no authority for its enactment is conferred by law. It violates the 14th Amendment of Const. U. S. and the Constitution of Arkansas. While the ordinance is presumed to be legal until the contrary is shown, the contrary is alleged in the bill. No such authority is conferred by §§ 5438, 5439, 5461, Kirby’s Digest.

F. Oautney, Judge; 1. Bloodworth’s testimony was not privileged. ■He was not acting as attorney for either party, but merely as a scrivener and notary public. 9 Ark. 307; 24 Id. 355; 22 A. & E. Ann. Cases, 834 and note, p. 839; 40 Cyc. 2365. The court properly excluded C. T. Bloodworth’s testimony. His information was obtained through professional relations to his client. It was privileged.

Where a debtor’s right to exemption has once been adjudicated, he cannot file a schedule again under the same attachment. The principle of res adjudicóla applies. 55 Ark. 55; 65 Id. 232. 2. By failure to appeal Drake waived his exemptions. 43 Ark. 17; 47 Id. 400. 3. The circuit court had no authority to order the justice to allow the second schedule.

B. Sorrells, Judge; 1. The demurrer should have been overruled. The court should have heard the evidence. Adair intended to describe the north half, and it was a mistake of the scrivener in inserting the south half. The complaint, as amended, stated a good cause of action. The will has been construed and appellant was held a remainderman ’and entitled to the property at her mother’s death. 116 Ark. 233.

District; Paul Little, Judge; ■ 1. The judgment should be reversed, because-the court failed to file written findings of fact and conclusions of law, as imperatively required by law, but refused to do so when its attention was called to the omission. 34 Ark. 524; 42 Id. 41; Kirby’s Digest, § 6213; 24 Pac. 1055; 17 Mo. 550; 57 Atl. 837; 20 App. Div. (N. Y.) 304; 19 Pac. 123; 51 N. W. 867; 20 La.

She did not purchase the property. The contract was not for her separate estate, business or services. She signed merely as surety for her husband and is not bound. 103 Ark. 246; 146 S. W. 499; 66 Ark. 117; 49 S. W. 491; 108 Ark. 151; 156 S. W. 1023. I. No set-off or counterclaim was filed in the justice’s court. Kirby’s Digest, § 4682; 44 Ark. 376; 77 Id. 237. 2. Rosa McDaniel was the maker of the note and Whipple the surety. 92 Ark. 604.

B. Sorrells, Judge; 1. Fairweather was a non-expert witness and his testimony should have been excluded. 57 Ark. 387. 2. The court erred in its instructions as to contributory negligence and assumed risk. The error was not cured in other instructions. 99. Ark. .384-5; 122 Ark. 272; 123 Ark. 594. . 3. The court erred in refusing the. peremptory instruction for defendant. It is always improper and dangerous to extend the foot beyond the floor of an elevator.

Elmyra Gatlin; an aged negress, on March 12, 1910, executed her will, in which she gaye to her two nieces, Myrohn Morris and Sarah Pyburn, . and a nephew, Frank Collins, the sum of $50.00 each, and' her household goods to be divided equally between them. She provided for the payment of her debts and funeral expenses.

H. Evans, Judge; STATEMENT BY THE COURT. Separate suits were instituted by Hartsell Blundell and Rosey Blundell, Ms wife, against the appellant to recover damages for the alleged negligent failure of appellant’s agent to put them off at their destination, and the alleged negligence of appellant’s agents in carrying appellees by the destination to which they had purchased tickets. The appellant denied all the allegations of the complaint. The suits were consolidated for trial.

This is the second appeal in this case. On the second trial there was no change in the evidence. 122 Ark. 125. It is undisputed that the apparatus in use was standard equipment in general-use and that more or less coal would fall; that appellee knew this, as he had been injured before. There was no way to prevent it. Appellant assumed the risk and the peremptory instruction for defendant should have been given.

Johnson Chancery Court; Jordan Sellers, Chancellor; STATEMENT BY THE COURT. This is an action by the widow against the heirs at law for the assignment of dower in certain lands belonging to the estate of her deceased husband. The material facts are as follows: W. H. West died in Johnson County, Arkansas, on April 10, 1913, owning the lands which are the subject matter of this litigation. The lands involved in this suit were a new acquisition, and not an ancestral estate.

B. Baker, Judge; 1. The court erred in giving instruction No. 2. There was no evidence to support it. An accord with- out satisfaction is not a bar. 78 Ark. 304; 88 Id. 473; 115 Id. 339. 1. Instruction No. 2 was not erroneous.

B. Priddy, Judge; 1. This is the second appeal in this ease. 124 Ark. 585. Our contention again is that the evidence is not sufficient to sustain the verdict. The law also was not properly declared. 20 Ark. 454; 7 Id. 435; 65 Id. 279; 29 Cyc. 832; .56 N. E. 292; 47 Ark. 567; 94 Id. 568; 118 Id. 352; 218 U. S. 245; 134 Pac. 77. The ordinance is void, being inconsistent with the law, Kirby’s Digest, §§ 5093-4. 1.

I. Worthington, Judge; 1. The council had authority to remove the commissioners. Act No. 81, March-23, 1909. A hearing was had and cause shown. 39 Ark. 211; 29 Cyc. 1371; 136 Ga. 376; Am. Ann. Cases, 1912 C, 372; 71 Ark. 4; 94 Ark. 49; Kirby’s Digest, §§ 5670, 5667. 2. The charges were sufficient. 39 Ark. 211; 29 Cyc. 1410 and note 31; 113 Mo. 202; 21 Ga. 280; 55 Ark. 148; Throop Publ.

