Volume 138 — Arkansas Reports

Circuit Court, Fort Smith District; Pcml Little, Judge; 1. The court should have directed a verdict for the railroad company for the full amount sued for with interest. The deduction made by the jury was without authority of law and against the- evidence and contrary to the contract. No defense was set up in the answer, and final judgment should be entered here for the full amount sued for. The cotton was moving in interstate commerce and the demurrage charge was duly proven.

District; Paul Little, Judge; 1. The cause of action was barred by the statute of limitations. The complaint was filed April 4, 1918. It shows on its face that the injury was done on August 28, 1914. The file mark on the complaint is a part of the record and conclusive. 41 Ark. 53. The answer and hence the record shows that the suit was brought more than three years after the cause of action accrued and that the bar of the statute was claimed.

Worthington, Judge; 1. The cause should have been transferred to chancery court as the answer shows there is a long and intricate account between the parties which ought to have been stated by a master. 27 la. 234, and oases cited; 48 Ark. 426; 51 Id. 98; 31 Id. 345; 71 Id. 32; 49 Id. 568; 6 Id. 191. 2.

S. Maples, Judge; STATEMENT OP PACTS. Towne Young, trustee, brought suit against Funk & Son, E. M. Funk and Erwin C. Funk to recover the sum of $149.40 and the accrued interest alleged to be due him on a promissory note. The note is dated April 27, 1914, at Rogers, Arkansas, and is signed by Funk & Son, E. M. Funk and Erwin C. Funk.

- Elliott, Chancellor; STATEMENT OE EAOTS. Held: could not be compelled to convey the Hunter land to the brothers. The great preponderance of the evidence and all the law sustains the findings of the chancellor' and it should not be disturbed, as the decree is just and righteous. Cases supra.

E. Evans, Judge; 1. The suit should have been brought in the probate court, as the circuit court had no jurisdiction. Kirby’s Digest, § 124; 90 Ark. 198. 2. There was no duly authenticated claim against the estate presented prior to the institution of suit in the circuit court. Kirby’s Digest, $ § 110, 119; 30 Ark. 756; 7 Id. 7i8; 14 Id. 234; 110 Id. 225; 105 Id. 97. 3. The suit was barred by the statute of nonclaim of one year.

8. Lake, Judge; 1. The act of 1907, Acts 1907, p. 474, was repealed' by act of 1915, Acts 1915, p. 707, and the old district was thereby dissolved. All rights under a repealed statute are lost by its repeal unless saved by express words or there be vested rights, and in this case there were none. 31 Ind. 11; 130 Ark.-67; 36 Cyc. 1083, 1224; 68 Ark. 433; 89 Id. 598. 2. The court erred in declaring the law.

P. Henderson, Chancellor; 1. It was error to sustain the demurrer. The allegations of the amended answer show that appellee only asked $25 for the alleged wrongful taking of the mare but the jury awarded $50, or $25 more than he asked. Á claimant cannot state one cause of action and recover on another. 31 S. W. 262; 8 Id. 562; 170 Id. 324.

Mc-Mahan, Chancellor; The sale was fairly made under the order of court and in conformity to law and there was no fraud and no evidence that the property would bring more on a resale. It was error to refuse to confirm for mere inadequacy of price. 77 Ark. 216; 86 Id, 255; 108 Id. 366; 56 Id. 240; 20 Id. 381; 44 Id. 502; 108 Id. 366; 29 Fed.

The parties to this litigation are coterminous proprietors of tracts of land which are made irregular in shape by Booneville creek, a tortuous stream running through the land, or, rather, forming the boundary of both tracts. Both parties deraign their title from one James Boss, who at one time owned the land on both sides of the creek at the point in controversy.

8. Lake, Judge; The judgment was void and the circuit erred in not quashing it on certiorari issued by the judge in vacation. The defendant had not been served with summons when the judgment was rendered and defendant had a meritorious defense to the suit. Kirby’s Digest, § 4124; 2 Ark. 85, 121. Jurisdiction of courts inferior cannot be inferred, but must be shown. 51 Ark. 317.

