Volume 129 — Arkansas Reports

60 Ark. 545; 70 Id. 331; 19 L. R. A. (N. S.) 1162; 79 N. E. 950.' Where an owner permits anything dangerous which is attractive to children, and from which an injury may be anticipated, to remain unguarded on his premises, he will be liable if a child is attracted to the place and injured thereby. Cases supra. This case comes within the rule. The grossest negligence is shown. 1.

Elliott, Chancellor; 1. Upon the death of Fannie Smith Murphey, the one-half interest which came by the mother and to the mother from Judge Smith ascended in accordance with Kirby’s Digest, % 2645, to the mother and her heirs, said heirs being of the blood of W. W. Smith and defendant Albert J. Carter, Jr., is the only blood relative to said infant upon its mother’s side. 15 Ark. 555; 19 Id. 398; 27 Id. 65; 30 Id. 517; 69 Id. 237; 98 Id. 93.

H. Evans, Judge; 1. The evidence is insufficient to sustain the verdict, reviewing the testimony. 2. Plaintiff had no right to take inconsistent positions in the courts. The fifth instruction as to measure of damages was error. 3. The remarks of plaintiff’s attorney were improper and prejudicial. 52 Ark. Law Rep. No. 7; By.

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. Appellants had the right to redeem within one year and the suit was filed within the time. 65 Ark. 392; 64 Id. 576. 2. No tender was necessary, the amount necessary being unknown. A tender would have been a mere form. 12 Enc. of Ev. 499-501; 2 Greenl. on Ev. 562; 21 Ark. 560; 27 Id. 29; 39 So. 1020; 17 Atl. 356; 134 U. S. 68. As the right to redeem is conceded, other authorities cited are omitted.

Cowling, Judge; 1. The evidence is sufficient and the fact of marriage was proven. The abandonment was also shown. Act 52, Acts 1909, § 2. The finding of the jury is conclusive as the evidence was contradictory.

B. Sorrells, Judge; 1. The court erred in refusing- to direct a verdict for defendant. Defendant was not guilty of any negligence, but plaintiff was — be was simply trying to beat tbe car across tbe track, and bis negligence bars a recovery. He was, at least, guilty of contributory negligence. 108 Ark. 95; Joyce on Electric Law, § 650; 119 Ark. 295; 116 Id. 125; 62 Id. 164; 64 Id. 421; 72 Id. 572.

Mandamus is the proper remedy. It is not necessary to first reduce the claim to judgment. Kirby’s Digest, § 5156; 43 Ark. 62; 45 Id. 121; High on Ext. Legal Rem., § 369-A; 72 Ark. 28, 29; 13 Wall. 244. 2. It was the duty of the assessor to assess all property at its fair market value or at its true value in money; and he is forbidden to assess it at 50 per cent, or less than the full market value.

This is the second appeal in this case. 123 Ark. 58; 122 Id. 58. The law was settled there and the testimony the same. 10 Ark. 186; 13 Id. 103;' 14 Id. 515, 523-4; 44 Id. 383; 92 Id. 554; 123 S. W. 376; 99 Ark. 648; 97 Id. 147; 99 Id. 137; 102 Id. 547; 103 Id. 196; 107 Id. 310; 112 Id. 310; 120 Ark. 61. 2.

Humphries, Chancellor; 1. It was error to render a personal judgment against the owner of the building. 24 Ark. 151. 2. The action was not filed within the 90 days so as to preserve the lien. 115 Ark. 231; 119 Id. 43. The date of the last material furnished governs, 119 Ark. 461; 114 Id. 466; 107 Id. 245. If there was an abandonment, all the materials used prior thereto would be too late to sustain the lien. 51 Ark. 316.

<p>Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;</p> <p>1. There was misconduct of certain members of the jury and the attorneys for plaintiff. 62 Ark. 91; 27 Okla. 373; 16 Tex. Civ. App. 127; 11 Ga. 203; 17 Id. 364, 414; 7 Phila. 167; 15 Neb. 330; 18 N. W. 73; 23 Neb. 171; 36 N. W. 583; 12 Kans. 539; 51 Ind. 299; 8 Oh. C. C. 244; 45 Fed. 542; 13 111. App. 653; 12 Id. 531; 2 Idaho, 1022; 34 Ga. 379; 29 Cyc. 803.</p> <p>2. The court erred in refusing to give peremptory instruction requested by defendant. The evidence shows no liability whatever. 60 Ark. 429; 46 Id. 513.</p> <p>3. The court erred in giving instruction No. 4. It was specifically objected to and conflicts with Nos. 1, 2 and 3, given on the court’s own motion. 93 Ark. 140, 578.</p> <p>4. The court erred in refusing No. 3 asked by defendant on contributory negligence and trespassers. No. 5 as to “due care” was also error. No. 13 requested on “ordinary care” should have been given. There is error also in refusing No. 11 on contributory negligence.</p> <p>1. There is no reversible error in the alleged misconduct of jurors and attorney. It was harmless and no harm intended. It 'was not prejudicial. 11 N. E. 250; 29 Cyc. 813; 20 S. W. 1075; 79 111. 303; 3 S. W. 854; 75 Mo. 672; 178 S. W. 1167; 96 N. E. 815; 97 Id. 80; 86 Id. 636; 95 Id. 328; 68 Id. 69; 53 Id. 208; 138 Mass. 79; 58 N. E. 854; 48 Id. 234; 40 Id. 650; 35 Id. 668; 29 Id. 219.</p> <p>2. Defendant certainly was not entitled to the peremptory instruction. 102 Ark. 419; 88 Id. 484.</p> <p>3. Instruction No. 4, given, stated the law and was properly given. 119 Ark.- 300; 102 Id. 300; 102 Id. 421; 46 Id. 523; 89 Id. 496.</p> <p>4. Instructions 1, 2 and 7, correctly declare the law. “Due care” is “ordinary care.” 65 Ark. 624. Nor is there any error in 5 and 6. 99 Ark. 422-,</p> <p>5. No. 11 asked by defendant was properly refused. Contributory negligence was not a defense. In No. 1 given for plaintiff, declared him' a trespasser and guilty of contributory negligence. 99 Ark. 422.</p>