Smith, Judge; 1. There was a forfeiture on the part of Green to his right to cut the timber within a reasonable time after the date of reservation. 77 Ark. 116; 111 Id. 253; 69 S. W. 320; 91 Id. 53; 46 S. E. 26; 43 S. W. 733; 83 Am. St. 661; 55' L. R. A. 513. 2. There was no waiver of the forfeiture by Beene or any one else who held title. 69 L. R. A. 833; 43 C. C. A. 278; 48 Ark. 445; 72 Id. 529; 40 Cyc. 269; 13 Enc. of Ev. 1020; 40 Cyc. 261-2. 3.

I. Worthington, Judge; 1. The peremptory instruction requested by defendant should have been given. This was a mixed train. The jerk and injury were due solely to running the slack out of the train and unavoidable. The verdict is contrary to all the legal evidence. 10 Ark. 309; 118 Id. 352. The verdict is contrary to the physical facts. 71 Ark. 590; 83 Id. 22; 90 Id. 497; 4 Elliott on Railroads, § 1629. Negligence must be determined by the facts in every ease. 7 Mo.

W. Hendricks, Judge; 1. The laws of the order were made a part of the contract and prohibited applicant from engaging in the business of selling, by retail, any intoxicating liquors'. This provision is valid. 80 Ark. 419; 81 Id. 512; 105 Id. 140; 52 Id. 202; 55 Id. 210; 98 Id. 421; 109 Id. 400; 87 N. W. 293; 16 Hun. 494. 2. There was no waiver. 104 Ark. 538, 544; 22 . Mo. App. 127. Officers cannot disregard the laws of the order. 105 Ark. 140-3; 16 Hun. 494. 3.

Cowling, Judge; 1. A verdict should have been instructed for the defendant, because prior to the fire there was no contract of insurance with the assured.

T. Humphries, Chancellor; Appellee is barred by the separation agreement. The property was evenly divided and fairly, and there was nothing but good faith and fair dealing. These separation agreements are valid and enforceable. The appellee has neither homestead nor dower right. 1 Woerner on Adm. (1 Ed.) 253; 12 L. R. A. (N. S.) 848; 53 Ark. 281; 104 N. Y. 418; 67 Ark. 15; 31 Id. 678; 97 Id. 217; 9 Id. 501-4; 92 Id. 66; 7 Id. 519. 1.

The endorsement required of appellee under the circumstances was a guarantee that there was absolutely nothing wrong with the draft; that it was given for a valuable consideration and that previous endorsements were genuine. Bigelow on Estoppel (4 Ed.), p. 516; 15 N. Y. 575. The bank was not estopped. See also Morse on Banks & B. (1 Ed.), p. 309. The bank is estopped. Gunther is an innocent party.

Wood, Chancellor; 1. The chancellor erred in treating the complaint as amended to set np an entirely new cause of action. Bliss on Code Pleading, § 429; 71 Ark. 222; 43 Id. 243; 59 Id. 441; 51 Ark. Law Rep. 203; 58 Ark. 504; 76 Id. 146; 55 Id. 562; 7 Id. 516; 29 Id. 637; 49 Id. 94. 2. The chancellor erred in holding that a trust relation existed between de Yampert and Manley. 50 Ark. 71; 41 Id. 400; 95 Id. 496; 108 Id. 282.

Worthington, Judge; 1. All the instructions given for plaintiff were erroneous; those refused for defendant correctly state the law. The mortgage was indefinite in terms and could not be explained by oral testimony. The cotton was grown on Government land and no occupant has a right of property in the crop. 14 Ark. '282. 2. The cotton described in the mortgage and that in controversy are entirely different. 54 Ark. 91. Appellant was an innocent purchaser. 41 Id. 74.

T. Humphries, Chancellor; 1. The pretended formation of the district and all proceedings thereunder are void for the reason that no order of the county court was made fixing the day for the hearing of the preliminary report of the engineer. Act 221, Acts 1911; 115 Ark. 165; 48 Id. 238; 51 Id. 34; 61 Id. 259; 55 Id. 30; 56 Id. 419; 14 Id. 408; 25 Id. 541; 30 Id. 719. Notice was given and published by the clerk as required by law. This was sufficient.

The facts of this case were recently before this court. 123 Ark. 94; 184 S. W. 65. There were two counts in the complaint, one alleging a cause of action under the Employer’s Liability Act, and the second under the State statute. The cause was removable to the Federal Court. 229 Fed. 319; 220 Id. 731; 203 Id. 1021; 167 Id. 675.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT BY THE COURT. This suit was instituted by appellants against the appellees to set aside a sale made by appellants to appellees, A. T. Stovall and Walter Gorman, of certain lands and personal property described in the complaint. Also to set aside deeds made by Stovall and Gorman to John W. Aven to the lands mentioned in the complaint.

S. Maples, Judge; 1. There is no proof that the check was forged. The burden was on the State to show that the instrument was a forgery and that the defendant uttered same knowing at the time that same was in fact a forgery. 91 Ark. 485; 90 Id. 123; 47 Id. 572. 2.

