Volume 131 — Arkansas Reports

B. Baker, Judge; 1. ' It was error to give instruction No. 3. It charges the jury with regard to matters of fact. The case of 58 Ark. 353 is not the law, and should be overruled. 46 Ark. 151; 37 Id. 592; 45 Id. 173; 49 Id. 448 ; 43 Id. 289; 55 Id. 244; 53 Id. 381; 58 Id. 108; 16 S. W. 483;'183 Id. 1059, 1067; 191 Id. 1002; 192 Id. 469; 6 Okla. Cr. 356; 93 N. E. 790; 99 Id. 702; 71 Id. 405; 107 Id. 179; 2 Thompson on Trials, 2421; 2 Bishop, New Cr.

The court erred in permitting counsel for plaintiff to question the jurors on their voir dire in reference to casualty and indemnity companies, and in permitting him to make statements to the effect that such companies insure against damages, etc.; which line of questioning and remarks were improper and prejudicial. 104 Ark. 1; 114 Id. 542. 2. The instructions given on plaintiff’s theory were erroneous and prejudicial. Nos. 1 and 2 were abstract.

W. Hendricks, Judge; 1. The contract was unambiguous and the goods were sold to Johnson outright. The evidence is conclusive of a sale. 168 S. W. 290; 182 Mo. App. 140; 180 S. W. 21; 163 Id. 662; 115 Ark. 166; 124 Id. 539; 166 S. W. 162; 126 Ark. 597. 2. The court erred in its instructions to the jury. Cases supra. 1. The jury found that the contract was one of agency, and the evidence supports the verdict. 187 S. W. 653. The contract was ambiguous. 4 Mass. 205. 2.

R. Dudley, Judge; 1. There is but a single question, involved. Where wild and unimproved lands, on which the grantor has paid taxes under color of title, are, after the passage of the seven years’ tax payment statute (Kirby’s Digest, § 5057) conveyed by deed containing the statutory covenants of warranty, is the breach, if there be a paramount outstanding title, instantaneous, or is it postponed until that title is asserted?

A. Falconer, Chancellor; 1. The power to assess real property for local improvements depends upon the assent of a majority in value of the owners. Without such assent the proceedings are void. Art. 19, § 27, Const.; 50 Ark. 116; 59 Id. 344; 67 Id. 30; 84 Id. 395; 99 Id. 508; 116 Id. 167; 123 Id. 327. See also 99 Id. 508; 127 Ark. 418. The decision of the council is not conclusive. . 2.

M. Jackson, Judge; I. In 120 Ark. 500 this court reversed the case of West v. West, and decreed that J. A. West et al. owned the lands. The hay, corn and cotton was the rent of the lands and appellants had the right to them. Where a case is reversed, on appeal the rights of the parties stand as if no action had ever taken place. 29 Ark. 85; 95 Id. 308; 70 Id. 196; 68 Id. 90.

Coleman, Judge; 1. The court erred in instructing a verdict'for defendant. All the material allegations of' the complaint were sustained by the proof. Defendant does deny that its negligence was the direct and proximate cause of the injury, and that it was its duty to warn deceased of the injury, but these are more questions of law than fact.

A. Falconer, Chancellor; 1. The case in 97 Ark. 254 is conclusive of this case. lb., 259, 260. The rule laid down there harmonizes with the case. 87 Ark. 484. See also 41 Ark. 509; 11 Peters, 543. All property is subject to taxation, and no exemptions are permitted by law. See also 92 Ark. 335; 73 Id. 515; State v. Bodcaw Lumber Co. Analogous cases, see 204 Pa. 36; 53 Atl. 517; 60 W. Va. 357; 55 S. E. 398; 155 N. C. 53; 70 S. E. 1079; L. R. A. 1915 C, 380-5; 99 Ala. 1; 42 Am.

W. Hendricks, Judge; 1. It was error to direct a verdict. At the date of the conveyance by Cherry to Kahn the north wall was charged with an. easement in Mrs. Stone. The proper rule is laid down in 89 Ark. 309, 316. This rule is sustained by the authorities. 10 A. & E. Enc. Law, 420; 27 N. E. 344; 25 Am. St. 421; 49 L. R. A. 417; 81 Am. St. 749; 6 Am. Rep. 300; 53 Id. 550; 38 Me. 429; 27 Gratt. 77; 52 Am.

; John E. Martineau, Chancellor; 1. The act violates Art. 19, § 27, Constitution of Arkansas. The Legislature can not authorize the organization of a district in a city to make an improvement outside of the city. 50 Ark. 116,125; Kirby’s Digest, § 5674; 103 Ark. 269; 67 Ark. 30, 37, 39; 246 111. 43, etc. . 2. The bridge is not a local improvement, therefore special assessments can not be levied because contrary to § 5, art. 16, Constitution. 9 Heisk. 349; 24 Am.

Trimble, Judge; 1. The deceased violated the terms of the contract by voluntarily engaging in a duel. 109 Ark. 400; 118 Id. 226. 2. The court erred in giving instructions Nos. 5 and 7. 59 Ark. 132; 109 Id. 514. The instructions were conflicting. 123 Ark. 600; 83 Id. 204; 74 Id. 441 ;■ 65 Id. 98; lb. 64; 72 Id. 40; 99 Id. 384. See also 95 Id. 506. The error was not cured by other instructions. 87 Id. 366; 88 Id. 550; 79 Id. 13.

J. Driver, Judge; 1. Appellants are not estopped to claim their rights, nor were they waived by any acts or conversations. 16 Cyc. 679. 2. The court erred in its instructions. 15 Ark. 41; 96 Id. 222. 1. Appellants are estopped. The instructions are not set out nor abstracted. But the jury were properly instructed and the evidence sustains the judgment. Appellee paid the debts under the instructions of the widow. It was then too late to claim dower.

J. Driver, Judge; 1. This is a suit in ejectment, and plaintiff must deraign and prove title. Kirby’s Digest, § 2742. Tbe complaint does not allege that the title ever passed from the United States by patent or otherwise, nor was there such proof. The patent to Porter was not filed, nor a copy thereof, the original was not exhibited nor is it of record and hence not admissible in evidence. 38 Ark. 181; 40 Id. 237.

