Volume 130 — Arkansas Reports

A. Falconer, Chancellor; 1. The action is barred by both the statutes of non-claim and limitations. The claim was never probated and hence barred by non-claim. Kirby’s Digest, § 110, as amended by Act May 28,1907; 9 Ark. 411; 14 Id. 246; 18 Id. 334; 23 Id. 604; 39 Id. 577; 97 Id. 492; 99 Id. 523; 112 Id. 6; 92 Id. 522; 94 Id. 60; 65 Id. 1. An administrator has no right to pay a debt not duly probated. 65 Ark. 1; 14 Id. 246. 2.

Shaver, Chancellor; The appellants pro se. 1. There is no time limit in the deed, and the law fixes a reasonable time. 93 Ark. 10; 99 Id. 112; 124 Id. 574; 77 Id. 116. Defendants have had such reasonable time. 2. The burning of the mill, stringency in money market, falling market or misfortune does not excuse defendant. 124 Ark. 187; 114 Id. 421; 116 Id. 393; 93 Id. 452; 61 Id. 315; Polsier v. Beene, 118 Ark. 94. The deed should have been canceled. 1.

B. Sorrels, Judge; 1. Tlie court committed reversible error in giving instruction No. 1 for appellee as to notice. It throws the responsibility on tbe appellant to get this notice to, and into the hands of the assured or beneficiary. The contract does not require this and if the notice was placed in the mails in the ordinary way, properly addressed, the association discharged its duty under the contract. Mutual Aid, Union v. Wadley, 125 Ark. 449.

P. Henderson, Chancellor; 1. The sale of the homestead was void, because the court had no jurisdiction to order or approve the sale. 65 Ark. 355. The interest of the minors was too indefinite and uncertain for the court to determine its value, or what price it should bring. The estate was in debt; the widow was alive and had not abandoned her interest. 2.

P. Henderson, Chancellor; I. The finding of the chancellor that there was no mutual mistake, leaves only one question for this court; does the fact that appellee used and occupied the land for more than seven years vest the title? The testimony fails to show adverse possession; but does show that her possession was merely permissive and not hostile nor adverse. 43 Ark. 486; 68 Id. 554; 59 Id. 268; 12 L. R. A. (N. S.) 1147; Ann. Cases, 1913, E 487, A 561; II. 1912 C, 644. 1.

R. Satter-field, Special Judge; 1. The pleadings here raise the same issue as on the former appeal of Jackson. 123 Ark. 1. It was error to refuse instruction No. 2 -asked by defendants as the judgment was reversed on the Jackson appeal case for refusing it. 2. Plaintiffs can not recover for the cost of filling up holes underneath buildings, which they were required to do by ordinances of the city of Helena. Instruction No. 15 requested by appellants should have been given. 3.

Trimble, Judge; 1. The report of the viewers should have gone over to the following term of court and been read publicly on the second day thereof. Kirby & Castle’s Digest, § 3257. The appearance of Eust at the adjourned term did not waive jurisdiction. 15 Am. & E. Enc. Law, p. 385. The county court had no jurisdiction and its judgment is,coram non judice and void. 48 Ark. 151; 6 Id. 491; 90 Id. 197.

Coleman, Judge; 1. The district and the commissioners were es-topped to deny the existence of a valid corporation, after incurring a debt while holding itself out as a valid district. 81 Ark. 391, 402; Thompson on Corporations, § § 1124, 1951, 1953; 70 Ark. 451. 2. The district was validly organized. 114 Ark. 23; 110 Id. 544. There was no variance in the petition and ordinances.

Trimble, Judge; 1. The court erred in overruling the plea of former acquittal. It was a question for the jury. Kirby’s Digest, § § 2303-4-5; 23 Am. & Eng. Enc. Law (2 ed.), 571; 34 S. W. 753; 43 Ark. 374; 31 Mo. 197. 2. The court erred in giving additional instructions to the jury privately. Kirby’s Digest, § 2395; Ferris & Rosskopf Instructions to Juries, § 95; Mason v. State, 127 Ark. 289. 1.

Martineaü, Chancellor; 1. The Act is unconstitutional and void. It is vio-lative of Const., Art. 16, § 1. The Constitution of 1874 intended to put the State out of the money-borrowing and interest-paying business. There is no provision giving the Legislature power to issue interest-bearing bonds, notes, warrants or scrip. The only authority given was to provide for the outstanding indebtedness that existed at the time of its adoption. Art. 16, § 2.

Vaughan, Special Judge; 1. The cashier had no authority to retain Judge Holland as attorney by the year, and the board of directors never authorized nor ratified the appointment. 118 Ark. 157. 2. The cross-complaint is barred by the three-years’ statute of limitation. An attorney’s right of action accrues when the suit in which he is employed is terminated; usually when reduced to judgment.

H. Humph-reys, Chancellor; 1. It was not established that this was a public road. It had never been worked by overseers or public authorities. Its use by the public was very light; only occasional travelers used it; it was not a public road by prescription. 83 Ark. 236, 240. It was a mere trail through the forest. 2. There was nothing to show that the crossing over the track in place of the one under the bridge did not comply with the law.

Cowling, Judge; 1. The last statute (Act 1915), amending the former statute, operates as a dissolution of the former district, but if the district was not abrogated, the penalty of the new statute does not apply. 31 Ind. 11; Black’s Law Diet. 1204; 36 Cyc. 1224; 25 Id. 613; 68 Ark. 433; 89 Id. 598; 53 Id. 334. See also, 36 Cyc. 1083, 1165. The district formed in 1907 was completely annulled and abrogated and it was no violation of law for hogs to run at large.

T. Humphries, Chancellor; 1. A local improvement district must be composed of adjacent, compact, contiguous and continuous territory. The question of boundaries is closely scrutinized. The lands must be contiguous. 126 Ark. 416; lb. 172; 122 Ark. 491; 120 Id. 230; 105 Id. 380; 35 Id. 58; 15 Cyc. 309; 28 Id. 120,150, 193; 54 Ark. 321; 55 Id. 609; lb. 618; 35 Cyc. 856-7; 38 Id. 601. 2. The Legislature can not confer on Jackson County extraterritorial authority. 3.