W. Hendricks, Judge; STATEMENT BY THE COURT. This was. an action commenced by Jessie Tread-way in her own right and as next friend to Marie Tread-way, Thelma Treadway, and Daisy Treadway, minors, against the St. Louis, Iron Mountain & Southern Railway Company to set aside a judgment rendered in the same court in favor of Jessie Treadway, administratrix of the estate of Robert H. Treadway, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, for the sum…

H. Dudley, Special Judge; 1. The indictment is at variance with the verdict. Appellant was indicted for cutting timber under Kirby’s Digest, § 1902, but was tried for and convicted of grand larceny. 25 Ark. 184; 10 Id. 618; 34 Id. 433; 24 L. R. A. (N. S.), 1244; 107 L. R. A. 298; 12 Cyc. 767. 2. There is no evidence to support the verdict and the court erred in its instructions. 1. There is no variance between the verdict and the indictment.

Martineau, Chancellor; 1. A special school district cannot employ teachers who are related to any of the members of the board in the absence of a petition signed by two-thirds of the patrons of the school. The burden was on the board to prove that the petitions contained the requisite number of signatures. Kirby’s Digest, § 7616 as amended by Acts 1913, 85; 71 Ark. 87. 2.

Worthington, Judge; 1. Under the undisputed testimony it is clear that the original injury was the result of a risk assumed by him, and the court should have peremptorily instructed a verdict for defendants. Act No. 88, Acts 1911, does not eliminate the doctrine of assumed risk as a defense. 119 Ark.’477; 82 Ark. 11; 53 Id. 117; 54 Id. 389; 89 Id. 427; 93 Id. 564; 104 Id. 489; 101 Id. 537. The case in 228 Fed. 872-5, is peculiarly applicable to the facts in this case. 2.

Coleman, Judge; STATEMENT BY THE COURT. Appellee sued appellants upon a promissory note alleging the balance due to be $1,275.00. On January 22, 1914, at Alicia, Arkansas, appellants executed a promissory note payable to the order of Earle Gibbons Company for $1,725.00, due 12 months after date. The defense of appellants to the action was that there was a material alteration of the note apparent on its face.

This was an interstate shipment and the subject matter is one that is beyond the jurisdiction of a State court. 68 S. E. 107; 204 IT. S. 559; 162 Id. 184. The shipper’s only remedy is to file complaint with the Interstate Commerce Commission. 204 U. S. 553; 202 Id. 242; 67 W. Va. 448. 2. The point to which the shipper demanded that the cars be delivered was on a spur track, or industrial track, constructed to serve the crushed stone company.

Coleman, Judge; 1. The court erred in submitting the question of assumed risk to the jury. The law is now settled that a servant does not assume the risk of injury due to the negligence of a fellow servant. Acts 1907, March 8, § 1; 103 Ark. 509; 90 Id. 543; 98 Id. 145; 100 Id. 462. This error embodied in instruction No. 2 was prejudicial. 67 Ark. 604; 69 Id. 139; 71 Id. 372.

W. Hendricks, Judge; 1. There is no evidence that appellee lost anything on these grain shipments, even if it be conceded that they were unreasonably delayed. It was error for appellee to assume that if a car .was delayed in transit it had a right to decline to receive it and compel appellant to take it and dispose of it and pay appellee the invoice price. 99 Ark. 568. 2. In a great majority of cases and cars there was no unreasonable delay.

H. Pemberton, Special Judge; 1. The finding of the jury is inconsistent. The evidence shows plaintiff was totally disabled from work. The jury found that Ms disability was not from sypMlis. A new trial should have been granted. Kirby’s Digest, § 6208; 84 Ark. 359. 2. The verdict is contrary to the evidence. Every witness testified that plaintiff was totally incapacitated from the date of the injury to the date of the trial from performing any of the duties of bank cashier.

S. Maples, Judge; 1. The contract was based upon the consideration of a lower rate, and such contracts have been upheld by this court. 63 Ark. 331; 82 Id. 353. 2. A witness was allowed to estimate the damages, without any knowledge of the facts. There was no evidence of negligence whatever. 47 Ark. 497; 71 Id. 302; 67 Id. 371; 40 Id. 375; 44 Id. 209. 3. No notice was given of damages, within, thirty hours. The burden was on plaintiff to prove notice. 82 Ark. 353, 357.

.Appeal from Mississippi Circuit Court, Osceola District; W. J. Driver, Judge; 1. The affidavit for appeal was fatally defective. (1) It does not state that appellants are aggrieved by the decision. (2) It fails to state that the appeal is not taken for vexation. Kirby’s Digest, § 1487; 44 Ind. 440; 80 S. W. 337; 162 Id. 308; 95 Ark. 148; 92 Id. 151; 93 Id. 265; 5 Okla. 736; 46 Conn. 528; 54 Atl. 755; 51 Mo. 440; 102 S. W. 1104, etc. 1.

H. Dudley, Judge; This appeal presents but one question, viz.: Is a house occupied by its owner as a residence, who lives alone, and to which no other females resort for immoral purposes, but to which men of lewd and lascivious character resort for the sole purpose of unlawful sexual intercourse with said owner, who is a woman, and where no other improper or immoral conduct is suffered or. permitted, a bawdy house?

Seduction — refusal of defendant to marry the prosecuting witness — subsequent offers of marriage. — Defendant, under promise of marriage, had sexual intercourse with the prosecuting witness and then… Held: he was properly convicted of the crime of seduction, although, at a subsequent time he renewed his proposal to marry the prosecuting witness, and that she then refused to marry him. Appeal from Washington Circuit Court; J. S. Maples, Judge; 1.

D. Robertson, Chancellor; Contends that the sales were fraudulent and void, citing many authorities, but as the court does not go into the merits of the controversy, it is useless to state the points and authorities cited in the able and elaborate briefs of counsel. 1. This cause was heard upon the pleadings, depositions and oral evidence. ' The oral evidence is not in the record.

