Volume 74 — Arkansas Reports

There was a forfeiture of the policy for failure to pay the premiums. 93 U. S. 24; 23 S. E. 223; 19 Ill. App. 327; 41 Mo. App. 106. The insured is entitled to notice of the forfeiture, and not the beneficiary. 56 Pac. 116; 42 N. Y. Sup. 646; 28 N. J. L. 92. When a policy is assigned as collateral, the assured must pay the premium. 2 May, Ins. § 399a, 76 Ga. 575; 2 May, Ins. § § 378a, 382; 72 Mass. 169.

The initial carrier is only liable for the loss on its own line. 23 Fed. 765; 4 Daly, 553; 53 N. Y. 363; 16 Wall. 318; 107 U. S. 106; Ray, Neg. Imp. Duties. 583. 530, 525; 9 Heiskell, 852; 32 Ark. 393; 35 Ark. 410.

Driver, being the owner of a storehouse in the town of Osceola, rented the same to the mercantile firm of John W. Edrington & Co. during the year 1901, for a rental of $25 per month.

statement by the court. This is a suit brought by appellant, a wholesale dealer in jewelry at Iowa City, Iowa, against appellee, a merchant at Clinton, Ark., upon an account for goods sold upon written order given by appellee to appellant’s traveling salesman, on August 16,. 1901. Appellee defends upon the ground that he countermanded the order by letter written on August 17, 1901, before acceptance of the order and shipment of the goods by appellant.

The court erred in overruling defendant’s motion to require plaintiff to elect upon which allegation or act of negligence he would rely for a recovery. 88 Fed. 770; 51 Mo. App. 125; 29 N. W. 224; 71 Mo. 514; 72 Mo. 212; 19 Am. & Eng. R. Cas. 36; 8 Id. 123; 5 Id. 504; 26 Conn. 220; 44 Am. & Eng. R. Cas. 494; 8 How. Pr. 177; 7 N. Y. Sup. 753; 4 How. Pr. 226; 16 S. E. 292; 30 S. C. hi.

The Ferguson Lumber Company entered into the following contract with the Little Rock Well & Pump Company in reference to the digging of a well on the premises of the lumber company. The contract was first prepáred, and a typewritten copy thereof was presented to the lumber company, which made certain erasures and interlineations.

One engaged in sawing lumber and shingles is a manufacturer. 53 Me. 522; 78 Me. 453; 26 Wis. 100; 56 Wis. 42; 91 Wis. 525, 575; 58 Mich. 625; 45 Mich. 126. The merchant must assess his stock at its average value during the past year. Sand. & H. Dig. § § 6427, 6442, 6453, 6462. It is not the province of courts to frame a revenue act; it must be left to the Legislature. 4 Ark. 473.

The injury occurred through the acts of a stranger, and negligence can not be imputed to appellant. 2 L. J. 115; 34 N. Y. 9; 20 N. Y. 71; 61 Fed. 747. If the negligent or wrongful act of the plaintiff co-operates in any degree with any misconduct on the part of the defendant, there can be no recovery. 36 Ark. 46; 48 Ark. 124; 62 Ark. 235; 66 Ark. 237; 96 Mass. 433; 85 Mass. 21; 20 Pa. 258.

<p>Appeal from Jefferson Circuit Court.</p> <p>The evidence in this case sustains the indictment for forgery and for the uttering and publishing.</p>

R. E. Wiley, as trustee in bankruptcy for R. J. McBride, an adjudged bankrupt, brought suit against Margaret McBride, his wife, alleging “that on and about the ist day of March, 1901, the said R. J. McBride did fraudulently and without consideration transfer and assign and deliver to the defendant, Margaret McBride, who was his wife,.various sums of money, aggregating in amount the sum of two thousand dollars ($2,000); that at the time of said transfer and delivery of said…

This is an appeal from the judgment of the circuit court finding that the assessable property of the Bank of Hope for the year 1901 was of the value of $28,500. The equalization board and the county court had fixed the value of the bank’s property for taxation at $50,000. The bank appealed to the circuit court, where the amount was fixed as mentioned, and the county appeals here, contending that the amount fixed by the county court was correct.

Cross appeals from Yell Circuit Court, Dardanelle District. statement by t-he court.

* R. M. Thornton & Co., a partnership consisting of R. M. Thornton and W. T. Ewing, filed their complaint against the appellant, F. E. Mason, and afterwards filed their amende.d com' plaint, in which they charge that on the ioth day of August, 1900, they were partners doing business in the City of Eureka Springs, under the firm name of R. M. Thornton & Co. But that, at the time of the filing of the amended complaint, R. M. Thornton had acquired the interest of the said W. T.…

The court erred in overruling the appellant’s motion to make Davis Brothers parties defendant. Sand. & H. Dig. § § 5630, 563S; 37 Ark. 517; 49 Ark. 103. The court erred in admitting in evidence certain letters purporting to have been written by the defendant, without proper foundation first laid for their introduction. The court erred in compelling the attorney for defendant to produce a certain paper purporting to be an order testified to by one of the plaintiffs.

As to the elements of the crime of bigamy, and the rule as to proof or'presumption of intent, see: 34 Ark. 511. The alleged first marriage was not proved. When this fact is. sought to be established by the evidence of persons present at the marriage, such testimony must show, not only the fact of the solemnization of the marriage, but the official character of the person performing it.

statement by the court. On the 1.5th of July, 1890, I. A. Thálheimer became 'a stockholder in the plaintiff corporation, a building and loan association, and oh the 31st of July, 1890, he became a borrower therefrom. He was a member of series 3, and executed the usual building and loan contract, agreeing to make the stated payments until the,stock matured, in that way repaying the advancement.

Appeals from Saline Chancery Court. Mary and Bettie Arnold, aged, respectively, 18 and 16 years, brought separate suits against L. Storthz, alleging substantially the same state of case.