D. Frierson, Chancellor; I. The lands were not redeemed within the time allowed by law. If Act 262, Acts 1909, applies the time for redemption had expired, but if the Act 1915, passed eighty-four days after the sale applies the redemption is in time. The last act is not retroactive, and does not apply to sales prior to its passage. It can not affect vested rights. 86 Ark. 255; 8 Cyc. 940, note 56.

it Court, Fort Smith District; Paul Little, Judge; 1. The court erred in refusing to instruct the jury to return a verdict for defendant. Defendant was not an insurer of plaintiff’s safety while in the waiting room and owed her no duty to exercise the highest degree of care for her protection. The only duty imposed by law was to exercise ordinary care to protect her while she was waiting at the station. 96 Ark. 311; 33 L. R. A. (N. S.) 855.

It was error to give the peremptory instruction. A clear ease of warranty by the agent, Shaw, was made. The unsoundness of the mules was not an apparent, but a latent, defect. There was an express warranty as to soundness, and the agent was acting within the apparent scope of his authority. 48 Ark. 138,145; 19 L. R. A. 822; 103 Ark. 86; 49 Id. 323; 96 Id. 460; 17 L. R. A. 642; 67 Wash. 403; 29 Am. Cas. 474; Oliphant on Horses (3 ed.), 124; 31 Cyc. 1354. 2.

B. Priddy, Judge; 1. There was a total failure of proof as to value. 2. There was a variance in the money alleged to have been stolen and the proof. 3. The offense was not larceny, hut, if anything, robbery. 4. The remarks of the prosecuting attorney were improper and prejudicial.

M. Jackson, Judge; The remonstrants complied with section 2 of the Act, and valid reasons are assigned for the removal of their names from the original petition. The case in 75 Ark. 154 is not a similar one. See 40 Ark. 290. The appellees pro sese. The reasons given are not valid ones, or “for good cause shown.” See Webster Diet, and Bouvier Law Dictionary; 75 Ark. 154; 51 Id. 164; 40 Id. 290; 70 Id. 175.

E. Evans, Judge; 1. Outside the detailed action of tlie bloodhounds, there is absolutely no testimony to sustain a conviction. Sometimes bloodhounds are capable of trailing criminals, but the action of bloodhounds does not constitute a better guide to the truth than the sworn testimony of human beings. Defendant and a disinterested witness both swear that Cranford was at home when the shot was fired.

D. Frierson, Chancellor; 1. A buyer may rescind the contract of purchase of implements on hand, where there has been a breach of the condition of a contract in some essential or substantial particular, which goessto the essence of the contract and renders the defaulting party incapable of performance. 35 Cyc. 135, 2A. Here the proof is conclusive of the custom to furnish repair parts, and that the failure and refusal rendered the implements useless and of no value. 2.

C. Trim-ble, Judge; 1. The verdict is overwhelmingly against the testimony. There is no testimony to sustain it, where the physical facts are taken into consideration. The jury had no right to disregard arbitrarily the plain, undisputed statements of witnesses who said they saw the water running over from one field and into the other. 101 Ark. 532. Besides the physical facts show negligence on part of appellee.

Mar-tinéau, Chancellor; 1. The act is not nnconstitntional. The reissue of warrants is a judgment and warrants can he made payable at a future day. 122 Ark. 557; 98 Id. 299. It merely provides that the county court may pay, for the value of his indulgence, to the holder not to exceed 6 per cent, per annum. This is not interest, nor do the warrants hear interest.

The judge was disqualified to sit or preside in the trial. Const., art. 7, § 20; 2 ft. C. L. 938; 23 Cyc. 587; 78 Miss. 175; 84 Am. St. 622; 15 R. C. L. 534; 12 Id. § 24; 20 Cyc. 1340; 12 R. C. L. 1040, § 24; 60 Ark. 425. 2. The evidence was not sufficient to support the verdict. 3. There was error in the admission of evidence. Appellant was indicted for an alleged wilful failure to execute only one burning order, that of January 27.

H. Evans, Judge; Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor; 1. The act is not unconstitutional. Art. 12, § 6, Constitution, Ark.; 4 Wheat 518. The Legislature has power to impose the double liability upon stockholders of corporations. 21 N. T. 9; 98 Mich. 472; 26 Me. 196; 9 E. 1. 194; 70 Minn. 538; 5 Wis. 577; 108 Ky. 21; 111 Cal. 57; 1 Black. 587; 179 U. S. 46; 15 Wall. 478. 2.

Hay-nie, Judge; 1. There was no evidence upon which to base instruction No. 2, for plaintiff, submitting the question as to whether or not “plaintiff drew upon defendant for an amount not exceeding what was due him” upon the first three cars which were shipped.

Cowling, Judge; 1. ■ The motion for continuance should have been granted. The testimony was material and due diligence shown, 55 S. W. 204; 42 Ark. 273-; 60 Id: 564. 2. The indictment alleged that defendant and the. prosecutrix were both unmarried. There is not a syllable of proof that either of them were single. The burden was on the State to prove the allegation. 35 Cyc. 1345; 93 Cal. 74; 108 Mo. 658; 1 Wis. 209; 114 Ark. 310; 8 R. C. L. 219. 3.

J. Driver, Judge; 1. Defendant was not guilty. There is no evidence connecting him with the crime charged, of inducing a railroad company to transport liquor; nor that it was transported for delivery to him or any one for him. 2. The instructions were highly prejudicial to defendant. The instructions asked by defendant correctly state the law and should have been given.

'Elliott, Chancellor; 1. This is a direct attack upon the validity of the district. The petition included the south half of blocks C and D. The ordinance creating the district omitted these two half blocks.

S. Maples, Judge; Defendant acted only as agent to sell upon a commission. There is no proof whatever of a sale, and hence no evidence whatever to sustain the verdict. Defendant had no power to buy; its powers were limited by its charter to acting as agent for others.

Mc-Mahan, Chancellor; 1. No contemporaneous oral contract or agreement can he used to vary or contradict the terms or recitals of a deed. 87 Ark. 283; 80 Id. 505; 20 Id. 293. 2. Gaines is not entitled to recover even if he sold the lands, mill and other property to Abbott alone for $800. He filed no answer or reply to the allegations of Bainbolt’s answer and for the purposes of this said allegations are taken as true and need not be proven.

