Volume 136 — Arkansas Reports

Coleman, Judge; STATEMENT OP PACTS. On the 10th day of April, 1917, Lewis Billingsley, while attempting to drive his wagon and team across the tracks of the St. Louis-San Francisco Railway Company at a public crossing in Hardy, Arkansas, was struck by an eastbound passenger train belonging to said railway and was killed. This is a suit by his widow and minor child to recover damages for his death which is alleged to have been caused by the negligence of the defendant.

Mc-Mahan, Chancellor; 1. The buildings erected were store or business buildings and their erection enhanced the value of the lots. They were permanent structures attached to the freehold making them part of the realty fixtures, and appellee had no right to remove them. 56 Ark. 55; 19 S. ~W. 108; 27 Ark. 332; 63 Id. 625; 188 Id, 129; 11 R. C. L., § 24, p. 1081; 19 L. R. A. 443. 2.' They were in no sense “trade fixtures.” 95 Ark. 268; 16 Id. 511.

G. Trimble, Judge; 1. Instructions must embrace all the facts and conditions essential to a proper verdict. 63 N. E. 1008. An instruction which ignores a material issue about which the evidence is conflicting is misleading. 93 Ark. 573; 55 Id. 395; 155 S. W. 885. It must be complete and correct. 95 N. E. 328. 2.

M. Jackson, Judge; It was error to direct a verdict. Whether he was on a journey or not was a question for a jury. He was traveling his usual route and knew many people at each stopping place on his daily travel. 99 Ark. 236, 45 Id. 359; 55 Id. 181; 45 Id. 536. Appellee was upon a journey within the exceptions of the statute. 55 Ark. 181; 99 Id. 236; 45 Id. 359-536. There was nothing to submit to the jury and a verdict was properly directed.

There was testimony showing negligence and it was error to instruct a verdict. 89 Ark. 522, 524; lb. 372. There- was no evidence that plaintiff in any way contributed to her injuries. She had a right to sue either or both joint feasors. 61 .Ark. 381; Bishop on Non-Cont. Law, par. 18; Wharton, Law of Negl. § 395; 183 S. W. 467. 2. Prima facie negligence on the part of the driver of defendant’s automobile was established. Acts 1911, No. 134; 2 R. C. L. 1184; 96 Atl. 163. 3.

W. Hendricks, Judge; STATEMENT OE EACTS. The Dixon-Bogers Trading Company sued 0. 0. Scroggins & Company to recover $2,158.35 alleged to be due it for the price of thirty bales of cotton. The Dixon-Bogers Trading Company is a corporation engaged in the general mercantile business at Mansfield, Arkansas, and a part of the business of the corporation was buying and selling cotton. 0. 0.

Elliott, Chancellor; 1. The evidence clearly establishes a case of undue influence, legal fraud and failure of consideration. Oral testimony was admissible to explain the contract and show the real consideration. 86 Ark. 171; 103 Id. 467; 104 Id. 568; 55 Id. 112; 19 Col. 168. The contract was ambiguous. 113 Ark. 39. 2. Improper and undue influence was shown. 84 Ark. 493.

J. Driver, Judge; STATEMENT OE PACTS. Tbe Hart Cotton Machine Company sued W. W. Swepston for an amount alleged to be due on a note given as part payment of one Hart Cotton Huller and Separator and for an additional amount alleged to be due it for a fan to be used in tbe operation of said machinery. Tbe defense was that tbe machinery was worthless, and that there was an implied warranty of its fitness for the purpose for which it was intended.

8. Lake, Judge; 1. The indictment should have been quashed on demurrer. It fails to allege that defendant was present in person or constructively; it fails to charge defendant as principal accessory before the fact or as accomplice and fails to specify by what manner or means defendant caused the alleged false entries to be made, or what influence or power was used, or that the cashier was under defendant’s power, authority or orders, etc. Every material fact must be alleged.

A. Falconer, Chancellor; 1. The notes and mortgage evidence a contract made in this State by a foreign corporation without complying with the laws of this State. 60 Ark. 122; 115 Id. 116; 124 Id. 539; 128 Id, 211; Acts 1907, 745. 2. It was error to render judgment without protecting appellant from suit in behalf of the Merganthaler Linotype Company. 65 Am. Rep. 186; 68 Mich. 303; 42 Miss. 795; 47 Ark. 351. 1.

Tlie judgment is contrary to law. Tlie damages were not limited by the printed notice. This case is governed by 133 Ark. 184 and B. & M. By. v. Piper, April 15, 1918, Adv. Sheets Law Co-op., p. 461. 2. Tbe judgment is contrary to the evidence. Appellant was entitled to $900 under tlie proof as Ms damages for negligence. 1. No recoverable damage' was alleged or proved. 65 Ark. 537, 540; 92 Id. 133-5.

II. Dudley, Judge; 1. Plaintiff could only recover for loss actually suffered and not for loss of expected profits. 1 Suth. on Dam. 17, 18; 1 Sedgwick on Dam., § 30; 13 Cyc. 22; 53 Ark. 434, 443; 54 Id. 22; 74 Id. 358, 360. See also 86 Ark. 276; 59 S. W. 918; 83 Id. 364; 84 N. W. 1038; 41 la. 458. 2. The court erred in permitting the plaintiff to state what he could have sold the cotton for if the New York market had been as shown in the report delivered to him.