B. Baker, Judge; 1. The first verdict was right, and should have been allowed to stand: It was error to ,set it aside. There was a variance between allegation and proof. The verdict was correct and it was an arbitrary abuse of discretion to set it aside. 2 Cyc. 559; 43 S. W. 426; 38 Id. 433. 2. The instructions are erroneous.

Martineau, Chancellor; 1. The sole purpose of the conveyance was to defraud plaintiff of her dower rights, and the fraud was participated in by both grantor and grantee. The deed’ is void. 191 S. W. 963; 40 Cyc. 1164; 10 Col. App. 443; 14 Cyc. 944 ; 9 R. C. L. 591; 1 Scribner on Dower, 588; 4 Pom. Eq. Jur., § 1383; 7 N. D. 475; 41 L. R. A. 258; 219 111. 146; 43 Ky. (43 Mon.) 215; 39 Am. Dec. 501. See also, 65 Am. St. 350; 134 Ind. 350; 96 N. W. 900,; 63 Oh.

A. Falconer, Chancellor; 1. A trust can not be attached to a full estate. It can not be attached to a greater one than a life estate. There must be a preceding estate. By purchasing the remainder, appellants became the owners of the full legal title, and the life estate was extinguished and merged and the trust terminated under the doctrine of merger of estates and acceleration of remainders. 16 Cyc. 665; 5 Words & Phr. 4492-3, 70 S. W. 414; 1 Jones on Mortg. (4 Ed.), § 848.

Coleman, Judge; 1. While the deeds are not written in the best .of language, the exceptions are sufficient to retain the mining interests in John W. Cole and his heirs. The grant and reservation are not repugnant. The intention of the parties should be ascertained and carried out. 8 Bui. Case Law 1037; 53 Ark. 185. 1. The reservation is not sufficient. It is ambiguous and repugnant to the granting clause and void. The deed conveyed an absolute estate in fee.

A. Falconer, Chancellor; 1. The ordinance conforms to the Constitution and laws of this State and is not void. 26 App. Cases (D. C.) 133; 6 A. & E. Ann. Cases 1014; 97 Pac. 199; 113 S. W. 1005; 62 W. Ya. 665. 2. The town had ample- power and authority to pass the ordinance. Kirby’s Digest, § 5439, 35 Ark. 352; 71 Id. 4-9; McQuillin on Mun. Corp., Yol. 3, p. 2063, § 948. 3. The building was a nuisance. 18 Ark. 252. See also 76 Ark. 57; 101 Id. 223. 1.

Golemcm, Judge; 1. The demurrer to the indictment ¡should have been' sustained, because it- does not state such a description of the facts and circumstances as constitute the offense charged nor inform defendant of the specific charge he is called upon to answér. 26 Ark. 323; Kirby’s Digest, § 2227.

A. Falconer, Chancellor; 1. A divorce decree can be set aside on bill of review after the death of the husband. 80 Ark. 451; 44 L. R. A. (N. S.) 507 and note; 77 Atl. 766; 2 Bishop Mar. & Div., § 1554-5. 2. The delay was explained and the findings and decree are against the evidence. The decree was obtained by fraud. 75 Ark. 415; 80 Id. 451.

H. Dudley, Judge; I. It was error to direct a verdict. All issues of fact should be .submitted to'a jury. Kirby’s Digest, § § 4382, 6170. 2. Plaintiff did not comply with Act No. 192, Acts 1905, p. 489. 51 Ark. 446. 3. The premium notes were more than six months past due. The contract should be construed most strongly against the party who prepares it. 4 Crawford’s Digest, p. 412, § 31, Acts 1905, p. 489. 121 Ark. 236 is a different case and does not apply.

Francis Chancery Court; E. D. Robertson, Chancellor; 1. The property was a homestead and exempt, and even if the husband paid for it and took the deed in the name of the wife, creditors can not complain. 43 Ark. 429; 75 Id. 205; 54 Id. 9; Art. 9, § 3, Const.; etc. 2. There is no question of an express trust in this case. 107 Ark. 535; 103 Id. 145; 56 Id. 585. 3. As to the hank stock there is nothing in the record to reflect upon the good faith of appellant.

I. Worthington, Judge; 1. This was a written contract and it was error to admit previous conversations and the court should have construed the contract and not the jury. 75 Ark. 162; 90 Id. 272; 89 Id. 239; 77 Id. 261. 2.

Francis Circuit Court; J. M. Jackson, Judge; 1. The suit was not barred; the Redman credit was known and agreed to by appellees. It was part payment. The amount due was . an account stated and the statute only began to run from the date thereof. 2 Green-leaf Ev., § 127; 89 Am. Dec. 85; 107 U. S. 325; 27 L. R. A. 811. See also 60 Ark. 491; 20 Id. 189. 2. Part payment forms a new period from which the statute begins to run. 14'Ark. 85; 18 Id. 521; 68 Id. 399; 19 Am. & E. Enc.

B. Baker, Judge; 1. The court erred in quashing the judgment of the J. P. On appeal the case was for trial de novo. The judgment was too favorable to appellant but of this he can not complain. Kirby’s Digest, § 2580; 29 Ark. 299; 80 Id. 495; 104 Id. 606; 82 Id. 25; 14 S. W. 88.

<p>1. Statutes — construction.—Parts of statutes relating to the same subject must be read in the light of each other.</p> <p>2. Arson — burning one’s own house. — Defendant can not be indicted for the crime of arson under Kirby’s Digest, section 1576, for the burning of his own dwelling house.</p> <p>3. Arson — burning one’s own dwelling house. — Kirby’s Digest, section 1576, which provides that “every person who shall wilfully and maliciously burn, or cause to be burned, any dwelling house or other house, although not herein specially named, shall be deemed guilty of arson,” must be read in connection with Kirby’s Digest, section 1575, which provides, “arson is the wilful and malicious burning the house or other tenements of another ■■person.”</p>

J. Driver, Judge; 1. The court erred in instructing the jury to find for the plaintiff. The embankment was permanent. It was constructed more than thirty-two years ago. This suit is therefore brought on the theory of a continuing or recurring tort. The original case is reported in 72 Ark. 127.