This suit was brought by the State for the use of Frank J. Murray against the Greenwich Insurance Company and its sureties to recover on two policies of insurance for the sum of $1,000 each, issued on the following property: “Stock of lumber, laths and shingles, dressed and undressed, while contained in the one-story, shingle-roof frame shed, situated on block 71,'and on their open yards situated in blocks 71 and 72, Pine Bluff, Arkansas.” The complaint alleges that on…

Collins died childless in 1862, the owner of the lands in controversy, leaving his widow, Elizabeth B. Collins, and seven brothers, to whom, by his last will, and testament, he devised all his property, one-half to his wife, Elizabeth B., for life, and the remainder to his brothers, or those of them who should be “true to -the South in her (then) present struggle.” The will further provided that in the event “that as much as two-thirds of my property be taken by the…

Appellee brought this suit against appellant for possession of 120 acres of land, alleging that her husband had donated the land from the State as a homestead, and that, during their temporary absence therefrom, appellant had attached and sold it for debt against her husband, and had taken possession thereof under the sheriff’s deed, and that her husband had deserted her.

Appeal, from Crittenden Chancery Court. ' STATEMENT BY THE COURT.

Cross appeals from Pulaski Chancery Court. Held: by her with the same limitations and restrictions, and in the same manner as the property herein specifically directed to be conveyed to her, and one portion to be given to Lina Davis, subject to like restrictions and limitations, and in the same manner as the property described above and directed to be conveyed to her.

This is a suit by Record to recover of appellant for the loss of a valise and its contents, alleged to worth $645.30. Record purchased of appellant, at Hot Springs, Ark., a through coupon ticket from Hot Springs to Durant, Ind. Ter., and paid full price therefor. Appellant checked his baggage through to Durant, and it was lost after appellant had delivered it to a connecting carrier. The valise contained personal apparel and two shotguns.

<p>Appeal from Jefferson Circuit Court.</p>

Sebastian Circuit Court, Greenwood District. STATEMENT BY THE COURT. This is an appeal from an order of the circuit court granting a writ of mandamus against Jake Moody and John Moss, mayor and recorder, respectively, of the town of Hartford, commanding them to issue liquor licenses to appellees, etc. Petition for the writ was.filed Jantiary 9, 1905.

Suit by H. A. McCoy, as collector of' Jefferson County, 'against S. Geisreiter, S. A. Wiggins and O. P. Robinson, as inspectors of the Plum Bayou Eevee District. Judgment below was for plaintiff, from which defendants appeal.

<p>Appeal from Bradley Circuit Court in Chancery.</p> <p>The deed in controversy granted a permanent and unqualified right of way. 16 Gray, 309; 58 Me. 73; 59 Pa. St. 340; 39 Ga. 202; 56 Texas, 17; 78 Ky. 257; 37 Oh. 262; 98 Ill. 222; 47 Mich. 130; 58 Miss. 110; 71 Ind. 434; 48 Wis. 529; 69 Me. 310; 61 Ga. 248; 6 Barb. 386; 20 Barb. 455; 16 Gray, 309; 58 Me. 73; 59 Pa. St. 340; 16 Gray, 327; 48 Am. Rep. 376; 109 Mass. 119; 2 Dev. Deeds, § 997; 7 Allen, 125; 71 Ark. 153. The deed was properly executed, and proper consideration passed. 22 Am. St. Rep. 426; 13 Id. 200; 31 Ark. 174; 26 Ark. 31; 28 Ind. 26; 57 Texas, 238; 8 Am. & Eng. Enc. Daw, 637; 84 Texas, 218; 50 B. C. 207; 149 Mass. 188; 121 Ind. 231; 11 Col. 15; 79 Col. 525; 128 Ill. 9. Appellee was clearly guilty of laches. 77 la. 239; 126 Pa. St. 353; 98 N. W. 1025; 112 U. S. 645; 41 Mich. 336; 35 La. Ann. 924; 68 Ala. 48; 14 Wis. 443; 22 Conn. 74.</p> <p>To correct a mistake, equity may cancel a deed. 15 Am. & Eng. Enc. Law, 647; 80 Mo. 488; 10 Oh. St. 544; 84 N. Car. 408; 6 B. Mon. 50; 48 Wis.. 611.</p>

Stroud was the owner in fee of the real estate described in the pleadings, and on March 29, 1888, conveyed the same to J. W. Duckworth for the sum of $5,200, of which $1,200 were paid cash, and the remainder was evidenced by two notes of $2,000 each, executed by the vendee, Duckworth, payable in one and two years, respectively, thereafter, bearing interest at 10 per cent, per annum, and mentioned in said deed. The first of said notes was paid in full.

statement by the court. J. E. Young sued the Oil Company for the value of two cows, alleging that they had died from eating feedstuffs purchased by him of the Oil Company. The evidence showed that he had bought a load of cotton seed hulls and a sack of cotton seed meal from the Oil Company, and fyad loaded the hulls into his wagon himself with a large fork, direct from the factory.

statement by the court. On the 12th of February, 1894, the State Fair Association, hereinafter called the Association, filed its complaint in the Pulaski Chancery Court against Joseph Townsend and W. J. Terry, his guardian, Sarah Townsend, legatee of Miles Q. Townsend, deceased, C. F. Penzel, W. B. Worthen, the Little Rock Jockey Club and the Southern Cotton Oil Company.

Appeals from Sebastian Circuit Court; Greenwood District. The demurrers to the indictments should be dismissed. 55 Ark. 200; 56 Ark. 166; 63 Ark. 200; 68 Ark. 561; 63 Ark. 136. The motion to make indictments more specific should have been sustained. 59 Ark. 169; 69 Ark. 365; 66 Ark. 278. Refusa.l to give instruction No. 1 was error. 43 Ark. 415; 38 Ark. 519; 40 Ark. 97; 67 Ark. 357; 75 S. W. 929. Confession of error.