<p>Appeal from Lonoke Chancery Court; J. E. Mariineau, Chancellor;</p> <p>1. The deed was made by an insane person and was voidable. 23 Ark. 417; 34 Id. 626; 109 Ind. 315; 58 Am. Rep. 405; 53 Me. 451; 89 Am. Dec. 705; 97 Ark. 450; 45 Id. 392; 70 Id. 166; 36 Am. Rep. 218, 278; 184 S. W. 838; 27 Cyc. 1211; 97 Pa. St. 543; 19 L. R. A. 489; 36 Id. 732; 129 Ark. 88.</p> <p>2. It is not necessary to return the consideration. 23 Ark. 417; 53 Me. 451; 15 Wall. 9-28; 129 Ark. 88. Here Peterson paid Eagle nothing.</p> <p>3. No renunciation further than bringing suit is necessary. 23 Ark. 417; 109 Ind.- 315.</p> <p>4. The burden of proof is on plaintiff, but insanity may be shown by conduct, appearances, mental state, habits, physical condition and previous and subsequent insanity. Insanity being once shown, the burden is on defendant to show that the deed was executed during a lucid interval. Enc. of Evidence, “Insanity/’ vol. 7, p. 459; 123 Ark. 134; 16. 166; 36 L. R. A.' 732; 21 U. S. (Law Ed.), 73; 2 Pom. Eq. Jur., § 947; 63 Tenn. 38; 59 Am. Dec. 499; 86 Ind. 195. See also 2 Paige '422; 22 Am. Dec. 655; 8 N. Y. 388; 59 Am. Dec. 499 ; 22 Id. 657; 4 Mass. 147; 1 Elliott on Cont., § 368; 80 Mo. 474 ; 4 Elliott on Cont., § § 3397, 3821; 1 Devlin on Deeds,'§ 74.</p> <p>After one is adjudged insane, his contracts are absolutely void. Cases supra; 1 Elliott on Cont., § 377; 2 Van Vleet, Former Adjudication, § 515; 7 Enc. Ev. 457; 40 L. R. A. 250; 19 Id. 489</p> <p>5. Innocent purchasers for value — that is, bona fide purchasers — are not protected. 55 Ala. 435; 142 Id. 560; 110 Am. St. 30 So. 12; 4 A. & E. Ann. Cas. 537; 102 Ga. 202; 29 S. E. 182; 40 L. R. A. 250; 53 Me. 451; 89 Am. Dec. 705; 191 N. Y. 452; 11 Ind. 433; 39 N. E. 521; 119 Ind. 567; 21 N. E. 749; 52 S. W. 222; 36 L. R. A. 732; 2 N. Y. Chy. (Law Ed.), 800; 66 N. W. 2; 22 Cyc. 1134, 1144-1145,1198,1200; 53 Mo. App. 667; 107 Ark. 314.</p> <p>6. Appellant is not barred by laches. 103 Ark. 251.</p> <p>1. While in ¡a few States there are decisions holding all contracts of an insane person absolutely void, the great weight of authority is that deeds of persons in fact insane, but not so adjudicated, are merely voidable and not void. 22 Cyc. 1171; 45 Ark. 392.</p> <p>After adjudication of insanity, his contracts are not void but voidable merely. See 156 Mass. 277; 64 Minn. 201; 45 Tex. 409; 56 Kan. 187; 85 111. 62; 61 Kan. 625; 132 Pa. 134; 2 Page on Contracts, 1416-17; Elliott on Cont., § 370; 14 Pick. 280 ;Greenleaf on Ev., § 371; 22 Cyc. 1172; Buswell on Insanity, 397-8-9-400; 49 N. J. Eq. 192; 14 Id. 389; 34 Id. 150.</p> <p>2. As to the effect of an adjudication of insanity upon the question of proof in a controversy between an insane person and third parties, see Elliott on Cont., § 375; 14 R. C. L., § § 73-4; 22 Cyc. 1134; 102 Wis. 61; Bus-well on Insanity, § 190; 22 Cyc. 1115; 2 Harr. (Del.) 375; 21 Me. 461; 22 Wend. (N. Y.) 526; 48 N. C. 245; 62 111. 196; 3 Rand. (Va.) 399; 19 Ark. 545.</p> <p>Before the continuance of insanity will be presumed' it must first be established that the insanity is permanent and continuing. Here appellant has failed in his proof. The only proof offered as to the cause of insanity was the excessive use of liquors, etc., which does not bring him within the rule. 8 Vt. 638.</p> <p>. 3. The fact that appellant was adjudged insane prior to the execution of the deed, does not . render the deed void. The adjudication is conclusive only of insanity ¿t the time and appellant must show that it was permanent and continuing. Appellant was not insane on March 1, 1912, when the deed was executed. The evidence shows he was sane. 13 Cyc. 575; 59 Pa. St. 9; 25 Fed. 7; 94 N. W. 370; 15 Ark. 246; 60 Id. 606; 115 Id. 430; 70 Id. 166; 85 Mich. 198; 87 N. W. 81.</p> <p>4. Eagle really afterwards ratified his deed. He waited too long to disaffirm. Innocent purchasers are affected and their rights should be protected.</p>

J. Driver, Judge; Tbe court should have found for appellant. The car was appellant’s and it had no knowledge of its improper use and was not a party to the illegal traffic. 53 S. E. 543; 87 Id. 976; 202 S. W. 229. The auto was subject to confiscation, being a vehicle and used in violating the law. Acts 1917, p. 45, § 6. The cases cited by appellant are not in point.

W. Hendricks, Judge; 1. A hypothetical question must be based upon evidence and include all facts in evidence necessary to enable the witness to give an opinion which will be of assistance to the jury. 17 Cyc. 243, and cases cited. 2. The attendance of a witness may be compelled when necessary to the proper trial of a case. Kirby’s Dig., § 3159. 3.

M. Elliott, Chancellor; 1. The real estate descends to the heir free from any indebtedness to the ancestor, subject only to the debts of the estate, and dower and homestead. Kirby’s Dig., § 2636 to 2657; 15 Ark. 583; 72 ,Ark. 272; 34 Id. 391; 74 Id. 149; 49 Id. 87; 15 A. & E. Ann. Cases, 567; 11 Eul. Case Law, § 163; 18 Cyc. 180; 14 Id. 102-110. The rule is well settled in this State. 2. See also 46 Ark. 373; 49 Id. 87; 117 Id. 418; 234 U. S. 615; 38 Id. 492.