Coleman, Judge; 1. The verdict and judgment are contrary to the law and the evidence. The entering and cutting are admitted, but the defense is that it was done under permission of one Matlock, a tenant of plaintiff, under the honest, belief that the tenant had authority to give permission. Bnt no snch permission was given or proven. Nominal damages, at least, should have been given for the trespass and injury. 38 Cyc. 1123, 1064; 14 Ark. 431; 1 Id. 448. 2.

To give the State’s testimony its strongest probative force, it fails to show appellant guilty. At most it shows him guilty of procuring. The testimony at least raised a question of fact for a jury and instruction No. 1 requested by defendant should have been given. No. 2, also asked, was improperly refused. No. 6 for the State is clearly erroneous and misleading. 90 Ark. 587. 1. The proof is ample to establish guilt under the law.

Robertson, Chancellor; 1. The payments should he credited on the mortgage debt. The debtor has the primary right to direct the application of payments. 91 Ark. 458; 38 Id. 285. The mortgage notes were the oldest item and all credits, even in the absence of direction, should have been credited thereon. 70 Ark. 516; 51 Id. 198. 2. The matter was compromised and settled. A completed sale was made. The contract was never abrogated nor new one made.

B. Baker, Judge; 1. The contract was in the form of a written letter signed by appellee as set up in the first count. The second count was upon a quantum meruit, which was erroneously dismissed. Appellant found a purchaser and ap-pellee sold the timber to the purchaser furnished by appellant. 2. It was error to allow the answer to interrogatory No. 11 of C. M. Pate to he so changed as to make it show that witness said the reverse of what he did say. 3.

J. Driver, Judge; 1. Appellant did not get a fair and impartial trial. Any misconduct of the jury presumptively vitiates the verdict. The jury were permitted to ramble around in Violet Cemetery and look at the freshly-made grave of the deceased, etc. Mrs. Sullinger also sat by the side of the State’s attorney during the trial.

Chancery Court; George T. Humphries, Chancellor; Since Bispham did not assert any right to redeem, Dalton’s right to all of the surplus became absolute. Bispham was a party to the suit, but made no claim to the surplus. He was the only person who ever had any right to interfere with Dalton’s right to the surplus. Bispham did not elect to redeem, and Dalton, therefore, became the absolute owner of the surplus.

Trimble, Judge; 1. Under the evidence, if defendant is guilty of any crime, it is for violation of Kirby’s Dig., § 5135, making it a misdemeanor to procure intoxicating liquors for another. But he was not indicted for that offense, but the indictment was under section 2, Act No. 30, Acts 1915, page 98. This act does not repeal section 5135 supra. The act does not apply to this case.

Cowling, Judge; 1. The question of good faith, in the delivery should have been -submitted to the jury, as a defense and not merely in mitigation of punishment. There must be an intent to violate _ the law — delivery itself is not a crime. 169 S. W. 604, 603, 606; 157 S. W. 908; 66 So. 115; 219 Fed. 334; 164 la. 112; 145 N. W. 45. The consignee told the agent that the consignment was for medicinal purposes.

B. Priddy, Judge; 1. The verdict is not supported by the evidence. Thompson’s explanation of his possession of the cotton Was sufficient and is corroborated. 2. All the character witnesses (except one) stated that his reputation was good. 3. In his explanation as to how he got the $309 spent, he became confused and merely made a mistake. 4. A new trial should have been granted for newly-discovered evidence. 86 Ark. 481. 5.

M. Jackson, Judge; 1. The .demurrer to the answer should have been overruled. A carrier may apply on intrastate traffic moving over the same rails, between, the same points, a freight rate that has been declared by the Interstate Commerce Commission to be reasonable on interstate traffic, moving between the same points in order to remove a discrimination between such rates. 234 U. S. 342; 205 Fed. 380; 38 I. C. C. 459; Rowland v. R. R. Comrs., etc., 244 U. S. 106; Am. Exp.

Cowling, Judge; 1. The indictment does not state facts sufficient to constitute a public offense. It does not charge that defendant knowingly and wilfully, and with intent, etc. Kirby’s Digest, § 1842, has been repealed, and if sustained at all it must be under section 1990, and still is defective for want of averment of intent, knowledge and wilfulness. 58 Ark. 98; 69 Id. 454; 112 Id. 282; Acts 1911, No. 76. 2. The court erred in its charge to the jury.

Under the evidence a peremptory instruction should have been given for defendants. A constant lookout was kept, and any presumption of negligence was overcome by the proof. Everything possible was done to avoid the injury after the horse was discovered. 39 Ark. 413; 40 Id. 336; 41 Id. 161; 53 Id. 96; 67 Id. 514. 2. The justice had no jurisdiction and the circuit court acquired none on appeal.

Francis Circuit Court; J. M. Jackson, Judge; 1. A continuance should have been granted to enable defendant to procure the attendance of the witness, Toms. The motion was in due form, filed in a fit time, gave the names and residences of the witnesses and set out all the facts he expected to prove. The testimony was material and not merely cumulative. Art. 2, § 10, Const.; 58 Ark. 549; 2 Id. 33; 10 Id. 527; 26 Id. 496; lb. 496. 2.

W. Smith, Judge; 1. Tbe court erred in overruling the motion for a continuance. The testimony was material and good cause and due diligence shown. 2. It was error to overrule the demurrer to the indictment. The names of the owners of the property stolen were not stated. 73 Ark. 33; 109 Id. 403; 117 Id. 299; 123 Id. 519. The obligation of ownership is essential. 3.

Bert Hill was not sworn as a witness. 2. The verdict is clearly excessive and contrary to law and the evidence. 81 Ark. 13. 3. Plaintiff absolutely failed to make out his case, even on his own testimony and not sworn to. He himself violated the contract. The court properly overruled the demurrer and refused appellant’s instructions 1, 2 and 3. It properly gave Nos. 1 to 7 on its own motion. The judgment is right on the evidence, even if ap-pellee was not sworn.

This suit was instituted in the proper forum. It is different from 30 Ark. 275 and 113 Id. 138. It is in the nature of a suit for money had and received. 2. The action of the county court in raising the assessment certified out by the State Tax Commission was illegal and void. Const., art. 16, § 5, Act 257, Acts 1909, Act 251, Acts 1911. The legislative will is supreme.

