Volume 150 — Arkansas Reports

Coleman, Judge; Tbe motion for new trial on the ground of newly-discovered evidence should have been sustained, as it met all the requirements laid down in 2 Ark. 33. Under our law the witness Shanks could not have been compelled to incriminate himself by his testimony in the case, but, after his expressed willingness to testify was made known to appellant, this testimony stood in the same position as newly discovered testimony.

B. Sorrels, Judge; Tbe court erred in sustaining tbe demurrer to tbe cross-complaint. Plaintiff’s cause of action was not for tbe recovery of specific property only, but also to recover damages for tbe detention thereof. 135 Ark. 531.

M. Jackson, Judge; The oral instruction given by the court made the defendant the absolute insurer of the safety of the goods stored, regardless of what may have happened to them, and regardless of the degree of care and diligence exercised by it, which was error. 134 Ark. 76 lays down the rule that “a bailee for hire in exclusive possession of the property must explain its loss before it devolves upon the bailor to show that it was lost through the bailee’s negligence.” The…

Steel, Judge; The court should have directed a verdict in favor of defendant. The facts of the case bring it within the rule announced in 135 Ark. 76; 122 Ark. 516; 97 Ark. 24; 32 L. E. A. (N. S.) 529; 111 Ark. 288; 4 E. C. L. 606 to 608. It would have been a violation of the Interstate Commerce Act to have permitted Wright, the obstreperous passenger, to ride without paying his fare. 34 U. S. St. at L. Sec. 584; Compiled Stat.

M. Jackson, Judge; The award of $5,000 to the plaintiff as compensation for the loss of services of the deceased during her minority is manifestly excessive; it is wholly out of proportion to the amount which should have been awarded him under the proof, and can be accounted for only on the ground of prejudice or palpable mistake. 33 Ark. 363,363; 39 Id. 516.

Appeal.from G-arland Circuit Court; Scott Wood, Judge; 1. The court erred ruling that the juror who was related to the witness, Dr. King, was a competent juror, thereby compelling appellant to exhaust a challenge. 2. The statements made by the foreman of the jury in open court prior to the return of the verdict, make it clear that the verdict wag agreed upon only in pursuance of an agreement by the jurors that a suspension of sentence should be recommended.

Francis Chancery Court; A. L. Hutchins, Chancellor; Winter’s interest in the crop, being that of a landlord who furnishes and supplies his tenants who work the land, was expressly conveyed in the 'chattel mortgage, whereby he conveyed all his ‘ ‘ right, title, claim and interest” in the crop. 80 Ark. 431. He intended to convey a lien on the 1920 crop on the Gray place, and this lien attached when the crop came into existence. 52 Ark. 439.

Coleman, Judge; statement oe facts. The Union Bank & Trust Company sued E. H. Glenn to recover the sum of $1,390 alleged to he due plaintiff on a promissory note executed by the defendant and others.

This suit originated in the probate court of Ashley County, Arkansas. Alsie Thomas filed a petition in that court asking to be appointed administratrix of the estate of James Thomas, deceased, and for dower in his estate.

M. Barker, Chancellor; STATEMENT OF FACTS. In January, 1917, J; T. Souter brought suit in the circuit court against Lillie Jefferson to recover possession of 81 acres of land in Columbia County, Ark. Lillie Jefferson filed an answer, asserting title to the land in controversy and setting up facts tending to show that the transaction with the plaintiff was not an absolute sale of the land to him, but was only intended by the parties as a mortgage.

<p>Appeal from G-arland Circuit Court; Scott Wood, Judge;</p>

McMahan, Chancellor; 1. The demurrer should have been sustained. The complaint alleged wrongful possession. The statute, C. & M. Dig. §§ 55-57 provides an adequate remedy at law. 15 Ark. 381; 134 Id. 484. The bill is essentially a bill of discovery which is not permitted by statute. C. & M. Dig. §§ 1037-1038; 49 Ark. 311.

B. Sorrels, Judge; The verdict of murder in second degree is without evidence to sustain it, as it was based on mere supposition or guess. 56 Ark. 8; 49 Ark. 364. Malice, express or implied, must be proved, and the absence of proof on that point is basis for reversal where there is a conviction of murder in the second de-gree. 141 Ark. 57.

When by mistake of the draftsman of a deed the grantor is made to convey a wrong tract of land, a court of equity will correct the mistake and reform the deed so as to convey the tract intended. 48 Ark. 498; 79 Id. 592. 2.

C. & M. Digest, §311, par. 6; 137 g. W. 925; 135 S. W. 922. The court should have granted a new trial upon the grounds of newly discovered evidence, sufficient diligence having been shown. C. & M. Digest, §1311, par. 7; 26 Ark. 496; 92 Ark. 519. It must be sustained by affidavits showing its truth. Kirby’s Digest, §6219.

25 L. R. A. (N. S.) 760, note; 25 Am. Dec. 604, note; 62 Ark. 84; 20 Wend. 278. An estoppel cannot he created by merely intrusting possession of personal property to another. 54 Minn. 71. • Possession by a bailee of personal property of the bailor does not confer colorable authority upon the bailee to sell or work an estoppel against the owner. 53 Minn. 27; 100 S. W. 351; 70 Am. Dec. 226; 42 Am. Rep. 332; 42 111. 417; 42 Ark. 473.

Martineau, Chancellor; No time was specified in contract for delivery of bonds, hence a reasonable time, in view of all the circumstances, was intended. Page on Contracts (2nd. Ed.) Vol. 4, p. 2647; 33 Conn. 1; 101 Ala. 14; 13 N. Y. S. 922. A' tender of the bonds within eight months was within a reasonable time, as there were unusual circumstances connected with’ the case causing the delay.