The instruction to the jury is a mistaken statement of the law. It authorizes the jury to arbitrarily take into their own hands the entire business transaction and “settle the entire matter” independent of any representation or warranty, by determining what the harse»:| was worth and awarding to appellant or appellee the rdir-n ference between this value and the amount already'paid by appellee simply as a moral right. This is not the'law.

C. Trimble, Judge; The court erred in its instructions to the jury and in its remarks in the course of the trial. The appellant on the law and the evidence was entitled to recover. Act 29(8, Acts 1905, p. 726. Hill admits the account was correct and appellee was liable under the act for the account. 84 Ark. 412. Judgment should be entered here for the amount sued for. Acts 1905, p. 726; 84 Ark. 412.

E. Dudley, Judge; The court should have admitted the evidence of settlement offered by appellant pleaded in the amended answer; (a) there was a contract of settlement between .the claim agent of appellant and Charlie Winslow, son and agent of appellee.

E. Coleman, Judge; STATEMENT OP PACTS. This is a suit in ejectment by W. W. Campbell against H. C. Sanders and S. Brundidge to recover possession of lots 5 and 6 in block 13, in Morris’ Addition to the city of Newport, Arkansas. The complaint alleges that the defendants are in the possession of the lots. The plaintiff bases his claim and right of possession solely upon a tax deed executed to him by the clerk of Jackson County, Arkansas, on the 13th day of June, 1918.

M. Jackson, Judge; 1. It was error to overrule plaintiff’s motion to strike defendant’s set-off. No set-off or counter-claim was plead before the justice and it could not be plead in the circuit court on appeal for the first time. Kirby’s Digest, section 4682; 44 Ark. 375; 85 Id. 444. 2. The court erred in its oral charge to the jury. Cases supra. Judgment should be entered here, as the claim is undisputed.

Haynie, Judge; STATEMENT OE EACTS. This is an action in replevin brought in a justice court by W. M. Munn against Alexander Eccles & Company to recover a bale of cotton alleged to be worth $140. There was a judgment in the justice court in favor of the plaintiff, and the defendants appealed to the circuit court.

H. Evans, Judge; STATEMENT OP PACTS. This action was brought by the appellant against the appellees. The appellant is a Minnesota corporation, duly authorized to do business in the State of Arkansas.

F. McMahcm, Chancellor; 1. The payment of the bonus was not ultra vires, and the court erred in so holding. There was no testimony that the bank through its officers exceeded its charter powers in paying the $3,100 bonus. The bank had the power to expend this sum to preserve its assets and protect its securities and a debt due to the bank. And it had the power to acquire by purchase the Texas ranch and cattle. Act No. 113, Acts 1913, $ 29; 5 Cyc. 492.

H. Coleman, Judge; 1. The order granting the appeal was made in time and it was error to dismiss the appeal. Acts 1909, p. ¡837, § 7. The appeal was prayed and granted within the twenty days. 2. The general statute, Kirby’s Digest, § 1487, applies here except insofar as modified as to the time by the act of 1909, supra. The right of appeal is constitutional and cannot be destroyed by the Legislature. Article 7, section 14, Constitution 1874. See also section 33, lb.

W. Hendricks, Judge; STATEMENT OF FACTS. This is a proceeding by certiorari in the circuit court to set aside an order of the Board of Dental Examiners of this State revoking the certificate of Dr. F. A. Blanchard authorizing him to practice dentistry. The proceeding brings into question an act of the Legislature passed in 1915 regulating the practice of dentistry and dental surgery in this State. Acts of 1915, p. 17l8.

H. Dudley, Judge; The prosecuting attorney was not present and prosecuting when the plea of guilty was entered and he was not entitled to the fee. Kirby’s Digest, § 6389, as amended by Acts 1905, p. 559. The amendment does not in any way amend or repeal section 6390, which provides that no prosecuting attorney or his deputy shall receive any fee unless he personally appears and prosecutes, etc., It was error to award the mandamus. 103 Ark. 601. 1.

T. Humphries, Chancellor; 1. McLain had the right to appeal from the action of the probate court. Kirby’s Digest, § 1347; art. 7, § 35, Const. 1874; 18 Ark. 600; 22 Id. 368. The appeals are in proper form. Ib. Appellees can not question the transfer tlo chancery, because they asked for the transfer themselves. 2. The court erred in overruling the demurrer of appellant McLain.

