Volume 128 — Arkansas Reports

Elliott, Chancellor; 1. The parol agreement, if any, made by appellee and deceased was within the statute of frauds. This is a question of fact, and it must appear by an affirmative preponderance of the evidence that the agreement was made. Appellee failed. Strict proof is required. 11 Enc. of Ev., 943; 39 Ark. 429; 44 Id. 340, 2. While this may be a question of fact, the chancellor’s decision is persuasive merely, not final.

Martineau, Chancellor; 1. Walker had no interest in the land at the time of the mortgage. Williams and Walker doubtless were co-tenants, but their agreement was verbal until long after, the rights of appellant accrued. Their agreement was void. Kirby’s Digest, § 3654; 41 Ark. 169; 44 Id. 79; Am. Ann. Cas., 1913 E. 655. Walker’s possession was not open, adverse nor exclusive and he ace not notice. 2.

W. Hendriclcs, Judge; Mrs. Harnwell was not liable to Arnold nor Spencer in any way. She knew nothing of the original contract and. never signed the note and had no interest therein. There was no consideration for the note. In order to sustain a judgment in favor of a broker for a commission, for selling real estate, the burden is upon him to show that he produced a customer ready, willing and financially able to purchase.

W. Hendricks, Judge; 1. There was no evidence to justify a verdict for $350 for improvements. 71 Ark. 605. The'measure of value is the enhanced value of the land and not the cost. 92 Ark. 190. 2. Defendants had no ‘ ‘ color of title ’ ’ to sustain the claim for improvements. 120 Ark. 620; 47 Ark. 528; 42 Id. 118; 8 Pac. 818, 820. An invalid certificate of homestead entry does not constitute color of title. 84 Ark. 316; 84 S. W. 224; 1 Cyc. 1030-1; 92 Ark. 184; 41 Pac. 357. 3.

Prairie Chancery Court, Southern District; John M. Elliott, Chancellor; 1. The case should not have been transferred to the chancery court. The transfer was made evidently on the theory that a counterclaim or set-off could not be set up in a court of law because plaintiff was a nonresident. 95 Ark. 488. Plaintiff was not insolvent nor is it so alleged!; nor is it alleged that he did not have property subject to attachment in this State.

8. Maples, Judge; 1. The attachment should have been sustained. 76 Aik. 513. The gift was in fraud of creditors. 101 Ark. 578; 56 Icl. 73; 50 Id. 46; 73 Id. 174; 76 Id. 509; 74 Id. 163. 2. It is error to direct a verdict where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed. 89 Ark. 368; 84 Id. 57; 62 Id. 63; 36 Id. 451. 3.

Humphreys, Chancellor; 1. The act May 10, 1911, page 256, does not repeal or amend section 110, Kirby’s Digest, nor Act 438, Acts 1907, page 1170, relating to demands against estates, and therefore will not permit a foreclosure as is sought here. 2.

Haynie, Judge; 1. The verdict is clearly against the uncontradicted evidence. 2. The court erred in its instructions to the jury. 1. The proof is amply sufficient to sustain a verdict' of conviction. 92 Ark. 120, 586; 95 Id. 172, 321; 100 Id, 330. The jury were the sole judges of the evidence. They did not believe the evidence of Williams and appellant. 101 Ark. 51; 104 Id. 162. 2. The motion for continuance was properly overruled. 58 Ark. 513. 3.

J. Driver, Judge; 1. No bill of exceptions or motion for new trial was necessary. Where the error appears of record in the judgment neither is necessary, and this court will reverse. 125 Ark. 305; 46 Ark. 17, 21, 468, 474. Appellant did everything required by the Acts 1909, page 957. The cause should have been reinstated and the appeal allowed, upon the showing made. 1. There is nothing before this court.

Probate courts are not courts of equity—they have no chancery jurisdiction to enforce the specific performance of contracts. Any authority to justify the order here must be found under Kirby’s Digest, § 213, Acts 1859, No. 181. This is a special power and must be exercised as such. Courts of chancery do, under certain circumstances, decree specific performance of oral contracts for the conveyance of real property.

Frierson, Chancellor; E Montague’s mortgage was prior in time and duly filed for record with the proper officer and the fee paid. If the recorder failed to record it, or to properly index it or record it, the lien is not affected thereby. 28 Ark. 244; 43 Id. 144; 59 Id. 280, 291; 69 Id. 114, 118. Priority as between two chattel mortgages is determined by the record or the filing thereof. Murraij Co. v. Satterfield, .125 Ark. 85. 2.

Martineau, Chancellor; 1. The deed to Morgan was only a mortgage to secure a debt for money borrowed. The loan was usurious and the notes void, even in the hands of an innocent purchaser. 47 Ark. 288; 36 Id. 248; 46 Id. 50; 53 Id. 454; 41 Id. 331. 2. Goodbar & Co. had no lien. 40 Ark. 146; 58 Id. 252. 1. The instrument was a deed and not a mortgage. Goodbar & Co.’s attachment created a lien on the land.

IHnsmore, Special Chancellor; 1. The chancellor erred in declining to spread of record the appellant’s judgment entry, and in reversing the whole case and destroying appellant’s lien. 121 Ark. 302. This case on the first appeal settled the issues between appellant and Stuckey. 29 Ark. 83; 61 Id. 189; 67 Id. 339; 105 Id. 205. The case 54 Ark. 239, does not apply, but 100 Ark. 384, 394-5, is in point. 78 Ark. 208; 38 Id. 394.

Dinsmore, Special Chancellor; 1. The chancellor had no jurisdiction, either of the subject-matter, or the parties on May 22, 1915. The appeal suspends all action in the lower court and the case was absolutely removed to the higher court. 29 Ark. 97; lb. 321-2; 84 Id. 213; 93 Id. 223; 2 Cyc. 908; 20 Id. 1240; 26 Ark. 414; 88 Id. 329; 37 Id. 318; 38 Id. 394; 20 Enc. PI. & Pr. 1245-6-7. 2.

B. Baker, Judge; 1. It was error to permit plaintiff and Tom Skid-more to testify as to statements made to them by Denny Reed. This was hearsay merely, and inadmissible. 75 Ark. 463; 78 Id. 220; 86 Id. 448; 96 Id. 387; 99 Id. 488; 107 Id. 280; 109 Id. 180; Hughes on Ev., pp. 51 to 56, 57. 2. It was error to require defendant to answer questions asked her in cross-examination over her objection. The matters were not covered by the direct examination.

Smith was not the “unconditional and sole owner. ’ ’ The policy was void. 63 Ark. 201; 4 L. R. A. (N. S.) 231; 6 Id. 852; 2 Clements on Fire Insurance, 155, 156. 2. There was no waiver. 1. Appellee told appellant’s agents of his interest in the property before the policy was issued, and before the proof of loss was made. There were no intentional false statements made, nor any that were misleading. 100 Ark. 9; 75 Id. 251; 19 Cyc. 855. 2.