A. Falconer, Chancellor; 1. As between appellant and the loan company the only questions involved are the right of plaintiff to pay off the mortgage, the amount he should pay, and, if paid, his right to be subrogated to all the interest and equities of Brazil. The issue between plaintiff and Brazil is whether plaintiff is compelled to pay not only the $15,000 loan with interest, but also to pay the monthly installments due by Brazil on the stock.

B. Sorrells, Judge; 1. The liability of defendant as a common carrier had not terminated upon delivery to the compress company, but continued until the railway company had issued its release or clearance for the cotton. It was proven that the railway company had established a custom of requiring consignees, before they could get cotton shipped to them, from the compress company, to pay the freight charges and then the railway company would issue its release or clearance.

Francis chancery court, Edward D. Robertson■, chancellor; 1. The trust deed was not given to secure a debt due for purchase money. 114 Ark. 14. 2. The wife did not join in the execution of the deed as required for the conveyance of a homestead. 57 Ark. 242; Kirby’s Digest § 3901; 62 Ark. 431; 90 Id. 113; 152 N. W. 809; 64 Ark. 494. 3. The debt is. usurious. 62 Ark. 370; 64 Id. 69. ' Usury may be proven by circumstances. 199 Fed. 406.

D. Frierson, Chancellor; 1. The part payment on the two notes was not sufficient to take them without the operation of the statute of limitation. The evidence shows that the payments were not made. The notes were barred.

Lea, Judge; 1: The court erroneously construed the statute under which defendant was indicted in holding that the intent of the giver was wholly immaterial and so instructing the jury. Kirby’s Digest, § 1602; 65 111. 58; 47 La. Ann. 977; 23 Col. 300; 47 Pac. 375; 18 Col. 373; 38 Mich. 313. 2. The instruction No. 10 as to conspiracy was not justified by the evidence and was prejudicial. 87 Ark. ■34; 95 Id. 460. 3. No. 11 was confusing and calculated to mislead. 4.

H. Coleman, Judge; 1. Tbe court erred in quashing the writ for want of a bond. No bond was required by law. Kirby’s Digest, 4968, 4967; 52 Ark. 453. 2. Tbe court erred in directing a verdict for defendants. There was evidence of tbe agency of Crown-over and Cole, and tbe principal was bound by tbe apparent authority be bolds them out as possessing. 1 Clark & Skyles Law of Agency 1000, 1001; 48 Ark. 138; 42 Id. 97; 77 Id. 364; 55 Id. 632; II. 627, 630.

J. Driver, Judge; 1. The county judge has authority to defend cases appealed to the circuit or Supreme courts. Kirby’s Digest, § 1493; 60 Ark. 516, 519. Special counsel may be employed. 2. Failure to verify claims is not jurisdictional and it can be amended in circuit court. 84 Ark. 329; 107 Id. 292. 3. Before certiorari can be invoked there must be not only want, of authority but want of discretion. 37 Ark. 532; 66 Id. 139. Mere errors must be corrected by appeal.

D. Frierson, Chancellor; 1. A mortgagee who lends money on- the faith of a record title, without actual or constructive notice of outstanding equities, is an innocent purchaser and will be protected. .54 Ark. 273; 31 Id. 85; 71 Id. 31. The judgment of the probate court adjudging G-. B. Holifield insane was valid and not subject to collateral attack. Const. Ark., Art. 7, § 34; 11 Ark. 519; 54 Id. 480‘; 70 Id. 88; 84 Id. 32; 86 Id. 131; 66 Id. 416. . .2.

8. Maples, Judge; reversed in part, 1. The evidence is insufficient to show that appellee was lawfully married to the intestate. There is no proof as to the official character of the Missouri justice. 99 Arle. 147; 9 E. C. L. 568. The burden was on appellee to prove a valid marriage. But if so, the marriage was rendered void by proof of a former marriage. 67 Ark. 278; 54 S. W. 744.

Trimble, Judge; 1. The suit should have been dismissed or transferred. Acts 1913, 192; Acts 1909, 293. Both parties resided in the Northern District and courts of the Southern District had no jurisdiction. 2. Instruction No. 1 was error. The penalty is not for negligence or delay, but only for wilful refusal or discrimination. Kirby’s & Castle’s Dige'st, § 9903; 123 Ark. 197. There is no testimony of wilful refusal nor discrimination. 1.

T. Humphries, Chancellor; 1. The husband only had an equity of redemption at the time of his death. The widow was only entitled to dower in this -equity of redemption. 14 Cyc. 914; 31 Ark. 580; 66 Am. Dec. 467; 9 Am. Dec. 322; 37 Id. 390; 16 Atl. 669; 9 E. C. L., § 31, 588; 6 Am. Dec. 137; 1 Am. Eep. 60; 68 Ark. 457; 55 Id. 230; 2 Jones on Mortg., § 1067; 25 Ark. 54; 29 Id. 596. 2. The contract with Beloate gave him such an interest that he should have been made a party. 3.

There was no delay in the shipment and no rough handling. No negligence or want of due care was proven. Delivery was complete on delivery to the representatives of the commission people. 2. There was error in the court’s instruction on the question of delay. 63 Ark. 332; 81 Id. 474; 50 Id. 397. 3. There was error in the instructions as to notice. The provision in the contract was reasonable. 63 Ark. 372; 101 Id. 172;'82 Id. 353 ; 60 U. S. (L. Ed.) 948.

Trimble, Judge; 1. It was error to direct a verdict. The agreement was not a collateral promise but an original one apd not within the statute of frauds. Certainly there was a question of fact for a jury. 79 Ark. 1; 40 Id. 429; 124 Id. 480; 1Í0 Id. 325. 2. Appellee’s letter took the case out of the statute, or at least made, it a question for the jury. 1 Jones Com. on Ev. (1913), 924. ‘ The promise was collateral and clearly within the statute of frauds.