Shaver, Chancellor; The contract of purchase automatically became null and void when payments were sixty days behind, and all payments made were forfeited as rents. 48 Ark. 413; 54 Ark. 16; 87 Ark. 593; 76 Ark. 578; 139 Ark. 60. John W. Welch had no authority to collect payments. 49 Ark. 320 ; 96 Ark. 456. No one has the right to trust to mere presumption of authority, nor to the mere assumption of authority of an agent. 62 Ark. 33; 92 Ark. 315.

M. Jackson, Judge; Plaintiff’s exceptions state grounds sufficient to call into question the correctness of defendant’s schedule, and he was entitled to a hearing and decision on the merits. C. & M. Dig. 5545, 5546. Laborers and mechanics are entitled, under the foregoing statutes, to the exemption of personal property and wages, not to exceed five hundred dollars, but claimants of such exemptions must bring themselves strictly within the two qualifications.

M. Jackson, Judge; 1. As to the disease of hydrophobia or rabies and its effects on the human body, and for a proper understanding of the reasons why the local physician advised the father to send the dog’s head by express to Little Rock for microscopical examination, see Ander’s Practice of Medicine. 13 Ed., p. 292; DaCosta’s Modern Surgery, 8 Ed., 351; DaCosta’s Handbook of Mod. Treat, vol. 1, p. 144; Encyc.

B. Sorrels, Judge; STATEMENT oe eaots. On the 24th day of August 1920, O. J. Holland brought suit in replevin against H. A. Strode to recover possession of one 15 DC-180 Western Electric. Power and Light Outfit. Plaintiff also filed an affidavit for replevin, and in it alleged that he had a special ownership in said property by virtue of a lien in writing to secure the balance due on the purchase price.

E. Martineau, Chancellor; STATEMENT OP PACTS. The Arkansas Foundry Company, an owner of real property lying within the limits of the Broadway-Main Street Bridge District of Pulaski County, brought this suit in equity against the commissioners of said district to restrain them from employing agents in selling and disposing of the bonds of the district, and from proceeding - further with the construction of the bridges contemplated by the passage of the act.

M. Jackson, Judge; The court erred in giving a peremptory instruction for the plaintiff. 1. There was ample testimony to show that L. King signed the note as surety only. 54 Ark. 97; 92 Ark. 604; 143 Ark. 498. The note itself shows that the appellant’s name was cancelled and stricken off the note by the cashier of appellee bank. C. & M. Dig. § 7885, sub-divisions 3 & 4. The bank is estopped from asserting that it did not release appellant from liability. 131 Ark. 82. 2.

Smith District; John Brizzolara, Judge; The court should have submitted the issues to the jury. New facts were developed on this, the second trial of the case, and the former ruling of the court is not conclusive, and the trial court may apply a different rule of law. 129 Ark. 43. It is only in cases where the testimony is precisely the same that the former decision controls. 134 Ark. 605; 204 S. W. 618.

M. Jackson, Judge; The appellant is only liable to ordinary care as a warehouseman. 27 R. C. L. Sec. 53; 136 Am. Rep. 243; 6 Am. St. Rep. 602; 1 Am. St. Rep. 76. It is not an insurer of goods in its care and not liable for their loss by accidental fire. 32 Ark. 225; 42 Ark. 200; 21 Ark. 560; 52 Ark. 30 ; 97 Ark. 288; 90 Ark. 260; 24 Am. Dec. 143; 40 Cyc. 432.

<p>1. Courts — jurisdiction of supreme court. — The jurisdiction of the Supreme Court, under Const. 1874, art. 7, §§ 4, 5, is merely appellate and supervisory, except in the exercise of original jurisdiction to issue writs of quo warranto.</p> <p>2. Courts — supreme court — jurisdiction.—In its review of the errors of inferior courts, the Supreme Court is confined to the record made helow, and has no authority to inquire beyond the record made below. *</p> <p>3. Certiorari — construction of statute. — Crawford & Moses’ Dig. § 2237, providing that the circuit courts shall have power to issue writs of certiorari to any inferior tribunal to correct any erroneous or void proceeding, has no application to original applications for certiorari, in the Supreme Court.</p> <p>4. Courts — jurisdiction of supreme court. — The Supreme Court has no original jurisdiction to issue a writ of certiorari to review'a judgment of the circuit court upon the sole ground that the court stenographer failed, without fault of petitioners, to prepare the transcript of the oral proceedings within the time allowed by the lower court, and that petitioners were thus, without fault, prevented from preparing the record for an appeal.</p>

FLaynie, Judge; The court erred in admitting the testimony of witness Hinton as to conversations had between appellee and Paup in the absence of appellant’s intestate and in refusing appellant the right to introduce testimony to negative that of witness Hinton. Appellee was acting as the agent of both parties without their knowledge and consent which is not permissible, 143 Ark. 1, and appellant’s instruction based thereon should have been given.

<p>1. Principal and agent — misrepresentations of agent. — A principal has a right to rely upon the representations of his agent, without inquiring as to their correctness, and his failure to make inquiry will not deprive him of relief against his agent’s fraud.</p> <p>2. Brokers — -fraud—relief.—Though a principal consummated an exchange of lands after ascertaining that his agent had made false representations concerning the exchange, he will not be barred from relief against the agent where the other parties to the ex change were not parties to the misrepresentations.</p>

<p>Appeal from Prairie Chancery Court, Southern district; John M. Elliott, Chancellor;</p>

Steel, Judge; The court erred in refusing to transfer the cause to chancery. Cancellation of instruments is a recognized ground of equity jurisdiction. 96 Ark. 251. The lease contained no clause for forfeiture. It was error to overrule defendant’s demurrer. A law court cannot order a forfeiture. 41 Ark. 532; 24 Cyc. 1349, citing cases; Wood, Landlord & T. p. 453; 1 Underhill, Landlord & T. p. 625; Tiffany, Landlord & T. p. 1366. Forfeitures are regarded with disfavor.