Haynie, Judge; 1. The court erred in not allowing the witness Den-man to answer the question showing Smith a biased witness. 52 Ark. 273; Jones on Evidence, § 828. This was not a collateral matter. 2. The court erred in its instructions. 144 S. W. 485-7; 2 Bish. Cr. Proc. (4 ed.), § 611; Wharton on Homicide (3 ed.), § 263; 110 Ark. 15. 1. There was no error in refusing to permit Denman to contradict Smith on cross-examination.

M. Jagkson, Judge; 1. The testimony made a prima facie case of injury from negligence and the burden was on the company to show that the lookout statute was complied with. The company was clearly liable. 107 Ark. 441. The case 113 Ark. 353 is not in point. The physical facts make out a prima facie case. It was error to direct a verdict. The case should have been submitted to the jury. 1. The court properly directed a verdict.

II. Coleman, Judge; 1. There was a sufficient consideration for Aylor’s agreement to release appellant from the note and there was an accord and satisfaction. 33 Ark. 572; 24 Id. 197; 33 Id. 97. It was error to take the case from the jury. 1. There was no agreement, but, if so, it was without consideration. 1 ’Words & Phrases (1 Series); 29 Ga. 166-176; 8 Cyc. 232; 33 Ark. 574; Chitty on Contracts, 645.

Argues tbe merits of tbe cause, but tbe court does not pass upon them. 1. Tbe transcript shows that defendant filed no motion for a new trial and tbe judgment must be affirmed. 26 Ark. 536; 27 Id. 37; 35 Id. 536; East v. Cotton Oil Co., 126 Ark. 462.

Humphries, Chancellor; 1. There was no tender or return made of the consideration and appellees can not successfully maintain this suit without having done so. 25 Ark. 199, 204; 17 Id. 606; 15 Id. 286-293; 20 Id. 424; 31 Id. 364, 376; 39 Id. 293; 52 Id. 293; II. 150; 96 Id. 265; 5 Ala. 604; 99 Id. 281; 85 Cal'. 522; 73 Tex. 619; 34 Kan. 8; 7 Pac. 584; 57 N. E. 770; 83 Id. 747; 58 N. W. 852; 56 Am. Dee. 561; 25 S. W. 359. 2.

B. Baker, Judge; 1. The demurrer should have been sustained. No negligence was alleged or proved. The complaint is defective in failing to charge that plaintiff was injured while engaged in the performance of duties he was employed to perform. Am. & Eng. Ann. Cases, 1912 B 366; 41 Wash. 83; 82 Pac. 1037; 2 L. B. A. (N. S.) 840; 186 Mass.' 99; 70 N. E. 1008, etc. He assumed the ordinary risks of employment. 41 Wash. 83; 82 Pac. 1037; 2 L. R. A. (N. S.) 84 and note. 2.

E. Evans, Judge; 1. The bill of exceptions was presented to the judge within the sixty days to be signed. It was the fault of appellee’s attorneys and the oversight of the judge that it was not signed and filed in time. 96 Ark. 316; 110 Id. 300. 2. Argues the merits of the cause but the court does not pass on them. 1.

The demurrer should have been sustained to the indictment. It did not contain the name of the alleged purchaser of the liquor. 16 Ark. 506; 19 Id. 613; lb. 630; 40 Id. 453; 125 Ark. 47; 23 L. R. A. (N. S.) 581; Bishop on Stat. Crimes, § 1037; 30 Fed. 112. 2. The evidence is not sufficient to support the verdict. 3.

M. Jackson, Judge; 1. The case should be reversed for the improper argument of counsel for plaintiff. 58 Ark. 368; lb. 473; 61 Id. 130; 63 Id. 174; 65 Id. 625; 70 Id. 305; 72 Id. 427. 2. It was error to refuse to permit defendant to identify and introduce plaintiff’s former complaint. 105 Ark. 485; 1R. C. L., § 34; 10 Id. 34. 3. The court erred in refusing instructions Nos. 7, 8, 9 and 10 as requested.

Haynie, Judge; 1. Tbe court should have directed a verdict for defendant. 121 Ark. 249; 102 Id. 607; 77 Id. 534; 71 Id. 604; 97 Id. 226; 108 Id. 92; 110 Id. 605. 2. The court erred in its instructions. 3. The verdict is excessive. 85 Ark. 267; 113 Id. 9. 1. This case is governed by the law as settled on the former appeal. There are no new issues or additions, nor different testimony. 121 Ark. 246.