<p>1. Appeal and error — bill of exceptions — sufficiency of judge’s signature and APPROVAL. — A bill of exceptions was signed by the trial judge, and after his signature appeared the following: “Signed subject to change if found to be incorrect or incomplete.” Held, the certificate was insufficient. to bring up the record.</p> <p>2. Appeal and error — judge on exchange — approval of bill of exceptions. — Where a cause is tried by a judge sitting on exchange, he alone can approve the bill of exceptions.</p>

Worthington, Judge; 1. The property was in custodia legis under a writ valid on its face, and replevin would not lie. No one except the mortgagee, where the property is mortgaged, can replevy. The creditor is not liable where' he did not direct the levy. 42 Ark. 236; 58 Id. 354; 41 Id. 295; 94 Id. 216; 126 S. W. 842; Kirby’s Digest, § 6854, subd. 5; 57 Ark. 195; 127 S. W. 467; 94 Ark. 384; Kirby & Castle’s Digest, § 8426; 23 Tex. 269; 2 Gfreenl. Ev.

Martineau, Chancellor; 1. Defendants failed to comply with the Bulk Sales Act and the sale was void. 123 Ark. 285; 185 S. W. 263; 189 Mass. 598; 78 S. E. 51; 127 Ga. 303. A very material portion of the stock was sold. A sale of $39.24 from a stock of $1,500 is not a violation of act. In both of the Arkansas cases cited, the entire stock was sold in bulk. Here the sale was of a small portion — an ordinary retail sale — and was not a violation of the act. Act 88, Acts 1913.

Dowme, Judge; It was error to direct a verdict. The evidence establishes the moral fitness and the necessity of the labor, and the issue should have been submitted to a jury. Kirby’s Digest, § 2030; 61 Ark. 219-20; 85 Id. 135; 72 Id. 169; 55 Id. 10. 1. The operation of the show was not a “necessity” within the meaning of the statute. The witnesses merely gave their opinions. 125 Ark. 159; 61 Id. 216; 20 Id. 290; 55 Id. 10; 80 Conn. 582.

B. Baker, Judge; 1. The indictment is defective. It does not charge that the note was signed without the authority of Oscar Williams. 56 Pac. 750; 37 N. E. 1040; 28 Pac. 597; 46 Id. 99; 48 Id. 1024; 67 N. W. 267. A failure to allege want of authority to sign can not he supplied by proof. 32 S. W. 983; 86 N. W. 406; 27 Iowa 402; 43 Pac. 1075; 22 Cyc. 296. Kirby’s Digest, § 2243, was not intended to validate an indictment that would be invalid at common law. 29 Ark. 149.

H. Humphreys, Chancellor; 1. Appellee is barred by the statute of limitations. Kirby’s Digest, § 5061; 77 Ark. 324; 20 Id. 508; 20 Id. 542; 60 Id. 163, 499; 71 Id. 117; 53 Id. 418; 82 Id. 80; 59 Id. 460. 2. Appellant had the right to accept attornment from Patrick, although a tenant of appellee. 53 Ark. 238; 47 Id. 351; 17 Id. 546; 21 Id. 160; 45 Id. 177. 3. Appellee fails to show title in himself and can not maintain this action.

Appeal- from White Circuit Court; J. M. Jackson, Judge; 1. The instructions are conflicting and erroneous. 55 Ark. L. Rep. 348. Other instructions were abstract and misleading. 1. There is no conflict nor error in the instruction^. None of them are abstract or misleading. They state the law correctly. 104 Ark. 62; 95 Id. 300; 110 Id. 416; 94 Id. 380; 95 Id. 345; 118 Ark. 1; 95 Id. 345. The verdict is supported by the evidence and the instructions were harmonious and correct.

Barker, Chancellor; 1. The act is not a delegation of legislative authority. 35 Ark. 70; 37 Id. 374; 141 Ala. 84; 11 Ariz. 430; 46 Cal. 240; 42 Conn. 364; 62 Fla. 211; 234 HI. 146; 109 Me. 48; 200 Mass. 152; 51 U. S. (L. Ed.) 523; 35 Id. 294, and many others. 2. The last sentence in section 4 is not in conflict with section 23, Art. Y, Const. 102 Ark. 411; 121 Fed. 283. 3. Section 1 is not void for ambiguity. 91 Ark. 5. 4.

M. Jackson, Judge; 1. The court erred in refusing appellant the privilege of opening and closing the case, after admitting the issuance of the policy, the payment of all premiums and the death, and thus assumed the burden of showing that deceased had violated the by-laws of the order. Kirby & Castle’s Digest, § § 3417-18, 7635; 82 Ark. 333; Kirby’s Digest, § § 3107, 6196; 61 Ark. 628; 59 Id. 142. 2.

W. Hendricks, Judge; 1. The findings and judgment are contrary to the law of the case. Appellant is liable to the tax or fee on its poles on the streets and highways of the city, but is not liable for those on the right-of-way of the Rock Island Railway Company, under either the franchise ordinance or the general ordinances of the city. Such a tax was not contemplated by the franchise ordinance.

M. Jackson, Judge; 1. The motion for continuance should have been granted. It was an abuse of discretion by the court as the testimony was material. 2. There was a fatal variance between the indictment and proof. The money was alleged to be the property of E. E. Kent, cashier, and the proof shows it was that of the Bank of El Paso.

M. Jackson, Judge; - 1. The continuance should have been granted. Tbe testimony of the absent witnesses was material and important. 99 Ark. 394, and cases cited. 2. The court erred in instructing the jury in the absence of defendant. 66 Ark. 206, citing 24 Id. 620, and 44 Id. 331. Counsel could not waive the right to be present. 66 S. E. 149; 108 Ark. 191; 72 Id. 379. 3.