B. Baker, Judge; 1. The court erred in directing a verdict for appellees. The will was not void because the names of all the heirs were not mentioned therein. Kirby’s Digest, § 8020; 28 Ark. 569; 31 Id. 145; 87 Id. 206; 92 Id. 88; 94 Id. 39. 2. The will was signed as required by law. Kirby’s Digest, § 7799. It was duly signed by mark and in the presence of witnesses. 40 Oyc. 1104; 19 Mo. 609; 5 Johns.

W. Hendricks, Judge; 1. The rights of Albright & Ramsey, if any, are not affected by and do not affect the issues in this case. The carrier can not set np the right of a third person who has made no demand for the goods as an excuse for not delivering to the person entitled to the goods under a contract of shipment. 97 Mo. 473, 10 Am. St. 331; 175 Mo. 518; 97 Am. St. 609, 614. 2.

W. Hendricks, Judge; 1. There was error in rendering judgment in excess of the amount found by the verdict of the jury. There was no testimony as to “rough-handling” by the company. The court hg,d no power to add to the verdict of the jury. 41 Ark. 121; 33 Id. 56; 29 Id. 597; 23 Cyc. 820; 99 Ark. 490; 102 Id. 460; 97 Id. 438; 82 Id. 86; 88 Id. 550; 38 Cyc. 1899; 22 Enc. PL & Pr. 917. 2. There were errors in the admission of evidence.

Elliott, Chancellor; 1. The finding that appellee was a habitual drunkard is sustained by the evidence, but the court erred in its finding as to the misconduct of appellant. 9 Ark. 517; 18 Id. 327; 33 Id. 161; 34 Id. 43; 38 Id. 119; 44 Id. 434; 76 Id. 28; 115 Id. 32. 2. Profanity and abusive language are not legal grounds of divorce, where the life is not impaired nor condition rendered intolerable. 104 Ark. 381, 384-6. 3. Habitual drunkenness was proven. 103 Ark. 382-4. 1.

Martineau, Chancellor; 1. Plaintiffs had no right of redemption. The time had expired. The act of 1915 conld not be retroactive. Acts 1911, Act. 49; Act 43, 1915; 37 Cyc. 1390; 28 Ark. 304; 30 Am. St. 95; 16 L. E. A. 308; 51 Ark. 458; 105 Id. 40; 86 Id. 285. 2. This is a collateral attack upon a judgment. 118 Ark. 449; Castle’s Suppl., § 1436; 114 Ark. 554; 94 Id. 588. The court had jurisdiction. 50 Ark. 188; 74 Id. 253, etc. 3. There was a disputed claim between the parties.

It was error to permit witnesses for the plaintiff to testify as to what Mr. and Mrs. Hall testified in the examining trial. 2. There was no malice and Hall had probable cause or was advised that he had, after stating all the facts to his attornev. This was a complete defense. 100 Ark. 316; 71 Id. 351; 107 Id. 74; 64 Id. 453; 82 Id. 252; 69 Id. 439; 96 Id. 325; 33 Id. 316; 32 Id. 166.

M. Jachson, Judge; 1. Plaintiffs have a legal right to maintain this suit. Taxpayers have a right to sue where officers fail to discharge their duty. 78 Ark. 118; 123 Id. 258; 98 Id. 38; 52 Ark. Law Rep. 415; 95 Ark. 26; 205 N. T. 4; Ann. Cas. 1913 C. 881, and note 884 to 923; 79 Oh. St. 9; 36 L. R. A. (N. S.) 1;86N. E. 519. 2. The contract was voidable. Collusion was charged. 98 Ark. 38; 49 Id. 94. 3.

W. Hendrichs, Judge; 1. Plaintiff never had an action of replevin against defendant, and if he did he failed to prove special ownership as alleged. There was a failure of proof. (1) Wrong action. (2) Appellee failed to prove special ownership as alleged. 35 Cyc. 333; 50 Ark. 20; 79 Id. 353; Burdick on Sales, § 403; 66 Ark. 135; 34 Cyc. 1396-7; Tiffany on Sales, 354; 21 Mo. App. 150; 63 Fed. 62; 36 Cyc. 523; 18 Tex.

M. Jackson, Judge; 1. The judgment of the county court was without authority and therefore voidable; it was, at least, an abuse of discretion, apd should have been corrected on appeal. Kirby’s Digest, § § 7548, 7544; Act April 8,1887. The trial in the circuit court was de novo. It was incumbent on petitioners to show a majority of the electors signed the petition and that every step in the statutory procedure was complied with. 104 Ark. 145; 50 Ark.

Mr. Gray’s mental capacity to execute the deed was completely established by uncontradicted testimony. 95 Ark. 159; 87 Id. 273; II. 148; 49 Id. 367; 78 Id. 420; 85 Id. 363; 119 Id. 468; 2 Pom. Eq. Jur. (3 ed.), § 947, etc. 2. There was no undue influence nor coercion. 78 Ark. 420; 49 Id. 367. 3. No independent advice was needed or necessary. 49 Ark. 367; 78 Id. 425; 86 Id. 363; 95 Id. 523; 119 Id. 466; 129 H. S. 663; 173 Id. 17; 16 L. R. A. (N. S.) 1087.

M. Barker, Chancellor; 1. As the statute of nonclaim had run prior to the accruing of the cause of action under the covenants of warranty, plaintiff had a valid claim against the heirs to the extent of such amounts as they may have received from the estate of their ancestors. 14 Ark. 246; 32 Id. 714; 78 Id. 531. Each of the heirs received an amount from the estate in excess of plaintiff’s claim.

B. Sorrells, Judge; 1. The case should not have been revived. Kirby’s Digest, § § 6303 to 6306. It was improperly revived. No order was served on defendant. 2. It was error to give the second instruction for plaintiff. The burden of proving suicide was not on defendant. 55 N. E. 540; 182 111. 496; 4 Cooley on Insurance, 3258. 3. The attorney’s fee is excessive. 1. The suit was properly revived: Kirby’s Digest, § § 6603 to 6307, 6314, 6317; 76 Ark. 122. 2.