'Wood, Chancellor; 3,. The uncontroverted proof is that plaintiff’s mother went into possession under color of title and resided on the lands for more than twenty years. She had the right of homestead. 54 Ark. 9; 56 Id. 146. To this the minor children succeeded and they can maintain ejectment. 29 Ark. 633. 2. The proof does not show compliance with the law by defendant or the directions in the mortgage.

Martillean, Chancellor; 1. Brown never wrote the letters. The appellee wrote them herself. 2. The action was brought under section 6259, Kirby’s Digest, and is not applicable. 3.

F. Gautney, Judge; 1. There is no authority, statutory or otherwise, for the bringing of this suit. It is not an appeal or a proceeding under the statute, nor a suit in chancery. Kirby’s Digest, § § 4431, 4433. The remedy by injunction is alone in equity. 1 Pom. Eq. Jur., § § 171-2; 16 Am. & Eng. Enc. Law, 342; 2 Ark. 93. No defense was made in the suit — appellants both admitting their indebtedness.

G. Trimble, Judge; 1. The policy was never accepted and delivered during lifetime and good health, and no insurance'ever became effective. 66 Ark. 612; 111 Icl. 173; Id. 324; 73 Id. 117; 82 N. W. 966; 77 Ark. 117; 122 Ark. 124; 162 S. W. 779; 144 N. W. 543; 179 S. W. 749; 125 Ark. .115; 144 S. W. 362; 73 N. E. 842. The court erred in its instructions. 1. The policy was issued and delivered. Ill Ark. 1.73, 324; 66 Id. 612.

B. Baker, Judge on Exchange; 1. The demurrer should have been sustained. The complaint alleges no fraud on the part of defendants or their attorneys. 39 Ark. 107; 97 Id. 117; 43 Id. 107. 2. No fraud is alleged on part of defendants in procuring the judgment. 75 Ark. 426; 73 Id. 443; 93 Id. 269. 3. No proper defense is alleged. 83 Ark. 17; 104 Id. 449-458. 4. Defendants were entitled to an instructed verdict. 12 R. C. L. 242, 319, 352, 335; 12 Id. 237. 5.

The widow Sarah E. acquired a complete title by buying the Sisney note and mortgage and by foreclosing and purchasing at the sale. Sorrels became an innocent purchaser and has a valid title. The widow succeeded to all the rights of Sisney. 51 Ark. 105; 43 Id. 504; 101 Id. 543; 53 Id. 185; 27 Cyc. par. “C,” p. 1207 and “E,” p. 1299 and “A” 1449, etc.; 47 Ark. 515; 95 Mich. 71; 54 N. W. 701; 40 Hun. (N. T.) 376; 122 Ark. 341. 2.

A. Falconer, Chancellor; 1. The deed conveyed a life estate to Eudora Port and the remainder in fee to her children. The injunction against waste should be permanent. Kirby’s Digest, § 735; 72 Ark. 366; 44 Id. 459; 67 Id. 517; 98 Id. 570; 49 Id. 125; 75 Id. 19; 117 Id. 370. 2.

<p>Benefit - insurance — waiver of conditions — authority of local collector. — A policy of insurance provided that it become forfeited if the insured became addicted to the use of intoxicating liquor, drugs'or narcotics. The constitution and by-laws contained the same provisions. Held, a local collecting agent, with knowledge that the insured was indulging in the use of intoxicants, was without authority to waive the restrictions in the policy.</p>

C. Pirmioc, Special Judge; 1. The court had no jurisdiction. The claims were for less than $100. The jurisdiction depends upon the amount of each cause of action. 89 Ark. 435; 66 Id. 314; 78 Id. 595; 83 Id. 372; 113 Id; 490; 114 Id. 304. 2.The court erred in its instructions. The place of the sale was Nashville. 83 Ark. 548; 45 Id. 37; 33 Id. 465; 96 U. S. 258; 11 E. C. L., § 2, p. 753; 59 Pac. 36; 68 Am.

105 Ark. 661; 51 Id. 535, 546; 96 Id. 158; 102 Id. 380; 104 Id. 466; 106 Id. 157. The commission paid the agent added to the interest constitutes usury. Cases supra. There is no usury even if the broker’s fee is included. 39 Cyc. 953; 46 Ark. 371; 86 Id. 27; 56 Id. 321.

H. Evans, Judge; Appellee is estopped from denying the amount and validity of this debt. He acknowledged owing $57.50.. The description of the land is indefinite and uncertain as set forth in the affidavit; nor is it stated when the work was completed. A mechanic’s lien is personal and not assignable. Kirby’s Dig'., § 4981; 114 Ark. 1; 9 A. & E. 73; 87 N. E. 79. The lien is personal. 127 N. Y. 110; 4 Ore. 89; 20 S. W. 16.

J Driver, Judge; 1. The plea of payment was not sustained. None of the officers of the bank had the power to loan the funds of the bank and agree to accept anything except money in payment. Kirbyi’s Digest, § 839; 3 R. C. L., p. 420, § 47. Such transactions are expressly prohibited by the Banking Act. Act 113, Acts 1913, § 29, p. 479, and § § 75-6; 3 R. C. L. 448-9; Taylor on Private Corporations, 206-7. 2.

Haynie, Judge; 1. There is no evidence to support the verdict and the court erred in not giving the peremptory instruction asked. 2. Jones and Bevill had,, no authority to buy the stock and the board of directors never ratified the sale. The act was ultra vires and void. There was no ratification by the board. 175 S. W. 30; Cyc. 1067-8. The court’s instructions on the law were correct, but there was no evidence to support them.