II. Dudley, Judge; Tlie insured failed to notify tbe sovereign clerk of the fact of his having entered the army, and also failed to pay the additional premium as required by the terms of his contract. The insured was charged with such notice, and the local clerk could not waive any of the conditions of the contract. 188 S. W. 941; 58 So. 100; L. R. A. 1915 E 152; 4 L. R. A. (N. S.) 421; 183 IT. S. 308, note; 180 Pac. 2; 40 S. W. 553; 174 Mo.

M. Jackson, Judge; STATEMENT OF FACTS. R. B. Garrett, receiver of the First National Bank of Judsonia, 'brought suit by attachment against the Big Bend Plantation Company, a corporation duly organized under the laws of the State of Arkansas, and as grounds for the attachment alleged that said corporation was disposing* of its property with the intention of delaying and hindering the plaintiff in the collection of his debt.

V, Bou,rlcmd, Chancellor; STATEMENT OF FACTS. Appellants brought this suit in equity against appellee for the recovery of a sum of money alleged to be due them by appellee as royalty under a coal lease and to cancel a coal lease and deed to one acre of land. The facts are as follows: Oil Feb. 19, 1917, appellants, by their deed, conveyed to Jas.

A. Dickson, Judge; The court did not commit any error in refusing to instruct the jury on the lower offenses embraced in the indictment. 49 Ark. 543; 36 Ark. 242; 54 Ark. 336; 13 Ark. 317;'93 Ark. 20; 99 Ark. 648; 120 Ark. 179. There was no error in permitting the testimony of Mrs. Niel Phillips to be read to the jury. 58 Ark. 353; 90 Ark. 514; 83 Ark. 272; 16 S. W. 577.

M. Jackson, Judge; An account stated is not of itself conclusive but is open to rebuttal by competent testimony. Jones, Commentaries on Evidence, Yol. 2, § 287. Whether the balance contained in an account rendered was admitted by the debtor so as to make the account an account stated in a question of fact for the consideration of the jury. Yol. 1 R. C. L. p. 211, § 9.

Steele, Judge; The inferences to he drawn from the facts are for the jury. 91 Ark. 427. Instruction No. 1 is abstractly correct, but the court should have defined murder. Instruction No. 3 should not have been given; there was'no testimony to show that he shot with intent to kill. 141 Ark. 13; 84 Ark. 545. The intention to take life cannot be implied in a case of assault simply because a deadly weapon is used. 115 Ark. 572.

1 Ark. 391; 63 Ark. 100; 109 Ark. 310. The first duty of an agent is loyalty to his principal. He must account for funds received by him for his principal. 21 R. C. L. 829, 832, 833; 27 Cyc. 849. The defense of the statute of frauds cannot be raised by demurrer. 25 R». C. L. 23 Ark. 594. A contract employing an agent to sell land is not within the statute of frauds. 87 Ark. 221; 83 Ark. 202; 90 Ark. 301; 102 Ark. 377; 98 Ark. 10. ,

B. Priddy, Judge; The defendant on cross examination was subjected to a character of cross examination not permissible in the case of other witnesses which was highly prejudicial to his cause. 53 Ark. 387; 58 Ark. 473; 60 Ark. 450; 70 Ark. 107; 72 Ark. 427; 75 Ark. 548; 78 Ark. 284; 91 Ark. 555; 103 Ark. 28; 104 Ark. 162; 106 Ark. 160. Tt .was error to allow the State to recall defendant, after he had closed his case, for the purpose of contradicting him.

All questions presented in the case were decided by the Supreme Court on appeal from the decree of the chancery court, except the regularity of the execution sales. 140 Ark. 91. 2.

<p>1. Bail — surrender.—Where an accused person out on bail was actually surrendered by his sureties to the proper officer and was accepted by the latter without requiring a delivery of a copy ■ of the bail bond, such surrender constitutes a substantial compliance with the statute, so as to effect the release of the sureties ftom further liability.</p> <p>2. Bail — authority to reduce. — Under Crawford & Moses’ Dig. § 2938 a committing magistrate who has fixed the amount of accused’s bail has no authority subsequently to reduce the amount of the bail.</p> <p>3. Bail — authority to take. — Crawford & Moses’ Dig. § 2938, providing that, “the defendant, after commitment and before commencement of the next term of the court having jurisdiction to try the offense, may be admitted to bail in the sum fixed by the committing magistrate by such magistrate,” etc., was repealed by the later act (Crawford & Moses’ Dig., § 2951) authorizing the sheriff to take bail in such cases.</p>

Rogers, Special Chancellor; 1. The act is separable. There are ten distinct provisions of the act set out in the title thereto. It is always proper to look to the title of an act to determine its meaning. 138 Ark. 387; 124 Ark. 473. If a statute attempts to accomplish two or more objects, and is void as to one, it may still he in every respect complete and valid as to the other.

Clark, Judge; Oral evidence of a warranty is inadmissible when a complete written instrument evidences a sale. 80 Ark. 508; Federal Truck Motors Co. v. Thompson, 149 Ark. 664. There was no error in the instruction of the court on the subject of warranty as to the first horse that died. 124 Ark. 31.

Smith District; John Brissolara, Judge; The indictment was bad, and the demurrer should have been sustained. 81 Pac. 680 (Cal.); 35 Cal. 675; 127 Cal. 99; 59 Pac. 836; 29 Texas 44; 94 Am. Dec. 251. The motion in arrest of judgment should have been sustained. The court erred in admitting evidence relative to the commission of the offense by using the tongue. .

Smith District; Jolm Brizzolara, Judge; 1. The denial of appellant’s motion for a continuance, after a continuance had been agreed upon between the prosecuting attorney and counsel for the defendant, to enable the defendant to obtain depositions from witnesses in Tulsa, Oklahoma, and after counsel for the State and for the defendant appeared before the court and agreed to continue the cause until the next term, was a manifest abuse of discretion. 2.