M. Jackson, Judge; 1. The court erred in its instructions given for plaintiff. 124 Ark. 460. 2. It was error to refuse No. 6 asked by defendant. Also in refusing No. 2 and in modifying it. 96 Ark. 451. Also in-refusing and modifying No. 4. Also in refusing No. 5. 3. Defendants were entitled to open and close. The argument of counsel was improper. 33 Ark. 257; 102 Id. 640. 4. The verdict was excessive. No interest on yearly balances should have been allowed. 1.

Martineau, Chancellor; 1. Appellants were entitled to a reformation of the deed. 102 Ark. 83; 142 S. W. 595. They are not barred by laches. 98 Ark. 23; 135 S. W. 453. ■ 2. They are entitled to recover by adverse possession begun by their mother and continued after her death by her husband, their father by his curtesy estate. 98 Ark. 30; 38 Miss. 359; 194 S. W. 19. They are not barred being under coverture. Kirby’s Digest, § 5056; 35 Ark. 84. 3.

G. Trimble, Judge; 1. Under the proof appellee failed to make out a case, and the court erred in refusing to instruct a verdiet for defendant. The proof establishes clearly no right to recover — that the injury did not occur on the train. 2. It was error to refuse to give appellant’s instruction No. 10. This is the law and it was error to give those asked by plaintiff.

H. Dudley, Judge; 1. The statute of frauds' does not apply. There was part payment by check and it was given and accepted as such. Part payment may be made by check. 70 Fed. 190; 128 S. W. 285. The Federal case is supported by the better reason and weight of authority. 25 Cyc. 1329; 94 Ark. 387, 390; 119 Pa. St. 30. 2. The question should have been submitted to a jury as to whether the check was accepted as part payment. 3.

W. Hendricks, Judge; 1. The only question was was the will entitled to be admitted to probate. Kirby & Castle’s Digest, § 10069. It was error to permit the will to be read in evidence. Its provisions unduly influenced the jury. 2. It was error to refuse the peremptory instruction asked. The proponent failed to show by the attesting witnesses that Allen had executed the will. Kirby & Castle’s Digest, § 10073, 4, 5.

E. Dudley, Judge; 1. The plea of res adjudicata does not apply, because appellant was never a party to the issue herein. The judgment was not final as to him. 113 Ark. 196; 116 Id. 416; 119 Id. 315. 2. The sureties in the bond are liable for the costs and expenses of the survey. 106 Ark. 296; 119 Id. 20; Act 229, Acts 1911; 122 Ark. 14; 123 Id. 246; 122 Id. 491; 115 Id. 427. 1. The court dismissed the cause for want of jurisdiction. Appellant was a party but failed to appeal.

A. Falconer, Chancellor; 1. The only question is did the chancery court have jurisdiction in the overdue tax proceedings. All presumptions are in favor of jurisdiction and the regularity of the proceedings. Acts 1881, § 18, p. 63. A void judgment binds no one, but a voidable one is binding until set aside. The cross-complaint made no case for equitable relief. 31 Ark. 598: 47 Id. 205; 26 Id. 54. The attacks on the decree are groundless.

It was error to give instruction No. 1 for appellee. The corporation had not paid its franchise tax. Act 443, Acts 1907, and No. 260, Acts 1909. It was also in the hands of a receiver and he alone could sue. The attorneys were not authorized to bring the suit. 10 Cyc. 773-775b; 24 A. & E. Ann. Cas. 300 and note. 2. The sale was absolute and not conditional. 20 A. & E. Ann. Cas. 300 and note. 3. There was error in the other instructions.

Golemcm, Judge; 1. There was error refusing and modifying the instructions asked by plaintiff. No 1 was taken from the decision of this court on the fornier appeal. 123 Ark. 542-7. The court erred in adding the words “and if a cause is alleged and proven.” 80 S. E. 918; 8 1ST. C. C. A. 369, 384. NO. 3 should have been given as asked. 79 Ark. 490. No. 3 is a correct statement of the law. 79 Ark 490, 498; 116 Id. 82; 105 Id. 161; Ann.

B. Priddy, Judge; Appellee is entitled to judgment for the wages due, $4.20. He was not entitled to the penalty. No proper demand was made for his wages. 87 Ark. 136; 82 Id. 377; 125 Id. 366; 88 Id. 281; 125 Id. 377.

<p>Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;</p> <p>1. No fraud nor misrepresentations were proven in the sale of the stock to Morris. 47 Ark. 165; 125 U.</p> <p>5. 247-250 L. Ed.; 31 Id. 678; 20 Id. 627; 150 IT. S. 665, 673; 5 Pet. 264; 1 Wheat 175; 111 U. S. 549; 37 L. R. A. 605; 80 Am. Dec. 172; 160 S. Ct. Rep. 582; 91 Ark. 324.</p> <p>2. The stock was fully paid and non-assessable as to Morris. 56 Ark. Law Rep. 229, 236; 10 Cyc. 701-2; 134 8. W. 1066; 95 Ark. 124; 4 Thompson on Corp., § 3431; 45 L. R. A. 647.</p> <p>1. The stock was sold appellee by false and fraudulent representations. 1 Cook on Corp. 410-11-12 and note 7, 419, 2397; 10 Cyc. 428; 33 L. R. A. (N. S.) 721, note.</p> <p>2. The corporate statute was fraudulent. Kirby’s Digest, § § 838-9, 845; 139 IT. S. 417; 71 Ark. 383; 135 Fed. 159; 36 Tex. Civ. App. 317; 127 Ala. 513; 51 W. Va. 341; 90 Va. 533; 1 Cook. Corp., par. 325, 342, note 1 (1867).</p> <p>3. Appellee’s transferers were his fiduciaries. 71 Ark. 277; 18 A. & E. Ann. Cas. 354.</p> <p>4. Appellee was made to believe he was getting treasury stock and that the price would go into the treasury. There was failure of consideration. The concern was a failure and the whole scheme a fraud. On the cross-appeal appellee should be awarded the stoclc at least.</p>

8. Maples, Judge; It was error to dismiss the appeal. It was filed in time. If there was delay it was caused by the justice. Kirby’s Digest, § 4666. No prejudice is shown to appellee and the court abused its discretion. The appeal was properly dismissed. Kirby’s Digest, § 4676. It was appellant’s duty to see that the transcript was filed in time. 110 Ark. 284; 161 S. W. 201; 96 Ark. 555; 132 S. W. -917; 48 Ark. 73; 2 S. W. 346.