B. Baker, Judge; 1. The court erred in its instruction as to “reasonable doubt. ’ ’ 95 Ark. 107. 2. The indictment was barred. It was error to give instruction No. 2. Kirby’s Digest, 3. Appellant should have been allowed to impeach the witness. Kirby’s Digest, § 3138; 121 Ark. 53. 4. Laughery was not a competent person. 1. There is no error in the instruction as to reasonable doubt. 95 Ark. 107; 62 Mich. 329; 14 Cent.

Shaver, Judge; 1. The demurrer should have been sustained. The Act of May 23, 1901, is unconstitutional and void because in conflict with section 1, Art. 3, Const, and Amendment No.,2, Art. 21 and the Thirteenth and Fourteenth Amendments to Const. U. S. Kirby’s Digest, § § 7642, etc; 24 Ark. 167; 2 Dallas 308; 6 Ark. 197; 11 Id. 481.

Humphries, Chancellor; 1. Kirby’s Digest, § 853, is decisive of this case, and calls for a reversal of so much of the decree as holds that the lien of appellant is subordinate to that of appellee. GO Ark. 198; 66 Id. 327; 68 Id. 235; 109 Id. 160; 123 Id. 403, 406. 1. There is nothing properly before this court.

Martineau, Chancellor; 1. On the facts the judgment should he reversed. 2. The demurrer should have been sustained. A revocation of an agreement of submission to arbitration may be revoked at any time before the award.. 166 Fed. 398; 82 Am. St. 943; 4 Elliott on Contracts, § 2947; 2 R. C. L., § 15, p. 366; 138 Am. St. 637, and note, pp. 640-649; 3 Cyc. 610; 11 Am. Dig. 64-72; 4 Cent. Dig., § 130; 184 Fed. 404.

There is no testimony showing cruelty or impoteney. 26 Cyc. 913, notes. 2. The alleged statements were made after she deserted him; they were not malicious and without probable cause. They were no ground of divorce. 90 Ark. 40; 97 Id. 125. They do not constitute legal cruelty. 14 Cyc. 606; 67 How. Pr. 20; 4 Okla. 359; 80 Mo. App. 327. Nor were they malicious and without probable cause. 14 Cyc. 608, 607; 18 L. E. A. (N. S.) 300; 13 Tex. 468; 1101 Ky. 623. - 3.

J. Driver, Judge; 1. The order calling in the warrants was void. The statute must be strictly complied with. The return of the sheriff must show a compliance with the statute. 87 Ark. 406; 10 Fed. 891; 51 Ark. 34; 65 Id. 142; 65 Id. 353. 2. The notice was not posted as required by law. Kirby & Castle’s Digest, § 1291; 87 Ark. 406; 72 Id. 394; 51 Id. 34; 72 Id. 394; 23 Atl. 421; 54 N. J. Law, 82. 3.

D. Frierson, Chancellor; 1. The teaching of the school, without a contract required by law, did not render the district liable. Kirby’s Digest, § 7615; Acts 1911, Act 206. A contract was necessary. 87 Ark. 97; 107 Id. 308; 52 Id. 487; 64 Id. 487. 2. The warrant was issued without authority of law. There was no vote of the people at the previous election. The unlawful act could not be ratified.

<p>1. Appeal and error — absence of motion for new trial. — Where there is no motion for a new trial, only errors which are apparent on the face of the record will be considered on appeal.</p> <p>2. Appeal and error — absence of motion for new trial — offer to perfect record. — Where appellant’s abstract does not show that a motion for a new trial was filed, the court will permit him to perfect his abstract, .after appellee has moved to affirm the causfe.</p> <p>3. Appeal and error — absence of motion for new trial — presumption. — Where appellant failed to abstract his motion for a new trial and did not move the court for permission to amend his abstract, it will be presumed that no motion for a new trial was filed in the trial court.</p>

Dodd, Special Judge; 1.Tbe court exceeded its authority — it could only quash the execution or order the property sold under it. Kirby’s Dig., § 3226. The bank had no lien on the homestead. The relation of vendor and vendee never existed. 66 Ark. 442, does not apply. 62 Ark. 398; 72 Id. 433; 66 Ark. 442. 66 Ark. 442 is overruled by 114 Ark. 433. The purchase money for a homestead is a lietí thereon.

P. Henderson, Chancellor; 1. Appellant is. not liable because the reorganization in February, 1908, supplanted and paid up the old stock. 104 Ark. 517. 2. Appellant was never liable personally for any unpaid balance. The stock itself was charged with a lien, regardless of whoever the holder might be. 96 Pa. St. 440. ■ 3. If ever personally liable, the liability is barred. 131 Cal. 45; Kirby’s Digest, § 5064; 47 Ark. 317; 49 Id. 468; 71 Id. 379, 382.

Smith, Judge; 1. It was error to refuse to transfer this cause to chancery. Act March 3, 1913. 2. The court erred in sustaining the demurrer to the amended and substituted answer. The amended answer stated no defense. The bank was not insolvent and appellants are not liable on the bond. There was no consideration for the guaranty — a mere naked promise to pay is not sufficient. 12 B. C. L¡ 1076-7, par. 28; 24 Ark. 511; 111 Ark. 224-6; 20 Cyc. 1413, 1417.