C. Trimble, Judge; 1. The court erred in rendering judgment by default against the garnishee. Kirby’s Digest, § 3700; 96 Ark. 568; 23 Id. 18; 25 Id. 622. 2. The method of procedure to subject corporate stock to the payment of a debt is pointed out by Kirby’s Digest, § § 3235t6. Time should have been given to make the answer more specific.

Haynie, Judge; 1. The court erred in giving the second instruction. It is abstract and assumes that the ordinance was violated and that appellant must go to the center of the street under all circumstances and at all hazards. A violation of the ordinance would not per se constitute negligence. The question of negligence was for ■ the jury. 90 Neb. 200; 41 L. R. A. (N. S.) 337; 66 N. W. 671; 1Ó9 Mich. 37; 63 L. R. A. 668, 670; 100 N. Y. Supp. 208; 103 Id. 578.

H. Evans, Judge; 1. This was a public road- by prescription and had been for many years and under section 7258, Kirby’s Digest, the overseer had authority to cut any timber necessary, but under sections 7259-60, it would have been necessary, in the absence of consent of owners, to have had the damages appraised, etc. Elliott, Roads & Streets (3 ed.), § 876; 2 A. & E. Am. Cas.' 594, and note. Trespass was not the only remedy. 6 Pick. (Mass.) 57; 116 Mo. 375; 12 Wend.

Smith •District; Paul Little, Judge; 1. It was error to give a peremptory instruction. The question of total or partial disability should have been submitted to the jury under proper instructions. The judgment should be reversed. 91 Ark. 340; 91 Ark. 337; 97 Id. 438; 103 Id. 401; 111 Id. 607; 97 Ark. 442. 2. Plaintiff was insured as a manager of a cigar store and should not have been permitted to prove disability as to any other business. 1.

Lea, Judge; 1. The court erred in refusing instructions 2 and 3 asked by defendant. 124 Ark. 20; 114 Ark. 391. 2. Evidence of other sales was clearly inadmissible. Black on Intox. Liquors, par. 505; Woolen & Thornton on Intox. Liquors, par 931, and cases cited; 23 Cyc. 269, (3) and notes 73, 74; 68 So. 673; 69 Id. 227; 7 Ene. Ev. 753; 120 Ark. 157. 3. The testimony of J. J. Hawkins was erroneously admitted. It was highly prejudicial. It was wrongful corroboration. 4.

H. Evans, Judge; 1. The note was a conditional one with an express agreement and understanding which was in parol.' The note was not the entire contract and parol evidence to show what the contract was should have been admitted. 55 Ark. 112; 88 S. W. 899; 99 Ark. 223; 71 Id. 408;’ 91 Id. 383; 90 Id. 426; 100 Id. 360. 2. The note was non-negotiable. The court erred in giving the peremptory instruction. 1.

D. Shaver, Chancellor; 1. Defendant was not liable for double costs, much less for plaintiff’s claims. If the Bulk Sales Law was not complied with, plaintiff had a right to go against the stock of goods sold for the amount due them, and if suit was necessary for the purpose to sue appellant and judgment for costs in such a suit would be proper, but certainly it was not liable for the costs in the suit against West to prove their claims. 2.

H. Humphries, Chancellor; 1. Rozar was the acting, duly elected and commissioned mayor and his authority to act cannot be collaterally attacked. 4 Ark. 582; 25 Id. 336; 38 Id. 150; 49 .Id. 439; 52 Id. 356. The mayor was not a party. 25 Ark. 336. 2. He was at least de facto mayor and habeas corpus was not the remedy, but appeal. 48 Ark. 439; 70 Id. 12; 48 Id. 283. 1. Appellant’s proper remedy was certiorari. 99 Ark. 412; 105 Id. 1. 2.

The sole question is whether or not the act of George Elder in causing the deed to be made to wife was intended as a gift or not. Elder could not buy again, in his own name, so he paid the purchase price and had the deed made in his wife’s name and thereby a resulting trust was created. 117 Ark. 575; 40 Id. 62; 64 Id. 155; 71 Id. 373; 89 Id. 578; 103 Id. 273; 105 Id. 318; 169 U. S. 407; 98 Ark. 542.

D. Robertson, Chancellor; 1. The justice of the peace judgment is valid. Appellee appeared by attorney- — they asked a continuance and this was ah appearance. 35 Ark. 276; 90 Id. 316. The appeal was prayed too late. 2. The' requirements of ,the statute were complied with. Kirby’s Digest, § § 4631-3. The sheriff’s deed is evidence of the regularity of the sale. Ib., § § 760-1. 3. The statute was complied with.

C. Costen, Special Judge; 1. The whole proceeding is void under the decision in 123 Ark. 205. No plans or specifications were procured from the State Highway Commission. 2. The whole assessment of benefits is void because made arbitrarily and without any reference to the actual benefits to accrue. 59 Ark. 536; 64 Ark. 258. 3. The cost of improvement exceeds the statutory limit of indebtedness. 119 Ark. 198. 4. The cost exceeds the aggregate of the benefits. 73 Ark. 526. 5.

D. Frierson, Chancellor; STATEMENT BY THE COURT. This is an appeal from a decree of the chancery court of Mississippi County, Osceola District, sustaining a demurrer and dismissing the complaint of appellants, which sought to enjoin the commissioners and other officers of the Osceola & Little River Road Improvement District No. 1 from taking any steps toward the construction of the improvement contemplated by the district.