Francis Chancery Court. Suit by Mrs. Mollie E. Davis and another against Jas. Yonge and F. E. White to remove a cloud on her title. Defendants filed an answer and cross bill, alleging'that plaintiff’s title was a cloud on their title. Judgment was for defendants, from which plaintiffs take appeal. STATEMENT BY THE COURT. About 1893 a judgment for some six or seven hundred dollars was rendered in the St. Francis Circuit Court in favor of Jas.

This is an appeal from a judgment of the circuit court rendered on appeal from the Pulaski Probate Court, refusing an order for the sale of lands of the decedent and revoking the letters of administration issued to appellant upon the estate of said David Lowe, deceased. Lowe left a will, by which he gave all of his property to his wife for life, with remainder in fee to his.brother, appellee Austin Parker.

The venue should have been changed. • 104 Ill. App. 65; 90 Ill. 74; 20 Ill. App. 333; 43 Kan. 307. The statements of plaintiff after he was removed to the sitting room and the answer of the conductor were not part of the res gestae. Whart. Ev. § § 258/267; 48 Ark. 338; 61 Ark. 56; 58 Ark. 179, 55; 119 U. S. 99.

This was originally a suit in equity by the Board of Directors of the St. Francis Levee District against the Memphis Land & Timber Company and others, to enforce a lien for levee taxes. A decree was had foreclosing the lien, and appellees, Hunter and Hackler, became purchasers. Subsequently appellants, A. B. and Josephine Ballard, filed their complaint to. set aside the sale.

The appeal prayed for in the court was not taken within one year after rendition of the judgment. Acts 1899, p. in ; 69 Ark. 281; 70 Ark. 83. The appeal was taken in due time. Kirby’s Dig. § 1188.

<p>The coroner of St. Francis County could not hold an inquest in Pulaski County. 7 Cyc. 605; Sand. & H. Dig. § 754. The inquest was properly held by the appellant in Pulaski County. 64 Ind. 524; 86 Ind. 154; 43 Hun, 38; 56 N. E. 1028; 65 Ark. 557-</p>

Fraud in the conveyance was not proved. 38 Ark. 419; 9 Ark. 482; 18 Ark. 124; 20 Ark. 216; 37 Ark. 145; 45 Ark. 492; 31 Ark. 554; 63 Ark. 16; 14 Am.* & Eng. Ene. Eaw, 512; 52 N. Y. 274. Appellant was not a privy to any fraud, and gáve value for the land. 23 Ark. 258; 18 Ark. 172; 46 Ark. 542; 49 Ark. 20. Appellee cannot complain of the conveyance of the Godfrey homestead. 52 Ark. 101; 54'Ark. 194; 52 Ark. 547; 66 Ark. 382.

The appellant makes this statement of the issues presented: “The record shows that plaintiff had a policy of fire insurance in the Minneapolis Fire & Marine Mutual Insurance Company on property in Parkdale, Ark.; that he paid the premium for the policy, and that while the policy was in force the property was damaged by fire; that his loss was adjusted by an adjuster for the Minneapolis Fire & Marine. Mutual Insurance Company.

Appeals from Benton Chancery Court. In case No. 5058 the Arkansas & Oklahoma Railroad Company brought suit in chancery against G. A. Hughes, as mayor of the incorporated town of Gravette, alleging that the council of said town had enacted a certain Ordinance No. 41; that defendant has threaténed to and will enforce said ordinance, unless restrained from doing so; that the council had no authority to pass said ordinance, and the mayor’s court had no authority to assess any…

Appellant’s titles were sufficient to sustain the bill- 70 Ark. 256; 69 Ark. 102; 55 Ark. 286; 31 Ark. 528; 36 Ark. 471; 55 Ark. 286; 41 Ark. 21; 57 Ark. 289; 1 Green. Ev. 141, 721. The deeds of Kelley should have been admitted in evidence- Jones, Real Prop. § 252; Lawson, Presumptive Ev. 492; 50 Tex. 521 ; 9 S. W. 332; 2 A. K. Marsh. 70; 21 S. W. 267; 71 Tex. 1.22; 9 Johns. 169. Kelley’s title to the Todd lands was sufficient.

Appellant was convicted of grand larceny, and appeals. He is charged with stealing a pair of shoes, trousers and suspenders and $3 in money from J. W. Alexander, a bridge foreman for the railway company, the articles having been taken in the daji-time from a boarding car where Alexander had left them while he was engaged in his daily work. He discovered the theft in a short time, and the defendant confessed his guilt, and produced the stolen articles.

This is a contest over the proDatiori of the last will and testament of King B. Flowers, who died in Garland County May 6, 1898. The proposed instrument was alleged to have been found on July 24, 1900, by appellant, Henry Flowers, who had previously been appointed administrator of the estate of said decedent, and was at once filed for probate by said appellant.

Writ of prohibition to Pope Circuit Court. statement by the court. This is an application to this court for a writ of prohibition, seeking to prohibit the judge of the Pope Circuit Court from proceeding with the trial of the case of the State of Arkansas v. Waters Pierce Oil Company, pending in that court.

'statement by the court. This is the second appeal in this cause. The opinion- on the first appeal is found at page 612 of 69 Ark., (Clark v. Taylor). where the facts are fully stated.

statement by the court. ' A. G. Milner in 1899 entered into a contract with the Camden Lumber Company by which he agreed to supply the sawmill of the Lumber Company with logs. During the progress of this contract he became indebted to the company for goods and merchandise furnished by the company to him, and the company in November, 1900, recovered a judgment against him on this account for about $600.

On the 4th day of February, 1902, H. E. Rhodes was the owner of a hotel building in the town of Stuttgart, Ark., known as the Clarksville Housé. About two years previously he had rented this building to Mrs. Malin for two years with privilege of renewal, but she was in arrears as to the payment of the rent.

Joseph Johns died in Drew County, Arkansas, June 18, 1900, leaving surviving him a widow, Harriet E. Johns, a son, W. H. Johns, two daughters, Julia A. Hines and Mary F. Yates, and ten grandchildren, the descendants of his son, J. A. Johns, who had died before his father. The estate of Joseph Johns consisted of lands valued at $1,900, promissory notes to the amount of $15,000, and $2,000 or more in cash.