Elliott, Chancellor; 1. The motion to dismiss and to quash the summons for want of jurisdiction should have been sustained. The suit should have been brought in Desha County and not in Lincoln County. Acts of 1917, pp. 1714,1366. The suit was improperly brought in Lincoln County when itl should have been brought in Desha County, where the venue was properly under the act and our statutes. The defendant resided in Desha County and its domicile was there.

B. Priddy, Judge; STATEMENT OE EAOTS. Seventeen parties, the appellees, as plaintiffs, instituted this action in the justice court against R. D. Earl, doing business under tlhe firm name of Earl Brothers & Company, the defendant. Each of the plaintiffs, in a separate count, set up that on or about the first day of February, 1917, he purchased from the defendant a certain quantity of Burt oats for seed.

R. Hayme, Judge; 1. The testimony shows that Sevilla Gibson was in lawful possession of the land for many years under claim of title that she and her husband occupied the land for twenty years or more, that her husband died in possession, and after his death she occupied the land in person or by her tenant. Westlon Gibson claimed the land under purchase and died in possession.

Appellee was not entitled to recover anything because of contributory negligence of the deceased. Neither he nor his driver stopped, looked nor listened for the train at the crossing, nor exercised care or diligence to discover a train where the track was plainly in view and open and unobstructed.

Appellees, D. P. Day and other land owners in the Westlern Clay Drainage District, brought this suit against D. Hopson, Joseph McCracken and J. H. Magee, individually, and as directors of the drainage district, for the purpose of charging the directors with personal liability for various sums of money derived from the sale of the bonds of the district'which had been loaned by said directors to themselves and to other persons in violation of the law.

This court has often upheld the power and right of a chancery court to enjoin a judgment at law unless the successful party would submit to a new trial. 61 Ark. 354; 38 Id. 283; 40 Id. 338; 35 Id. 123; 73 Id. 555; 75 Id. 507; 96 Id. 520; 114 Id. 261; 120 Id. 151. Keeping in mind the principles laid down in the above cases, the appellant is (1) without fault and (2) the judgment is unjust and inequitable and appellant was entitled to relief.

W. Hendricks, Judge; STATEMENT OE FACTS. Walter Brown and W. T. Oglesby, a partnership under the firm name of Brown & Oglesby Cash Peed Company, filed a suit, by attachment in the circuit court against Yukon Mill & Grain Company, a non-resident corporation, for a balance alleged to he due on a contract of $210. The basis of the suit is that the plaintiffs bought from the defendant 860 barrels of flour -at an agreed price to he shipped as directed.

E. Martmeau, Chancellor; STATEMENT OF FACTS. Thos. E. Broderick brought this suit in equity against the McRae Box Company, Jim_K. Hale, E. T. Hall and S. M.'Hall, to restrain them from cutting and removing timber from the 80 acres of land described in the complaint and, also, to account to him for the value of the timber already cut. E. T. and S. M. Hall filed a separate answer to the complaint.

H. Dudley, Judge; 1. The nunc pro turne order was valid at least' to the extent of setting aside the entry made by the clerk as of January 9. All courts have the inherent power to correct their records so as to make them speak the truth and where the judge knows that the record contains a false or erroneous recital it is within his power and his duty to correct the record and make it speak the truth. It was a matter within his own knowledge.

D. Shaver, Chancellor; 1. Appellees are estopped. No man can take advantage of his own wrong. 5 L. R. A. 344; 52 Ark. 211. The Vaughts claimed to have received $774 and begun their contest on the ground that the contract is usurious and then receive and cash the check for $36 more and then still insist on equitable relief. They are estopped. 32 Ark. 346; 53 Id. 514; 30 Id. 453; 97 Id. 163. . 2. The contract was not usurious.

M. Jackson, Judge; The judgment should be reversed and the cause dismissed, because: 1. The court erred in refusing to give the jury the peremptory instruction requested, as the evidence shows that appellee assumed the risk of injury at the time he entered the employment. He was of age and fully realized and appreciated the danger arising from the practice of throwing stones and missiles about the mill plant. 3 Labatt Master & S. (2 ed.), p. 3170, § 1182; 62 Ark.