Gowling, Judge; 1. Appellants in the circuit court were not parties to the record in the probate proceedings. .2. No sufficient affidavit for appeal was made. Kirby’s Digest,,§ 1348,; Act 327, Acts 1909, pp. 956-7. 3. The circuit court had. power and should have permitted appellants, to file' the bond nunc pro tunc. Kirby’s Digest, §.$ 1349-50, 1310-1-3Í1; 63 Ark. 145. 4. Sections 1349-40, Kirby’s Digest, aré not repealed. Act 327, Acts 1909’.

The whole will must be construed together to get the intention of the testator. 113 Ark. 500. By reading the whole will it will be found that the guiding influence in the mind of the testator was to keep the property in the McCarroll family — the widow to hold for life or widowhood and the various devisees to take a contingent interest and not a vested interest. Borland on Wills & Adm. 289. 2. If there be a repugnancy in the provisions of a will the last controls.

B. Priddy, Judge; 1. The court should have directed a verdict as requested in instruction No. 1 for appellant. If Edwards ever really made a contract after he became the owner of the flour, it was a verbal contract for more than $30 and void under the statute of frauds. Kirby’s Digest, § 3656. The court should also have given No. 5, as asked by appellant.

Coleman, Judge; 1. There was positive evidence of negligence on the part of defendant causing the injury. No contributory negligence was shown and the verdict was the direct result of errors in the instructions given by the court. The law is well settled. 96 Ark. 339, 342; 102 N. Y. 716; 7 N. E. 623. 2. The instructions requested by plaintiffs are approved in 84 Ark. 81, 85. They state the law correctly. The judgment should be reversed and a new trial ordered. 1.

Coleman, Judge; 1. It is admitted that Mrs. Burel was a married woman, but the team was sold to her for the purpose of making a crop upon land of defendant in 1914, and she signed the note as surety, and the court erred in instructing the jury to return a verdict for Mrs. Burel. The court erred in not permitting appellant to show that Mrs. Burel secured herself by taking the mortgage upon the property for which the note was given.

H. Evans, Judge; 1. The justice had no jurisdiction and the circuit, court acquired none on appeal. The action was ex delicto, and the amount involved, $236.81, is beyond the jurisdiction of the justice. 41 Ark. 476; 47 Id. 59; 66 Id. 346; 79 Id. 172. 2. There was error in the admission and rejection of evidence. The check was payable to the bank, or order, and was not admissible. Parol testimony was not admissible to show that the money was paid to Hill.

Elliott, Chancellor; 1.The tax deed was not void. Under it L. A. Black, the only heir of the tax purchaser, went into actual possession and has had two years’ possession under the tax deed. The deed should have been upheld. Kirby’s Digest, § 5061; 60 Ark. 163-8. Appellant has paid the taxes for 20 years and the appellees are barred. 1. The tax sale was void. The lands were assessed and sold en masse. 61 Ark. 414. 2. There were no laches.

Shaver, Chancellor; 1. The appellant had the right to redeem. 64 Ark. 576; 744 Id. 143; 113 Id. 332; 140 111. 170. The sale under foreclosure extinguished the lien of the mortgage whether the entire debt secured by the mortgage is satisfied or not. Black on Judgments, § 479; 76 Fed. 16; 23 Ore. 352; 50 la. 590; 140 111. 170; 65 Ark. 393. 2.

II. Evans, Judge; 1. The appellant was guilty of no negligence, but the deceased was guilty of contributory negligence. This case is- almost on all fours with 45 Ark. 318. 2. The wreck was caused by operating the train at an excessive rate of speed, contrary to instructions, and the court erred in its instructions on comparative negligence and in modifying appellant’s requests, 2, 3, 4, 6, 7, 8, 10, 12 and 13, and in refusing Nos. 1, 5, 11, 14 and 15.

Mandamus will not lie to compel the performance of a ministerial duty, where any discretion upon the part of the officer is involved, nor where there is any other remedy. 118 Ark. 166. 2. The ordinance was not legally passed over the mayor’s veto. Housley and Ledwidge were not residents of the ward they claimed to represent as aldermen. Kirby’s Digest, § § 5597-8, 5602; 82 Ark. 529; 66.Id. 201; 68 Id. 555; 80 Id. 369. 3.

S. Maples, Judge; Argue the merits of the controversy and cite many authorities, but the case was decided on the sole point that in the absence of a bill of exceptions the record presents no question for review o? this court. 1. There is no valid bill of exceptions. 103 Ark. 46; 80 Id. 410; 95 Id. 331; 103 Id. 569;. 91 Id. 566; 94 Id. 58; 35. Id. 395. ... 2. Argue the case on its .merits.

M. Jackson, Judge; The court abused its discretion in refusing the continuance. 99 Ark. 394; 4 Enc. PI. & Pr., p. 842. There was no abuse of the court’s discretion in refusing a continuance. 99 Ark. 581. Appellant did not bring himself within the rule.

MarUneau, Chancellor; 1. The court had the power to set aside the former decree. 23 Cyc. 901; 27 Ark: 296; 6 Id. 100; 70 Id. 312; 107 Id. 415. It may be set aside during the term without notice. 23 Cyc. 952. No notice to appellee was necessary. 118 Ark. 497. 2. The testimony shows that the court really set the decree aside during the term, but the order was not entered, and the nunc pro tunc order should have been granted. 118 Ark. 497; lb. 593.