Mandamus to Pulaski Circuit Court; G. W. Hendricks, Judge; 1. It was the duty of the court to receive the ver-diet and enter judgment thereon.- Even if Act 52 is in conflict with the Constitution, no objection was made, and the right to a unanimous verdict of twelve jurors was waived. It was the duty of the court to receive the verdict and enter judgment thereon. Kirby & Castle’s Digest, § § 7343, 7682, 7687; 44 Ark. 202; 79 Mo. App. 627; 19 Ohio Cir. Ct. Rep. 425. 1.

The act was legally passed. It was enrolled, signed by tbe President of the Senate, the Speaker of the House, approved by the Governor and filed with the Secretary of State. 34 Ark. 283; 110 Id. 273. 2. The act does not violate section 2, article 2, Constitution of Arkansas. 58 Ark. 414. It does not deprive the employer of any constitutional right. Under the police power of the State, the act is valid. 58 Ark. 414; 94 U. S.. 113; 143 Id. 517; 125 Id. 680; 49 Ark. 325; 3 Ala.

Cowling, Judge; 1. A substantial compliance with Kirby’s Digest, section 5407, is sufficient. 40 Ark. 431; 60 Id. 112; 28 Id.' 244; 5 R. C. L. 410, 24 U. S. (Law ed.) 544; 88 Tex. 26; 33 L. R. A. 163; 16 L. R. A. (N. S.) 703. 2. The letter to the clerk, with the mortgage, was a substantial compliance with the statute. 1 Fed. Cas. 112, 114; 7 Words & Phrases, 6742; 43 Ark. 144; 5 R. C. L. 409, § 35; 30 N. J. L. 259; 83 Ill. App. 267; 106 Col. 208; 84 Ind. 248; 39 Barb.

Hay-nie, Judge; 1. When this cause was here before (124 Ark. 415) the only question was the interpretation of Kirby’s Digest, § 3570. A ferry privilege once granted may be revoked by proper order. 95 Ark. 344. But until revoked the privilege continues, and it is the duty of the ferryman to pay the tax each year. Kirby’s Digest, § § 3558-3561 to 3582. 2.

Elliott, Chancellor; 1. The evidence shows conclusively that appellant M. S. Branstetter was the owner of an undivided one-half interest in the land by virtue of a deed from P. A. Douglas, ¡and in addition is entitled to whatsoever interest was devised to him by the will of his father. 2. The original will was duly executed 'and attested. If a codicil was added it was never attested, and did not revoke nor change the original will. Kirby’s Digest, § 8012; 85 Ark. 363. 3.

Shaver, Chancellor; I. A notary public is a public officer authorized to take acknowledgments which are received as evidence of the facts stated, and are prima facie true. Kirby’s Digest, § 7155 j 107 Ark. 272; 62 Id. 265. A strong presumption exists in favor of the truth where the certificate is regular. 1 Corp. Jur. 893-4, § § 275, 277. Gordon testifies that he took Mrs. Gee’s acknowledgment as he certified to it. 96 Ark. 566; 104 Id. 226; 107 Id. 16. 2.

It was error to admit the testimony of Joe Lim-berg ; also to refuse evidence tending to impeach him as a witness. 2. The statement of the court in reference to the evidence of Watrous, was prejudicial and an error. Wat-rous’ testimony as to the raid and finding whiskey in somebody else’s room was prejudicial error. 3. It was error to refuse to permit Julius Richmond’s testimony. 4. Proof of the commission of other crimes is not admissible. 92 Ark. 555; 84 Id. 16.

Coleman, Judge; 1. The plea of former jeopardy should have been sustained. 43 Ark. 271; Kirby & Castle’s Digest, § 2515; 81 Ark. 41. 2. The evidence does not warrant a conviction. Appellant took the hog in good faith, believing it was his own. 1. The plea of former jeopardy was properly overruled. 26 Ark. 260; 29 Id. 31; 32 Id. 231; 13 Id. 722. 2. The evidence sustains the verdict and there is no error.

Humphries, Chancellor; Tbe tax sale was void. The law was not complied with. Art. 7, § 3, Const.; Kirby’s Digest, § § 1496-8; 100 Ark. 488; 22 Mich. 104; 103 Ark. 579. Tbe record does not show that a vote was taken, but only recites that it was unanimously ordered, not voted, and does not show that a quorum was present. The sale was not void. All necessary steps were taken according to law as the record shows. 81 Ark. 73-79; 71 Id. 222; 107 Id. 374-380.

<p>Larceny — horse—amount of punishment. — Appellant was indicted for the larceny of a buggy of the value of $40, a set of harness of the value of $10, and a horse. The jury found defendant guilty and fixed his punishment at 10 years in the penitentiary. The court instructed the jury that they could convict and punish either for the larceny of the horse or of the buggy and harness. Held, under this instruction the conviction was manifestly for the larceny of the horse, and that therefore, under the statute, the punishment fixed was not excessive.</p>

Mar-tineau, Chancellor; 120 Ark. 226 is not conclusive of this case. The ordinances are differently worded and seek to accomplish different objects. It is the dnty of the courts to give effect to the intention of the Legislature and not defeat it. 40 Ark. 431; 58 Id. 116; 83 Id. 116; 104 Id. 593; 109 Id. 564; 112 Id. 123; 114 Id. 260; 121 Id. 349. Less regard is to he paid to the words used than to the policy which dictated the act. 28 Ark. 200.

The testimony fails to show a sale of liquor by defendant. 2. The court erred in giving instruction No. 3 and in refusing 1 and 2. 90 Ark. 579. 1. The testimony shows a sale of liquor, but appellant was guilty as an intermediary. 125 Ark. 232; 105 Id. 462; 56 A. L. E. No. 5, 348. 2. There is no error in the instructions given or refused. 90 Ark. 579.

Haynie, Judge; 1. The motion for continuance was properly overruled. Kirby’s Digest, § 6173; 100 Ark. 132. 2. The indictment is sufficient. Kirby’s Digest, § 2228. 3. The so-called confession was admissible in evidence. 102 Ark. 525; 1 Ruling Case Law, 551; 18 L. R. A. (N. S.) 771, note; 73 Kan. 688; 101 Ga. 9; 29 S. E. 309. The confession was voluntary. 28 Ark. 121; 50 Id. 305; 63 Id. 527; 74 Id. 399.^ 4. There is no error in the instructions.