Bnren Chancery Court; B. F. Mc-Mahan, Chancellor; The powers of an executor are derived from the will. 34 Ark. 462; sec. 139, C. & M. Dig. Lands and tenements in the hands of an executor shall he assets for the payment of the debts of the testator (C. & M. Dig. § 152), but only When the personal property is insufficient to pay such debts. 114 Ark. 1.

B. Sorrels, Judge; 1. The verdict is not supported by the evidence. This court is committed against the scintilla rule, and the rule calling for a.refusal of a new trial where there was any evidence whatever, however weak, to support the verdict. 34 Ark. 632; 85 Id. 360-362; 97 Id. 156, 159; 56 Id. 8, 17; 49 Id. 364. 2. Any declaration of law which will permit a conviction of murder in'the second degree without proof of malice is reversible error. 141 Ark. 57; 82 Id. 545.

57 Ark. 461. The venue of the crime was not proved. 54 Ark. 371. The proof was amply sufficient to sustain the verdict. 135 Ark. 117; 136 Ark. 385. Instruction No. 6 was correct, it was based on section 6160, C. & M. Digest. The evidence was sufficient to prove the venue. 62 Ark. 497; 68 Ark. 336; 73 Ark. 484.

II. Golemcm, Judge; Act 657 of 1919 is not in effect, and the penal provisions thereof could not be violated for two reasons: first, the fence required to be built before the taking effect of the act has never been built; second, no election was ever held as provided by sec. 44 of the act. The burden was on the State to allege and prove that the fence had been built.

' Smith District; J ohm Brissolara, Judge; The court erred in refusing to set aside the forfeiture on the bond, and thereby abused its discretion granted under the act. Crawford & Moses’ Digest, Sec. 2974; 3 Amer. & Eng. Ency. of Law, (2nd Ed.) p. 724; 176 Fed. 672; 20 A. & E. Ann. Cas. p. 1255; 9 A. & E. Ency. of Law, (2nd Ed.) p. 473.

Steel, Judge; 1. The verdict was not sustained by sufficient evidence. That rain of ten hours’ duration on each of four days during which the cotton stood, ends of bales up, on the platform of the carrier, was not sufficient to rot it within twelve days, is a matter of which the courts should take judicial knowledge. 125 S. W. (Ark.) 428; 185 S. W. 768; 17 Am. & Eng. Enc. of L, 909-911; 16 Cyc. 854 et seq.; 3 Ark. 66.

M. Shmn, Judge; Tbe application upon which the policy was issued was a wagering contract, and against public policy. 98 Ark. 52; 222 S. ,W. 1067; 132 Ark. 458; 119 Ark. 498. The act of 1917, p. 2091, does not apply to mutual benefit associations not having a lodge system; neither is it retroactive. Mutual Benefit Association v. Keller, 148 Ark. 361; 226 S. W. 525; 2 Joyce on Insurance, Secs. 1066 to 1071, inclusive; 104 U. S. 775-778, with Rose’s notes thereon; Ann.

F. Reeder, Chancellor; The chancery court was without jurisdiction to order the payment óf alimony. Sec. 3511, C. & M. Digest, repealed prior provisions in our law in regard to alimony (sec. 9, chap. 51, Revised Statutes), so far as they affected the rights of the wife who obtained the divorce. 64 Ark. 519; 87 Ark. 175; 101 Ark. 522; 121 Ark. 64.

M. Jackson, Judge; 1. It was error to exclude tbe testimony of tbe physician touching the condition of Mrs. Simmons’ health a few days prior to her application for reinstatement. In her application she expressly waived the right to claim privilege disqualifying the physician from testifying. 103 Ark. 201; 133 Id. 411. 2. The court erred in directing the verdict for the plaintiff.

M. Jackson, Judge; STATEMENT OE EAOTS. Appellees filed their suit in the circuit court against appellant to recover damages for the appropriation of a part of their land for a railroad right-of-way. Mrs. R. D. Chapman owned block 34, in the town of Kensett, White County, Ark. Mrs. Chapman died on February 22, 1904, while living on the block above referred to with her family.

F. House, Judge; STATEMENT OE FACTS. J. P. Woodson and Mrs. Mollie Woodson, his wife, •brought this action in the circuit court against C. L. McLaughlin and M. W. Davis, and for cause of action states that said defendants wrongfully, maliciously, and forcibly compelled them to remove from a tenant house on the farm of McLaughlin which they were occupying while gathering a crop on said farm. J. P. Woodson was a witness for himself.

Francis Chancery Court; A. L. Hutclvins, Chancellor; STATEMENT OP PACTS. Eva E. Gibbs brought this suit in equity against Nora L. Bates to quiet her title to a tract of land comprising 67 acres more or less in St. Francis County, Ark. In her .complaint she alleges that she is the legal owner and in possession of the land. Her complaint further states that Nora L. Bates makes an adverse claim to the land, the nature and character of which is unknown to the plaintiff.

E. Martineau, Chancellor; The tax deed upon which appellants base their title is void for indefiniteness of description. 94 Ark. 306, 126 S. W. 830; 77 Ark. 321; 92 S. W. 1124; Kirby’s Digest §§ 6976, 7024. 7083 and 7085; 79 Ark. 442; 50 Id. 689.

E. Martineau, Chancellor; Creditors have no lien upon a homestead for the satisfaction of their debts, and they are not concerned in its sale or transfer, whether fraudulent or otherwise. 43 Ark. 429; 33 Ark. 454; 52 Ark. 101; 52 Ark. 493; 56 Ark. 156; 56 Ark. 253; 57 Ark. 242; 66 Ark. 382; 65 Ark. 373; 70 Ark. 69.