Coleman, Judge; The court erred in holding that a single act of prostitution was not sufficient to make out an offense under the ordinance and that it was necessary to show that the illicit intercourse must be shown to have been for gain, that is, that money should pass. The plain terms of the ordinance do not require any such showing, and further do not require more than one act of intercourse to make the offense.

B. Haynie, Judge; STATEMENT OE PACTS. This' action was instituted by the appellant, as natural guardian and next friend of Pearl Mehaffy, against Matthew Wilson and Ralph Russell.

Mc-Mahan, Chancellor; STATEMENT’ OP PACTS. Frederick T. Hooper brought this suit in equity to confirm his title to certain lands described in the complaint. The complaint alleges that he is the owner in fee and in possession of certain lands which are specifically described.

M. Jackson, Judge; STATEMENT OF FACTS. This action was begun before a justice of the peace on the 30th day of December, 1915, by Linton & Plant against Prank Morton to replevy certain personal property under a chattel mortgage for the purpose of foreclosing it.

H. Dudley, Judge; STATEMENT OP PACTS. This action was brought by the appellee against the appellant for the alleged killing of appellee’s mare by one of appellant’s trains. It is alleged that the appellant ran one of its trains upon appellee’s mare and wrongfully and wilfully frightened her, causing her to run into a trestle on appellant’s road, which resulted in her death. The value of the animal was alleged to be $175.

McMahan, Chancellor; 1. Exception No. 7 to the master’s report filed by plaintiffs in cross-complaint should have been overruled and the master’s report referred to in said exception No. 7 should have been sustained.

Martinecm, Chancellor; Appellee admits that she voluntarily breached the contract and refused to further perform the services she agreed to render, and for which she had been twice paid. Her answer places the barden on her. Her obligation was not only to care for Mrs._ Stalcup but also for Mr. Stalcup for life.

S. Lake, J udge; ,1. The court erred in refusing defendant’s request for a directed verdict because (1) plaintiff failed to prove that the property claimed was unappropriated Government lands at the time of his attempted location. TJ. S. Rev. St., § 2319; (2) plaintiff had leased the claims to J. D. Budd and his 'associates for twenty-five years before this suit for possession and had no right to sue for possession.

Coleman, Judge; STATEMENT OF FACTS. Appellants sued appellee to recover damages for injuries sustained by being thrown from a buggy by the horse drawing it becoming frightened at the negligent blowing of a steam whistle at the gin of appellee. L. D. Daugherty lived about one mile east of Newport and worked in a garage in that city.

The chancellor erred in crediting Welker with the entire capital he put into the. business, $3,700. He agreed to furnish the cash capital and Robinson to furnish his services and time. If Welker so agreed and he did, then Robinson should be credited with his services, each to share equally. Whatever is contributed as capital becomes firm property and ceases to be owned by the contributor as an individual. 30 Cyc. 440.

Mc-Mahan, Chancellor; 1. The allegations of the original complaint made a prima facie -ease as to the validity of the ordinances establishing the districts and levying the assesments. There is no specific denial of the allegations of the cross-complaint that no petition was filed within three months after the publication of the ordinances. 68 Ark. 376; 84 Id. 257.

W. Smith, Judge; 1. The court should have instructed a' verdict for defendant. The title to the cotton did not pass until all the acts usual to a sale of cotton were complied with and there was no sale. 19 Ark. 573; 24 Id. 549. The cotton must be loaded on cars at the expense of plaintiff and hill of lading secured and appellant notified and draft drawn.

Appellants brought this suit in the chancery court against appellees to enjoin them from tearing down and removing the houses on lots 6 and 7 in block 12, of West End Addition to the city of Paragould, Arkansas. The facts are as follows: Appellee, A. A. Ryan, is a son and heir at law of John H. Ryan and appellee, M. A. Ryan, is his wife. Appellants are the minor children of A. A. Ryan.