<p>1. Evidence — personal injuries — statement of plaintiff reduced to writing by another. — Plaintiff sustained personal injuries when struck by a moving railway train; an employee of defendant company reduced to writing an oral statement by plaintiff, which, however, the latter did not sign; held, the writing was inadmissible.</p> <p>2. Evidence — submission of plaintiff to x-ray examination. — In a personal injury action where plaintiff sustained injuries and physicians who examined and attended him, testified that the injury was to his nerves, that an operation would be useless, and that the injured nerves could not be seen by the use of the x-ray; held, it was not error for the trial court to refuse to require plaintiff to submit to an x-ray examination.</p> <p>3. Evidence — personal injuries — place of injury — view by jury.— In an action for damages for personal injuries, where plaintiff was struck by a moving train, it is no abuse of its discretion for the trial court to refuse to order the jury to visit the scene of the accident, when the same is in another county, and where a very exact plat of the ground in question had been introduced in evidence.</p> <p>4. Railroads — injury to person at public crossing — burden of PROOF. — Where plaintiff was struck and injured by a train at a public crossing, a prima facie case of negligence against the railroad company exists, and the burden is upon the company to prove its own due care on the contributory negligence of the plaintiff.</p> <p>5. 'Appeal and error — objections to instructions. — Objections to instructions must be made, and exceptions saved, at the time the instructions are given.</p> <p>6. Railroads — personal injury — application of lookout statute. —Where plaintiff was struck by a moving train at a public crossing, on a dark night, and the keeping of a lookout on the train might have prevented the injury, it is not error for the trial court, in instructing the jury, to frame an instruction in the terms of the lookout statute. (Public Acts 1911, No. 284, p. 275.) '</p> <p>7. Appeal and error — instruction—improper reference to plaintiff. — In a personal injury action, where plaintiff was present at the trial in person, the inadvertent reference to him as the deceased by the court in one of its instructions, will not be held prejudicial error.</p> <p>8. Negligence — personal injury action — definition of negligence in instruction. — In an action growing out of personal injuries, where negligence is the foundation of the suit, in order that the jury may make a proper application of the law to the facts, a definition of negligence may be given to the jury, without being subject to the criticism that it is abstract.</p> <p>9. Appeal and error — objection to verbiage in an instruction.— Appellant is required specifically to call the attention of the trial court to doubtful language, expressions or sentences contained in instructions.</p> <p>10. Damages — mental and physical suffering. — The rule for measuring damages is elastic, and is dependent to a large extent upon the facts and circumstances of each case. Unless the amount oí a verdict is so large that it necessarily shocks the sensibilities of a court, the verdict will not be set aside or modified.</p>

D. Shaver, Chancellor; 1. Justices’ courts are inferior courts of the lowest grade, possessing only special limited jurisdiction and their judgments must show jurisdiction of the person and subject matter. No lien was created by the judgment on the land. 6 Ark. 182; 5 Id. 27; 87 Id. 313; 23 Cyc. 848; 7 Ark. 159; 103 Id. 446. All essential facts to show jurisdiction must appear in such judgments.

Shaver, Chancellor; 1. The Act of 1913, § 7, Acts 1913, p. 531, is not only unconstitutional, but is retroactive in effect and therefore void. It was the intention of the Legislature to enact a law to operate only in futuro.. Retroactive laws affecting rights vested, creating new obligations, duties, disabilities, etc., are invalid. 116 Ark. 472; 117 Id. 606; 173 S. W. 846; 174 Id. 248; 36 IT. S. 185; 114 Id. 511; 2 Aiken (Vt.) 284; 16 Am. Dec. 715. 1. .

D. Frierson, Chancellor; 1. The Act is unconstitutional and void as by its terms it exempts certain property in the district from assessment, etc. It is void on its face. It exempts school lands, churches and parsonages in cities and towns, but not those outside or rural, etc. Acts 1907, 897; 188 S. W. 4; 125 Ark. 163; 46 Ark. 312; 48 Id. 371; lb. 251; 25 Id. 289; 94 IT. S. 260. 2.

BfPriddy, Judge; 1. The court erred in overruling the demurrer and in rendering judgment for defendants. Under our Constitution and laws it is the plain mandatory duty of the assessor and Board of Equalization to assess and equalize property subject to taxation at its true value in money. Const. Art. 16, § 5; lb. §§ 9, 10; Kirby’s Digest, §§ 6956, 6970; 43 Ark. 243, 257; Kirby’s Digest, §6974; 119 Ark. 362; 49 Id. 390; 116 Id. 206; Kirby’s Digest, §§ 7004-8.

Mandamus to Hempstead Circuit Court; George ■ R. Haynie, Judge; 1. This court has jurisdiction to grant the writ. Const. Art. 7, § 4; 6 Ark. 9; 30 Cal. 325. Mandamus is the proper remedy. It is the only one available. 2. The writ should be granted. It is discretionary with the court. It was error to remove the county seat while the contest was pending. If' a prima facie case was made it was overcome by the evidence and finding of this court. 124 Ark. 244. 3.

J. Driver, Judge; 1. Neither the town nor city of Wynne made any claim from the filing of the plat until this suit, more' than twenty-one years. Nor did either occupy it or use it. The fact of dedication depends upon the intention of the owner to dedicate the land to the puhlie. There is no evidence that the owner knew the plat was filed, or that it was filed by his authority.