Shaver, Chancellor; The contract between Westmoreland and these plaintiffs on behalf of Straughan was one for champerty and maintenance, against public policy, and, notwithstanding the original lessee was not a party to it, surely a court of conscience ought not to lend aid to its enforcement as against the lessee or his assignee. 44 Ark. 473; C. & M. Digest § 1432; 86 Ark. 130; 2 Pomeroy, Eq. Jur. § 874, p. 1805; 2 Vest Sr. 125; 1 Pomeroy, Eq.

<p>Appeal from Sebastian Circuit Court, Greenwood District; John Briesolara, Judge;</p>

Glarh, Judge; Appellants assert their right to a lien on the cotton by virtue of having performed labor in. the production thereof. C. & M. Digest, § 6848. The relation of landlord and tenant did not exist between the parties to this suit. 46 Ark. 254..

M. Jackson, Judge; Where the contract contains no provision for forfeiture of the lease, the tenancy cannot be terminated by breach of covenant by the lessee. 134 Ark. 21; 135 Ark. 536. There being no provision for forfeiture, appellant’s peremptory instruction should, have been given. 100 Ark. 567.

H. Coleman, Judge; There was no error in the verdict of the jury. The evidence was amply sufficient. 135 Ark. 117; 136 Ark. 385. The court did not err in refusing a continuance due diligence not being shown. 121 Ark. 17; 123 Ark. 561; 103 Ark. 509; 62 Ark. 543; 125 Ark. 2.69. A continuance will not be granted for the purpose of procuring evidence that is purely cumulative. 79 Ark. 594; 82 Ark. 203; 86 Ark. 317; 100 Ark. 149; 120 Ark. 562.

Sec. 27 of this latter act constitutes no part of the plans and specifications. The word “plans” as used, necessarily means “plans and specifications” and is not limited to the narrower sense as outlined in 72 N. W. 550 and 18 N. W. 85. Commissioners have no authority except that expressly given or necessarily implied by the terms of the act. 120 Ark 212; 110 Ark. 417; 94 Ark. 49; 94' Ark. 82. See also, case note in L. R. A. 1918-B 1004, 1010.

F. Reeder, Chancellor; There was no proper service upon Osburn and Lingo. 144 Ark. 473. Swicord was a joint maker and liable for the entire amount. 80 Ark. 285. Plaintiffs were not co-sureties nor entitled to contributions from each other, but were liable to each other in the absence of a special agreement. 94 Ark. 333.

W. Smith, Judge; The court erred in refusing a continuance on the ground that the evidence of the absent witnesses was material to his defense. 91 Ark. 497. There was error in admitting the -alleged dying declarations of the deceased. 81 Ark. 417. The court was correct in overruling defendant’s motion for a continuance.

<p>1. Homicide — insanity—instruction.—Where the defense in a murder case was that defendant was temporarily insane at the time of the killing, an instruction that in determining whether defendant was insane at the time of the killing the jury may consider all his acts at the time, before and since the killing, and his appearance and actions during the trial.</p> <p>2. Homicide — insanity—burden of proof. — It was not error in a murder case to instruct the jury that the burden of showing insanity is upon the defendant, and that, unless this has been done by a preponderance of the evidence, the defense must fail.</p>

'Smith District; Jolm Brissolara, Judge; STATEMENT OE EAOTS. Appellants, sued appellee, United Mine Workers of America, an unincorporated association, to recover damages for the negligent killing of John Baskins. Mrs. John Baskins sued for herself, and as next friend of Allie Baskins, Buster Baskins, Gladys Baskins, Victor Baskins, and Kirby Baskins, minors.

M. Jackson, Judge; STATEMENT OF FACTS. On November 16, 1920, appellee instituted this action against appellants to recover the sum of $150 alleged to be due and payable to appellee on the joint promissory note of appellants. On September 8, 1919, S. T. Hughes executed his note, with M. T. R/undle as security, for the sum of $150 due and payable to the First National Bank of Judsonia, six months after date.

B. Sorrels, Judge, on exchange; Tbe alleged contempt was not committed in the presence of the court. A judge alone does not constitute a court. 8 A. & E. Enc. Law (2nd Ed.) 22; 22 Neb. 280. A court is an official assembly, leg-ally met together for the- transaction of judicial business. 79 Ind. 376; 87 Ala. 330.

<p>Appeal from Crawford Circuit Court; James Cochran, Judge;</p>

II. Dudley, Judge; Instruction 4 given 'by the court on the subject of negligence, without the modification requested by the appellant, viz: “unless, after the discovery of such negligence, the defendant was negligent in failing to prevent the loss of plaintiffs’ cotton,” took from the jury one of the most important questions in the case.

.Appeal from Searcy Circuit Court; J. M. Shinn, Judge; Notwithstanding the rule not to disturb the verdict of a jury if there is any evidence to support it, yet, if a jury ignores the testimony and returns a verdict not responsive to it, this court will correct the error.

Clark, Judge; One indicted for stealing a cow cannot be convicted of stealing a bull. 34 Ark. 160. In an indictment where the allegation is unnecessarily minute as to the description, the proof must satisfy that description. 64 Ark. 231; 119 Ark. 503. The existence of a felonious intent is a question for the jury. 25 Cyc. 129. The publicity of the taking was evidence of good faith. 79 Ga. 564; 11 Am. St. Rep. 447.

H. Dudley, Judge; The title passed when the deed was delivered. The presumption is that a deed is delivered the date of its execution. 61 Ark. 104. The deeds, being absolute on their face and containing no reservation, transferred the rent with the reversion, and such rights as appellee had before conveyance. _ 10 Ark. 9. The fee simple title to land carries with it the right to its absolute dominion. 92 Ark. 315.

F. Reeder, Chancellor; 1. The town council had no authority to vacate the strip of ground in controversy, the same being part of a street. C. & M. Digest, § 4006; 75 Ark. 534; art. V. § 24, Const. 1874.