Barker, Chancellor; 1. The quitclaim deed from Newton to Meek and Reynolds conveyed nothing except the interest of Newton at the time — nothing more. At the time he had no interest, as he had already conveved his interest. 76 Ark. 417; 38 Id. 192; 33 Kan. 683; 186 Ga. 806; 44 Tex. 255; 65 Pac. 1; 25 Mont. 344; 116 Ga. 459. 2. Appellee had notice of appellant’s rights. Appellee made no inquiry and is not entitled to protection as an innocent purchaser.

<p>1. Deeds — delivery.—One A. executed a deed to certain property to M. and delivered the same to a bank to deliver to M. upon payment of; the purchase price. The building on the premises burned a short while after A. gave the deed to the bank. Held, there had been no delivery of the deed of any kind to M.</p> <p>2. Parties — action on pire policy — vendor and purchaser as parties. — A. agreed to sell certain property to M. Before the completion of the sale the building on the premises burned. A. and M. joined as plaintiffs in suing the insurance company. Held, although M. was not a proper party, that no prejudice resulted from his being joined as a party plaintiff.</p>

B. Priddy, Judge; 1. The remarks and conduct cf the prosecuting attorney were improper and prejudicial. 70 Ark. 305-7-8; 74 Id. 209, 260. It would have been useless to object. 123 111. 333; 70 Ark. 305-7, etc.; 58 Ark. 481; 67 Id. 370; 95 Mo. 652 The court’s admonition did not remove the prejudice. 58 Ark. 368; 77 Id. 238. See also 2 Cyc. 711, 713; 74 Ark. 256. No objections were made, nor exceptions saved to the remarks. The first remark merely stated a fact clearly proven.

The verdict is excessive. No §ale was provento Bonura & Co. The actual loss was only $5.20. 2. The so-called ‘‘account sales” was not admissible as evidence. 1 Elliott on Evidence, § 458; 83 Ark. 331; 72 Id. 314; 105 Id. 130; 89 Id. 591; 103 Id. 528. 1. The verdict is not excessive. The sale and loss were proven. 120 Ark. 119. Notice of the damage was given. 120 Ark. 119; 91 Id. 412; 98 Id. 353. 2. The account of sales was properly ^¿knitted.' 113 Ark. 417; 115 Id. 538.

J. Driver, Judge; This action was commenced within the sixty days required by law, and the wages continue up to the date of final judgment. 66 Ark. 409. A separate suit can be maintained to recover the wages or penalty.. 70 Ark. 226; 58 Jd. 407. The wages are due every two weeks, and a suit can be brought as a separate cause of action. Kirby & Castle’s Digest, § 5462; 23 Cyc. 444-5 ; 27 L. R. A. 409; 74 Ark. 615; 78 Id. 595; 89 Id. 435; 83 Id. 372.

The verdict is contrary to the evidence. The evidence shows that defendant struck because of the open knife in the hands of Bradley, a knife with a two and one-half inch blade, and to prevent him from cutting his father. • • 2. It “was error to instruct the jury on murder and voluntary manslaughter, as there was no evidence as to either crime. 3. It was error to refuse the instruction defining the right of defendant to defend his father. 4.

B. Baker, Judge; 1. The probate court allowed administration and no 'person objected, nor appealed. The circuit court erred in trying the case de novo. 92 Arli. 234; 36 Id. 401; 92 Id. 611. Mere illegal allowances to an administrator are not grounds for impeaching or setting aside a settlement. The remedy is by appeal. 34 Ark. 72; 90 Id. 261; 92 Id. 611. No fraud is alleged. 2. The re-stated account shows error on its face.

J. Driver, Judge; 1. The levee act of 1909 is a special statutory proceeding in rem. The land must be correctly described. 169 S. W. 246; 113 Ark. 316. A correct description of the land is jurisdictional. 113 Ark. 316; Van Vleet on Collateral Attack, ch. 370, p. 252; 83 Ark. 234; 11 S. W. 573; 7 Id. 175; 51 N. W. 656. See also 51 Ark. 35; 59 Id. 487. •2. The description is not sufficient. 27 S. W. 970; 322 Ark. 376. “N. of R. R.” does not mean anything.

D. Shaver, Chancellor; 1. The dedication was irrevocable and the title passed absolutely to the public by the deed and plat. 91 Ark. 355; 77 Id. 177; II. 221; lb. 370; 80 Id. 489; 85 Id. 520. 2. The appellants are not barred by limitatioii. The dedication was made to the public — the people.

The testimony for the State, if literally true, is not sufficient to sustain a verdict of guilty. Williams was only an agent for Henson. 124 Ark. 477. It was error to give instruction No. 1 for the State. 1. The evidence is sufficient to sustain the conviction. 125 Ark. 232; 105 Id. 462; 45 Id. 361; Acts 1915, p. 98.

Incompetent testimony was admitted as to a verbal contract of employment made as a consideration for the right-of-way deal. This was error because the whole contract was reduced to writing and embodied in the deed, and oral evidence was not admissible to extend, modify or contradict the terms of the written instrument, and because Jack Curry was not the agent of appellant and the evidence does not show it had any knowledge of any agreement other than that written in the deed.