A. Falconer, Chancellor; 1. The sale was hot void because of clerical errors in description, nor because the probate court authorized a private sale. The money was duly paid and the sale approved by the court. The purchaser took possession in good faith and paid taxes and made valuable improvements. The act of the agent binds the guardian. 76 Ark. 615; 89 Id. 435; 65 Id. 325; 46 Id. 210; 21 Id. 533; 15 Id. 540.

B. Priddy, Judge; 1. The court lapsed on January 14, 1918, and was not in session when the judgment was rendered. The election of the special judge was void as not in accordance with law. 71 Ark. 310; 39 Id. 254; 42 Id. 126; 50 Id. 340; Act 7, § 21, Constitution. 2. The meeting of the officers of the court at a time not fixed by law was void. 20 Ark. 77; 48 Id. 227; 24 Id. 479; 22 Id. 414; 32 Id. 676; 48 Id. 151; 49 Id. 230; 2 Id. 229.

-Appeal from Ben-ton■ Chancery Court-; Ben F. Mc-Mahan, Chancellor; 1. No insolvency was shown by the evidence. Insolvency of the husband must be alleged and clearly proven. 66 Ark. 487; 80 Id. 447; Acts 1887, p. 193. Outstanding notes or unsatisfied judgments .alone do not prove insolvency. 74 Ark. 161; 80 Id. 447.

B. Priddy, Judge; 1. Briggs acted in good faith. He went to a justice and laid the whole case before him and followed his advice. No action for malicious prosecution lay against Briggs and certainly none against the company. U. S. Comp. St. 8603; 73 Ark, 437; 71 Id. 351; 186 S. W. 312; 193 Id. 520; 107 Ark. 74. The justice of the peace had jurisdiction. U. S. Comp. St. § 1674. B. S. § 1014; 64 Ark. 453; 82 Id. 252. 2.

M. Jackson, Judge; STATEMENT OE EAOTS. . On May 16, 1914, the McClure Company, a corporation of Michigan, sold to J. Smith Crockett of Hunter, Arkansas, a silo 20 feet in diameter and 40 feet high. The contract was evidenced by a written order in which Crockett requested the company to ship to him at Hunter, Woodruff County, Arkansas, the silo which is specifically described in the order.

M. Jackson, Judge; 1. Appellants were not a corporation. There is no evidence to that effect. 2. Nor is it proved that they were acting as the agent of a corporation. Appellants purchased the goods outright and the relation of vendor and vendee was established. 168 S. W. 182. See also 180 Id. 21; 163 Id. 662; 115 Ark. 166; 124 Id. 539; 115 Id. 166. 3. Appellants were partners. It was error to take the case from the jury.

I. Worthington, Judge; 1. The judgment is contrary to the law and the evidence. Appellee was not employed by nor working with the approval of the county judge, nor at his direction. The funds were not being used at the direction of the county judge. Kirby’s Digest, § 1546. The language is mandatory.

D. Robertson, Chancellor; STATEMENT OF FACTS. On'the 11th day of January, 1917, P. B. Farrow brought suit in the chancery court against A- A. Farrow and others to foreclose a mortgage on a stock of goods given by A. A. Farrow to himself. It appears from the record that on the 20th day of September, 1910, P. B. Farrow furnished to J. P. Farrow, his brother, $2,500 for the purpose of enabling the' latter to purchase á'stock' of goods and conduct a mercantile business.

H. Dudley, Judge; STATEMENT OF FACTS. Thomas B. Whitley, a minor, having a claim against A. J. Aeree for damages for personal injuries alleged to have been sustained by him on account of the negligence of Aeree, by his next friend, instituted an action to recover damages against Aeree in the circuit court on September 8, 1917. On the same day allegations and interrogatories directed to the Supreme Tribe of Ben Hur were filed.

M. Jackson, Judge; STATEMENT OE EAOTS. John W. Howle was shot and killed while a member in good -standing of a fraternal benefit insurance company. His widow was named as beneficiary in the certificate and sued the company to recover upon the beneficiary certificate issued by it to her husband.

W.ade, Judge; STATEMENT OE EACTS. Defendant was indicted in proper form for the crime of mnrder in the first degree in killing a certain infant whose real name, it is alleged, “is unknown to these grand jurors.” He was convicted of murder in the second degree and sentenced to ten years’ imprisonment in the State penitentiary, and duly prosecutes this appeal.

H. Dudley, Judge; 1. The testimony of Light introducing the telegram was inadmissible. It was mere hearsay. 1 Green. Ev., 184, § 99. The error was prejudicial. 3 Cyc. 386. 2. It was error to tell the jury that the question for them to determine was as to whether or not Storms and wife gave the property to appellee and put them in possession. This was not the question at all but was: Did Storms and wife trade the property to Mitchell who sold it to appellant? 97 Ark. 11. 3.

G. Hamby, Special Judge; 1. Act .249, p. 230, Acts 1911, was passed not to repeal laws governing tbe procedure in cases where a taxpayer is seeking equalization in the assessment of his own proprty, but to provide a method of procedure by which one taxpayer may prosecute his objections to the assessment of another taxpayer. 94 Ark. 217. The act was passed to amend Kirby’s Dig., § 7003, 7007, and not to repeal, $ 6999 as amended by Act 217, Acts 1911, p. 188; 96 Ark. 92. 2.

W. Hendricks, Judge; 1. Plaintiff on appeal from justice of the peace judgment may in the circuit court take a nonsuit without prejudice to a new suit. The matter is not res judicata. 74 Ark. 539; 92 Id. 425; 35 Id. 448; 44 Id. 375; 36 Id. 651; Kirby’s Digest, § § 4671-2. The judgment of the justice after appeal is not final nor is the cause of action merged. 35 Ark. 445; 44 Id. 375; 46 Id. 254; 74 Id. 539; 74 Id. 539. The judgment of the justice is no bar.