Appellee, B. B. Waddell, on April 25, 1898, filed a complaint at law against appellants, the First National Bank of Helena, Ark., Lycurgus Lucy and Jacob Trieber, to cancel his 'mortgage executed to Lucy on October 11, 1890, conveying the real estate in controversy situated in the city of Helena, and the foreclosure sale thereunder, and the deeds executed subsequently, through which appellant First National Bank claims title.

The tax sale was invalid. 39 Ark. 201; Black, Tax Titles, § § 471, 474, 201. The decree of confirmation is void. 48 Ark. 238; 65'Ark. 90; Sand. & H. Dig. § § 629, 4635; 39 Ark. 61; 65 Ark. 353. Proof of publication was insufficient. 52 Ark. 314; 65 Ark. 90. The appellee had a right to acquire title by purchase at the tax sale. 21 Ark. 374; 53 Ark. 428; Cooley, Tax. 973; 45 Mich. 59; 36 la. 534; 27 Pa. St. 160; 30 Mich. 118; 85 la. 130; 56 Ark. 193.

The remarks of appellee’s counsel were improper. 70 Ark. 306; 58 Ark. 368; 61 Ark. 138; 48 Ark. 106. The court erred in refusing to instruct a verdict for appellant. 67 Ark. 514.

In 1902 Harve Ringer lived in Yell County, and carried on a small mercantile business in the country. On Christmas day of that year several persons met at his store, it having been reported that there was to be what the witnesses called a “turkey shooting” there, and most of these persons came to take part in or to witness the sport.

Peaceable possession will support allegation of ownership as against one who disturbs without right. 37 Ark. 32; 6 Rand. 457; Cooley, Torts, 436. A misjoinder of parties can only be reached by a motion to-strike. 36 Ark. 191; 41 Ark. 254. The complaint was sufficient. 25 Ark. 436; 29 Ark. 448. Satchfield cannot recover because he voluntarily paid to have the timber released and received a valuable consideration for his money. 43 Ark. 172; 46 Ark. 217.

At 'common law any conveyance made by a testator, even though void, was held to revoke a will. 29 Am. & Eng. Enc. Eaw, 308; 1 Jar. Wills, 308; 1 Woerner, Adm’n, § 53; Sand. & H. Dig. § § 7397-8; 84 N. W. 293; 15 S. E. 584. A fraudulent conveyance is good as between the parties. 11 Ark. 41 x ; 47 Ark. 301; 52 Ark. 171; 67 Ark. 328. The interest of Eizette Wald-stein, which was held in trust, passed to her heirs. 45 Ark. 410; 43 Ark. 420; 44 Ark. 365; 30 Ark. 136.

Whitlow, Lake & Company, a partnership composed of W. H. Whitlow, George T. Lake and W. L. Stuckey, brought suit against Charlesworth & Yount, alleging that prior to December, 1898, plaintiffs operated a sawmill near Pettigrew; that they arranged with Charlesworth & Yount to supply said mill with such goods, merchandise and cash as were needed, to pay the hands for operating same; that said account was run by their agent, Robert Fletcher, who was only authorized to buy such…

STATEMENT BY THE COÜRT. F. P. Laws filed his complaint in the Jackson Circuit Court against the appellants, George W. Decker and George Goodrich, under their style of the Newport Saw Mill Company, in which he alleged they were indebted to him in the sum of $936.98 by reason of having been engaged to sell their sawmill and plant, and further alleged that they had agreed to give him a commission of 10 per cent, on the amount of the sale, and that he effected a sale of said…

The exceptions to the master’s report should have been sustained. High, Recrs. § § 668, 669. Appellees are not responsible for the errors of the receiver. 44 Ark. 322; 56 Me. 458; 42 N. J. Eq. 107. Robinson was not entitled to file his bill of review. 60 Ark. 453; 32 Ark. 753; 2 Dan. Ch. Pr. 1582; 50 Ark. 458; 52 Ark. 80; 54 Ark. 539; 40 Ark. 338; 49 Ark. 397.

Ed. Jacobs held judgment against C. T. & J. E. Jones, under which he procured successive executions to be levied upon certain logs and pilings as their property. As often as the sheriff made levies, replevin suits were instituted by the appellees, Ferguson & Wheeler, who claimed the logs, against D. P. Day, the officer who made the levies. It is conceded that the logs in controversy were in the hands of Ferguson & Wheeler when levied on.