M. Jackson, Judge; Dower is a freehold estate, growing out of marriage, seizin and the death of the husband. 5 Ark. 608 * 8 Id. 9; 19 Id. 424; 31 Id. 576-9. It is a favorite of the courts. 11 Ark. 82; 11 Id. 103. It can only be released by some instrument of writing. 21 Ark. 62; Kirby & Castle’s Digest, § § 2916, 3982, 3984. 2. There never was an election to take under the will.

<p>Appeal from Pulaski Circuit Court, First Division; Robert J. Lea, Judge;</p> <p>1. Evidence of other larcenies was inadmissible. 37 Ark. 264; 39 Id. 278; 1 Wigmore on Evidence 426, par. 346; 52 Ark. 309; 54 Id. 626; 91 Id. 559; 117 Id. 296; 110 Id. 226; 120 Id. 157; 87 Id. 17; 85 Atl. 731; 167 Mich. 53; 132 N. W. 470;1 Jones on Evidence (1913 ed.), 720; 62 L. R. A. 193, note; 25 Cyc. 107, notes 23, 30, etc.; 97 N. Y. Supp. 917; 125 Id. 976; 134 N. W. 807; 117 S. W. 148.</p> <p>2. Cynthia Carmichael was an accomplice and there was no corroboration of her testimony. Kirby & Castle’s Digest, § § 1643-4-5; 36 Ark. 126; 111 Id. 299; 194 S. W. 863.</p> <p>1. Evidence of other larcenies was admissible to prove a general scheme and felonious intent. 32 Ark. 238; 13 Id. 168; 60 Id.; 75 Id. 433; 81 Id. 173.</p> <p>2. Cynthia Carmichael was not an accomplice. Kirby’s Digest, § 1562; 90 Ark. 460; 53 S. W. 416; 66 Pac. 372; 44 S. E. 850; 58 N. E. 81; 91 Ark. 506. But, if so, her testimony was amply corroborated.</p>

B. Sorrells, Judge; 1. The evidence does not support the verdict. The court should have given the instruction asked as to the presumption of innocence. 1 G-reenleaf on Ev., par. 34. 2. It was error also to refuse to give No. 4 as to reasonable doubt. May’s Cr. Law, par. 277; 25 Cyc. 18; 179 5. W. 568. 3. To constitute larceny there must be a felonious intent, ánd the court erred in refusing instruction No. 6 asked. 60 Ark. 5. 4.

Trimble, Judge; 1. The court erred in excluding the evidence of J. Umsted. 103 Ark. 27; 108 Id. 129. Also the evidence of L. Hall. 72 Ark. 432. It was also error to exclude evidence of deceased’s reputation. Also in excluding defendant’s evidence and that of O. P. Nall. 2. It was error to refuse defendant’s requests for instructions and because of newly discovered evidence a new trial should have been granted. 1. The evidence of J. Umsted was properly excluded.

A. Falconer, Chancellor; 1. The court erred in making appellee a preferred creditor. There was no finding that the estate of D. J. Young was insolvent. 1. The general finding for plaintiff included the special finding that the estate was insolvent. 53 Ark. 537; 65 Id. 14. The undisputed evidence was that the estate was insolvent and it must be assumed that the court did not disregard this undisputed evidence. 102 Ark. 72. 2.

B. Priddy, Judge; 1. The verdict is contrary to the evidence. 70 Ark. 386. 2. The opinion of the circuit judge entitled defendant to a new trial. 126 Ark. 427; 112 Tenn. 463; 85 Id. 387; 102 Id. 702; 113 G-a. 453. ■ 3. The court erred in its instructions. Cooley on Torts, 70, 71 (1879 ed.); 66 Ark. 68; 3 Am. & E. Ann. Cases, 57. 4. Defendant was entitled to a new trial for newly discovered evidence. 5. The damages were excessive. 1. Arbaugh was negligent.

A constant lookout was kept. Tbe injury was unavoidable and tbe verdict is contrary to all principles of justice. 39 Ark. 413; 40 Id. 336; 41 Id. 161; 53 Id. 96; 67 Id. 514. 2. No foundation was laid for tbe introduction of tbe letter. 94 Ark. 158-165; 93 Id. 179; 57 Id. 402; 23 Id. 131. 3. No claim was ever presented. Acts 1909, 779, 4; 104 Ark. 500; 233 U. S. 325. 4. Tbe act of 1907 is unconstitutional. 234 U. S. 354; 233 Id. 325. 5.

Coleman, Judge; 1. The contract wals one of conditional sale. The word “lease” used therein does not change the legal effect of the instrument. Williston on Sales, 526, § 336; 120 Fed. 64; 58 Am. Dec. 767; 89 Am. Dec. 124; 95 Am. Dec. 455; 79 Am. St. 41; Mechem on Sales, § § 569, 57Ó; Tiffany on Sales (2 ed.), 134. 2.

W. Smith, Judge; The court’s'instructions 1 and 2 were misleading. Actual receipt of the policy by the insured was not necessary to fix the liability. ■ Where nothing remains to be done by the insurer, the mailing of the policy duly executed to the insured, constitutes delivery. 97 Ark. 229; 65 Ark. 581; 96 N. W. 954; 98 Ark. 388; 19 Cyc. 603. Manual delivery is not essential to render a policy binding. 9 Ky. Law Rep. 932; 28 Me. 51; 48 Am.

Trimble, Judge; The will was sufficiently proven to admit it to probate. The'intention of the testator was clearly proven. 13 Ark. 475, 483. A will may be proven by testimony other than that of the attesting witnesses, lb. 473, 31 Id. 588. The law was substantially complied with and the will should be probated.

B. Priddy, Judge; 1. The burden was on the bank and it had the right to open and close the case. 39 Ark. 102; 95 Id. 593; 29 Id. 151; 32 Id. 593, 597; 59 Id. 143. 2. A verdict should have been directed for appellant. The bank purchased the draft and paid for it before it was sent for collection. 57 Ark. 468; 97 Id. 442; 90 Id. 443. 3. It was error to refuse the instruction asked by appellant.