H. Humphreys, Chancellor; 1. Damages occasioned by the fraudulent representations which were the inducement for the execution of the contract were properly the subject of a counterclaim, and judgment should have been rendered on the counterclaim to the extent of the damages proven. The result of the transaction is that appellants lost both places, without fault on their part. The damages were properly pleaded.

Smith District; Paul Little, Judge; 1. The court erred in refusing to reopen the case for additional evidence. 119 Ark. 450; 108 N. E. 757. 2. There was error in admitting copies of letters in evidence. The proper foundation was not laid, nor showing made. 115 Ark. 142; 72 Id. 47; 53 S. W. 655; 18 Barb. 530; 76 N. W. 416; 107 Id.* 299; 81 Am. Dec. 690. 3. The court erred in admitting the testimony of Blocker and others as to what Engles received in stock. It was hearsay. 4.

Plaintiff had no right to tear down and remove the tipple. Jones Landl. & Ten., § 590', 103 Ind. 203. The provisions of the lease as to removal are absolutely controlling. Jones Landl. & Ten., § 713; 41 Conn. 471; 23 Vt. 222; 50 Atl. 1092; 48 Id. 38. A tipple is machinery like a railroad track. 86 N. E. 837; 81 N. E. 1103; 64 S. E. 65. It does not come within the definition of “machinery.” 85 Fed. 218; 11 So. 41; 81 Fed. 289; 21 So. 167. 2.

Barker, Chancellor; 1. The findings of the court are dearly against the preponderance of the evidence, except as to check 4. The burden was shifted to the appellee when payments were shown. 54 Pac. 932; 97 N. W. 1023; 142 Id. 1069; 66 S. W. 188; 82 S. E. 588-591. See, also, 72 Am. Dec. 619; 187 S. W. 446. 2. The appellants have conclusively proved pay-, ments aggregating $919.74 and the appellee has failed to show how he was given credit for them.

R. Haynie, Judge; 1. The court erred in refusing to give the peremptory instruction asked by the plaintiff. (1) The animal when he died was the property of defendants, and his death did not reheve defendants from liability. The notes were purchased for value in reliance on the guaranty and contracts, under them there was no defense to the notes.

P. Henderson, Chancellor; 1. A majority in value of the owners of real property signed both petitions. The majority must be determined solely by the county assessment books and property left off these books cannot be considered. 99 Ark. 508, 516. Churches and school property should both be put upon the assessment books, but if they are omitted the books are still conclusive. Ib. 2. Guardians may sign for their wards.

F. Gautney, Judge; 1. This is the third appeal in this case. The law was settled on the former appeals. 110 Ark. 9; 122 Id. 259; 183 S. W. 197. Under the evidence and instructions there was only one proposition to consider, viz.: “Who, under the instructions, procured the purchaser and made the sale? The only rule for determining that question is found in instructions six and seven.

Trimble, Judge; 1. It was not necessary to file with the circuit clerk a just and true account, as this suit was commenced within the ninety days, the time in which to file the affidavit. Defendant also had possession of the car, either of which was sufficient to preserve the lien. 49 Ark. 475; 57 Id. 284; 58 Id. 16; 27 Cyc. 384, 389; 31 Id. 335. 2. Defendant had a lien. Acts 1911, p. 298, amending Kirby’s Digest, §§ 5013-14; 103 Ark. 144; 171 111. App. 310; 185 Id,. 425. 3.

Wood, Chancellor.; The chancellor erred in holding that defendant was not a competent witness to testify as to the conversation with the deceased partner. The surviving partner was allowed to testify as to the same transaction, and there is no good reason why the other’s mouth should be closed. 19 Ark. 443; 26 Id. 135; 54 Id. 395; 69 Id. 242. The administrator was not a necessary party to the suit. George on Partnership, p. 384; 65 Am.

S. Maples, Judge; •1. When this case was tried before, this court held that the case was tried upon the wrong theory and in disregard of the facts that the rights of the parties must be determined by the written contract. The court again erred in its instructions to the jury. 35 Cyc. 274^5; Benjamin on Sales, 888-9, 893; 75 Ark. 503. 2. As to the right of recoupment for damages for breach of warranty, see 35 Cyc. 543-6-7. 3. Defendant was estopped. 26 Pac. 703; 114 N. W. 780.

T. Cowling, Judge; 1. The court erred in directing a verdict for defendant and in refusing the instructions for plaintiff. The liability of a warehouseman at common law is well settled — they are bound only to common and reasonable care. Story on Bailments, §§ 11, 144; 32 Ark. 224; 42 Id. 200; lb. 204; 64 Id. 115; 52 Id. 26; 46 N. Y. S. 576; 1 Jones on Liens, § 967. 2. Act 273, Acts 1915, supplants the old law and changes the rights of both parties.

B. Sorrells, Judge; 1. The Act is unconstitutional and void. Congress is supreme and has acted. Appellant was acting directly under the authority of the Secretary of War, and the State’s authority must yield, as the Act was in aid of navigation. 53 Ark. 314; 113 Id. 149; 121 Ark. 601; 186 Fed. 426; 140 U. S. 371; 142 Id. 161; 227 Id. 229; 241 Id. 371; 236 Id. 439; 222 Id. 370, 424; 227 Id. 267; 230 Id. 352, etc.; 241 Id. 371; 176 Id. 211; 113 Ark. 149; 188 U. S. 410. 2.

T. Humphries, Chancellor; 1. The appellee endorsed the note in blank, with the appellants, at the time it was made and for the same consideration, and intended to lend his credit as a surety, and such was the effect of his endorsement. 34 Ark. 524; 24 Id. 511; 40 Id. 545. He was not entitled to contribution. 34 Ark. 75; Bispham’s Eq. (3 ed.), § 330; 1 Lead. Cas. in Eq., p. 132.