It Avas error to take the case from the jury. Where there is any substantial evidence to warrant a verdict, it is the duty of the court to submit the issue to the jury. 98 Ark. 334; lb. 370; 105 Id. 136; 111 Id. 309; 71 Id. 445. 2. Gowens had no authority to cash the checks. 199 111. 151; 93 Am. St. Rep. 113; 18 L. R. A. 662; 117 Am. St. Rep. 333; 88 U. S. 21. Mere usage or custom contravening the established commercial law can not be proven. 88 U. S. 21. 3.

W. Smith, Judge; 1. The answer presents a proper counter-claim or set-off to the cause of action either arising out of the contract or transactions set forth in the complaint, or connected with the subject-matter of the action. 124 Ark. 460; 71 Ark. 408; 84 Id. 218; 95 Id. 488; 102 Id. 367; 106 Id. 247; 186 S. W. 78; 129 Id. 1081; 105 Id. 256; 75 Id. 479, etc. 2. If not a proper subject of counter-claim, the claim of defendant is a proper subject of set-off.

M, Jackson, Judge; 1. The company was liable, if at all, only as a gratuitous bailee. The burden was on appellee to show gross negligence. 76 Atl. 890; 101 N. E. 114; 42 Ark. 200; 101 Id. 75; 54 N. H. 535; 18 Wis. 471; 50 N. Y. 121; 4 R. C. L. 760; 19 Cal. 166; 17 L. R. A. 685; 29 Pac. 861; 24 Am. Dec. 143. 2.

Trimble, Judge; The defendant was indicted for selling Buk and tried and convicted of selling beer. There was no proof that he sold Buk, nor that it was intoxicating. 85 Ark. 195; 60 Id. 141; 64 Id. 188; 37 Id. 408; 36 Id. 178; 91 Ala. 47; 50 Ind. 55; 38 Ark. 660. The word used was descriptive of the offense, and must be proved as charged. 22 Cyc. 461; 69 Miss. 395; 73 Id. 784; 91 Ala. 47; 50 Ind. 555; 84 Ark. 285; 62 Id. 459. .

Haynie, Judge; 1. The title to the property of the bankrupt vested in the trustee when the adjudication was made and. related back to the date of the filing of the petition. 228 IJ. S. 474, 459, 479; 222 Id. 300, 307; 4 Am. Bankr. Rep. 578; 73 Mass. 579; 143 Fed. 91; 213 Id. 396; 36 Am. Bankr. Rep. 354; 37 Id. 7. 2.

The verdict is contrary to the testimony on every material point. The verdict should have been for appellant. She was injured in the way she said she was, by a sudden, violent jerk of the train, and the court erred in giving instructions 9 and 11 for appellee. A prima facie case was made that the injury was caused by the operation of the train and the burden of proof shifted to the appellee. 82 Ark. 365; 75 Id. 409. 2.

A. Falconer, Chancellor; 1. At the time the deed was executed the parties were husband and wife. The deed should have been canceled for fraud and total failure of consideration. This cause will be tried de novo here and all the facts are stated. The title was in appellant and husband and wife can not contract with each other. 31 Ark. 678; 49 Id. 430; 60 Id. 70. The consideration having failed, the deed should be set aside.

W. Smith, Judge; 1. The theory of appellant is that appellee was a trespasser; that his peril was not discovered until the injury, and there is no liability unless after discovering . his peril he was wilfully or wantonly injured. 97 Ark. 137, 140-1; 76 Id. 106. 2. The law as to discovered peril is well settled.

J. Driver, Judge; 1. The business was interstate and not subject to local legislation. 115 Ark. 166; 124 Id. 539; 156 Fed. 1; 22 Mont. 100; 53 Wis. 517. 2. Applying the decisions of Missouri to the facts, the appellant’s objections to evidence extraneous to the contract should have been sustained. 168 S. W. 290; 181 Id. 604; 175 Id. 917. 3. The Missouri law, if applicable, is not enforceable in Arkansas, being a penal law. 122 Ark. 451; 70 Id. 493. 4.

Barber, Chancellor; 1. ' The court erred in permitting defendants to file their amended and substituted answers. The pleadings are inconsistent. 1 Ark. 66. 2. The decree is erroneous in holding that Wilson had title by adverse possession. 20 Ark. 553; 84 Minn, 4; 168 U. S. 278; 1 Cyc. 1037; 59 Ark. 626.

Barber, Chancellor; 1. There was no fraud in the execution of the deed from Dunbar to his wife. He owed her $800 and had a right to prefer her. 76 Ark. 252. Good faith is shown. 2. Dunbar was not insolvent. After the conveyance to his wife he had left 160 acres totally unencumbered, outside of his homestead. 3. The conveyance was made to his wife by Dunbar with the knowledge and approval of appellee. ' 20 Cyc. 427, 433, 434-5; 28 S. W. 984. No fraudulent intent was shown. 1.

The court below grounded its position on 35 Ark. 144. The next case is 69 Ark. 229, followed by 121 Id. 541. The parties were held as partners, because (1) there was a failure or abortive attempt to incorporate, or (2) they conducted or operated the business after the failure to incorporate; but in no instance have parties been held where they made no attempt to operate, nor incur liability. 114 Ark. 344; 17 L. R. A. 549; 69 111.

W. Hendricks, Judge; 1. The court erred in not treating the demurrer to the reply and first amendment thereto as a motion to strike, and in not striking the reply from the pleadings, as it was an improper pleading. Kirby’s Digest, § 6108. The character of a pleading is to be determined from its allegations and not its name. 54 Ark. 468; 58 Id. 136; 74 Id. 101; 99 Id. 377. The answer contained no set-off. nor counter-claim — a reply was not permissible.