<p>Appeal from Mississippi Chancery Court, Osceola District; Chas. D. Frierson, Judge;</p> <p>1. Appellant was entitled to the rents. 92 Ark. 315; 10 Id. 9; 24 Cyc. 64; Jones on Mortg. (7 ed.), § 1659; Underhill on Landl. & Ten., § § 32, 322; 185 U. S. 354, 361; 45 Iowa, 670; 119 Ark. 543, etc. But this case is ruled by 123 Ark. 18, 22-3-4. There was no reservation of the rents at the sale, and they were not due until after the sale. They passed to the vendee at the sale. Cases, supra; 17 A. & E. Ene. L. (2 ed.) 1015; 45 la. 670; 4 Baxter, 227; 185 U. S. 354; 31 Atl. 1050; 100 S. C. 324; 27 N. D. 100; 67 Wash. 135; 80 Ky. 501; 10 Leigh, 317; 59 Oh. St. 540; Wiltsie on Mortg. Forecl. (3 ed.), § 718, etc.</p> <p>1. The case in 123 Ark. 18 is not in point. There the commissioner did not state that the purchaser would not get the rents. Here the commissioner stated, at least, that it was uncertain who would get the rents. The purchaser got just what the commissioner told it it would get.</p> <p>The recitals in the notice of sale advised appellant that the rents were reserved. 69 S. W. 1084; 43 Md. 560; 3 Ky. Law Rep. 469.</p> <p>2. Contend that, the sale was void, but the authorities are not cited as the validity of the sale is not questioned by the court in its opinion. As to the rents, the decree should be affirmed.</p>

Trimble, Judge; 1. Placing a reasonable construction on the appellee’s testimony, there was a literal compliance with the contract by the installation of the Layne pump. Appellant was entitled to recover, on the contract, upon a substantial compliance therewith, or an acceptance of the work, notwithstanding defects therein, the contract price, less the cost of correcting such defects. 105 Ark. 353; 97 Id. 278; 86 Id. 570; 79 Id. 506; 64 Id. 34.

S. Maples, Judge; 1. Doctor Fagan’s testimony was inadmissible. He was not an expert. 23 Ark. 730. The company was not compelled to regulate the speed of its car so as not to frighten a horse behind a car that could not be seen, and the first instruction for plaintiff was error. The court should also have given Nos. 1, 3 and 4 if or defendant. 63 Ark. 177; 54 Id. 431; 10 A. & E. Ry. Cases (N. S.) 100; 4 A. & E. (N. S.) 483. 2.

Barker, Chancellor; 1. The description “Frl S)4 of NW M, 53 acres” is uncertain and indefinite, and the tax sale, tax deed and confirmation are void. 64 Ark. 580; 43 S. W. 977; 99 Ark. 154; 83 Id. 154; 85 Id. 4; 106 S. W. 1169. 2. The confirmation decree is void for other reasons. 71 Ark. 211; 84 Id.. 1. Appellant acquired title by limitation. Kirby’s Digest, § 656, etc.

Prohibition to Garland Circuit Court; Scott Wood, t Judge; 1. The circuit court had no jurisdiction to remove petitioner from office; its action was without authority and void. The Act March 9, 1877, is unconstitutional and void. Impeachment and address are the only means for removing State officers. Art. 7, § 27, Const.; 76. Art. 15; 85 Ark. 89; 32 Cyc. 689; Throop on Pub. Officers, par. 341-3, 392; 3 Mete. (Ky.), 237; 11 La.

M. Jackson, Judge; I. The evidence, if legally admissible, is not sufficient to sustain the verdict. No authority in Morris was shown to make the lease or ratify it. The proof only shows that Morris was general manager. A verdict should have been instructed for defendant. 2. The testimony of Dudley and Pate in the motion for new trial was not legally admissible to show that Morris was the general manager. 3.

J. Driver, Judge; The court erred in giving instructions 3, 4 and 5 of its own motion and in refusing plaintiff’s request for No. 3. Kirby’s Digest, § 6595; 94 Ark. 270; 99 Id. 377; 76 Id. 224; 74 Id. 585; 185 Id. 118. 1. There is no error in the instructions. 84 Ark. 275. 2. The jury believed the proper signals were given. The evidence sustains the verdict.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge;</p> <p>The statements of Jesse Hughey, after the delivery of the trunk were not admissible in evidence as to the disposal thereof. It was not res gestae. 66 Ark. 500; 69 Id. 558; 78 Id. 381; 100 Id. 269; 105 Id. 247 ; 80 Id. 528; 82 Id. 324; 85 Id. 300, 479; 88 Id. 451; 58 Id. 179; 97 Id. 420; 114 Id. 267; 78 Id. 381; 14 Id. 86; 97 Id. 420; 68 Id. 225; 67 Id. 147; 100 Id. 269; 105 Id. 247; Jones on Ev., § 357; 49 Ark. 207; 125 Pa. St. 259; Mechem on Agency, § 714; 96 Ark. 393; 66 Id. 221; 47 Id. 247; 10 Id. 638; 16 Id. 628.</p> <p>1. Hughey’s statements were admissible. 38 Am. Rep. 617; Fetter on Carriers, 1547. The contract for delivery was admitted and the verdict is right and sustained by the evidence.</p>

The,court erred in refusing to direct a verdict for appellant. Plaintiff was doing business within this State without complying with its laws. This was alleged in the answer and is not denied. 20 Ark. 204-7; 12 Id. 769; 10 Cye. 1359; 90 Ark. 73; 15 Id. 156; 115 Id. 166. 1. Both parties moved for an instructed verdict. This waived a trial by jury and left it to the court to decide. 100 Ark. 71; 105 Id. 25. 2.

T. Humphries, Chancellor; ' 1. Tbe judgment was rendered April 4, 1913, and stay bond filed June 10, 1914. Tbis stayed tbe judgment and lien for six months and tbe same bad not expired when tbis suit was filed. Tbe ease in 75 Ark. 45 is not in point. It is not tbe law, but tbe law is stated clearly in 23 Cye. 1402. A stay of execution or judgment suspends even the running of the statute of limitations. 89 Am. Dec. 193; 45 Ind. 329; 69 Fed. 193; 2 Fed.

The court erred in not sustaining appellant’s demurrer to the answer, for the answer did not aver that the release plead was made upon any consideration, nor even that it was in writing. A consideration is essential and must be pleaded. 31 Ark. 728; 121 Id. 194; 34 Cyc. 1095. 2. A parol agreement to release a party from liability on a note, unsupported by any consideration, cannot be enforced. 96 Ala. 454, 11 So. 410. 3.

J. Driver, Judge;' • 1. This ease falls squarely -within the rule laid down in 115 Ark. 123. There is nothing in the testimony that plaintiff was inentally incapacitated—she was aware of what she was doing, and knew she was , signing a release. 2. Plaintiffs are not entitled to the statutory lien. 80 Ark. 395, 405; 78 N. Y. 30; 79 S. W. 1130-1144; 72 Mo. 664. 1. The release is not binding.