S. Lake, Judge; The complaint states a cause of action and the court had jurisdiction. Citing cases. Argue the merits of the cause which are not passed on by the court. 1. The judgment should be affirmed for failure to comply with Rule 9. 2. Argue the merits.

S. Maples, Judge; J. Riley Roberts was not a member of tbe firm nor liable in any way for the debt. A verdict should have been directed for him. 71 Ark. 445. It was eror to refuse instructions Nos. 1, 2 and 3 for appellant.

The demurrer should have been sustained. Appellant was not liable for the negligence of the servants of the receiver. Appellant was not a party to the suit nor bound thereby as a privy. 96 Ark. 451; 75 Id. 1; 105 Id. 86; 96 Id. 405; 34 Id. 291; 35 Id. 62; 82 Id. 414; 80 Id. 82; 1 Fed. 641-643; 4 Pet. 475; 74 Atl. 254; 110 Pac. 1037. There was no privy between the corporation and its receiver. 23 Enc. Law (2 ed.) 101. 2.

<p>Mortgages — redemption from foreclosure of equitable mortgages. —Kirby’s Digest, § 5420, providing for redemption from sales under foreclosure of mortgages and deeds of trust, has no application to foreclosure sales under equitable mortgages witnessed by absolute deeds.</p>

B. Baker, Judge; Statement oe Facts. This suit was instituted by the appellee against appellant in justice of the peace court to recover $93.25.

arcy Circuit Court; Jno. I. Worthington, Judge; STATEMENT OE EACTS. This action was begun in the county court by the International Harvester Company of America to recover a claim of $1,514.60 for road machinery alleged to have been sold by it to Searcy County. The county court rejected the claim, and an appeal was taken to the circuit court.

I. Worthington, Judge; There is no conflict in the testimony. The only question is one of law. Cotton was Sanders’ attorney ,and agent and could not avail himself of any advantage his position gave him, nor speculate for his gain. 25 Ark. 219; 90 Id. 301; 21 E. C. L. 825; § 10, 61 L. E. A. 176; 4 Id. 218. He could not serve Sanders .and the company in the same transaction. 21 E. C. L. 825-6-7; 217 U. S. 286; 21 L. E. A. 54, 827 § 11 and notes; 31 Cyc.

M. Jackson, Judge; Appellant was an innocent purchaser of the note for value before maturity. 41 Ark. 418; 42 Id. 22; 102 Id. 426; lb. 451. Payment to the payee who is no longer the holder of the note does not discharge the maker. 102 Ark. 426; 55 Id. 347. See also 75 Id. 170; 98 Id. 370. The question should have been submitted to a jury.

B. Priddy, Judge; 1. The supporting affidavits were filed within the time and duly verified before the case was called for trial. The complaint stated a good cause of action, and if the facts stated are true there can be no question of contestant’s right to the nomination. It was error to .sustain the demurrer. Acts 1917, Yol. 2, p. 2296; Kirby’s Digest, § f 6120, 5976, 6145; 42 Ark. 59; 94 Id. 345. A strict compliance with the statute was not necessary. 2.

8. Magpies, Judge; 1. Inasmuch as this is an action to recover from C. W. Baker on a written obligation signed by him and not denied upon oath, appellant’s case was fully made out, and no other proof was necessary. The receipt showed that appellant had paid the $500 and no fraud was alleged or proved. 30 Sou. 758. The shortage was proved and payment by the company. The evidence was sufficient, and the verdict is contrary to the law and evidence. 97 Ark. 442; 89 Id. 24, 29. 2.

G. Trimble, Judge; 1. . Appellant is not liable because the damages sued for are remote and speculative. 2. If appellee’s theory as to damages is correct then appellant is protected against them by the contract. 1 Suth. on Dam. (3 Ed.) 140; 64 Ark.-510; 83 Id. 47; 122 Id. 23; 96 Id. 78; Johnson v. Inman, 134 Ark. 345; 59 Atl. 31; 104 Pac. 930; 28 S. E. 106; 4 S. W. 687; 73 S. E. 70; 12 L. R. A. 125; 18 Tenn. 20, 23, 26; 12 L. R. A. 125.

There is. no written agreement to convey the lands. The contract is within the statute of frauds. Kirby & Castle’s Digest, § 3982. It does not contain a description of the property to be conveyed. Browne, Stat. Frauds (5 Ed.) § 385; 85 Ark. 1; note to 11 L. B. A. 98; 72 Ark. 496. No effort here is made to describe the property. No lands are identified by the description.

B. Sorrells, Judge; 1. This case should be reversed and dismissed for the contributory negligence of appellee. They failed to stop or look and listen and were guilty of culpable negligence. ■ 78 Ark. 355; 117 Id. 464; 96 Id. 643. 2. Brewer was guilty of negligence and both guilty of contributory negligence, barring recovery. 33 Cyc. 1017; 24 N. E. 1092; 121 N. Y. Sup. 652; 107 Id. 1068; 106 Id. 522. 3.

W. Smith, Judge; The court erred in not sustaining appellant’s plea of former acquittal and in its instructions to the jury. He was exposed to conviction under his plea before the mayor for the same offense. 100 ,Ark. 595. 1. Under the provisions of our statutes it is only a conviction that bars another trial and not an acquittal of a misdemeanor. 8 E. C. L., § 137; Kirby’s Digest, §§ 2514, 1739; 15 Ark. 261; 28 Id. 113.

B. Haynie, Judge; STATEMENT OP PACTS. Scott Bros., a partnership, were cotton factors engaged in business at Paris, Texas. J. D. Hanson, a merchant at Buckner, Arkansas, entered into two written contracts with Scott Bros., dated, respectively, August 4 and August 16, 1916.

I. Worthington, Judge; The court erred in its instructions to the jury. Penal statutes are strictly construed. The proof at most, only shows negligence, but under our statute the act must be wilfully done. Kirby’s Dig., § 1874; 53 Ark. 334-336. Confess error, citing Kirby’s Digest, § 1874, and 53 Ark. 334.