A. Falconer, Chancellor; 1. The law does not contemplate payment for stock when subscribed — it may be paid for in future installments when called for. The bank had a lien on the stock. Kirby’s Digest, § § 855, 848, 847, 865-6-8. Stockholders had the right to sue other stockholders failing to pay for their stock. 96 Ark. 281, The directors were not asked to bring suit. 97 Ark. 522. The remedy against the stockholders delinquent must first be exhausted. 95 Ark. 124. 2.

B. Priddy, Judge; 1. Plaintiff did not prove his case. The evidence does not sustain the verdict and the court so stated, but overruled the motion for a new trial on the ground that the questions had been submitted to a jury and that he was not disposed to interfere with the verdict. The verdict when it found and stated that plaintiff did not prove 2.

The court erred in giving instruction No. 8 for the plaintiff, and in refusing No. 13, asked by defendant. The knowledge of the agent must be actual and not.implied. The burden was on appellee to show actual knowledge on the part of the agent. 135 Am. St. 160; 12 Id. 801; 14 R. C. L. pp. 1159, 1167, 1173; 65 Ark. 54; 65 Id. 62; 25 Cyc. 856; 60 S. W. 576; 111 Fed. 19; 102 Ark. 146.

I. Worthington, Judge; 1. Only a question of law is involved here, as the facts are agreed upon. The tangle has been brought about by the act of 1915, changing the date of the regular biennial election from September to November. The history of the legislation was discussed in 122 Ark. 82, 88. The court erred in finding for Sutterfield. Act December 7,1875, Kirby’s Digest, § 7559; 109 Ark. 556; 122 Id. 82; 40 Id. 431; 84 Id. 533. 1.

W. Hendricks, Judge; 1. In 2 Ark. 363, it is said: £ £ The higher grade * * * of instruments completely supersedes and destroys a less or subordinate one. ’ ’ Appellant contracted with appellee to sell his home within a fixed time and for a certain price, and the evidence shows that appellee failed to find, procure or produce any purchaser, “able, ready and willing to buy, ’ ’ within or after the life of the contract.

M. Jackson, Judge; 1. It was error to submit to the jury the issue as to whether or not the contract required the contractors to install the heating, plumbing and electric wiring, and in admitting oral testimony tending to show that this was the intention of the parties, and that this work should be included therein. 125 Ark. 492. This case is conclusive of the issue here. The item is really undisputed. 2.

Frierson, Chancellor; 1. The deed to Frazer, as trustee, vested in him the title in fee simple with absolute and unrestricted power to sell and convey. An express trust was created, and, of course, no implied trust could arise. The use was not executed by our statute, as it has no application.

E. Martineau, on exchange, -Chancel] or; 1. The evidence clearly shows that through the false and fraudulent representations of. Vestal and Haygood, appellant was induced to enter into the purchase of the orchard and was thereby defrauded. She relied upon the false misrepresentations, and they were material. The sale should be set aside. 100 Ark. 144; 47 Id. 335; 55 Id. 296; 96 Id. 371; 97 Id. 265; 98 Id. 44 ; 99 Id. 438; 112 R. C. L., § 113; 37 L. R. A. 593, note.

B. Baker, Judge; 1. Oral evidence was not admissible to vary and contradict the terms of the written contract. 71 Ark. 185; 35 Id. 555; 95 Id. 131; 105 Id. 50; 78 Id. 333; 78 Id. 574; 79 Id. 256; 94 Id. 130; 102 Id. 428; 106 Id. 462, and others. 2. Appellee conld read print, and the contract was typewritten. He had ample opportunity to read it. 71 Ark. 185; 35 Id. 555. If a mistake was made, it was appellee’s own negligence, nor was it mutual. 60 Ga. 383; 71 Ark. 185; 9 Ene.

II. Evans, Judge; 1. A verdict should have been directed for defendant. The evidence here is practically the same as upon the former appeal, except that of Miss Chaplain, a new witness. 119 Ark. 349. The injury was due to a risk Steel assumed and the testimony is not sufficient to show any injury. The blue flag rule was in force and it was his duty to post it; he violated the rule. 3 Labatt on Master & Servant (2 ed.), par. 1281; 83 Ark. 334; 56 111.

Humphries, Chancellor; 1. The attempt to assess personal property for a local improvement renders the act void. Art. 19, § 27, Const.; 119 Ark. 258; 1 Page & Jones on Assessments, etc., § § 2, 4, 11; 59 Ark. 536; 64 Id. 265; 120 Id. 15; 119 Id. 21; 64 Id. 555. Personal property is not subject to tax under the law. Hamilton on the Law of Special Assessments, § 275, and cases supra. 2.

Coleman, Judge; 1. The court erred in not granting the petition to remove the cause to the United States court. Plaintiff was a resident of the Western District and could have sued there. Defendant was doing business in, and was found in that district, where the injury occurred. This is a different case from'203 U. S. 449 and 98 Ark. 507. There neither party resided in the district nor could be found there.

<p>Descent and distribution — ancestral estates. — If an estate is ancestral, and comes to the intestate by gift, devise or descent on the part of the father or mother, it passes to the heirs of the intestate who are of the blood of the ancestor from whom it came. (Johnson v. Phillips, 85 Ark. 86, partly overruled).</p>