Mandamus to Pulaski Circuit Court, Second Division; Guy Fulk, Judge; 1. Mandamus will lie; the duties of the court are merely ministerial.- Kirby’s Digest, § 380. There is no other adequate remedy. It was the duty of respondent to enter the order directing the sheriff to turn over the $350.00 to petitioners. Kirby’s Digest, § 380. 2.

C. Trimble, Judge; 1. There is absolutely no evidence to support the verdict. It is wrong. 2. The misconduct of the jury calls for a reversal. 157 Mass. 579; 32 N. E. 955; 32 Kans. 419; 62 Me. 362; 52 Minn. 329; 54 N. W. 187; 68 Me. 362; 24 Atl. 470; 89 Wise. 38; 120 N. W. 626; 158 S. W. 1194; 112 Me. 289. 1. The evidence is sufficient. There was substantial evidence to support it. 104 Ark. 260; 103 Id. 260; 97 Id. 486; 97 Id. 438; 87 Id. 109; 104 Id. 162. 2.

B. Sorrells, Judge; It is not necessary to set out the defamatory words, the specific language. In a case like this the substance, tenor and effect are sufficient. Here it was impossible to set it all out except by verbal description. The actions and movements described are slander per se, even if no words were spoken. 3 Am.

T. Humphries, Chancellor; 1. The alleged provision for liquidated damages can not be enforced for the reason that the contractor was discharged prior to the completion of the building. Sutherland on Damages, § 280; 138 N. Y. 480; 34 N. E. 201; 115 S. W. 6, 12; 184 N. Y. 543, 76 N. E. 1110; 91 N. Y. Supp. 582; 20 L. R. A. (N. S.) 350. 2. The provision for damages is a penalty and will not be enforced in equity.

J. Driver, Judge; 1. The district was not liable. There is no evidence to show damage because the tank was placed near appellee’s property. The only injury complained of was due to the sewage that passed and the odor therefrom. A district is not liable for injuries arising from defects in the plans adopted. It was not an injury to real estate. The instructions do not state the law. 125 Wise. 546; 4 A. and E. Ann.

J. Driver, Judge; 1. Appellant was not liable (1) because he was an independent contractor on public work and complied with every requirement of the law in performing his contract and (2) because appellee did not make any effort to prevent damages to his property. The dam was necessary for the completion of his work. The instructions given were not the law; besides they were conflicting. 122 Ark. 272.

W. Smith, Judge; 1. The language of the contract constituted a hiring at will and not of employment for a year. It was an indefinite term or period of time and at a certain rate per year and constituted a hiring at will. 64 Ark. 398; 25 L. R. A. (N. S.) 529; 173 IT. S. 1; 156 Fed. 241; 18 Id. 703; 69 N. W. 492; 173 S. W. 4; 172 Id. 67; 171 Id. 703; 35 Ark. 156; 43 Id. 184; 15 Id. 444, 477. 2.

F. Gautney, Judge; It was error to sustain the demurrer. The case in 85|Ark. 79 is not in point. See 30 S. W. 807; 25 Cyc. 578. The article was libelous per se. STATEMENT BY THE COURT. •C. T. Bloodworth instituted this suit against the Times Publishing Company.

C. Trimble, Judge; . 1. The court erred in setting aside the judgment by default, after the lapse of the term. 33 Ark. 459; 53 Id. 318; Kirby’s Digest, § 4431. No unavoidable casualty or misfortune was shown. A party is bound by the negligence of his attorney and mere negligence of an attorney is not sufficient to justify the setting aside a judgment. 104 Ark. 45; 66 Id. 183; 97 Id. 117.

H. Wootton, Special Chancellor; 1. The only issues are: (1) Did Corley execute the will? And, if so, (2) Was he mentally capable of executing a will? The testimony shows that he did execute the will, thereby revoking all former wills. This will was executed in the latter part of 1910, or early in 1911. He was mentally capable. The instructions should have been limited to these two issues. 2.

<p>1. Appeal and error—motion for continuance—failure to set out IN record.—Where a motion for a continuance does not appear in the record it will be presumed that the trial court properly overruled the same.</p> <p>2. Liquor-^—sale—sufficient evidence.—The evidence held sufficient to warrant a verdict of guilty of the illegal sale of liquor.</p>

M. Jackson, Judge; 1. It was error to instruct a verdict for appellee, and to find the value of the rents. The right to the land is conceded, and no rents were recoverable. Kirby’s Digest, § 3646. Plaintiff was the owner of the land, and defendant was not entitled to recover rents. The judgment should be reversed. The court erred in its instructions to the jury and in its rulings as to the questions and answers of witnesses. 1.

M. Jackson, Judge; 1. The court erred in giving the peremptory instruction and in refusing to give No. 2, asked by defendant. Had No. 2 been given, the jury would have cop sidered the value of the work in cutting logs and would not have considered the matter of filing saws, a class of labor which gave appellee no lien. 54 Ark. 524. 2. It was also error to refuse No. 3, asked by defendant. 71 Ark. 397; 75 Id. 104. 1. Instruction No. 2 was properly refused.

W. Hendrichs, Judge; 1. The tax clause in the bonds obligated the appellee to pay the interest coupons without deduction. Federal Income Tax Law, Fed. Stat. Annotated, Supplement, 1914, p. 185, ch. 16; 38 Stat. at Large, p. 114, sub-sec. E; Foster’s Income Tax (2 ed.), 1915, p. 27, 415, 417; lb. 1458. The hotel company should pay the tax.. 1. Appellee was not liable for the income tax. Acts Congress, Oct. 3,1913; U. S. Comp.

F. Gautney, Judge; An unconditional plea of guilty is a conviction within the meaning of Kirby’s Digest, § 3488. The prosecuting attorney is entitled to his fee when a conviction is secured. The conviction is accomplished before the judgment assessing the penalty is entered and the fee is part of the costs. The court may render judgment for costs and continue the case or suspend sentence, assessing the penalty later.

Art. 7, § 23, of the Constitution is mandatory, not directory merely. 47 Ark. 407; 34 Id. 257; 95 Ind. 170; 51 Ark. 177; 13 Id. 705; 72 Id. 398; 125 Ark. 248. No prejudice resulted from the failure to reduce the instructions to writing. 47 Ark. 407; 188 S. W. 407; 51 Ark. 181. No exceptions were saved. STATEMENT BY THE COUET. Various plaintiffs below, appellees here, brought separate suits before a justice of the peace against the defendants on account for labor.

Shinn on Eeplevin, § 447 ; 77 Ark. 299; 87 Id. 641; 93 Id. 272; 1 Greenl. on Ev., § 74; 1 Elliott on Ev., § 132; 25 Ark. 482. It was error to refuse instruction No. 5. It was the law of the case, for two of plaintiff’s witnesses were her own sons. The suit was not brought within three years. Kirby’s Digest, § 5064; 46 Ark. 489; 44 Id. 29. There was no error in giving or refusing instructions. No exceptions were saved.