B. Baker, Judge; 1. The judgment should be reversed for misconduct of the jury, in separating and mingling with a crowd strongly prejudiced against appellant. No effort was made to controvert the truth of the affidavits filed. Such conduct of the jury is reversible error. 12 Ark. 782; 20 Id. 36, 53; 26 Id. 323; 95 Id. 428 ; 57 Id. 1, etc. 2.

A judicial sale will not be set aside for mere inadequacy of price, if otherwise fair. 16 R. C. L., § 70; 86 Ark. 255; 65 Id. 152; 66 Id. 493; 77 Id. 216, etc. Here the bid was in good faith and no fraud, mistake nor unfairness was shown. 20 Ark. 381-409; 123 Id. 523; 111 Id. 158; 108 Id. 366; 44 Id. 502; 56 Id. 240. Appellant was a bona fide purchaser.

The court erred in failing to make the husband a party defendant. 44 Ark. 401; 92 Id. 486; 98 Id. 312; 102 Id. 351; 103 Id. 196; Acts 1915, No. 159: 119 Tenn. 425; 123 Am. St. 734; 92 Id. 160; Am. Ann. Cas. 1913-D, 995. 2. It was error to refuse a new trial for misconduct of the juror Turner. 29 Ark. 293; 41 Fed. 676; 6 111. 659; 6 Ky. 347; 7 Id. 191; 18 Miss. 25; 4 Vt. 363; 21 Ark. 336; 60 Id. 221; 61 Id. 354. 3. The verdict is contrary to the law and the evidence.

B. Baker, Judge; reversed. 1. A motion for peremptory instruction concedes as true the evidence in behalf of the adverse party. 38 Cyc. 1563; Thompson on Trials, (2 Ed), § 2267; 89 Ark. 522; 115 Id. 166; 92 Id. 618; 96 Id. 394; 89 Id. 222, 372; 4 C. J. 765. The case should have been submitted to a jury. 2. There was want of probable cause and malice and a case for a jury. 76 Ark. 540; 99 Id. 490.

Smith, Judge; 1. It was error to refuse a peremptory instruction for defendant. .Plaintiff’s story was a fabrication, pure and simple — not even plausible. Even taking his statement as true, he failed to make a case of tort by the conductor within the scope of his employment. 115 Ark. 289; 101 Id. 586; 153 S. W. 694; 89 S. E. 490; 144 Fed. 806; 21 S. E. 288; 113 Pac. 386. 2.

Worthington; reversed as to the attorney fee; 1. No proof of loss, showing liability was furnished. 190 Mass. 171, 448; 202 Id. 290; 95 U. S. 232; 89 Id. 32; 204 Fed. 653. 2. The unexplained statements of the coroner and friends and neighbors of deceased, in the absence of explanation by plaintiff make a prima facie case for defendant, and imposed on plaintiff the burden of proving that deceased was not murdered, but that his death was the result of accident. 89 TJ.

Shaver, Chancellor; 1. The notice is jurisdictional and must be given as required by law. Here it did n3t so comply. 83 Ark. 344; 115 Id. 163; 113 Id. 566; 104 Id. 298;'Kirby & Castle’s-Digest, § 6826. To complete the two weeks another publication was necessary. 42 Ark. 93; 219 Fed. 103. 2. The petitions did not contain a majority in value of the real estate in the districts.

Gowlvng, Judge; 1. 129 Ark. 163 involves similar questions, but is materially different on the facts. This court there held that where the shipper gives no instructions and consigns to a commission house, there can be no recovery unless the factor fails to obtain the highest market price. It is presumed the factor did his duty, and there is a total failure of proof here to show that the factor failed to obtain the highest price in Chicago. 2.

R. Haynie, Judge; 1. The verdicts are without evidence to support them. 61 Ark. 354. There was no competent evidence as to the distance. 58 Ark. 108. 2. The law is unconstitutional and void. 114 Ark. 519 should be overruled. 206 U. S. 1; 217 Id. 196; 230 Id. 340; 236 Id. 585; 207 Id. 73. The penalty is exorbitant and oppressive. Supra. 235 U. S. 651; 60 Ark. 221; 54 Id. 101; 209 U. S. 123; 230 Id. 340.

8. Maples, Judge; 1. The verdict is contrary to the law. No one shall be twice put in jeopardy for the same offense. Const., art. 2, § 8. Appellant was acquitted of the charge at a prior term. The record and proceedings were before the court and it takes judicial knowledge of all former proceedings. 16 Cyc. 917. The evidence of Spriggs et al. was not admissible. Other crimes can not be proven. 197 S. W. 684. 2. It was error to instruct the jury verbally. 71 Ark. 367.

D. Shaver, Chancellor; 1. The town of Ogden was legally incorporated. 97 Ark. 248. The incorporation could only be raised in a direct proceeding by the State. lb.; 81 Id. 391; 47 Id. 269; 31 Id. 476; 20 Id. 204. 2. Acquiescence by the public for a long period of time precludes an inquiry into the legality of the incorporation. 38 Ark. 81; 54 Id. 372. 2. The orders were not void. The court was not held on the wrong day.

II. Dudley, Judge; 1. Argues the merits of the cause, contending that the court erred in its instructions to the jury given and refused, citing 3 R. C. L. 109, 6 C. J. 1115; 31 Ark. 518 ; 36 Ala. 449 ; 3 Ann. Cas. 468, and noté; 12 Id. 692, and note. 2. The complaint was amended so as to bring the case within the jurisdiction of the justice. 1. The court had no jurisdiction. Art. 7, § 40, Const.