This action was begun in the justice court. The appellant alleged that the appellee was due him the sum of $35 on account for rent, for the second year, under A lease contract entered into November 24, 1915, between the appellant and the appellee whereby the appellant leased to the appellee a certain tract of land in Crawford County for a period of ten years and as long thereafter as oil and gas were produced in paying quantities.

Francis Circuit Court; J. M. Jackson, Judge; The court erred in its instructions to the jury. They should have been instructed that plaintiffs were entitled to “substantial” damages and that a mistake of the bank in dishonoring the checks would not excuse it from liability. 5 Cyc. 535; Ann. Cases, 1913, A. 999; 7 Am. Cases 818; 10 Id. 897; 121 Pac. 939; 67 N. E. 655; 5 R. C. L. 550.

W. Hendriclcs, Judge; The act did not receive the necessary affirmative vote required hy article 5, section 27, Constitution, and is a nullity. 1 Sutherland on Stat. Const. 579; 6 R. C. L. 121; 117 Ark. 352. The claims sought to be paid are not provided for by any pre-existing law and the whole act is void. 10 Wash. 388. The whole act must be constitutional or it is void.

D. Shaver, Chancellor; STATEMENT OE EACTS. C. F. Cooley, a resident and property owner of the city of Arkadelphia, brought this suit in equity on behalf of himself and all other persons whose rights are similarly affected, against the Arkansas Light & Power Company for cutting off the light and water furnished by that company.

Francis Levee District. The appellees claim through the confirmation of title in A. J. Johnson in 1915 and also by estoppel of appellants’ ancestorby laches. 1. Appellants’ ancestor was guilty of no laches and they are not estopped. There was no forfeiture to the State at the time claimed by Johnson and he obtained no deed and his claim is not even color of title and the payment of taxes availed him nothing.

Martineau, Chancellor; 1. Defendant was properly served with summons, so it had notice of the pendency of the suit before the decree was taken. The evidence shows that it was served on an officer of the appellee. The return of the sheriff shows this and his return is at least prima, fade conclusive. 102 Ark. 255. 2. Appellee showed no valid defense to the suit, the original action. 201 S. W. 122; 116 Ark. 545-561. 1.

Elliott, Chancellor; • The deed though absolute was intended only as a mortgage and the debt secured was usurious and void and appellant is entitled to recover back all he had paid under the void contract. 117 Ark. 304; 106 Id. 166; 1 Jones on Mort., § 257; 128 Ark. 67. The intention of the lender of money is determined from his acts. The facts show usury clearly. 62 Ark. 370; 41 Id. 341; 132 Id. 377.

B. Baker, Judge; 1. The court erred in taking the case from the jury and directing a verdict. 2. It was error to withdraw and exclude from the consideration of the jury that part of J. S. Fry’s testimony relative to the acts of Fry Brothers in exercising ownership over the land and instructing the jury that it would not consider it for the reason that there was no evidence at that time tending to show that they did so under claim of ownership.

H. Dudley, Judge; STATEMENT OE EAOTS. H. C. Patterson brought an action against F. Johns to recover damages for enticing and inducing Nathaniel Meyers to leave his employment. According to the testimony of H. C. Patterson himself, he made a contract with Nathaniel Meyers to work a crop for him on the shares during the year 1918. Meyers worked with him until some time in May. He then left Patterson’s farm and went to work for the defendant Johns.

P. Henderson, Chancellor; 1. A cotenant can maintain a suit for contribution for the cost of improvements made on the common property which were necessary to maintain the rental value, when the cotenant is receiving continuously her share of the rents. 2. The proof shows that the improvements were necessary to maintain the rental value. 31 Ark. 562. A partition suit was unnecessary.

On June 30, 1916, the appellant and the appellee entered into a contract, by which the appellant agreed to sell to the appellee a certain tract of land in Craighead County, Arkansas.

B. Priddy, Judge; 1. The court erred in holding that under the testimony there was no question of fact for the jury, and in taking the case from the jury and in holding that appellee was only liable for the amount of' premiums paid by assured. It was not exempted from liability for death from natural causes while in the military service. The company is hound by the acts of its agent Scroggins, and his knowledge was its knowledge.