D. Frierson, Chancellor; The fee allowed the receiver was excessive. 94 Ark. 183; 101 111. App. 256. He was under salary and was interested. There is no question of law; only one of fact. Kirby’s Digest, § 6352. The court fixed the fee after hearing all the testimony. It is not unreasonable.

II. Evans, Judge; The note has never been paid. Appellant was an innocent purchaser for value and without notice. The evidence shows payment.

H. Dudley, Judge; 1. A continuance should have been granted. 71 Ark. 180. 2. The court erred in its instructions. 122 Ark. 259. 3. The prosecuting attorney’s remarks were prejudicial. 1. A motion for continuance is addressed to the sound discretion of the court and there was no abuse. 61 Ark. 88; 71 Id. 62; 82 Id. 203; 101 Id. 405; 94 Id. 538. No diligence was shown. 94 Ark. 169, 538; 19 Id. 590; 71 Id. 62. 2.

N. Thomason, Special Judge; 1. No negligence is shown, hence no liability. The liability of appellant for damages under the court’s instructions can only lie after the jury has found that the house was destroyed by a spark from the smoke stack of the boat and that the emission of said spark from the boat was due to negligence on the part of appellant. The evi-dence does not justify the verdict.

Francis Chancery Court; Edward D. Robertson, Chancellor; The court erred in finding that defendant neither alleged nor testified that he made the improvements under color of title, believing himself to be the owner. He so alleged in his answer, and brought himself squarely within the statute. The pleadings and testimony support his claim for betterments.

J. Driver, Judge; . 1. A discharged employee is not entitled to recover the statutory penalty automatically because he is discharged and wages are not paid then and there. Kirby’s Digest, § 6649; 87 Ark. 132; 88 Id. 277; 188 S. W. 836; 102 Id. 206. No request for wages was made. 82 Ark. 377; 102 S. W. 206. 1. The employee was discharged—his wages were not paid, although demand was made.

<p>Appeal and error—criminal appeal—affirmance where bill of EXCEPTIONS HAS BEEN STRICKEN FROM THE RECORD.—In a criminal appeal, the'bill of exceptions was stricken out upon motion of the Attorney General on the ground that it was not filed within the time allowed by the trial court. Held, the judgment will be affirmed where the only assignments of error relate to matters which must appear in the bill of exceptions in order to be brought up for review, there being no contention that the indictment was defective or that rhe^trial court was without jurisdiction.</p>

Marr tineau, Chancellor; 1. Mathis voluntarily assumed the payment of the Neal notes to Vincent, which are not yet due. He is not the grantee of Walker. No personal judgment should have been rendered against him. 46 Ark. 132; 31 Id. 155; lb. 411; 49 Id. 457; 51 Id. 205; 64 Id. 627; 85 Id. 59. Mathis was not a party to the contract. 9 Cyc. 380; 6 R. C. L., § § 274-5; 65 Ark. 29. See also 65 Ark. 29, 30; 86 Id. 218; 101 Id. 226; 110 Id. 589; 122 Id. 414. 2.

I. Alley, for appellant. The appellee entered its appearance (1) by filing affidavit and bond for appeal; (2) by filing an answer and (3) by cross-examining witnesses. 122 Ark. 278; 85 Id. 431; 87 Id. 230; 29 Id. 85; 95 Id. 302; 90 Id. 316; Kirby’s Digest, § 4666. Defendant only entered its appearance specially and not for all purposes or generally. The cases cited are not in point, bnt this case is ruled by 77 Ark. 412; 85 Id. 236.

Frierson, Chancellor; 1. The evidence justified the reformation of the deeds. There was a contract for ,a fee simple title and warranty deeds. There was a mutual mistake which a court of equity should correct. 98 Ark. 23; 51 Id. 390; • 13 Id. 129; 28 L. R. A. (N. S.) 785, and notes; Pomeroy, Eq. Jur., § § 843-5; 49 Ark. 425; 46 Id. 167. 2. The levee board had the power and right to execute warranty deeds. Acts 1893, p. 172; 79 Ark. 14.

Elliott, Chancellor; 1. Appellant has established his title by actual adverse possession. The land was fenced and actually occupied for the statutory period. 1 Cyc. 1146, 1153, 1137-8; 38 Ark. 181; 34 Id. 534, 547; 2 Corp. Jur. 256. 2. Appellee did not acquire title by adverse possession. 68 Ark. 551; 40 Id. 366. He is only entitled to a refund of his taxes paid. 1. The evidence fairly preponderates in favor of appellee.

The testimony established that plaintiff was put upon and entered a train which did not stop .at her destination on account of the negligence of the employees and on account of this negligence she suffered the injuries complained. The instructions given for plaintiff were correct, but rendered worthless by defendant’s instruction No. 7. 45 Ark. 256; 47 Id. 74; 78 Mo. 610; 52 Ark. 406.

M. Jackson, Judge; 1. The court erred in declaring the law to be that the cause of action did not accrue until after the death of the widow, Rebecca T. Williams, in 1913, and that the possession of John Hayden was not adverse until the death of said widow; and further erred in refusing to declare that limitation began to run from the time defendant entered into possession in 1896. The cause of action was barred.

B. Eaynie, Judge; 1. It was error to direct a verdict for defendant. 89 Ark. 372. There was a contract, and under it a partial sale was consummated. 80 Ark. 247. 2. The case should have been submitted to the Jury with instructions. 84 Ark. 462-7; 53 Id. 49; 89 Id. 195, 207-8; 110 Id. 140; 121 Id. 534. 3. Plaintiff was the procuring cause of the sale. He brought the parties together and turned the purchaser over to the defendant. 4.

H. Humphreys, Chancellor; 1. The findings of the chancellor are persuasive merely. Here they are clearly against the preponderance of the testimony. Fraud is never presumed, hut must he proven by clear and convincing testimony. No fraud, misrepresentations or deceit were proven. 11 Ark. 66; 19 Id. 528; 47 Id. 164; 71 Id. 91; 95 Id. 375; 101 Id. 608; 112 Id. 499; 116 Id. 443. 2. The testimony shows that the deeds were actually delivered and the trade completed.

H. Humphreys, Chancellor; 1. On the issue of fraud and misrepresentation, the court found the issues for appellant. Elkins substantially complied with his contract, and if in any particulars he failed, they were waived. Time was not of the essence of the contract. Elkins is now willing and offers to perform his contract and make his offer good. He should be permitted to do so. 36 Atl. 78; 115 N. W. 325. No damage is proven.