E. Martineau, Chancellor; The city may extend its fire limits, but cannot give it an ex post facto effect, as it attempted to do in this case. The permit contains no provision for revocation, and the law provides for none, and the, city’s action was .without authority. 1 L. R. A. (N. S.) 458 and oases cited. See also case note thereto; 3' Dillion, Municipal Corp. p. 1875; 145 111. 451.

E. Martineau, Chancellor; There was no compliance with the provision of the statute requiring the filing of. plans with the city council. C. & M. Digest,5657. A report is a mechanical reproduction of what actually took place. 61 N. Y. Sup. Court, 207.

V. Neely, Special Judge; Parker was prevented from carrying out Ms contract by the interference of third parties who claimed to own the land upon which he was cutting timber. Under such circumstances it was the duty of Twist, the owner, to relieve the situation. This he failed to do and Ms non-action amounted to a breach of the contract, relieving Parker from liability under Ms bond. 98 Ark. 160; 93 Ark. 447; 80 Ark. 228; 97 Ark. 522; 105 Ark. 421.

E. Martilléalo, Chancellor; 1. There was. a consideration' for the guaranty of appellee bank to the appellant in this: that he suffered detriment and expense on account of the telegram, and the bank retained the use of the money for more than ten days, and House obtained a direct benefit on account of the action of the bank, and the bank by its action in the matter hoped to make a customer of House.

H. Evans, Judge; 1. At the time the overcharge complained of occurred, the railroad was being’ operated by the Director General of Railroads, the road having been placed under Federal control by proclamation of the President in the exercise of the war powers conferred upon him by act of Congress of August 29, 1916; and rates had been initiated pursuant to the Federal Control Act of March21, 1918, § 10. There was therefore no violation of the State statute. 250 U. S. 135. 2.

E. L. Johnson, Judge; 1. The offense, if any, became complete in Crittenden County, and the venue of the action was in that county. The presumptive rule from the law of sales adopted by the court, that a delivery to the carrier was delivery to the consignee, applies only between a vendor and vendee, and is a presumption which was never intended to apply to a criminal case. 10 C. J. 228, § 317; 63 Md. 179; 141 Ark. 161; 71 Id. 398.

II. Coleman, Judge on Exchange; Appellee’s motion in arrest did not conform to § 3224, C. & M. Digest, in that it failed to allege that the facts stated in. the indictment did not constitute a public offense within the jurisdiction of the court. The sufficiency of the indictment should have been challenged by demurrer before the trial, and the motion in arrest of judgment after trial comes too late. Stand. Enc. of Proc. vol. 2, p. 1015.

V. Bcmrland, Chancellor; statement op pacts. The Bolton-IIale Coal Company, a partnership, brought this suit in equity against the Harbottle-Bailey Coal Company, a domestic corporation, to enjoin it from interfering with the plaintiff’s right to load coal on a certain spur track connected with the tracks of the Missouri Pacific Railway Company. The railway company was also made a defendant to the suit.

H. Evans, Judge; statement oe eacts. E. O. Barnett Bros., a partnership composed of Oscar Barnett and Horatio Barnett, sued W. D. Alexander, a justice of the peace, to recover $100 alleged to be due on a promissory note executed by the defendant and others to the plaintiffs. The defendant recovered judgment in the justice’s court, and the plaintiffs duly appealed to the circuit court.

Smith District; J. V. Bourland, Chancellor; 1. The allegations of the complaint are not sufficient to charge usury. Into .a sale of land or chattels usury cannot enter, as the element of lending- or borrowing is. absent. 55 Ark. 268; Tyler, Usury, 300; 2 Doug. 736; 224 S. W. (Ark.) 978. 2. The sole cause of action set out in the complaint was usury.

Wade, Judge; The verdict was contrary to law and the evidence. A continuance should have been granted. Appellant had no counsel until his present counsel was appointed by the court, and sufficient time was not allowed thereafter to have summons served on necessary witnesses. While a continuance is largely in the discretion of the trial court, this court will not permit an abuse of that discretion. 60 Ark. 521. The alleged confession should have been excluded from the jury.

F. Mc-Mahan, Chancellor; The parties are bound by the written contract. All previous conversations and understandings merged into and became a part of the written contract and can not be varied by parol testimony. 99 Ark. 218; 93 Ark. 371; 133 Ark. 112; 120 Ark. 368; 135 Ark. 38. The finding of the chancellor is not supported by the evidence. The contract is plain and needs no parol testimony for the purpose of explaining it.

Steel, Judge; Instruction 1 given by the court, correctly declared the law. C. & M. Dig. § 2720. Its instructions 2, on the credibility, of witnesses, and 3, relative to the credibility of the appellant as a witness, were correct. This court will not reverse because the credibility of the defendant is made the subject of a separate instruction. There was no proof on which to base instruction 5 requested by appellant.

P. Henderson, Chancellor; The decree entered in this case is a final one from which an appeal will lie. Held: in effect, that it is without jurisdiction to determine the issue presented until the Federal court has done some act or other. The right of appeal falls squarely within the second and third paragraphs of § 2129, C. & M. Digest. The determination of the issues should be first by the State court rather than the Federal court.

Black on Judgments, Yol. 1, § 251; 113 IT. S. 179; 108 U. S. 18; 130 TT. S. 482; 138 U. S. 439; 141 IT. S. 260; 144 U. S..75; 141 IT. S. 475. Tbonp-b a. foreclosure decree is erroneous, it cannot be attacked in the State court. 53 Iowa 202. The court erred iu refusing to make the persons mentioned in the motions, parties to the action. C. & M. Digest, § 1097. Evidence of notice to put in stock gaps should not be admitted unless service is shown. 68 Ark. 236.