Ruby Miller sued the Ft. Smith Light & Traction Company to recover damages for personal injuries sustained by her in ,a collision between an automobile owned and operated by her husband and a street car of the defendant which she alleges occurred on account of the negligence of the defendant’s servants in operating its street car. The defendant answered and denied negligence on its part and pleaded contributory negligence on the part of the plaintiff in bar of her recovery.

8. Lake, Judge; 1. The demurrer should have been sustained. It does state sufficient facts. It does not allege the venue nor the date of the crime. It is not direct and certain. Kirby & Castle’s Digest, § § 2397-8. 2. The evidence is not sufficient that Norman manufactured liquor, that Higgins knew of it or sheltered hinn or concealed the crime. 3. The court erred in refusing to exclude the testimony of Wright. It was prejudicial. 69 Ark. 653. 4.

E. Martinecm, Chancellor; 1. The findings of the court are contrary to the law and evidence. The evidence proves adultery. 46 Cent. L. J. 89; 5 A. & E. Ene. L. 824. .2. Improper evidence was admitted. 25 Conn. 195; Wharton on Ev. 777; 1 Greenl. Ev. 140, § 101; 192 S. W. 893; 7 Id. 821; 2 Grreenl. Ev. 40, § 40, etc. 1. No proper abstract was made and filed. 102 Ark. 95. 2. The evidence fails to show adultery but sustains the findings and decree of the chancellor.

8. Lake, Judge; The motion, for new trial was filed in time and the court abused its discretion in overruling it. Kirby’s Dig., § § 2421-2, 6218-6220; 56 Ark. 133; 102 Id. 373; 35 Id. 56; 48 Id. 305; 84 Id. 409; 69 Id. 545; 111 Id. 399; 86 Id. 481. A new trial should have been granted. 1. The motion was properly overruled. It was filed after the term adjourned. Kirby’s Digést, § 2421; 113 Ark. 237; 58 Id. 229. Kirby’s Digest, § 6220, only applies to civil cases. 2.

The appellants and appellees owned, respectively, an undivided half interest in a certain lot in the city of Morrilton, Arkansas. In a decree for partition, the land was ordered to be sold. A commissioner was appointed to make the sale, and, after advertising the land in obedience to the decree, sold the same at public sale. The land was bought in for the appellee by their agent, Jim Oliver, who bid for same the sum of $200.

E. Martin■eau, Chancellor; 1. The subject-matter of the ordinance is within the terms of the powers delegated to cities by statute. Kirby’s Digest, § § 5438, 554, 5439, 5461, 5468. 2. The ordinance is not unreasonable and arbitrary. It is an exercise of explicit power reposed in cities by statute to promote the public safety. 127 Ark. 38, 43-4; 101 Id. 223; note to Ann. Cas. 1916 B, 502.

Cochran, Judge; 1. No issue for jury ,as to whether headlight on car was burning. There was no evidence of negligence on the part of defendant in operating its car without a headlight burning. 2. Court erred in refusing to instruct that no presumption of negligence from happening of the accident. The seventh instruction for defendant should have been given. 72 Ark. 572-9; 76 Pac. 560; 27 Id. 371. 3.

M. Elliott, Chancellor; 1. The preponderance of the testimony shows that the various tracts of land were bought, individually by C. P. Toll and that there was no partnership but an individual transaction of Toll. 2. But if they were partners, the chancellor erred in his findings as to the amounts paid by Toll on the purchase price, expenses, commissions and taxes and the allowances made to Lewis. 3. The court erred against the right of Geo. 0. Toll as to the $700 mortgage.

Mc-Mahan, Chancellor; Under the facts appellant has a life estate and is at least entitled to reimbursement for the amount expended. The claim is just, valuable and beneficial and not within the statute of frauds. He has no adequate remedy at law. It was error to sustain the demurrer. 91 Ark. 280; 55 Id. 295; 30 Id. 262. 1. Appellant had no lien as a mechanic or material man. 114 Ark. 1; 119 Id. 43; 115 Id. 230. 2.

R. Haynie, Judge; 1. The court abused its discretion in refusing a continuance. 2. This is a possessory action; tbe right of ownership is not involved. It was error to place the burden of proof on appellant. The relation of landlord and tenant must exist. 128 Ark. 277. On the proof appellant was entitled to the possession. It was error to instruct for appellees. The court erred in refusing to allow Bob Hall and Gladney and Maryman to testify.

8. Maples, Judge; 1. Neither the answer nor cross-bill is verified. Nor was the affidavit required by § 3108, Kirby’s Digest, made. The court erred in directing a verdict. 2. The motion to strike out appellee’s denial of her -signature should have been sustained because she had plead coverture, which was an admission that she signed the note and at the time was a married woman.

H. Dudley, Judge; STATEMENT OP PACTS. Steve Mantle sued W. M. Phillips before a justice of the peace to recover $125, which he alleged the defendant owed him for a debt on a contract. The plaintiff recovered judgment before the justice of the peace, and the defendant appealed to the circuit court. The case was tried anew in the circuit court before a jury. According to the testimony of Steve Mantle, he had rented his farm to W. M. Phillips for a stipulated price per annum.

S. Maples, Judge; 1. The court erred in giving instruction No. 1 for plaintiff. It attempts to define what is necessary to constitute a warranty in sales and is correct abstractly, but there is no evidence upon which to base it. Also in giving No. 4 which is abstract in form and errs as to the measure of damages. 35 Cyc. 465-472-479. 2.

P. Henderson, Chancellor; STATEMENT oe eaots. This suit was instituted by the appellees against appellant to foreclose a vendor’s lien on a house and lot in the city of Hot Springs.

H. Coleman, Judge; ■ 1. It was error to direct a verdict. Brady had been suspended and was not a-member in good standing at his death. The payments made were never accepted. Brady had forfeited all rights and was never reinstated. There can be no recovery. 80 Ark. 417.