Martineau, Chancellor; 1. Fire insurance is a gwsi-public business subject to regulation by legislation and courts. 2. Such regulation must be reasonable. Act 159 is an adoption by this State of a policy of regulating fire insurance and unreasonably applied it tends to create a monopoly. 3.

Cowling, Judge; 1. The court erred in dismissing the appeal. Appellant was the party aggrieved and had the right to appeal, and an appeal was prayed and granted. Kirby’s Digest, see. 1487; 49 Pac. 5; 39 Am. Dec. 716; 3 N. E. 180; 100 N. Y. 243; 45 S. E. 498; 118 Ga. 684; 88 111. 490; 3 Corp. Jur. 620; 45 N. E. 706; 128 Mass. 592; 28 Ark. 478; 30 Id. 578; 64 Id. 349; 66 Id. 82; 90 Id. 219; 95 Id. 385; 109 Id. 11. 2.

Elliott, Chancellor; 1. Upon the death of S. R. Briggs, appellant was entitled to homestead and dower. 58 Ark. 298. The deed to Rogers was signed to convey the interest of the Peets. She did not know she was signing away her interest. No consideration was paid her. The deed should be set aside as to her interest. 38 Ark. 429; 40 Id. 28; 84 Id. 493; IT Ann. Cases, 992. She was old and absolutely dependent upon her children, and was not on an equal footing. 101 Ark. 141. 2.

Martineau, Chancellor; 1. The law does not authorize the charging of appellant’s separate estate because of .the influence and control of her husband. 95 U. S. 3; 97 Id. 304; 120 Id. 78; 154 Id. 631; 97 Kans. 279; 92 N. W. 923. 2. The mortgagor justly owed her more than the amount of these deposits. 108 N. Y. Sup. 54. Appellees never had any lien on or claim against her property and lost nothing. 35 Ala. 483; 82 Id. 503; 17 B. Mon. (Ky.) 268; 93 Ya. 341. 3.

H. Wootton, Special Chancellor; 1. The deed was never intended as a gift to J. W. Daniel, but as a resulting trust for T. R. Daniel. 2. T. R. Daniel did not act as agent of his nephew J. W. 3. The mere fact of plaintiff filing a suit, or petition, in the probate court, without summons or notice, was not notice. 4. Under section 5149, Kirby’s Digest, there was no lis pendens notice. 183 S. W. 955; 184 Id. 852. 5. Plaintiff is estopped. 6.

J. Driver, Judge; 1. The act of the agent in accepting an amount less than that fixed by the published tariff was without effect as to the amount actually due. Kirby’s Digest, $ 6722; 71 Ark. 552; 100 Id. 22; 103 Id. 37. An agent of a railway company has no authority to fix by contract a rate less than the published rate to be paid by the public. Authorities supra. 2. The court erred in holding the minimum rate to be $50 instead of $75.

J. Driver, Judge; The circuit court had jurisdiction to enforce the lien. The statute is conclusive. Kirby’s Digest, § 4458. 1. The circuit court had no jurisdiction to enforce the lien. Section 4458, Kirby’s Digest, is not applicable here. 61 Ark. 410; 62 Id. 223; 65 Id. 437; 64 Id. 438; 34 Id. 204. The attorney must look to the administrator who employed him for compensation. Cases supra.

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. The court erred in sustaining the demurrer to the complaint. A clear case for equitable relief was stated. 121 Ark. 482. Where both parties are under a mistake as to the vendor’s title, which was supposed to be perfect, but proves void, a court of equity will grant relief. 46 Ark. 337, 349. 2. The complaint stated a good cause of action for equitable relief.

W. Hendricks, Judge; 1. There was no warranty of the case, but if there was it became merged in the notes and defendants are estopped. 38 Ark. 334, 346; Benjamin on Sales, § 261; 45 Ark. 284, 289. The doctrine of caveat emptor applies. 7 Ark. 167, 171. 2. The municipal court had jurisdiction. 45 Ark. 346; 24 Id. 177; 27 Id. 508; 1 Id. 55; 29 Id. 173, 181; 122 Id. 227; 113 Id. 126; 123 Id. 40. The question of jurisdiction can not be raised here for the first time.

Francis Circuit Court; J. M. Jackson, Judge; The contract was not within the statute of frauds. 103 Ark. 79. Besides, the contract was performed by the parties. 2 Elliott on- Contracts, § 1213; 8 L. E. A. 410 ; Wood on Master & Servant, § 96; Mecham on Ag., § 212; 26 Cyc. 976; 125 Ark. 503. The demurrer was properly sustained. The contract was within the statute of frauds and void.

Henderson, Chancellor; 1. Injunction is the proper remedy and will lie in this case. The evil is a continuing one and the acts of the railroad in closing the streets both a public and a private nuisance. 77 Ark. 221. The ordinances granting the power to close up the' streets were void. A suit at law for damages is not an adequate remedy. 80' Ark. 489; 85 Id. 520; 91 Id. 350; 58 Id. 142; 24 Id. 102; 51 Id. 491; 68 Id. 62; 103 Id. 326.

H. Humphreys, Chancellor; 1. The original suit was instituted and the name of J. G. Adams was used as party plaintiff without his knowledge or consent, and the decree and sale made without notice to him are Void. Kirby’s Digest, § 4424; 71 Ark. 318; 69 Id. 587; 2 S. W. 195; 4 Cyc. 927; 23 Id. 683. Mere knowledge of the suit is not sufficient. 4 C. J. 1330. 2.

M. Jackson, Judge; 1. The contention of plaintiffs is fully sustained by the evidence. No fraud was perpetrated nor fraudulent misrepresentations made. Defendant saw the mares, inspected them and was offered the opportunity to test them. The doctrine of caveat emptor clearly applies. Tiedeman on Sales, 159, 158,187-8; 35 Cyc. 68-9; 38 Ark. 334; 95 Id. 131-6; 31 Id. 170; 108 Id. 32. 2.

1. Worthington, Judge; 1. The act, July 23, 1868, Kirby’s Digest, § 6595, is penal, strict construction is required, and no one can be brought within its terms unless the words of the statute, in their ordinary acceptation comprehend such person. 87 Ark. 409; 114 Id. 47; 88 Id. 277; 6 Wall. 395; 5 Wheat. 76. 2.

Trimble, Judge; 1. The verdict is contrary to the law and the evidence. Herbert Spencer testified and was not corroborated by any one. Evidence by an accomplice must be corroborated. 75 Ark. 540; 58 Id. 310; lb. 353; 36 Id. 117; 120 Id. 128. See, also, 63 Ark. 310; 120 Id. 148. 2. An accomplice is one who in any manner participated in the criminal act. Wharton Cr. Law., § 982, A; 36 Ark. 126; Am. & Eng. fenc. Law (2 ed.), 390; 27 111. 152; 95 Am. Dee. 474. 3.