The court erred in its instructions to the jury. None of the meat was lost or thrown away, but was all sold and the purchasers were .satisfied. Plaintiff sustained no loss nor injury. The verdict is against the evidence. There is no evidence that defendant knew or had reasonable grounds to believe the hog was diseased. There is an entire failure of proof. 68 S. W. 277; 111 N. E. 785; 100 Id. 1078; 8 S. W. 667; Kirby’s Digest § 1701. 2.

M. Jackson, Judge; 1. There is reversible error in the refusal to give the instructions asked. Act 134, Acts 1911, § 12; Kirby & Castle’s Digest, § 6437; 122 Ark. 28; 116 Id. 26; 102 Id. 351. A motorist must stop his car if he sees, or by exercise of ordinary care could see, the frightened condition , of the horse. Section 12_, act 134, Acts 1911, etc. • 2. There is error in the court’s charge. , 122 Ark. 32.

P. Henderson, Chancellor; 1. The reassessment was properly made. 121 Ark. 110. 2. The notice of assessment was sufficient. Act 1915, p. 143, § 10; 103 Ark. 462-3. 3. The presumption is in favor of the assessment. The assessment of benefits is presumed to be correct and ■ the burden is upon the plaintiffs to set it aside. 80 Ark. 462; 84 Id. 262; 91 Id. 381; 99 Id. 523; 199 U. S. 203. 4. A reasessment was properly ordered. Acts 1915, p. 144. 5.

J. Driver, Judge; 1. The policy lapsed on March 2, 1916. Deceased had borrowed its entire loan value in September, 1915. 2. Premium notes for entire amount could not be accepted. 3. There was no automatically continued term insurance. 4. The policy was not continued in force by its paragraphs styled “Cash Loans” and “Table of Loan Values.” The insured was in default. 62 Oh. St. 385. See also, 122 Ark. 223. 5. The case in 125 Ark. 372 is not analogous.

P. Henderson, Chancellor; 1. The taxes had been paid and the tax sale and.deed were void. 32 Ark. 386; 15 Id. 331, 336; 21 Id. 578; 37 Id. 100; 23 Id. 375; 97 Id. 369; 22 Id. 118. 2. The land was not properly described nor advertised. 15 Ark. 363; 21 Id. 578; 59 Id. 46; 27 S. W. 970; 112 Ark. 159; Black on Tax Titles, 37-8; 36 L. R. A. (N. S.) 1063. The sale was unauthorized and void. Appellee acquired no title. 1.

Mar-tineau, Chancellor; 1. Abandonment by a share-cropper causes him to lose all interest in the crop. 87 Ark. 328; 8 E. C. L. 373, par. 19; 25 Ark. 327; 34 Id. 182; 39 Id. 286; 48 Id. 266; 79 Id. 427.

; A. B. Priddy, Judge; 1. It was error to admit proof of other acts of negligence by the fire boss. 6 Thompson on Negl., § 7785; 25 Atl. 426; 32 Pac. 1020,11 S. E. 776; 44 Am. Rep. 693; 115 Mass. 240; 58 Ark. 468; 81 Id. 591; 91 Atl. 202; 29 Cyc. 611. 2.

Cowling, Judge; 1. The court erred in ordering the witness, Campbell, to be held in bond in the presence of the jury. 38 Cyc. 1316, 1320; 40 Id. 2603; 34 Ark. 257; 43 Id. 99; 46 Id. 141; 56 Id. 7; 58 Id. 478; 60 Id. 450. The conduct of the judge in causing the arrest of the witness was highly prejudicial. 42 S. W. 384; 36 S. W. 477. 1. The action of the court was proper and not prejudicial.

B. Priddy, Judge; 1. The court erred in continuing the cause. . 2. Illegal evidence was admitted, copies of unau-thénticated maps. Kirby & Castle’s Digest, § § 3369, 3376. 3. The verdict is directly in the teeth of the evidence. 4. The court erred in its instruction as to the burden of proof. Kirby & Castle’s Digest, § § 3418, 3447. 5. Argue other points not decided by the court nor mentioned in the opinion. 1.

Mar-tineau, Chancellor; 1. The evidence shows that the deed from John R. Walden to his wife, Julia, was a forgery and a fraud, and hence appellants must prevail. 2. This suit is not barred, as it was brought within apt time after the fraud or forgery was discovered. Kirby’s Digest, § 5077: 61 Ark. 527; 92 Id. 618-621; 108 Id. 342. 3.

B. Priddy, Judge; 1. The demurrer should have been sustained. The information charged no offense. Kirby’s Digest, § § 7907, 7912; Acts 1907, 266; Kirby’s Digest, § § 7913-16. 2. The indictment must conclude against the peace and dignity of the State of Arkansas. 47 Ark. 230.' 3. The State should have been required to elect. 82 Ark. 203; 37 Id. 408; 37 Id. 412. 4. The rule or order was never promulgated. 18 N. Y. Supp. 768; 165 Fed. 936.

This case is easily distinguished from the Bled-soe case1,197 S. W. 17, and is not governed by it. 2. The indictment should have been quashed on account of the conduct of the judge. No public offense is charged. Kirby & Castle’s Digest, § 7837; 85 N. E. 728. 3. The venue should have been changed on the showing made. 4. The court erred in its charge to the grand jury. 5.

E. Mar-tinecm, Chancellor; 1. The evidence is not sufficient to overcome the written contract, or that it was abrogated and a new one made. The findings of the chancellor are clearly against the preponderance of the evidence. 105 Ark. 233; 98 Id. 459; 102 Id. 658, 663; 102 Id. 382; 92 Id. 359; 104 Id. 488; 84 Id. 349 ; 83 Id. 340. 2. The finding and decree are against the preponderance of the competent evidence. 78 Ark. 209; 97 Id. 135; 95 Id. 6.

This was a felony, and the record fails to show that defendant pleaded to the indictment or that the jury were sworn. 37 Ark. 61. 2. The evidence fails to warrant a conviction. Incompetent testimony was also admitted. 1. Ño objections were made to the case proceeding to trial. The objection comes too late on appeal. 79 Ark. 293; 51 Id. 126; 56 Id. 488; lb. 4. It is too late after verdict. 40 Ark. 511; 44 Id. 122; 36 La.