<p>Appeal from Sevier Chancer}'- Court.</p> <p>Section 6643 of Sandels & Hill’s Digest is inoperative. 46 Ark. 100; 53 Ark. 204; 55 Ark. 192. The act of 1899 must be strictly construed. 70 Ark. 481; 59 Ark. 356; Sedg. Stat. Const. 188; Cooley, Const. Lim. 69; 56 Ark. 495; 7 Johns, 502. The act is retrospective. 5 Ark. 510; 6 Ark. 492. The act takes away private property without due process of law. 129 Mass. 561; 14 How. 501; 129 Mass. 562; Cooley, Const. Lim. 443; 20 Mich. 406. The benefit under this act cannot be derived until one has paid taxes under color of title for seven years, three of which must be after March 18, 1899. Wood, Lim. 119; 24 Ark. 385; 9 Ark. 416; 55 Ark. 383; 6 Ark. 492. Actual possession must unite with color of title and payment of taxes. 31 N. E. 430; 17.Wall. 596; 64 S. W. 621.</p> <p>Remedial statutes are to be liberally construed. 26 Am. & Eng. Enc. Law, 676; 30 Ark. 608; 101 U. S. 597; 26 N. J. Eq. 79; 30 Am. St. 254; 51 Am. St. 174; 123 U. S. 276; 140 U. S. 453; 148 U. S. 490; 65 Ark. 148. Restricting or qualifying clauses must be strictly construed, so as not to interfere with the scope of the principal clause. 41 Tex. 449; 40 U. S. 445; 139 U. S. 438; 93 U. S.' 78; 4 Clark, 315.</p> <p>Statutes are never construed so as to give them a retrospective effect. 6 Ark. 484; 14 Ark. 464; Black, Inter. Laws, § 103; 10 Serg. & R. 97; 57 Ark. 64; 24 Ark. 385; 26 Atl. 925. Where the will of the Legislature is clearly expressed, courts should adhere to literal expression. 35 Ark. 56; 56 Ark. no; 48 Ark. 308; 36 Ark. 331. The general rule is that no statute is to have a retrospective construction. 15 la. 257; 10 Wend. 365; 6 N. Y. Ch. 726; 1 Wood, Lim. 41.</p> <p>Limitation laws are based on possession. 30 Ark. 655; 40 Ark. 243. Adverse possession of rough lands, mostly unfit for cultivation, is shown by proof of payment of taxes, blazing out lines, cutting timber, taxed in his own name and claiming to own and offering the land for sale. 151 Ind. 343; 98 la. 297. A party has no vested right in a rule of evidence. 64 Kan. 47; 25 Conn. 195; 8 Cyc. 924; 51 Ark. 419; 6 Wis. 257; 11 Wis. 432; 8 S. & R. 357; 9 Pa. 71. In considering the meaning of an act we must consider prior acts relating to the same subject. Endlich, Interpretation of Stat. § 43; 105 Pa. St. 610; 1 Pa. St. 353. Meaning of the word “deemed.” 14 N. J. E. 446; 85 Cal. 80; 24 Pac. 648; 67 Kan. 648; 73 Pac. 920; 5 Fed. 11; End. Inter. Stat. § § 27, 29, 318, 70, 72.</p> <p>The act in question should not be construed by itself. 40 Ark. 452; 60 Ark.'129; 45 Ark. 391; 3 How. 551; 38 S. W. 84; 11 Wheat, 386; 21 How. 464; 51 S. W. 158; 44 Cent. Dig. 2859. The date of the enactments will be looked into, and the one last in time will prevail. 40 Ark. 452; 16 Fed. 752; 60 Ala. 213, 249. The history of the passage of an act may be looked into to determine the legislative intent. 5 Ark. 613. What is possession? 40 Ark. 371; no Ala. 474; 49 Ark. 274; 43 Ark. 486; Black, Inter. Daws, 85. The statute is unconstitutional. 42 Ark. 91; 38 Miss. 424; 13 Mich. 329. The statute is not to be construed retrospectively. Black, Inter. Daws, 259; 1 Wood, Dim. 41; 7 Cent. Dig. 135, Constructive possession follows the title. 60 S. W. 651; 49 Ark. 266; 43 Ark. 469; 63 Ark. 600; 31 Ark. 337; 60 Ark. 129.</p> <p>The correct rule of construction is that where the will of the Degislature is clearly expressed, the courts should adhere to the literal expression of the enactment. 24 Ark. 487; 6 Ark. 9.</p> <p>When no exception is made in the statute, none can be supplied by the courts. 53 Ark. 418. Possession follows the title, in the absence of any actual possession adverse to it. 57 Ark. 523; 27 Ark. 217. A proviso in a statute is strictly construed, and takes no case out of the enacting clause that does not come fairly within its terms. 15 Pet. 445; Black, Inter. Laws, 270; 24 How. Pr. 247. The act shoidd not be construed retrospectively. 1 Wood, Lim. 41; 6 Ark. 485; Black, Inter. Laws, 254; 31 Ch. Div. 403; 1 Bl. Comm. 86; 29 Pa. St. 113; 55 N. J. L. 394; 22 N. W. 614; 14 Minn. 526. The court, in the construction of the act, should take into consideration all acts in pari materia, and especially those passed at the same term. 6 Ark. 9; 3 Ark. 556; Black, Inter. Law, 204; Endlich, Inter. Stat. § 53.</p> <p>Whenever any statute has received judicial construction, a subsequent act will be construed as being used in the sense the judiciary used it, the meaning being clear. 46 Ark. 108; 72 Ark. 601. Only one person can be in actual or constructive possession at a time. 49 Ark. 271. A person paying taxes on wild and unimproved land for seven years is in possession of the land, and the original owner is barred. 60 Ark. 502, 168; 67 Ark. 4x2. That there is no exemption in favor of infants is no objection to the statute. 53 Ark. 421. The policy of the law is to protect those who pay taxes on land of defaulting owners. 37 Ark. 107; 49 Ark. 194; 34 Ark. 541.</p>

Action by appellant, Baldwin & Co., Ltd., against appellees, H. G. P. Williams, J. T. Pratt and W. J. Hill, commenced February 21, 1900, to cancel as fraudulent deeds of conveyance executed by appellee Williams to Pratt and Hill, dated November 17, 1892, and January 16, 1893, respectively, and to subject the lands conveyed thereby to satisfaction of a judgment rendered by the circuit court of Union County on March 12, 1893,- in favor of appellant against appellee Williams.

Francis Circuit Court. The court destroyed its jurisdiction by striking out the defendant’s pleas and |denying defendant a hearing. 93 U. S. 274; 29 Ark. 81; 2 Estee, PI. § 3274; 6 Ark. 250; Sand. & H. Dig. § 5820. Appellant’s abstract presents nothing for this court to consider. 55 Ark. 547; 57 Ark. 304; 58'Ark. 448; 59 Ark. 1.

On the 25th day of September, 1901, the chancery court of Chicot County rendered a judgment against Wiley F. Sawyer in favor of Henry Hentz for over four thousand dollars, and declared the same to be a lien on certain lands of the defendant in that county. The decree directed that, in the event that the judgment was not paid on or before the ist day of January, 1902, Robt.