Cochran, Judge; 1. This well known rule is laid down by our own court. When a party accepts a written lease for a term of years * * * and enters upon and holds the premises for a term, he will not be exempted from the payment of rent because he did not sign the lease. 21 Ark. 50; 7 Ala. 772; 37 Pac. 1037; 30 Cal. 547; 1 Ga. 220; 172 111. 547; 141 Id. 565; 135 Ind. 357; 20 Mo. App. 544; 71 Tex. 228. 2.

S. Maples, Judge; 1. The court erred in its refusal to declare the law as requested by appellant. The allowance by the county judge and court is a judgment and no appeal was taken. 33 Ark. 793; 22 Id. 595; 37 Id. 595;. 16. 654; Kirby’s Digest, § 1487. 2. Where a contract' is made by the county judge and later a warrant is issued, the contract is ratified and binds the county. 107 U. S. 355; 72 Ark. 330; 38 Id. 557; 96 TJ. S. 341-350; 122 Ark. 502. 3.

H. Evans, Judge; 1. Plaintiff was not entitled to recover on the third count of the complaint. No notice was given. Kirby’s Digest, § 6733; 62 Ark. 452. 2. There was no unjust discrimination in freight charges. Act Mch. 11, 1899; Kirby’s Digest, § 6808-10, etc. The rate collected was the lawful rate and approved by the R. R. Commission. Tbe switching charges were authorized and reasonable. 3.

Barker, Chancellor; 1. The stenographer’s fees should have been allowed by the court as costs and taxed as such. Acts 1915, 1090. 1. Depositions were taken in vacation and without order of court. 80 Ark. 574. The Act 1915, p. 1081, does not allow the fee. It was not so intended. Such statutes are strictly, construed. 73 Ark. 603; 6Í Id. 407; 86 Id. 280'. The chancellor’s ruling is correct.

M. Jackson, Judge; 1. Brown signed merelyi as a surety. Plaintiff extended the time of payment without consultation or notice. The note was past due long before demand was made and in the meantime Yarnell ■ became insolvent. The note was for an antecedent debt and no new consideration was given. There was fraud in obtaining his signature.

E. Martineau, Chancellor; 1. An inventory of the estate should have been ordered filed by the receiver. 34 Cyc. 246. 2. The building was an asset in the hands of the receiver; he should have been charged with its value. He had no right to dismantle it and parcel it out to creditors who had liens for material. 61 Fed. 646; 68 N. E. 20. 3. It is reversible error for a chancellor to direct a receivership verbally. His orders should all be made a matter of record.

J. Driver, Judge; 1. The agreed statement of facts shows that (1) the board under its right of way deeds' constructed a levee across the lands and (2) that the land appropriated was necessary for strengthening the levee and ihat the land used lies contiguous to the line of levee originally built.

Garland' Circuit Court, 'Scott Wood, Judge; 1. All the necessary steps necessary were taken under our statutes to place the claim in judgment were taken. The claim was duly authenticated and presented within one year. Act 438, Acts 1907; Kirby’s Digest, §§ 113, 114. A substantial compliance is all that is necessary. 110 Ark. 222; 116 S. W. 189; 21 Ark. 519; 97 Ark. 296; 113 S. W.. 1039; 124 Ark. 466. 2.

The chancellor erred in granting appellee a divorce and in giving all the property to him. Kirby’s Digest, § 2684. Indignities to the person need not consist of personal violence, but may be unmerited reproach, rudeness, contempt, studied neglect, open insult and other things habitually and systematically pursued to an extent which would render a woman’s life intolerable. Nor is it necessary that she be entirely blameless. 44 Ark. 429; 53 Id. 484. 2.

D. Shaver, Chancellor; 1. LaCroix, prior to February 14, 1914, had no title to the land that could have been affected by the lien of a judgment against him. He only had a vendor’s lien for the purchase money, notes, which is not subject to the lien of a judgment or sale under execution. 66 Ark. 167. 2. , The legal and beneficial title, prior to February 14, 1914, was in appellant subject to the vendor’s lien notes held by F. R. LaCroix.

B. Sorrells, Judge; 1. Thé verdict is contrary to the evidence. Joe Corporeau was the only eye-witness intrduced by the State. If his statement be true, appellant was justified in killing the deceased. The other eye-witness testified that appellant never fired a shot. 2. The court erred in its instructions given and refused. Some of those given were prejudicial. Others do not correctly state the law. Those refused should have been given.

C. Trimble, Judge; 1. The judgment of the probate court is void for want of jurisdiction of the subject matter. The attorney should have sued for his fee and reduced his claim to judgment. 61 Ark. 410; 62 Id. 226. 2.

R. Haynie, Judge; 1. The two defendants were improperly joined in one suit. The motion to make the complaint more specific so as to show the relationship existing between the parties should have been granted. A married woman must be sued alone for a debt incurred in her separate business. 66 Ark. 116. She cannot form a partnership with her husband. 56 Ark. 297; 66 Id. 168.

Smith District; Paul Little, Judge; I. There was no evidence of consideration for the “rider” attached to the note or for any parol agreement made subsequent thereto. A past consideration furnishes no valid basis for a subsequent contract. 1 Beach on Cont., § 150, p. 192; 9 Cyc. 358; 37 Ala. 702; 36 Ohio St. 361, 369; 4 Ky. Law Rep. 348. 2. There was no proof that the parties mutually agreed on a higher rate than six per cent.