Trimble, Judge; The demurrer should have been sustained to the complaint, because the complaint and contract do not show title in appellant. No delivery of the hay is alleged or shown. The sale was not completed and title did not pass. 66 Ark. 138; 102 Id. 532; 31 Id. 137; 102 Id. 349 ; 35 Id. 304. The hay was never actually delivered, nor was there a constructive delivery. 35 Ark. 304; 63 Id. 232; 90 Id. 438; 102 Id. 25. 1.

B. Priddy, Judge; 1. Tbe work was done acceptably under tbe contract, and tbe town paid a part of tbe price. Tbe improvements were necessary and valuable, and appellant was entitled to recover sucb amount as bis services were worth. It was tbe duty of tbe town to keep its streets in repair. Kirby & Castle’s Digest, § 6483; Act March 9, 1875; 61 Ark. 397; Beach on Publ. Corp., § 217; 47 Ark. 269; 58 Id. 348; 98 Id. 38; 124 Id. 6-9; 28 Cyc. 1044; 36 Cent. Dig., § 880.

Wood, Chancellor; 1. There was no real contract between father and son, no meeting of minds of these two parties, and there was no such contract as could be enforced. W. A. McLeod was a minor. The land was a part of the homestead, and was so impressed. The wife never joined in any deed nor relinquished her dower. 126 Ark. 182; 56 Ark. 146; 71 Id. 283; 108 Id. 53; 95 Am. St. Rep. 928; 113 Am. St. Rep. 802; 39 Cyc. 1217; 33 Ark. 399; 29 Id. 280; 123 Ark. 200; 113 Ark. 134. 2.

M. Jackson, Judge; 1. The allegations of the complaint must be taken as true upon demurrer. 101 Ark. 350. 2. The master is liable if, while in his employ, the servant is injured by the master’s negligence. Act 175, Acts 1913, p. 734.

J. Driver, Judge; 1. Tbe verdict is not supported by tbe evidence. No negligence is proven. If appellant used sucb care as an ordinarily prudent person would bave used under similar circumstances, be was not liable. He bad tbe right to pass appellee using ordinary care. Tbe overwhelming preponderance of tbe evidence shows that appellee’s mules did not run away until tbe car passed.

B. Priddy, Judge; 1. Each of the two orders was a separate contract. As a matter of fact there were three separate contracts entered into, one of which was for the purchase of one car of the same character of feed for immediate use, and which was fully executed. One of them, No. 7, contained the contract for the exclusive sale of the products in certain territory, subject to confirmation.

J. Driver, Judge; 1. The complaint merely states that defendant is due plaintiff $50. It does not state whether the amount is due from breach of warranty or from the fact that he was a minor and the contract void. He could not rely on both grounds. The two contentions are inconsistent. 1 PI. & Pr. 183 (b), and notes 2 and 3.

Wood, Chancellor; 1. The act is valid. It was legally passed. 19 Ark. 250; 32 Id. 496; 33 Id. 17; 40 Id. 200; 90 Id. 174. The presumption is that it was legally passed. 90 Ark. 174; lb. 600; 51 Id. 559; 33 Id. 17. Mere clerical errors in the journal will not -invalidate. 40 Ark. 215. The error is immaterial. 103 Id. 109. The omission of the word “road” was immaterial. 80 Ark. 150; 93 Id. 168; 94 Id. 422.

Wood, Chancellor; 1. The Legislature can do anything not prohibited by the Constitution, and all presumptions are in favor of the validity of an act. The Legislature can create an improvement district embracing lands in more than one county. 89 Ark. 513; 92 Id. 93; 102 Id. 560; 104 Id. 429; 120 Id. 277; 125 Id. 329; 96 Id. 410. 2. It can provide for the appointment of commissioners who are not residents of the county where a part of the road is to be improved.

A. Falconer, Chancellor; 1. The decision of this court on the former appeal is conclusive as to the $200 interest paid. 124 Ark. 154; 118 Id. 558; 94 Id. 183; II. 329; 117 Id. 560; 120 Id. 61. 2. Appellant’s complaint entitled him to judgment for the $200. The prayer for general relief was sufficient. 4 Ark. 302; 17 Id. 113; 15 Id. 555; 19 Id. 62; 39 Id. 531; 20 Id. 322; 74 Id. 93; Jones on Mortg., § 71; 66 Ark. 374; 4 Johns. Chy. 123. 3.

<p>Appeal from Clay Circuit Court, Eastern District; W. J. Driver, Judge;</p> <p>1. The court erred in permitting witnesses to testify as to the occurrence of other fires at different times. 52 C. C. A. 95; 114 Fed. 133; 27 Fla. 1; 15 S. E. 828; 78 N. E. 838; 53 N. E. 1078; 98 Penn. 316; 60 Atl. 581; 70 S. W. 999; 42 N. H. 97; 12 N. Y. Supp. 1046; 76 Id. 171; 67 Hun (N. Y.) 179; 48 S. E. 521; 17 N. W. 132; 78 Pac. 828; 56 Id. 286; 52 Ark. 105.</p> <p>2. The court erred in instructing the jury that the measure of damages was the difference in the value of the land immediately before and after the fire. 59 Ark. 105; 8 R. C. L., § 46, p. 484; 33 Cyc. 1389; 65 N. E. 249; 61 E. C. L. 250; 48 Am. Dec. 401; 44 S. W. 802; 33 S. W. 615; 97 Id. 727; 20 S. E. 129; 77 N. W. 517; 47 N. W. 146; 41 Pac. 1051; 31 N. E. 997.</p> <p>1. Evidence of other fires occurring was admissible. 59 Ark. 105; Act 141, Acts 1907; 121 Mo. 340; 25 S. W. 936; 42 Am. St. 530; 25 L. R. A. 175; 10 Enc. of Ev. 551, and note; 91 IT. S. 47a; 23 L. Ed. 362; 14 N. Y. 223; 67 Am. Dec. 155; 10 Jur. 571; 3 Mann & G-r. 515; 32 N. Y. 339; 49 Id. 421; 10 Am. Rep. 389; 63 N. H. 25; 3 C. C. A. 264; 52 Fed. 711; 10 U. S. App. 375; 85 Me. 509.</p> <p>2. The court properly instructed the jury as to the measure of damages. 8 R. C. L., § 46, p. 484; 119 Ark. 143; 59 Ark. 105; 36 Id. 205; 67 Id. 371; 16 S. W. 998; 35 Id. 662.</p>

Elliott, Chancellor; 1. The chancery court had jurisdiction. 13 Ark. 419; 14 Id. 209; 9 Id. 188; 40 Id. 229; 35 Id. 529; 4 la. 420; 2 B. C. L. 260. 2. The relief prayed should have been granted. 1. The writ of error coram nobis is a common law writ. A chancery court has no jurisdiction. 2 B. C. L. 306-7; 54 Am. Dec. 120; 60 L. R. A. 572; 205 TJ. S. 141; 19 L. R. A. 762. 2. The petition is not sufficient to bring tbe case within our statutory provisions for vacating judgments.