The second left out of consideration the mortgage and false representations. The fifth expressly directs the jury to disregard the mortgage and the misrepresentations concerning it. The mortgage was never released. The judgment should be reversed for these errors. Appellant had a right to rescind, and this right should have been submitted to the jury by proper instructions.

P. Henderson, Chancellor; I. Plaintiff was not the assignee of the four notes—■ there was no assignment of them. Joyce, Defenses to Com. Paper, § 358; 95 Ga. 75, 78; 10 N. D. 558-563; 77 Pac. 431. 2. The notes were wrongfully pledged by Jones—a fraud. 50 Ark. 320. The bank had notice. 1 Daniel on Neg. Inst. (5 ed.), § 799; 104 Ark. 394. 3. Did Barton and Witherspoon, by levy and sale, acquire a lien which a court of chancery will enforce against plaintiff?

The court erred in instructing the jury and in refusing the instructions requested by the defendant. A mere mistake or error of judgment, or a mere want of skill, where there is not gross negligence or ignorance, will not render a practitioner liable. 21 Cyc. 769; 38 Ark. 605. The first, second, third and fourth were error. 2. The fifth, as to the punishment, was error. Kirby’s Dig., § 2408.- The jury should have been left to fix the penalty. 12 Cyc. 611, 641-2. 3.

B. Priddy, Judge; 1. The petition to set aside, quash or vacate the judgment should have been sustained. Kirby’s Digest, § 4457; Acts 1909, No. 293; 117 Ark. 504; 120 Id. 393; 98 Id. 529; 74 Id. 552; 71 Id. 327; 83 Id. 210; 117 Id. 515; Kirby’s Digest, § 4424. 2. A judgment without notice is void. 58 Ark. 181; 65 S. W. 108; 71 Id. 318; lb. 565; 70 Id. 418; 50 Id, 340; 51 Id. 341; 72 Id. 107; 122 Id. 72; 89 Id. 160. 3. It was error to declare the judgment a lien.

The first instruction for plaintiff, while copied from 52 Ark. 524, was inapplicable to this case and erroneous. It is abstract and misleading here. 41 Ark. 382; 99 Id. 367; 16 Id. 628; 55 Id. 588; 63 Id. 477; 102 Id. 205. 2. The second instruction given was also erroneous. 73 Ark. 548; 105 Id. 269; 54 Id. 25; 101 Id. 183. 3. The third is objectionable and erroneous. It tended to magnify the injuries. 58 Ark. 136; 78 Id. 374; 96 Id. 339; 57 Tex. 215; 195 111. 48. 4.

B. Baker, Judge; 1. The former suit was dismissed without prejudice and this suit filed in time. It was error to dismiss. Kirby’s Digest, § § 5083, 6167; 121 Ark. 454; 47 Id. 120; 35 Id. 62; 36 Id. 383; Freeman on Judgments, § 261; Black on Judgments, § 703; 23 Cyc. 1151. 2. The matter was not res adjudicata. A new party plaintiff was added. 49 Ark. 100; 59 Id. 149; Kirby’s Digest, § 6002 and cases supra. The case was properly dismissed.

The contract to employ additional counsel was not void under the decision in 179 S. W. 178. 2. The contract was reasonable. .122 Ark. 157. Plenary powers are vested in the county court. The compensation' was just and reasonable, and no abuse of discretion is shown. 179 S. ”W. 178; Kirby’s Digest, § 1375. The court, under the circumstances, had the power to make the contract. Cases supra; 122 Ark. 566. 1. The county court had no power to employ additional counsel.

Barker, Chancellor; 1. The complaint stated a canse of action and should have been answered. If imperfect or incomplete in detail, or uncertain in its allegations, the objection should have been presented by motion—not demurrer. Kirby’s Dig., § 6106; 72 Ark. 58; 93 Id. 371; 96 Id. 163; 101 Id. 350; 107 Id. M2. 2. Defendant is liable to a property tax upon its capital stock.

No proof of loss was furnished the company or waived by it. 122 Ark. 357; 120 Id. 268. 2. There was a breach of warranty. The answers were untrue and voided the policy. 4 L. R. A. (N. S.) 607; 27 Mich. 429; 177 U. S. 519; 183 Id. 308; 22 Sup. Ct. Rep. 133. 3. No notice was given nor proofs of loss filed within the sixty days. 87 Ark. 171; 72 Id. 484; 84 Id. 224; 91 Id. 43; 88 Id. 120. 4.

Sorrells, Judge; 1. The law of this case was settled upon the former appeal. 51 Ark. Law Rep. 356. It was there decided that before there could be a binding contract, it was necessary that the terms of the contract should make it mutually binding upon both parties, and this must be gathered from the terms of the contract itself. There was no mutuality. 124 Ark. 354. 2. The court erred in its instructions to the jury.

T. Humphries, Chancellor; 1. No fraud is shown. It is never presumed; it must be proven by clear and convincing evidence. Appellant believed his wife had moved to Kansas. 2. The present wife should have been made a party. Kirby’s Digest, § § 6006-7; 37 Ark. 517; 28 Id. 171; Bishop on Mar. & Div., vol. 2, § 1533; 97 Ark. 122. 3. Appellant had remarried. 73 Ark. 281. Appellee was guilty of laches; her suit came too late. The delay was inexcusable. 1.

D. Frierson, Chancellor; 1. These lands were not subject to taxation for State and county purposes after they were purchased by the levee district, a governmental agency. 105 Ark. 261.

J. Driver, Judge; 1. This is the second appeal, and for the facts see 117 Ark. 628,174 S. W. 1149. 2. Instruction No. 6 for defendant invades the province of the jury. It singles out the testimony of a particular witness and gives undue prominence thereto. 1 Blachfield on Instructions, etc., § 106; 37 Ark. 219; 57 Id. 520; 58 Id. 109; 117 S. W. 574; 62 Ala. 161; 162 U. S. 675; 145 S. W. 559, 1007; 57 Mo. 138; 107 Ala. 59; 95 Ga. 701;' 84 N. W. 621, and others. 3.

W. Smith, Judge; 1. The court erred in permitting the State to prove. that defendant had killed another man. 88 Ark. 579; 84 Id. 119; 72 Id. 586; 75 Id. 427; 100 Id. 321; 58 Id. 473; Kirby’s Big., § 3128, as amended by Acts 1905,'52; 91 Ark. 555; 87 Id. 17; 39 Id. 278; 73 Id. 262; 38 Id. 221; 168 N. Y. 264. 2. The court erred in admitting evidence as to a conspiracy. 101 Ark. 147; 87 Id. 39; 59 Id. 422; 45 Id. 132; 77 Id. 444; 12 Cyc. 442. 3.