<p>1. Evidence — judicial notice.- — The courts take judicial notice of the fact that in August, 1919, the railroads were being operated by the- United States through its agent.</p> <p>2. Railroads — operation by united states — negligence.—During the time in which the United States operated the railroads, the corporations which owned them were not liable for their negligent operation.</p> <p>3. Carriers — failure to furnish car for shipping cattle.— Evidence held to sustain a finding that defendant carrier was negligent in failing to furnish a car for shipment of plaintiff’s cattle.</p>

L. Hutchins, Chancellor; STATEMENT OF FACTS. C. T. McMillan brought this suit in equity against J. C. Brookfield to set aside a deed to about 14 acres of land, on the ground that the execution of the deed was obtained through undue influence while the defendant was attorney for the plaintiff to recover the land from a third person. Subsequently Susanna McMillan, the wife of C. T. McMillan, was permitted to become a party plaintiff to the suit. C. T. McMillan is a colored man.

E. Dudley, Judge; There is no provision in the drainage law providing for an appeal from the county court allowing claims against the district; the general law applies. C. & M. Dig., § 3617; 90 Ark. 219; 143 Ark. 67. The order of the county court allowing claims and assessing a tax to pay same is void. C. & M. Dig. § 3610, par. 2. The county court had the power to levy a tax to pay the indebtedness of the drainage district. C. & M. Dig. § 3617.

Compensation should therefore have been made for the damage caused by the rain. 178 Mass. 570; 30 L. B. A. 346; 111 N. W. 400; 100 Minn. 528; 10 L. B. A. (N. S.) 326. It was not the duty of the. insured to restore the property to its condition before the fire, but that of the insurer, and to relieve the company from liability the acts of the insured must be wilful, wanton or fraudulent. 32 N. Y. 405; 39 Kan. 449.

E. L. Johnson, Judge; Instruction No. 12 was erroneous in that it failed to tell the jury that if the evidence which appellant had offered in support of his defense (an alibi), taken in connection with all other evidence in the case, was sufficient to raise a reasonable doubt of his guilt, the jury should acquit him. 110 Ark. 15, citing 105 Mass. 456; 113 Ark. 112; 59 Ark. 379; 102 Ark. 627; 62 Ark. 478.

B. Priddy. Judge; The court erred in taking from the consideration of the jury the question of the. liability of- Hall on the bond. He was notified by letter of the -fact that he was named as surety on the bond of Montgomery, and he took no steps to advise appellant of the forgery, and by his conduct which amounted to acquiescence, has rendered himself liable. 50 Ark. 458; 85 Ark. 156; 83 Ark. 444; 101 Ark. 145.

Elliott, Chancellor; The order of December 10,1915, was temporary only. § 6199, C. So M. Digest. To make the order permanent appellant should have had five days notice previous to the hearing. Id. The record shows that he had no such notice. Appellant should not have been punished for contempt. §§ 5817, 5818, C. & M. Digest; 22-Cyc. 1013. The amended record will reflect that appellant had legal notice of the decree entered on Dec. 10, 1915.

Clark, Judge; 1. In the contract between the appellant and Rich, the former agreed to assume the payment of bills owed by the latter for work, labor and material. It did not obligate appellant to pay debts of a different nature.

W. Wade, Judge; Four of the jurors who, on their examination, said they had formed or expressed an opinion as to the guilt or innocence of the defendant, were not competent to serve. 13 Ark. 741; 19 Ark. 159; 45 Ark. 170; 47 Ark. 185; 56 Ark. 583; 69 Ark. 322; 79 Ark. 132; 85 Ark. 68; 91 Ark. 579; 102 Ark. 183; 113 Ark. 304; 135 Ark. 524; 142 Ark., 479; 146 Ark. 582.

this case, and the verdict is contrary to the law and the evidence. The instructions were conflicting, those given on behalf of plaintiffs holding that the defendants were liable jointly, and those given for defendants holding that each defendant was liable only for damages occurring from gaps which he individually made in the fences. The plaintiffs’ instructions took the question of individual liability from the jury, which was error. 38 Cyc. 491.

E. Atlcmson, Chancellor; One who misleads by his acts, declarations or admissions, or by failing to speak or act when he should, with wilful disregard of the interest of others, will not be allowed to afterwards come in and assert his rights to the detriment of the person misled. 33 Ark. 465; 50 Ark. 128; 83 Ark. 554; 85 Ark. 156; 94 Ark. 354; 97 Ark. 49. Appellant’s mortgage lien, to the extent of the money furnished, was superior to any claim of appellee.

Under the stipulation in the bill of lading, there was no liability on the part of the appellant for any delay beyond its own line, and the court erred in holding to the contrary. Hutchinson on Carriers, §§ 229-235; 63 Ark 326; 64 Id. 115; 84 Id. 423; 32 Id. 393; 35 Id. 402; 50 Id. 397; 87 Id. 339; Miehie on Carriers, 3288; Elliott on Railroads § 1432; 10 Corpus Juris, pp. 529, 541. The delivery carrier is presumed to be liable. 118 Ark 398. 2.

H. Dudley, Judge; The instrument sued on is not a will under the law of Arkansas, because not executed and witnessed as prescribed by law, and never probated. Neither is it a promissory note. The claim was not probated within the time prescribed by law. The only pretense that the claim was filed within a year is the testimony of Hammons to the effect that he mailed such claim to the administrator, but he admits that he addressed ,the letter to the wrong post-office.

II. Evans, Judge; The verdict of the jury is wholly against the preponderance of the evidence. 2 Ark. 360; 70 Ark. 365; 100 Ark. 344. The allegation is for manufacturing whiskey and not for having a still in his possession. Proof of another crime is not sufficient to convict. 34 Ark. 160; 54 Ark. 660. If there is substantial evidence to support the verdict, the judgment must stand. 135 Ark. 117; 136 Ark. 385. There was no error in admitting the record of the Federal court.

On this appeal the duty of this court is to try the case de novo, in accordance with the procedure defined 'by Act No. 124, approved February 15, 1921, and it should not govern itself by the rule heretofore established not to pass upon the weight of the evidence on appeals from'findings of facts by trial courts or verdicts of juries. 2.