E. Dudley, Judge; STATEMENT OE EACTS. E. A. Neeley brought this suit against Albert N. Johnson to recover damages by reason of the failure of the defendant to cut and deliver at his mill according to contract the cypress timber off of certain land. The contract which is the basis of this lawsuit is as follows: “This contract and agreement entered into this the 31st day of July, at Jonesboro, Arkansas, by and between Albert N. Johnson and Louis G-.

G. Trimble, Judge; A peremptory instruction should have been given for defendant. Plaintiff was a mere licensee — he was not on business nor invited by the company. He took all risks of danger and can not recover. 81 Ark. 368; 48 Id. 491; Thompson on Carriers, p. 105, § 2, etc. The judgment should be reversed and the cause dismissed. Appellee was not a trespasser but a licensee, and as such entitled to protection against darkened pitfalls.

.Appeal from Fulton Circuit Court; J. B. Baker, Judge; STATEMENT OF FACTS. This is an action of slander by Ben McDonald .against V. D. Louthen, claimed to have been uttered by the defendant in the presence of several persons.

Tbe demurrer should have been sustained. The State should have been required to elect which offense it would rely upon for conviction. 22 Cyc. 407; 197 S. W. 998; 199 Id. 382. 2. The indictment charges two separate offenses. The motion to elect should have been sustained. 204 S. W. 848. 3. It was error to permit testimony as to other kegs of beer than the one charged in the indictment. 197 S. W. 998; 179 Id. 846; 199 Id. 382; 155 Id. 939; 158 Id. 1133; Wharton on Cr. Ev.

<p>Appeal and error — failure to bring up evidence — presumption.— Where the "decree in a chancery case recites that “the cause is submitted to the court upon the evidence and the pleadings,” and the clerk certifies that the transcript contains all of the evidence introduced in the case, but it does not appear that the testimony was ever reduced to writing and filed in the case, or that it is authenticated in any manner, the1 presumption will be indulged on appeal that the evidence sustained the decree, so far as it is possible for a decree based on the complaint to be sustained by evidence.</p>

All the exhibits to the complaint may be looked to on demurrer and will control the allegations where they are conflicting. 112 Ark. 572; 91 Id. 400; 29 Id. 444; 90 Id. 190; 99 Id. 218; 104 Id. 459. Interveners^are the owners of the land in controversy. No one has been in the peaceful adverse and continuous possession long enough to invoke the statute of limitations. 2. Neither the statute of limitations nor laches is available against interveners.

W. Hendricks, Judge; 1. The appellant was entitled to recover upon the familiar rule that where one of two innocent persons through negligence, carelessness or misplaced trust makes it possible for the injury to occur he must suffer the consequences. Appellee intrusted certificates of stock to a young clerk in its office, sent in for reissue and endorsed in blank.

Mc-Mahan, Chancellor; 1. It was error to sustain the demurrer. A cause of action was stated and plaintiff was entitled to the relief prayed. The deed absolute in form was a mortgage and the debt had been paid. 95 Ark. 501; 130 S. W. 519; 37 L. R. A. (N. S.) 525. The deed was given to secure a debt and in equity is a mortgage. 7 Ark. 505; 18 Id. 34. The debt had been paid. 114 S. W. 709; 88 Id. 299.

The nature of the action was not set forth in the-summons. This is fatal. 3 Ark. 343-4; Kirby’s Digest, § 4569. 2. The writ was not properly served. There was no service and the court was without jurisdiction and the judgment is void. 7 Ark. 45-6; 9 Id. 439; 22 Id. 362; 32 Id. 23; 39 Id. 192; 32 Cyc. 463-4-5. The mere statement of itoady to appellant that the writ had been left for him, unaccompanied by delivery or reading was not service. 4 Ark. 449-450.

M. Elliott, Chancellor; 1. Appellant is the purchaser and owner of the lands and entitled to possession. His right is not defeated by the defeasance clause in the deed because the clause is void as being repugnant to the grant. 92 Ark. 324; Kirby’s Digest, § 2745. Appellant was a bona fide purchaser under the proof. He paid his first note and the Levys and the Trust Company took possession of and disposed of his crop, which more than paid for the land. 2.

A. Falconer, Chancellor; The motion to reopen the decree should have been granted. Kirby’s Digest, § 5629; 36 Ark. 600. The statute is mandatory. The motion was filed in time and was the only adequate remedy. 69 Ark. 51i8; 64 Id. 126; 74 Id. 173; 85 Id. 272; 90 Id. 156.

E. Martineau, Chancellor; 1. Appellee is a foreign corporation and has not complied with the laws of this State. The contract is void. Act of May 13, 1907; 128 Ark. 211; 115 Id. 166. 2. The sureties are not liable because a material alteration was made in the letter of credit. The unauthorized alteration of the contract discharged the sureties. 56 Ark. 50; 66 Id. 287; 71 Id. 601; 86 Id. 212; 93 Id. 479; 113 Id. 421; 123 Id. 487; 122 Id. 528.

B. Baker, Judge; 1. The evidence merely tends to show an accord without satisfaction. The notes and mortgage were never executed. The accord contemplated valid mortgages; this was not complied with. Kirby & Castle’s Digest, § 6408. Hence there was no satisfaction. 2. The court erred in giving instruction No. 2.

T. Humphries, Chancellor; No fraud was practiced by appellant, but tbe deed was made of appellee’s own free will and accord. 97 Ark. 268; Story Eq. Jur. 203, § 191; 2 Kent, Com. (4 'ed.) 484-5. She signed tbe deed and acknowledged it after ber attention bad been called to tbe fact that sbe was conveying more land than sbe now claims. 40 Ark. 219; 85 Id. 363; 173 IT. S. 17; 102 Ark. 363. 1.

This action was brought by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained by the appellee while he was in the employ of the appellant as a brakeman. The appellee alleges in substance that on the 6th day of April, 1916, the appellant, as receiver of the Ft. Smith & Western Ry.