B. Priddy, Judge; 1. The court erred in refusing instructions 1 and 2, requested by plaintiff. Appellee agreed to pay $1,400 cash and $200 in work. If he failed to perform any of his covenants he was to pay $1,600 rent, October 1,1916. He did not comply with his covenants, to clean out all the ditches, clear up and. cultivate three acres of land, dig up the patches of Bermuda grass and clean up the Thorny creek drain, etc. Nor did he pay or offer to pay the $1,400 when dne.

B. Priddy, Judge; 1. There is but one question in this case. Did Lemley, by his uncommunicated intention to abandon, or recede from, his verbal contract, relieve himself from liability, Harris innocently proceeding thereunder and deeding his property? The contract was binding and there was no time limit. The parties were competent, the agreement lawful and performance possible. It was never discharged by operation of law, nor rescinded by mutual consent of parties.

T. Humphries, Chancellor; No leave of court was neccessary. The bill of review is founded on errors of law apparent on the face of the record. 104 Ark. 562-7; 59 Id. 441; 74 Id. 149; 97 Id. 415. The bill was properly dismissed. It was filed without leave of court and was based entirely upon newly discovered evidence. 33 Ark. 153; 36 Id. 532; 55 Id. 25; 74 Id. 149; 95 Id. 517; 97 Id. 314; 104 Id. 562. See also, 17 Ark. 57.

The price was adequate and no fraud, unfairness or wrongful act or injury was shown. 86 Ark. 255; 65 Id. 152;-77 Id. 216; 123 Id. 18; 99 Id. 324. Unavoidable casualty and misfortune were shown and the chancellor properly refused to confirm the sale, a matter within his sound discretion. 194 S. W. 802; 108 Ark. 366.

I. Worthington, Judge; 1. The court erred in giving the fifth instruction for plaintiff. Courts should not invade the province of the jury by charging as to matters of fact. Const. Art. 7, § 23; 49 Ark. 439; 43 Id. 289; 45 Id. 165, 492; 53 Id. 381; 55 Id. 108; 58 Id. 109; 26 Oh. Ct. Ct. 59. 2. The court erred also in its instruction as to the measure of damages by flood-water. 3. The verdict is excessive. It should not, at least, be more than $1,133,33. 1.

B. Priddy, Judge; 1. It was error to refuse a continuance. 103 Ark. 352; 102 Id. 513; 100 Id. 132, 301; 99 Id. 395; lb. 547; 71 Id. 180. 2. It was error to permit witnesses to testify as to the remarks made by deceased as to defendants’ fam-. ily, which were communicated to defendant. This evidence was competent to show passion and provocation. 5 S. W. 231; 10 Id. 387; 10 Am. St. 289; 12 S. W. 870; 75 Id. 790; 51 Id. 912; 63 Id. 643; 28 Tex. App. 216. 3.

8. Maples, Judge; 1. Thére was no personal decree against Stuckey and hence the ven eao was irregular and there was no sale. A personal judgment was withheld until after the sale of the pledged stock. The decree should be construed so as to give effect to all of its language, according to its plain obvious and common sense. 9 Ark. 270; 24 Id. 286; Goolsby v. Fwlbright, ms. op.; 46 Iowa 49; 24 S. E. 114; 4 Munf. 262. 2. Tbe sale was never perfected.

Chancery Court, Ozark District; W. A. Falconer, Chancellor; 1. If the father of S. W. Harmon did give his estate to his sons, did they as an inducement to C. Gr. Harmon to buy the interest of- S. W. in the business, agree that they would trade with him and that their accounts should be credited on the notes ? If made the defendants can enforce in this suit. Such an agreement was made as an inducement to buy. The evidence supports the contention.

M. Jackson, Judge; 1. The evidence is not legally sufficient to warrant the verdict. Appellee has failed to make out a case from his own testimony. His agency had been discontinued. 2. The judgment is excessive. 3. It was error to refuse to admit the letters of Henry Wrape & Co. 4. There was error in giving and refusing instructions. 119 App. Div. 39; 103 N. Y. S. 876; 131 111. App. 414; 140 N. C. 310; 117 Ark. 599; 91 Id. 212; 76 Id. 377; 79 Id. 475. 1.

<p>1. Sales — representations of seller — warranty.—Where the buyer has no opportunity to inspect the goods bought, he may rely upon the representations made by the. seller as to the qualities of the goods of the seller’s manufacture; and in such case the law implies a warranty that the articles shall be merchantable and reasonably fit for the purposes for which they were intended.</p> <p>2. Verdict. — general finding. — Under Kirby’s Digest, § § 6207 and 6208, a general verdict for the defendant imports a finding in his favor upon all the issues in the case which are consistent with the special findings returned by the jury.</p> <p>3. Verdict — general and special findings — inconsistency.—When a question of inconsistency between the general verdict and the special verdict arises, nothing is presumed in aid of the special finding, while every reasonable presumption is indulged in favor of the general verdict.</p> <p>4. Bills and notes — innocent purchaser for value. — The A. Co. sold toilet articles to appellee to be resold by appellee, taking a • promissory note in payment. Appellant purchased this note before maturity, and brought suit thereon against appellee. Appellee defended upon the ground of fraud, that the articles purchased from A. Co. were worthless. It appeared among, other • things that appellant had purchased several hundred notes from A. Co., similar to the one in suit; that many of them were refused payment on the ground of fraud; that when appellant purchased said notes it required A. Co. to put up collateral; and that A. Co. paid the expenses of litigation arising out of its notes. Held, under these facts a finding by the jury that appellant was not an innocent purchaser for value, would not be disturbed on appeal.</p>

H. Dudley, Judge; 1. The note was a joint and several liability and all the signers were principals. Kirby & Castle’s Digest, § 6597, sub. 7. Appellant by signing the stay bond became surety for all, and when he was compelled to pay the judgment, they became liable for the amount paid. lb., % 9878 ; 27 Am. & Eng. Enc. Law 431; Kirby & Castie’s Digest, § 5354.

The demurrer was improperly sustained. The grounds of demurrer urged were, (1) that the policy was an indemnity policy and the lumber company never paid the policy; (2) that the assignment of the policy was a violation of the terms of the policy; (3) the lumber company was insolvent and could not pay the policy; (4) that suit was not brought within ninety days. These were all grounds of defense, not demurrer, and should have been pleaded. 97 Kans. 275; 155 Pac. 59-60, etc. 2.