<p>1. EvidEncb — personal injuries — size oe family. — In an action for personal injuries, evidence as to the size of plaintiff’s family is incompetent, as it does not tend to show his earning capacity, but rather the amount of his expenses; and it is prejudicial, as calculated to arouse the sympathies of the jury. (Page 328.)</p> <p>2. Remittitur — excessive damages. — Where plaintiff's right to recover either on contract or in tort is clear, and has been established by the verdict of a jury, and where the errors committed in the trial do not affect the question whether defendant is liable or not, but go only to the enhancement of the amount of the verdict, so that the court is not able to say that the verdict is not excessive, the court may, in its discretion,, name a sum which is clearly not excessive, and allow the plaintiff, if he chooses, to remit the residue. (Page 329.)</p>

Appellants brought suit in chancery against appellee to reform a deed, alleging that G. B. Greenhaw had given to his son, F. P. Greenhaw, a tract of land near the town of Marshall, Ark., enclosed under fence, and a small strip adjacent, so as to bring the property up to the townsite line, but that by a mistake the deed had been drawn so as to convey more than was intended.

statement by tite court. In 1898, W. L. Heffner, of Lonoke County, Arkansas, executed a mortgage to the Strahorn-Hutton-Eváns Commission Co., of Missouri, on about ninety head of cattle to secure advances made by the company to him. The cattle at that time were in the possession of the mortgagor, W. L. Heffner.

In 1872, J. C. W. M. Harkleroad died, leaving a will, the substance of which, so far as it affects this case, was: The real estate in question was demised to his brother, Hiram S. Harkleroad, for his natural life.

The complaint stated a cause of action. 5 Ballard, Real Prop. 100; 59 Ark. 629; 65 Ark. 103. Possession follows title, in the absence of any possession adverse to it. 23 Ark. 735; 43 Ark. 409; 63‘Ark. 1; 69 Ark. 424. The tax sale was void. 55 Ark. 549; 70 Ark. 257; 65 Ark. 595. If dower in land has not been set apart to the widow, she can have no right of possession. 11 Ark. 212; 40 Ark. 69.

This suit was begun in the chancery court of Crittenden County by the filing of the complaint, and the issuance of a summons on the 25th day of October, 1901. On the 22d day of February, 1902, the defendants filed their answer to the complaint. Testimony was taken in the form of depositions, and the case was ready for trial on the merits.

The defendant was not served with a true copy of the indictment, as required by law. 43 Ark. 391; 60 Ark. 504. The remarks of the prosecuting attorney were improper. 58 Ark. 473'; 62 Ark'. 126; 69 Ark. 184. The objection to the copy of the indictment furnished was not made in time. 43 Ark. 391; 46 Ark. 141; 39 La. Ann. 1060.

statement by the court. Action for damages alleged to have resulted from delay in transportation of a car load of cotton seed hulls and meal, which was delivered to defendant at Little Rock by .the Arkansas Cotton Oil Company for shipment to Lonoke, a station on defendant’s road.

The finding of the court being one of law, there -was no necessity for a bill of exceptions. 26 Ark. 536, 662; 27 Ark. 464; 34 Ark. 684; 39 Ark. 258; 43 Ark. 398; 47 Ark. 17; 61 Ark. 33; 65 Ark. 278; 66 Ark. 180. The discretion to be exercised by a court must be reasonable; otherwise it is subject to correction. 10 Ark. 527; 64 Ark. 162; 72 S. W. 48; 21 Ark. 460; 70 Ark. 420; 67 Ark. 142; 69 Ark. 368.

Where an officer will not do his duty after being requested to do so, the statute providing a penalty for failing should be enforced. Sand. & H. Dig. § 4252; 22 Ark. 524; 47 Ark. 378. The objections urged were not properly saved. 44 Ark. 213; 14 Ark. 202; 34 Ark. 721.

King and Jacobs severally sued the Kansas City Southern Railway Company, and by agreement their cases were consolidated and tried together. The facts were these: A horse of King and hogs of Jacobs were negligently killed by' the Kansas City, Pittsburg & Gulf Railroad Company in Polk County. Thereafter the railroad company went into the hands of receivers, and ceased to have an agent in the county.

statement by ti-ie court. On November 20, 1901, at Boughton, Arkansas, the appel-lee, Johnson, was struck by a moving train of the appellant railway company, and in consequence of his injury therefrom his right foot had to be amputated. He sued the company, charging negligence. It denied the negligence, and charged contributory negligence. The trial resulted in a verdict for $1,500, and the railway company appealed.

statement by the court. S. H. Posey sued- the Arkadelphia Lumber Company on a contract entered into by it, and alleged in his complaint that plaintiff agreed to labor for the defendant, and it was stipulated that the Arkadelphia Lumber Company would pay him therefor at the rate of $1.65 per day, and deduct from his wages and hold and retain for insurance 75 cents for each and every month he might be so employed, and for such sum so deducted agreed to insure him against…

This is a suit instituted by Jobe Thornton against the St. Louis Refrigerator & Wooden Gutter Company, to cancel the deed of the defendant to certain lands as a cloud upon his title. The defendant answered.

One R. H. Henry was the owner of 240 acres of land in Howard County of this State. He permitted 80 acres of this land to be sold to. the State for nonpayment of taxes. After-wards he died leaving a will, by which he devised all his property to his widow, Mary H. Henry, and she took charge of the property, with the exception of the 80 acres that had been forfeited to the State. This sale to the State was invalid, though Mrs. Henry did not know it.

The land was properly advertised. Sand. & H. Dig. § 6607; 21 Ark. 581. The amount of taxes assessed against the land was not excessive. Acts Ark. 1897, p.’ 7; Cooley, Tax, 245; 25 Wis. 514; 28 Wis. 232; Blackw. Tax. Tit. § 190. . The land was not properly advertised. Sand. & H. Dig. § § 6599-6606; Blackw. Tax. Tit. § 207; 21 Ark. 581. The taxes charged against the land were excessive. Blackw. Tax. Tit. § 233; 73 Texas, 340; 56 Ark. 93; 61 Ark. 415.