Francis Circuit Court; J. M. Jackson, Judge; 1. There are two meritorious grounds of defense to this suit. (1) Plaintiff and George Walker were partners, at least in the operation of the farm under the lease, if not in the ownership of the lease; that the wire was put on the old fence and was merely a repair thereof, and was compensated for by the reduction of $100.00 from the rental and the title to the repairs passed to the landlord.

H. Pemberton, Special Judge; 1. The indictment charges that a quart was sold, hence the quantity was material. It was error to instruct the jury that it was not material as to the quantity sold. The evidence should not vary from the allegations in the indictment. 66 Ark. 120; 60 Id. 141. 1. Unless the statute makes the quantity an essential element of the crime, an allegation as to the quantity sold need not be proved. Proof of sale of any quantity is sufficient.

B. Sorrells, Judge; 1. The note is a negotiable promissory note and appellant is the bona fide holder for value, before maturity and without any notice of any infirmity or defense between the original parties. 113 Ark. 72; 170 S. W. 852; 101 Ark. 281; 121 Id. 250; 48 Id. 454. 2. The bank being an innocent purchaser for value in the usual course of business was not affected by any question of payment to the payee of the note.

J. Driver, Judge; 1.' Instruction No. 4 given on the court’s own motion was error. If it had stopped at the word “taking” it might have been free from error, but it did not. It went further and told the jury that their verdict would be for the market value of the land considered with reference to the use to which it was made at the time, or the most valuable use to which it was adapted. This is not the law. 110 111. 414; 49 Ark. 390-394; 133 S. W. 1023; 2 Lewis on Em.

F. Gautney, Judge; 1. The court erred in holding that plaintiff could maintain the suit in personam for the purchase money without first having tendered a deed. 2. The court erred in holding that the trustee exceeded his authority in offering the property free of incumbrance and in agreeing to procure the release of the Allen-West Commission Co. mortgage. 3. The release of said company did not .follow the laws of Missouri. Rev. Stat., §§ 2844-2851. 1.

C. Trimble, Judge; 1. The continuance should have been granted. The accident occurred less than three months before that time; there were no broken bones, abrasions or other evidences of any injury, much less a permanent one. The jury could do no more than guess as to the extent of his injuries. We think the court abused its discretion in refusing a continuance. We offered to prove by doctors that there was no permanent injury.

P. Henderson, Chancellor; 1. The note was void and the mortgage to secure it was also void. Jones on Mortg. (3 ed.), § 619, p. 488; 75 Ark. 331; 88 Id. 202. 2. Plaintiff has not established any ownership to either the note or account for the goods sold. The goods had been paid for when the note was signed. . 3. The suit'could not be maintained because the patent company had not complied with the foreign corporation law. 4.

The judgment should have been set aside and a new trial granted. The motion is duly verified by affidavit and properly set up newly discovered evidence. The court abused its discretion is refusing to grant a new trial. The newly discovered evidence was competent and went to the merits of the contest. The issue is always “who received the majority of the legal votes?” 53 Ark. 161; 94 Id. 478; 50 Ind. 298; 61 Ark. 317. 2.

Wood, Chancellor; 1. The chancellor erred in releasing from the hen the 800 acres claimed in the appellee’s, Hollywood Farms Co., cross-complaint, because (1) The release provision is so vague and uncertain as to be void and uninforeeable. 195 Mo. 91, 101; 32 Id. 79; 67 Cal. 43; 95 Ind. 326.

W. Hendricks, Judge; 1. Section 13 of the ordinance of December 9, 1880, is not repealed by any portion of the ordinance of March 31, 1904; and under section 13, appellant had the right, upon the discovery of the leak, to shut off the water without prior notice, provided that notice was given him at that time that the supply was cut off on account of the leak, and that it would be turned on again upon the leak being repaired.

M. Jackson, Judge; 1. This action is bottomed on an open account and plaintiff should have made the Marianna Cotton Oil Company a party plaintiff. Kirby’s Digest, § 6000; 69 Ark. 66; 47 Id. 541; 80 Id. 167. The fact that the other former stockholders came in and asked to be made parties, stating that they had an interest, merely made additional interested parties plaintiff, but did not make the corporation a party.

The demurrer should have been sustained. The pe? tition does not allege that the nuisance affected any public property or public civil rights, or that criminal process was inadequate to afford relief, or that there was no adequate remedy at law. 81 Ark. 117; High on Injunctions, 23; 37 S. W. 478; 34 L. R. A. 95; 45 S. W; 506. Where the remedy at law is complete or criminal process adequate, equity will not grant relief. 26 Ark. 649; 27 Id. 157; 48 Id. 331; 81 Id. 117. 2.

W. Hendricks, Judge; 1. This suit is not prosecuted by the shipper of the coal, under the Act No. 1903, Acts 1907, -but by the consignee. The act is penal and should be strictly construed. The language is plain and the forfeiture is to the shipper and to no one else. 2. .Defendant should have been allowed four days to carry the shipment; the court below assessed penalties on a three days’ movement from Hartford to Little Rock.

B. Priddy, Judge; 1. Instructions should have been given to the jury to return a verdict' for the defendants. This was not an original promise or obligation, but a collateral undertaking not in writing and void under the statute of frauds. 12 Ark. 174; 102 Id. 435; 88 Id. 592. 2. Plaintiffs should have been requested to file an itemized account. 3. A great preponderance of the evidence is against the verdict.