I. Worthington, Judge; 1. The assessment was arbitrary and unfair, higher than other lands of the same quality in the neighborhood. 124 Ark. 569; 119 Id. 362; 127 Id. 349. 2. It was error to tax the costs against appellant. Act 234, Acts 1917. The .assessment was reduced and the costs should have been awarded against the county. S. & H. Dig., § 787 lb. par. 810-811; 50 Ark. 416; 9 Wall. 655. 1. The testimony is not properly abstracted.

Chancery Court; Geo. T. Humphries; Chancellor; 1. There is no evidence of a gift from the wife to the husband. It was the property of the wife the same as if a femme sole. Kirby’s Digest, § § 5207-5227-9; 116 Ark. 142-152. The evidence is not clear and satisfactory. 84 Ark. 355-8; 101 Id. 451-6. The burden was on him to show a gift from the wife and he has failed. He was not a competent witness. Kirby’s Digest, § 3905; 81 Ark. 147-153.

<p>1. Statutes—construction op language.—When the Legislature uses words which have a fixed and well known legal signification, they are presumed to have been used in that sense unless the contrary intention clearly appears.</p> <p>2. Stay bond—construction op statute—“personal injury.”— Under Acts 1909, No. 202, providing that “no stay shall be allowed against * * * a judgment for personal injury or injuries resulting in death caused by neglect or default of another,” the words “personal injury” denote an action for bodily harm not resulting in death, and the words “injuries resulting in death” refer to the special statutory action growing out of death caused by the wrongful act of another.</p>

M. Jachson, Judge; STATEMENT OE EAOTS. The section of the statute under which the indictment in this case was returned reads as follows: “After January 1, 1916, it shall be unlawful for any person, firm or corporation to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors or any compound or preparation thereof, commonly called tonics, bitters or…

Francis Circuit Court; J. M. Jackson, Judge; 1. The Crittenden Circuit Court was without jurisdiction. 2. It did not in fact make any judgment concluding the question of plaintiff’s damages. 3. Plaintiff’s failure to appear and assert his damages' did not affect his right to be paid for bis land. Act 279, Acts 1909, § 8; 101 N. W. 2. Tbe county court bad exclusive jurisdiction. Art. 7, § 28 Const.; 79 Ark 158; 111 Id. 149.

T. Wood, Chancellor; The assessment of 19 miles of railroad was proper and valid. 15 Am. St, Rep. 878. The railroad company owned and operated 19 miles of railroad and it was assessable and taxable. The railroad company was only taxable on 7.37 miles of track, as that was all it owned. It did not build nor own the 12 odd miles. Kirby’s Dig., § 6601.

8. Lake, Judge; A wife cannot sue at law her husband or his estate. She can only sue in equity unless Act No. 159, Acts 1915, be construed so as to confer the power to sue at law. Acts 1915, p. 624, No. 159, p. 624; 30 Ark. 1. While this act enlarges the rights of married women to sue and be sued, it has no reference to the rules of production of evidence. Such statutes are strictly construed. Lewis’ Sutherland on Stat. Const., Yol. 2 (2 ed.), pp. 1056-8, § § 572-3.

It usurps the jurisdiction of the county court, -which is exclusive. 118 Ark. 119; 120 I'd. 44. It was error to-sustain the demurrer. The decree should be reversed and a decree entered here enjoining appellees as prayed. Article 7, section 28, Constitution, is not self-executing. The Legislature has power to prescribe how roads shall be built and improved. 92 Ark. 93; 122 S. W. 241; 117 Id. 544; 89 Ark. 513; 118 Id. 119; 176 S. W. 676.

Hagnie, Judge; STATEMENT OE EAOTS. This was a suit in attachment brought by the Hudgins Produce Company, a domestic corporation, against C. H. Robinson Company, a non-resident corporation, to recover the sum of $526.40 damages alleged to have been occasioned by the spoiled condition of a car of apples which the plaintiff had purchased from the defendant.

Francis Chancery Court; Edw,ard D. Robertson, Chancellor; STATEMENT OF FACTS. Annie Mabel Blanton and John Cecil Blanton brought a suit in equity against Forrest City Manufacturing Company, Forrest City Compress Company and the City of Forrest City to have their interest declared in certain lands in the possession of the Forrest City Compress Company and for an accounting of the rents and profits thereof.