Elliott, Chancellor; 1. The court erred in disallowing the notes as a preferred claim. The legal title was retained to the property in the contract and there was no waiver by presenting the claim to the receiver for allowance. 107 Ark. 337; 74 Atl. 362; 116 Ark. 246; 185 Fed. 179; 163 Id. 943; 221 Id. 128; 12 How. 225; 50 Pac. 941; 91 N. E. 154; 103 N. W. 710; 23 S. E. 90; 142 N. W. 652; 79 Pac. 564; 35 S. W. 396. 2.

M. Jackson, Judge; 1. No motion for new trial, nor bill of exceptions is necessary, as the error appears upon the face of the record. 11 Ark. 474; 125 Id. 308; 66 Id: 180. 2. The court erred in granting the widow dower absolutely in one-third of the proceeds of the sale of the lands. She should only have been endowed for life. 87 Ark. 505; 2 Woerner on Adm., 481. 1. There was no motion for new trial nor bill of exceptions. 2.

Coleman, Judge; 1. Alton assumed the risk. He was experienced and knew of the defects. 95 Wis. 6; 60 Am. St. 66, ,68: 188 S. W. 549, 551. The danger was obvious. 2. The witnesses who testified as experts were either incompetent, or, .if competent, proved Alton to be more of an expert than they and bound him to a full appreciation of the danger. The testimony was not expert but simple speculation.

Wood, Chancellor; I. The proof shows that Jolly believed in good faith that he was the owner of the timber and appellant was an innocent purchaser of the stave bolts. It was, therefore, only liable for the timber value of the bolts. 65 Ark. 448; 451; 123 Id. 127; 124 Id. 574; 127 Ark. 129. Jolly had no title. He was a trespasser.

Eliiott, Chancellor; 1. The evidence shows that E. S. Ready was interested-in the New South Oil Mill; that he was at the same time director and special committeeman for the stockholders of the Valley Oil Company, a trustee for the Valley Oil Company and its stockholders — and that as such trustee he is forbidden by law to speculate with the trust property in the name of a partnership in which he was interested, or in his own name. 83 S. W. 599; 14 Pac. 545; 40 N. E. 362; 84…

.A Falconer, Chancellor; 1. The findings of the court are not supported by the evidence. Appellant acted at all times in good faith. He attempted to tell the true condition of affairs. His statements to he fraudulent must have been made with the knowledge that same were fraudulent. 31 Ark. 170. 1. Appellant’s statements were false and the court so found. The findings are sustained by the evidence. 87 Ark. 593; 99 Id. 428; 83 Id. 524; 98 Id. 328; 97 Id. 438. 2.

B. Priddy, Judge; 1. A dismissal of a case, other than upon its merits, is in effect a dismissal without prejudice to a future action. Kirby & Castle’s Digest, § § 7606, 6011; 121 Ark. 454; 69 Id. 431; 47 Id. 120, 125; 35 Id. 62; 36 Id. 389; 47 Id. 387; 140 Fed. 385; 5 Am. & E. Ann. Cas. 314; 46 Wash. 79; 13 A. & E. Ami. Cas. 653; 9 Id. 341. It was error to ■sustain the plea of former adjudication.

H. Evans, Judge; 1. The verdict is contrary to the law and the evidence and the court erred in not directing a verdict for defendant. The appellant is not liable, because (1) the carriage was gratuitous, (2) the injury was due to the inherent vices and propensities of the animals shipped, and (3) appellee could not abandon the mule and require appellant to pay for it.

R. Hay-nie,- Judge; 1. The judgment against M. H. Labat was void for want of notice. He was not a party. Kirby & Castle’s Digest, § 5153. 2. The judgment is not responsive to the issue. 83 Ark. 205; 128 Ark. 25; Id. 229. 3. It was error to render judgment against the in-terpleader and bondsmen for the debt. 99 Ark. 97; 100 Id. 515. 4. No motion for new trial, nor exceptions were necessary; the judgment was unauthorized. 5 Ark. 700; 62 Id. 421. 1.

The conditions of the policy as to an appraisement were not complied with and there can be no recovery. 15 L. E. A. (N. S.) 1055, 1061-2-3, 1069; 50 N. E. 805; 73 N. W. 594; 94 Id. 458; 76 Id. 72; 50 Atl. 282; 61 N. W. 67; 50 N. E. 943; 69 Mo. App. 232; 61 S. W. 787. 2. The clause in the policy as to appraisement is not contrary to Kirby’s Digest, § 4382, nor void. 107 N. W. 59.

J. Driver, Judge; 1. Plaintiff was a passenger, and entitled to tbe same degree of care. He was an employee of tbe Lansing Wheelbarrow Company. 98 Ark. 514; 56 Id. 594; 79 Fed. 56L 2. Proof of injury makes a prima facie case of negligence, and tbe presumption was not overcome. 83 Ark. 217; 88 Id. 12; 87 id. 308. 3. Tbe facts should have been submitted to a jury upon an instruction of discovered peril. Kirby’s Digest, § 6607; Kirby & Castle’s Digest, § 8131; 56 Ark.

E. Evans, Judge; 1. Appellants were guilty of negligence in failing to whistle at the whistling post, and in failing to properly warn deceased of the approach of the train. It was error to take the case from the jury. If there was contributory negligence it was a question for the jury. 99 Ark. 377; 81 Id. 591; 82 Id. 640; 90 Id. 223; 98 Id. 227; 95 Id. 291; 91 Id. 337; 88 Id. 548; 79 Id. 53; 78 Id. 100; 89 Id. 522; 92 Id. 502; 95 Id. 560; 70 Id. 100; 61 Id. 341.