Elliott, Chancellor; 1. The fees should not have been allowed or taxed against the funds of the oil company. This was an adversary suit, and the attorneys’ fees were not payable out of the fund. 76 Ark. 146; 105 Id. 440. 2. The fee is unreasonable. 1. The fee was properly allowed by the court against the fund. 76 Ark. 504; 95 Id. 389; 105 Id. 439. See also 158 Mass. 434; 90 Fed. 39; 87 Id. 810; 105 U. S. 527. 2. The evidence shows the fee a reasonable one. STATEMENT OE FACTS.

W. Smith, Judge; 1. Instructions Nos. 9, 5 and 6 should have been given in full as asked. They correctly state the law. 109 Ark. 478; 3 Tenn. 110; 25 Fla. 517; 172 S. W. 1010; 93 Id. 409; 92 Id. 205; 59 Id. 132. 2. Sam Peniger should have been permitted to testify as to character of deceased. 26 Cent. Digest, 507-510. 1. Instruction No. 9 was properly refused. 13 B. C. L., p. 913, § 217; 72 Vt. 381; 122 111. 1; 36 Miss. 531; 73 S. C. 277; 43 Tex.

W. Smith, Judge; 1. The judgment should have been arrested. Every material fact necessary to constitute the offense must be alleged in the indictment. Kirby’s Digest, § 2427; 29 Ark, 70-1; 37 Id. 117; 100 Id. 196; 103 Id. 433-4. The indictment must state all the essential elements of perjury as well as of subornation of perjury. Kirby’s Digest, § § 1972-3; 30 Cyc. 1440 ; 72 Ark. 192; 47 Id. 553; 53 Id. 395. 2.

S. Maples, Judge; affirmed. 1. The court erred in overruling the demurrer. The complaint does not allege the performance of the conditions precedent in the policy. 38 Ark. 127; Could on Pleading (3 ed.) 175; 10 Ark. 416; Kirby’s Digest, § ^ 6119. 2. The court erred in its charge to the jury as to substantial compliance with the conditions of the contract. 57 Ark. 461. 3: It was error to refuse an instructed verdict for defendant.

Francis Circuit Court; J. M. Jackson, Judge; 1. Plaintiff was the agent of Alice Stanford and had the right to sue. Kirby’s Digest, § 6002; 76 Ark. 558; Mechem on Agency, § § 755, 763; Clark & Skyles on Agency, 1331,1341; 80 Ark. 228. 2. There was' sufficient consideration shown. 31 Ark. 222. Plaintiff had no right to sue. Alice Stanford should have been joined.

H. Dudley, Judge; After judgment Pigue filed his schedule for exemption. The exemption was allowed. The funds were exempt. 1 Bacon on Ben. Soe. 794; 131 Cal. 437; 61 N. W. 456; 63 Id. 627; 67 Id. 994; 143 Mass. 216; 43 Oh. St. 1; 76 Pac. 861; 65 Ark. 112. 1. Plaintiff had a valid judgment and the writ of garnishment having been duly issued and saved, the company is liable. 89 Ark. 378; 98 Id. 144. 2. The fund was not exempt. Kirby’s Digest, § § 4351-8.

Cochran, Judge; 1. The court erred in refusing a peremptory instruction for defendant. 101 Ark. 205. It was plaintiff’s duty to make and keep the entry safe. 146 la. 489; 41 W. Ya. 620. 2. The court erred in giving the instructions for plaintiff and in refusing those of defendant. The props were not ordered, but were furnished. Plaintiff clearly assumed the risk. Cases supra. The act of 1913 takes away the defense of assumed risk, and contributory negligence.

B. Haynie, Judge; 1. It was error to direct a verdict for defendant.Having shown that he was injured by the operation of the train, under Kirby’s Digest, section 6773, plaintiff was entitled to recover. 73 Ark. 552; 121 Id. 359; 75 Id. 479; 101 Id. 117. 2. Negligence was proven in failing to screen the car windows. 92 Ark. 432; 102 U. S. 451; 115 Ark. 269; 119 Id. 252; 114 Id. 146.

Francis Circuit Court; J. M. Jackson, Judge; 1. The pistol must be carried as a weapon. This is a question of intent, a question of fact for a jury. 68 Ark. 447. 2. It was error to direct a verdict, as the guilt or innocence of defendant was purely a question of .fact. Besides, on neither occasion was it carried as a weapon. On the first he merely carried it home and on the second it was in Lee County. 1. The undisputed evidence shows that he was guilty.

W. Hendricks, Judge; 1. The court erred in its findings of facts and conclusions of law therefrom. Appellant was employed to sell or change appellee’s property. A purchaser was procured and a binding contract entered into, which was never carried out through the fault of appellee. No valid defense was shown. 117 Ark. 566. Parol evidence was admissible to show the real consideration of the contract. 10 R. C. L. 1020, par. 213.

D. Robertson, Chancellor; 1. The action of the clerk was final. The court was without jurisdiction to quash the supersedeas on motion. No proof was taken. Kirby’s Digest, § 3906; 103 Ark. 201. 2. A postmaster’s bond is a contract. 31 Cyc. 281. 1. The clerk was unauthorized to issue the supersedeas. Kirby’s Digest, § 3906. 2. The court had jurisdiction. 80 Ark. 1. Its decision was correct. Appellees were sureties and paid the judgment. 18 Cyc. 1395, note 46; 190 Fed.

B. Sorrells, Judge; 1. Appellant substantially performed Ms part of the contract, and is entitled to recover. He was employed for one year, and devoted his time and attention to the business during the cotton season. Even if, after the cotton season he had nothing to do, he was entitled to his salary. 26 Cyc. 1018; 1 Labatt, Master & Servant, § 288, and note; 32 N. W. 865. 2. The court erred in its instructions.

<p>Opinion on Motion for Judgment Against the Bailway Company.* </p>