Francis Circuit Court; J. M. Jackson, Judge; 1. The court erred in sustaining the demurrer. The complaint stated a good cause of action. The bank was liable as it converted a trust fund with knowledge of its identity and character. 114 S. W. 322; 38 Atl. 893; Am. Cas. 1914 B. 067; 82 Ark. 519; 12 B. C. L. 1172 et seq. 2. Rolfe was liable as president of the bank. Kirby’s Dig., § 848; 90 Ark. 51. 1. There was no liability.

W. H. Tucker brought this suit in equity against Byron Ashcraft for the specific performance of a land contract. According to the testimony of W. H. Tucker, he rented the forty acres of land in controversy from Byron Ashcraft for the year 1916, and agreed to pay as rent one-third of the corn and one-fourth of the cotton raised on the land.

W. Smith, Judge; 1. The demurrer should have been sustained. The affidavit stated no violation of law. 202 S. W. 39. It did not charge that defendant transported whiskey “for another or unlawfully.” 2. The motion in arrest of judgment should have been sustained. There was nothing in the information or affidavit upon which the court could render judgment. It charged no violation of law. 85 Ark. 404; 100 Id. 195; Kirby’s Digest, § 2427. 3.

H. Coleman, Judge; STATEMENT of facts. The appellee brought this action against the appellant.

The court erred in refusing to give the peremptory instruction requested by defendant. No negligence was proven. It was a simple tool, and no duty of inspection rested on the company. Any defect was open and obvious, and appellee assumed any risk of injury. 83 N. E. 353; 88 Ark. 36; 108 Id. 383; 4 Thompson on Negl. (2 ed.), § 4708; 1 Labatt on Master & Servant, 331, ^ 154; 82 S. W. 1026; 130 Ark. 486; 141 Ky. 40; 127 Pac. 474. 2.

The evidence is not sufficient to sustain the conviction. There was no proof of an intention to injure coupled with an act of preparation for such injury. 77 Ark. 37; 105 Id. 218. No intent to rape was proved. The most the evidence would sustain would-be a simple assault. 2. It was error to permit the State in rebuttal to introduce testimony to establish the general reputation of the prosecuting witness.

Appellants, who were the daughters and grandchildren of J. W. Stuart, deceased, brought this suit in equity against appellee, who were the sons and the widow of J. W. Stuart, deceased, and the object of the suit was to establish a trust in certain property devised by said J. W. Stuart to his wife, M. R. E. Stuart. Appellees answered, denying the trust and averring that the property was left to Mrs. M. R. E. Stuart absolutely under the terms of the will.

<p>Food — implied warranty- in sale. — When articles of human food are sold to the consumer for immediate consumption, there is an implied warranty that they are sound and fit for food.</p>

Francis Circuit Court; J. M. Jackson, Judge; 1. Prior to the Act 1913, No. 217, pages 936-7, appellant was liable as an insurer. 103 Ark. 593. After the passage of that act he was only liable as a bailee for hire. 14 R. C. L. 33-34. Negligence was a good defense. The question should have been submitted to a jury as appellant was not an insurer but liable only for loss occasioned by negligence and only then to the extent of $50. It was error to direct a verdict.

The making of the new contract did not cancel and rescind the first contract. 90 111. 86; Black on Rescission & Cancellation, etc., § 8; 6 L. R. A. 503; 76 Q-a. 3; 149 Mass. 271; 59 Pac. 162; i84 Atl. 811. There must be a mutual revocation, a specific agreement to rescind the old contract. 45 S. E. 374-5. The party must be put in statu quo. 25 Ark. 190. 2. The second engine was of no value, was never accepted and was held subject to the order of appellee.

M. Jackson, Judge; 1. The abstract of appellant shows what the issue was and enough of the evidence to show that it was a question of fact for a jury to determine. 89 Ark. 227. 2. The affidavit did not show on its face that the value of the property taken was less than $300; and if the testimony showed that the value was far in excess of that sum, the judgment of the justice was void.' 36 Ark. 272; 43 Id. Ill; 61 Id. 34. 3.

M. Jackson, Judge; The evidence is clear that Brown had abandoned the homestead. 101 Ark. 103; 103 Id. 576; 126 Id. 541. 1. The property was clearly appellee’s homestead and there was no abandonment. The finding of the court is sustained by the evidence. He had the right to offer it for sale, or sell it.

Smith, Judge; 1. It was error to refuse to exclude the physician’s testimony. It was not competent. 106 Ark. 177; 30 L. E. A. 504; 90 S. W. 1155. 2. The verdict is excessive, as no permanent injury is proven. 3. Contend that there is error in the instructions, but they are not abstracted, nor set out in full. 4. The cause of action occurred in Louisiana, and it was error to declare the judgment a lien. 128 Ark. 222.

<p>Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor;</p> <p>Action by the Board of Directors, of Garland Levee District against the Dorsey Land & Lumber Company and others. Judgment for plaintiff, and defendant named appeals.</p>

<p>Appeal from Cross Circuit Court; W. J. Driver, Judge.</p> <p>Dr. H. M. Blumenthal was indicted for arson. From a judgment sustaining a demurrer to the indictment, the State appeals.</p>

Francis Circuit Court; J. M. Jackson, Judge; 1. It was error to direct a verdict. A case was made for a jury under Section 4431, Subdivision 5, Kirby’s Digest. 2. The sheriff’s return was part of the record and shows appellee to be a married woman. 3. It was not proved that appellee signed as surety for her husband. There is evidence that it was given for her separate business in which she was actively engaged. This was a question of fact for a jury.

I. Worthington, Judge; 1. The primary estate is wholly insolvent and, the judgments being unpaid, the appellant was compelled to pay, and did pay off, the claims and took an assignment. The ancillary estate is solvent and has ample funds to discharge the claims without recourse to a collection of this circuit court judgment against appellant. The demurrer was improperly sustained.