Wooten never acquired any title to the lands involved. On the death of Ruth Ann Keywood, these lands, inherited by her from her father, ascended to the nearest lineal ancestor in the paternal line, if living, and if dead, to his collateral heirs, and did not vest in the heirs of Ruth Ann’s mother. Therefore, neither the Price nor the Vicker heirs inherited any interest. Kirby’s Digest, § 2645; Id. § 2636, clause 3; Id. § 2646; 15 Ark. 555.

Shaver, Chancellor; STATEMENT BY THE COURT. Carrie McHenry brought this suit in equity against Frederica Vaught and J. J. Vaught to foreclose a mortgage on 120 acres of land in Polk County, Ark., given to secure a note for $900. The defense was usury. According to the testimony of J. J. Vaught, the husband of Frederica Vaught, they resided on their farm comprising 120 acres in Polk County, Ark., during the year 1916, and ever since that time. E. S. Cox resided in Ft.

P. Henderson, Chancellor; The second report of the commissioners was set aside by the court for the same reason as the first, in direct conflict with C. & M. Dig., § 8107. The court has no authority to direct the commissioners to make partition until after hearing the evidence. The situation of the property, and not the circumstances of the parties, must control the court in determining whether there should he a partition in kind or1 sale: 54 Fed. Rep. 961; 40 Wis. 357.

141 Ark. 8. In testing the sufficiency of a pleading on demurrer, every inference reasonably deducible therefrom must be considered. 142 Ark. 431. Held: in the case referred to in the allegation with reference to a pending appeal, that the county court had no jurisdiction to- dissolve or1 abandon a drainag’p district. Wilson y. Matlix, 149 Ark. 23.

M. Barker, Chancellor; In cases of doubt as to the meaning of a statute, the condition and circumstances surrounding the enactment of the law may be considered. 76 Ark. 303; 102 Ark. 205; 169 U. S. 649; IOS S. W. 1095; 68 S. W. 588; Black on Interpretation of Laws, 285. The cumulative part of the act is the method of procedure. 35 N. W. 881; 115 Pac. 344; 73 S. W. 951.

P. Steel, Special Judge; The indictment is bad and the demurrer should have been sustained. Either the letter or substance of the statute must be followed, and nothing is left to implication, intendment, or conclusion. 22 Cye. 336; 12 Ark. 608; 47 Ark. 488; 31 Minn. 207; 17 3ST. W. 344.

B. Priddy, Judge; 1. The petition for removal should have been granted. The appellant is an inhabitant and resident of the Eastern District of Arkansas, within the meaning of the act of Congress. 4 Fed. Stat. Ann. p. 838; 5 Id. p. 16; Id. p. 846; U. S. Stat. at Large, Vol. 36, p. 1101.

<p>Appeal from Arkansas Circuit Court, Northern District; George W. -Clark, Judge;</p> <p>The indictment is fatally defective, in that it did not set out the district. 14 B. C. L. 181; 1 Bish. Crim. Proc. 875; 22 Cyc. 310; Std. Enc. of Procedure, Yol. 12, p. 429; 92 Cal. 277; 28 Pac. 270; 228 111. 581; 81 N. E. 1129; 10 Humph. (Tenn,) 615; 1 Va. Cas. 1. See .also, 1 Chit. Crim. Law, 131. The indictment was bad for uncertainty. Std. Ency. of Procedure, Yol. 12, p. 428; 29 Fla. 455 ; 10 Sou. 891; 8 N. J. L. 307; 18 Tex. 391; 39 Me. 291; 26 Neb. 263; 20 Mo. 411; C. & M. Dig. Secs. 3212-13; 14 B. C. L. Sec. 27, p. 181.</p> <p>The jury were not sworn on their voir dire. C. & M. Dig. Sec. 3144.</p> <p>The court erred in its instructions to the jury as to the weight and credibility of the testimony of the witnesses. 82 Ark. 540; Prewitt v. State, ms. op.</p> <p>The bill of exceptions must be filed within the time allowed by the lower court. 103 Ark. 46; 80 Ark. 410. It must be signed and filed in time. 103 Ark. 44; 39 Ark. 558; 52 Ark. 415.</p> <p>No motion for new trial was filed, and this court can only correct such errors as appear on the record proper. 215 S. W. 385; 129 Ark. 217.</p> <p>Before this court will review the testimony and instructions for errors, it is essential that objections be raised in the lower court. 123 Ark. 66; 12 Stand. Ency. of Proc. pp. 661-662.</p> <p>If there was any defect in the indictment, the objection should have been raised in the court below. 99 Ark. 134; 105 Ark. 82; 215 S. W. 703; 32 Ark. 179; 34 Ark.. 321. The defect was cured by the verdict. 12 Stand. Ency. of Procedure, p. 700.</p> <p>Indictment must be found in the county where the offense was committed. 55 Ark. 556.</p> <p>. Objections to instructions made for the first time on appeal cannot be considered. 70 Ark. 348; 74 Ark. 557; 124 Ark. 599; 94 Ark. 68.</p>

F. McMahan, Chancellor; STATEMENT OP PACTS. On the 20th of September, 1917, appellant filed a suit in equity against appellees in which it asked for judgment on certain notes and for a foreclosure of certain mortgages given to secure the same. The complaint also alleged grounds for attachment and asked that a general attachment be issued and lemed on certain property belonging to the Yellow Bose Mining Company, one of the appellees.

H. Dudley, Judge; STATEMENT OE EACTS. Gr. R. Brickey Mercantile Company sued the TriState Packet Company to recover damages for the loss of two bales of cotton shipped by the plaintiff on one of the boats of the defendant from Osceola, Ark., to Memphis, Tenn. The agent of the packet company at Osceola testified that he loaded the cotton on one of the defendant’s boats at Osceola and issued a bill of lading therefor.