<p>Appeal from Jefferson Circuit Court.</p> <p>The appellants cannot be liable under the Statute of Frauds. Browne, Fraud, 505; 3 Reed, Stat. Fr. 1115, 249; 28 L. T. R. 232; 59 Fed. 338; 3 G. & J. 518; 2 Camp. 450, 604; 9 Geo. IV, 14; 5 B. & C. 163; 4 M. & P. 811; 7 Bing. 163; 8 Scott, 1-51; 2 Bing. N. C. 779; 2 Scott, 289.</p> <p>J. B. Johnson as agent had authority to bind his principal by signing the contract of sale. 92 LL S. 4x2; 10 Paige, Ch. 386; 13 N. Y. 587; 1 Seld. 197; 5 N. Y. 229; Benj. Sales, 236; 30 Wis. 615; 3 Hill, 72; 7 Cush. 371; 1 Reed, St. Fr. § 381; 73 N. Y. 6x3; 1 Reed, St. Fr. 368, 372; 38 How. Pr. 444; 24 N. Y. 57; 9 Plun, hi ; Wood, St. Fr. § 425. The measure of damages was correctly stated. 2 Ark. 307; 57 Ark. 257.</p>

If the original confession was made under illegal influence, it will be presumed that all subsequent confessions are colored by it. 22 Ark. 336; 69 Ark. 599; 6 Am. & Eng. Ene. Eaw (2d Ed.), 542; 3 Rice, Ev. 499.

The act of 1850 made the Secretary of the Interior the judge of lands coming within the meaning of the grant, and his decision, in the absence of fraud or imposition, is final. 41 Ore. S7°l 53 Ark. 833.

STATEMENT by The court. Appellees, the widow and childr'en of P. M. Evans, deceased, brought this suit against appellant railway company for damages accruing to them on account of the killing of the said Evans by one of appellant’s locomotives on December 23, 1901.

Kosminsky and Bedingñeld sued Bickham, sheriff of Miller County, and the sureties on his official bond for a failure to return an execution in their favor against Elias Pickett in the sum of $1,017 principal, and interest and costs, within sixty da)rs from the date thereof. The prayer was for judgment against Bickham and his sureties for the amount called for in the execution against Pickett.

The description of the land as advertised was sufficient. Cooley, Tax. 405; 23 Kan. 448; 33 Cal. 150'; 51 Texas, 390. Allegations in a pleading which áre not denied will be taken as true. 41 Ark. 17; 46 Ark. 132; 50 Ark. 562; 73 Ark. 344; 62 Ark. 51. Defendants’ exceptions to exhibits were properly overruled. 63 Mo. 96; 82 Mo. 450; 56 Miss. 104; 44 Cal. 132; 94 N. Y. 232; 60 Ark. 489; 40 Ark. 237. The complaint stated no allegation of fact that should have been denied.

This is a petition by the mayor and recorder of the town of Hartford for a writ of certiorari to bring here for quashal a judgment of the Sebastian Circuit Court, Greenwood District, in which W. Q. Lowrimore, town marshal, was plaintiff and themselves and others were defendants.

<p>Appealed from Craighead Circuit Court, Jonesboro District.</p> <p>The stipulation in the side track agreement exempting appellant from liability is valid. 46 Ark. 238; 24 L. R. A. 647; 70 Fed. 201; 64 L. R. A. 81; 40 L. R. A. 101; 3 Am. & Eng. Enc. Law 875; 193 U. S. 442; 192 U. S. 448; 113 Fed. 508; 87 Am. Dec. 260; 150 Mass. 365.</p> <p>Appellant was liable, notwithstanding the stipulation. Hutch. Car. 260; 17 Wall. 357; Clark, Contr. 468; 47 Ark. 97; 57 Ark. 112, 127; 32 Ark. 398; Cooley, Torts,-687; 58 Miss. 9x1; 11 S. E. 829; Bishop, Contr. 473.</p>

<p>1. Appeal — bringing up the evidence — The Supreme Court will not consider the deficiency of the evidence where the bill of exceptions purports to give merely the substance of the evidence. (Page 430.)</p> <p>2. Second appeal — bill of exceptions. — Though Rule XIV provides that “when a cause has once been before this court, and a transcript is again called for to have error which occurred after its return corrected, the second transcript shall begin where the former ended;, that is, .with the judgment of this court,” if the verdict of the jury or findings of fact of the court be questioned, the bill of exceptions in the second appeal should contain all the evidence adduced at the second trial. (Page 431.)</p>

The court erroneously charged the jury as to the burden of proof to' justify or excuse the homicide. 62 Ark. 307; 64 Ark. 147; 71 Ark. 462.

Action by J. N. Rector against W. H. Robins. Verdict and judgment were for defendant, and plaintiff appealed. STATEMENT BY THE COURT. This is an action on a promissory note. The complaint alleges that on April 9, 1900, Purdom, Roberson & Company executed their promissory note to the Howard County Bank for $350, due 90 days after date, with 'interest at 10 per cent, per annum from maturity.

Warren Baldwin* a conductor in the employ of the Iron Mountain Railway Company, on the 18th of September, 1904, had charge of a passenger train on that road. This, train passed the town of Dermott at about 2 o’clock in the morning, and was going northward. Several passengers boarded the train at Der-mott, among them being O. J. Allison, a section foreman in the employ of the same road.

Pierce was the owner of 160 acres of land in Boone County, Arkansas. On the 12th day of February, 1892, he conveyed his land to O. E. Hindes and Sarah E. Hindes, his wife, jointly, so that they became tenants by entireties.

The Allen-West Commission Company of St. Louis brought an action in the Polk Circuit Court against the firm of Hudgins Brothers, composed of J. G. and Holder Hudgins.