A. Falconer, Judge; 1. The case was improperly reinstated. Kirby’s Digest, § 4431; 59 Ark. 162; 85 Id. 385; Kirby’s Dig., § 4433; 14 Cye. 462-3. 2. There was no express trust in favor of Dickerson. Kirby’s Dig., § 3666; 45 Ark. 483; 50 Id. 76; 110' Id. 393. 3. Nor was there a resulting trust. 29 Ark. 612; 30 Id. 230; 70 Id. 149; 50 Id. 71; 105 Id. 323; 101 Id. 451; 105 Id. 323; 79 Id. 425. 4. There was no trust ex maleficio. 92 Ark. 55; 84 Id. 192; 73 Id. 310. 1.

<p>Appeal from Craighead Chancery Court; Chas. D. Frierson, Chancellor;</p> <p>1. The deed as limited by the contract is a legal mortgage. The two must be construed as one instrument. 117 Ark. 308; 1 Jones on Mortg. (1916 ed.), § 242; 103 Ark. 494 ; 41 Mich. 490; 63 Tex. 506; 117 Ark. 308; 63 Id. 51; 114 S. W. 763; 20 Mass. 484 ; 36 Ky. (Dana) 473; 112 N. Y. 467; 39 So. 1023; 48 Ala. 99.</p> <p>2. As a legal mortgage it is barred by limitation. 87 Ark. 228; 61 Zd.'ll8.</p> <p>3. As an absolute grant, appellee’s contingent legal title to the timber has terminated. No time was specified and the law only implies a reasonable time. 77 Ark. 116. The appellees lost their rights by abandonment and lapse of time. Their remedy expired with the debt. 28 Ark. 27, 510; 71 Id. 164; 43 Id. 469; 83 Id. 278; 123 Id. 161; 122 Id. 530; 53 Id. 367; 43 Id. 464; 28 Id. 267; 47 Id. 301; 53 Id. 367; 47 Id. 314.</p> <p>4. The equitable remedy is unavailable against bona fide purchasers. 185 S. W. 784; 42 Ark. 362; 178 5. W. 390; 28 S. E. 336; 105 Pac. 252; 146 N. W. 343.</p> <p>5. The equitable remedy is barred by acquiescence and laches. 13 S. W. 722; 86 Id. 574; 56 Id. 202; 84 Id. 412; 39 Id. 134; 83 Id., 500; 120 Id. 115 ; 103 Id. 254; Pom. Eq. Jur., § § 817-18.</p> <p>6. The deed should be canceled. 106 Ark. 207; 120 Id. 115; 94 Id. 122.</p> <p>1. The deed and contract do not constitute a legal mortgage. It was an absolute transfer of tbe timber. 1 Jones on Mortg., § § 60, 241, 242.</p> <p>2. "Williams had an equitable lien on the timber to secure repayment of the purchase money. 3 Pom. Eq., $ 1263; 30 Ark. 686, 692; 69 Id. 442; 73 Id. 331; 75Id. 336; 103 Id. 88; 118 Id. 192, 198. Plaintiff acquired its-rights with full knowledge of the facts. .69 Ark. 442; 84 Id. 603; 86 Id. 202; 118 Id. 192; 2 Sum. 486; 51 Ark. 333, 338; 52 Id. 439; 60 Z&595; 91 Id. 268, 272.</p> <p>3. The claim is not barred. 83 Ark. 278, 281; 122 Id. 530; 123 Id. 161; 44 Oh. St. 210. Nor was the debt even barred, but if so the lien was not.</p> <p>4. The timber deed had not expired. 77 Ark. 116; 77 Id. 116.</p> <p>5. Appellant was not a bona fide purchaser without notice.'</p> <p>6. Appellee is not barred by laches nor acquiescence. 84 Ark. 603: 118 Id. 192.</p>

M. Jackson, Judge; 1. The deceased assumed the risks that were incident to the operation of the machine. 95 Ark. 560; 122 Ark. 125; 77 Ark. 367; 53 Id. 117; 77 Id. 458; Labatt on Master & S., § $ 388, 404; 161 Mass. 153; 16 L. R. A. (N. S.) 614. He was familiar with the machine. 2. The company used due care and provided a safe place to work in. He left his usual place and went to another. 104 Ark. 6; 90 Id. 149. He was working contrary to instructions and assumed the risk.

H. Evans, Judge; 1. The court erred in refusing to give the peremptory instruction for defendant. The evidence is not legally sufficient to sustain the verdict. Improper testimony was admitted. 1 Wigmore’s G-reenleaf on Ev. (16 ed.), 527, § 430 h and i; 84 Fans. 224; 23 L. B. A. (N. 5. ) 414. 2.

<p>1. Sales—title acquired—title op seller—exception.—The general rule is that no man can get a title to personal property from a person who himself has no title to it. An exception to the rule is in the case of a bona fide purchaser, who will be protected, where the owner has conferred upon the seller the apparent right of property as owner, or disposal as his agent.</p> <p>2. Sales—title-—acts op seller—estoppel.—Whether the owner of certain personal property was estopped from asserting ownership as against a purchaser thereof from one whom the owner had invested with indicia of ownership, is a question for the jury.</p>

Humphries, Chancellor; 1. Appellant held actual possesion under a tax title for more than two years. Kirby’s Digest, § 5061; 79 Ark. 364. 2. Appellees are barred by laches. 20 Ark. 381; 73 Am. Dec. 497; 38 Cyc. 4041; 123 La. 835; 49 So. 590. 3.

Martineau, Chancellor; 1. Two elements are indispensable to create a liability under sections 861-2 of Kirby’s Digest. (1) The insolvency of the corporation and (2) the knowledge of the directors that the corporation is insolvent. 114 Fed. 22; 91 S. W. 262; 31 L. R. A. 593. The directors, when the dividend was declared, acted honestly and were diligent and careful and the court erred in holding them liable.

II. Evans, Judge; 1. The arm was not broken and no proof of loss or injury was made as required by the provisions of the policy. 123 Ind. 544; 24 N. E. 221; 7 L. B. A. 339. 2. There was error in the instructions given. 27 111. 324; 163 Kj. 146; 42 Okla. 98. 1. The jury found that the arm was broken. This is conclusive. 70 Ark. 513; 64 Id. 236 2.

Plaintiff was not entitled to recover as no negligence was shown and plaintiff, himself, was negligent. 33 Cyc. 276; 64 Atl. 489; 46 S. W. 343; 46 Id. 113; 97 Ark. 437. 2. The instructions are erroneous. 1. There was no contributory negligence by plaintiff. The question of negligence was for the jury. 100 Ark. 53; 33 Cyc. 928. The railroad had assumed the duty of repairing and maintaining this crossing.