T. Goston, Special Judge; 1. The service attempted to be had was void and of no effect. The judgment was absolutely void. Acts 1917, Act 462, § 17; Kirby’s Digest, § 4424; 39 Ark. 347; 68 Id. 566; 63 Id. 323; 89 Id. 164; 127 Id. 306. 2. Defendant had no knowledge of the suit and no chance to make defense until after judgment by default. But defendant had a meritorious defense. The deceased •had forfeited his policy by violating the terms of the policy and by-laws.

S. Dudley, Judge; 1. If the fire was set out by a Cotton Belt train, that company alone would be responsible. 126 Ark. 236. The evidence is largely conjectural and very unsatisfactory, there being many inconsistencies and contradictions. There is no legal evidence that the fire was set out by a train operated by the receiver and the instructions were error. 2.

Cochran, Judge; 1. The court improperly admitted evidence as to a sale to Clem. It was not necessary to allege the name of the person to whom the liquor was sold, but if alleged it must be proved. 125 Ark. 47; 129 Id. 106; 130 Id. 322. Other crimes could not be proved. 4 A. & E. Enc. Law', 850; 54 Ark. 626; 39 Id. 278; 37 Id. 261; Jones on Ev., § 143; Black'on Intox.

H. Evans, Judge; 1. The testimony wholly fails to establish any actionable negligence on part of defendant. 2. All of the instructions given contain reversible errors. Facts not proved are assumed. Some are abstract and ignore the defense of assumed risk. 104 Ark. 236-245;. 58 Id. 228; 78 Id. 381; 97 Id. 180; 90 Id. 107; 116 Id. 284-291; 101 Id. 537-543; 105 Id. 209; 99 Id. 385, etc. 3. Irrelevant testimony was admitted. 90 Ark. 107; 105 Id. 209; 198 S. W. 120.

J. Driver, Judge; Statement oe Facts. ■ This is an action by W. D. Shelton, as guardian of Edwin Prentiss Heathcock, minor, against the Truman Cooperage Company to set aside a judgment in favor of Edwin Prentiss Heathcock, a minor, by Mary E. Heath-cock, his next friend and mother; and Mary E. Heath-cock, against the Truman Cooperage Company for damages alleged to have been sustained by the minor by reason of the negligence of the Cooperage Company.

Francis Chancery Court; E. D. Robertson, Chancellor; 1. The complaint alleged no grounds of chancery jurisdiction. The demurrer should have been sustained. Const., art. 7, §11. 2. There was no breach of the supersedeas bond,and plaintiffs are not entitled t'o recover: 111 Ark. 362. The bond was discharged. 2 Cyc. 938; 22 N. Y. Civ. Pro. 290; 19 N. Y. Supp. 844; 46 N. Y. State, 917; 29 Ark. 480; 95 Id. 308. See also 59 Ark. 32. 3.

M. Jackson, Judge; 1. The court erred in giving instructions 1 and 2 for defendants. Under the law it was not necessary that the order be accepted by defendants to bind them. If it was delivered to them for acceptance, it was sufficient to bind them. Kirby & Castle’s Digest, § 7077. 2. The finding of the jury was contrary to the law as given by the court in instruction No. 3. The order was delivered for acceptance and bound defendants.

B. Baker, Judge; 1. These were interstate shipments. Posting is not essential to make the rates legal. 273 U. S. 573; 204 Id. 449. .2. Defendant was not entitled to damages for the failure to post tbe schedule in its station. 227 U. S. 639, 652; 212 Fed. 324; 138 Ky. 220; 127 S. W. 779; 226 U. S. 441; 27 I. C. C. 625.' ' 3. The counterclaim was improperly allowed. 233 Fed. 135, 716; 219 IT. S. 467; lb. 486; 237 Id. 94; 202 Id. 242; Judson on Interstate Com.

An absolute decree of divorce should have been granted with. statutory alimony. All the grounds for divorce were sufficiently proved. 98 S. W. 975; Kirby’s Digest, § 2684, 2. Habitual drunkenness was sufficiently shown. 147 S. W. 73; 38 Ark. 324. 3. Adultery was proved. 101 Ark. 522. 4. Indignities were proved' sufficiently. 1. The appeal should be dismissed. 109 Ark. 449; 160 S. W. 857; 53 Ark. 514. She accepted the benefits under the decree and can not appeal. 2.

A. Falconer, Chancellor; 1. The car was worthless. False representations were made and they were material. Appellee knew they were false. Appellants relied on these representations. The rule of caveat emptor does not apply here. The vendor knew the purpose for which the car was purchased and a fraud was committed. The false representations were a warranty. 38 Ark. 334; 60 Id. 387; 47 Id. 148. 2.

<p>Appeal from Saline Circuit Court; W. E. Evans, Judge;</p>

Mc-Mahan, Chancellor, Statement oe Facts. Mrs. W. E. Talley filed a petition in the chancery court for an allowance and payment of a dividend from the Citizens Bank of Rogers, Arkansas, which had been adjudicated to be insolvent and placed in the hands of John M. Davis, State Bank Commissioner. The dividend had been refused her on the ground that the money claimed by her belonged to her husband, W. E. Talley.

<p>1. Master and servant — personal injury — question for jury. — In an action by a section hand for personal injury when the section crew lost control of the motor car which ran against his foot, held under the evidence that the question whether the foreman was negligent in selecting a difficult place for the motor car to be taken off and replaced and in ordering the men to handle the car under those circumstances was for the jury.</p> <p>2. Same — reliance on foreman. — Even in a situation open and obvious, servants acting under the immediate orders of their foreman might rely upon his superior knowledge and judgment as to their ability to handle the car under the circumstances.</p> <p>3. Same — assumed risk — question for jury. — Even though the conditions of the track and dump where the plaintiff with others was attempting to replace the motor car on the track were open and obvious it can not be said as matter of law that he assumed the risk, that being a question for the jury.</p>