E. L. Johnson, Judge; 1. There is much conflict in the evidence as to who brought on the difficulty. It is apparent that deceased was guilty of writing the objectionable letter and was looking for trouble, but it does not appear that defendant had any ill feeling towards deceased or intended to draw him into the difficulty before the quarrel in the courtroom.

B. Sorrells, Judge; 1. The contract was mutual, valid and binding, and could only be canceled as specified therein, and the court gave the clause as to loss of profits the wrong interpretation, one not intended by the parties, and erred in .instructing a verdict for appellee.

‘Appeal from Randolph Chancery Court; Lyman F. Reeder, Chancellor;, 1. The act is unconstitutional and void. From its language it cannot be determined with any degree of certainty the territory comprised in the district or meant. The language is uncertain, indefinite and ambiguous. 86 Ark. 172; 110 S. W. 801; 60 Id. 27; 68 Axk. 462; 34 Id. 224. The territory should be clearly defined and bounded. 28 Cyc! 128-131,180. 2.

B. Priddy', Judge; 1. There was no proof of negligence on the part of the railway company, but the evidence shows a case of assumed risk and contributory negligence on part of the party injured. 2. The court erred in its instructions to the jury and in refusing those asked by defendant. If there were any defects in the door they -were patent, and plaintiff assumed the risk. 82 Ark. 11; 65 Id. 98; 125 Id. 95.

. The act is unconstitutional and void. It violates Art. 14, % 1, of the Constitution; also Art. 14, § 3. 120 Arle. 81-89; 124 Id. 475-7; 61 Id. 21; 112 Id. 437-441. If the act is' upheld without sections 4, 5 and 9 it will not express the will of the Legislature, because these sections deal with matters that are not found elsewhere in the act, and the whole act must be construed together. The act plainly discriminates in favor of the schools at Lamar.

B. Haynie, Judge; 1. The verdict is excessive, as the testimony does not support a recovery for the amount found by the jury. This is not a case where a remitiitu-r will cure the error, as it cannot be said that appellee’s right to recover is free from doubt. 65 Ark. 619-629. 2.

V. Bourland, Chancellor; 1. Under the decision in 128 Ark. 505 we are entitled to a decree for defendant. There is nothing in the former decision of this case that is conclusive of this case. 131 Ark. 40. The decree is in violation of article 16, section 5, Constitution of Arkansas. 73 Ark. 515; 97 Id. 254; 128 Id. 505; 131 Id. 40. 2.

Cole-mam, Judge; STATEMENT OF FACTS. John Smith sued the Missouri Pacific Eailroad Company for damages for injury to himself and to his automobile caused by a collision with one of the defendant’s trains at a public crossing in the town of Swifton, Arkansas.

1. The court was guilty of misconduct in its dealings with the jury. It conversed with the foreman and jury when the verdict was rendered. The conduct was improper and calls for reversal. 20 L. E. A. (N. S.) 429; 11 Am. Dec. 185; 124 Mass. 567; 51 N. Y. 558; 12 Ind. 563; 23 111. 349; 14 Ohio 511; 262 Id. 392; 143 Ky. 503; 163 Mo. App. 123; 17 L. E. A. (N. S.) 609; 40 Id. 239. 2. It was error to allow the separation of the jurors. 44 Ark. 115. 3.

This is an action at law by a surety who claims that he has paid the amount of a judgment obtained against him and his principal. According to the allegations of his complaint, on the 31st day of January, 1914, the Citizens National Bank of Hot Springs obtained judgment in the Garland Circuit Court against L. D. Cooper, C. C. Rush and C. G. Bryan for the sum of $1,532.58 and the accrued interest.

It was error to overrule appellant’s motion to sustain tbe attachment on the ground that appellees had failed to file affidavit or answer under oath denying the grounds of attachment as provided in sections 414, 416, Kirby's Digest, and in permitting appellees, after the trial was in progress, to file pleadings when they had been waived, lb. The attachment should have been sustained when appellees failed to file their affidavit or answer under oath. Ib.; 90 Ark. 454. 2.