Appeals from Arkansas Circuit and Chancery Courts. The mortgage was void. Martindale, Conveyancing, 63; 36 Ark. 404. The notice of the sale was improper. 60 Am. Dec. 753; Rorer, Jud. Sales, 99; 71 Am. Dec. 447; 49 Mo. 451. Appellant had a right to redeem. 39 Ark. 580; 42 Ark. 2x5; 52 Ark. 132; 59 Ark. 147; Vanfleet, Coll. Att. § 2. A grantee must take notice of the defects in the grantor’s title. 29 Ark. 650; 35 Ark. 100; 57 Ark. 628.

<p>Appeal from Monroe Circuit Court.</p> <p>Appellee was guilty of contributory negligence. 36 Ark. 371; 47 Ark.-497;- 49 Ark. 257; .46 Ark. 513; 50 Ark. 477; 54 Ark. 431; 56 Ark. 255; 61 Ark. 549762 Ark. 235, 273, 156; 56 Ark. 433; 84 Ind. 333; 42 N. J. 180; 25 Mich. 290; 23 Am. & Eng. R. Cas. 317; 37 Id. 516; 59 Mich. 257; 40 Ohio St. 338; 157 Mass. 336; 95 U. S. 697; 65 N. W. 447. There is no proof of negligence on the part of the engineer. 69 Ark. 382; 92 Ala. 270; 11 Ark. 236; 56 Ark. 13; 31 Ark. 43.</p> <p>Defendant was liable if the decedent’s situation was discovered by the engineer in time to have saved her. 61 Ark. 350; 62 Ark. 170. There was evidence to sustain the verdict. 70 Ark. 136.</p>

A defendant in possession of land cannot be deprived of his right to trial by jury. 32 Ark. 553; 56 Ark. 397; 49 Ark. 155; 57 Ark- 589; 27 Ark- 233; 29 Ark. 612; 30 Ark. 589; 105 U. S. 180; 3 Peters, 447. Possession on the part of plaintiff is a necessary jurisdictional fact in an action to quiet title, unless his title be an equitable one. 57 Ark. 106, 589; 37 Ark. 643; 43 Ark. 28; 44 Ark. 436. The title set up in the bill was a legal one. 43 Ark. 307.

Defendant was indicted for murder, and convicted of voluntary manslaughter. Defendant’s attorney in his argument to the jury said that two witnesses testified that defendant and deceased both began to strike at each other at the same time, and three witnesses testified that deceased did not strike at defendant at all. “Now, you do not know, and cannot know, which told the truth. I do not know. I do not know, nor does the prosecuting attorney know, which statement is correct.

Instruction No. 8, upon the question of drunkenness as an excuse for crime, was erroneous. 71 Ark. 459. The verdict will not be set aside, because it was for a lower degree of homicide than the defendant was actually guilty of. 38 Ark. 403; 50 Ark. 506.

The petitioner makes this statement of the case, which is accepted by the defendant as a fair statement:- “The facts, briefly stated, are that the petitioner was fined in the city court of Jonesboro, Arkansas, for carrying a pistol concealed upon his person in violation of the ordinances of the city, the fine being assessed at $50.

The appeal to the chancery court will be treated as a motion to quash the supersedeas. 36 Ark. 481; Sand. & H. Dig. § 3798. The supersedeas was properly issued. Kirby’s Digest, § 3906; No objection was raised to the schedule, and there was no fact to be determined by the clerk. Kirby’s Digest, § § 3909-39*5-

On October 17, 1901, appellant, Jefferson Mutual Insurance Company, a corporation organized under the laws of this State on the mutual or assessment plan to do a fire insurance business, with its principal office at Pine Bluff, issued its certain policy, whereby it agreed to indemnify plaintiff, A. A. Murry, to an amount not exceeding $1,000, against loss> or damage by fire, as follows: “$825 on a certain stock of merchandise, etc., $50 on store and office furniture and…

Appeál from Pulaski Circuit Court, Second Division.- STATEMENT BY THE COURT.

On the 8th day of May, 1892, R. J. Steele recovered judgment against B. S. Thalheimer in the Pulaski Circuit Court for the sum of $282, with interest at the rate of 10 per cent., which judgment is still unpaid. On the 8th day of November, 1900, Thalheimer filed his petition in voluntary bankruptcy in the United States Circuit Court for the Eastern District of Arkansas.

Action by John H. Gray against the city of Batesville, and the mayor and members of the city council, for damages caused from a defective bridge within the city limits which had been permitted to fall into disrepair and which the city had negligently failed to repair. The trial court instructed the jury to return a verdict for the defendant, which was done. Judgment was rendered accordingly, and the plaintiff appealed to this court. The city of Batesville is liable.

statement by the court. Appellants are the surviving children and heirs at law of Robert C. Wallace, deceased, from whom they inherit lands, and who was one of the sureties on the bond of John W. Guer-rant, as guardian of the person and estate of appellee when she was a minor. This is a suit brought by appellee in the chancery court to recover from the estate of said deceased surety, Robt.

Appellee sued J. E. Ryman and appellant railway company to. recover for work done for and materials 'furnished to said Lyman under contract between Lyman and the railway company in repairing and rebuilding certain parts of its roadbed, and to enforce a lien upon the property of the appellant company, as provided by law.

In August, 1901, Mrs. F. A. Lay brought this action of ejectment against Mrs. Beulah A. Lay, the widow of her son, Charles Lay, to recover from her the possession of sixty acres of land in the Varner District of Lincoln County. The defendant appealed, and filed her answer, in which she admitted that the plaintiff was at one time the owner of the land described in her complaint, but she denied that she was the owner at the time the action of ejectment was commenced.

, It was error to strike the separate answers • from the files and to refuse to permit appellants to introduce evidence in the case. Kirby’s Dig. § 1314; 33 Ark. 515; 34 Ark. 244; 56 Ark. 78; 61 Ark. 515. Evidence must correspond to the allegations, and be confined to the point in issue. 1 Greenleaf, Ev. § 51; Kirby’s Dig. § 6137.

STATEMENT BY the COURT. , This suit involves the construction of the will of Mrs. Laura E. B. O’Connor, in so far as the sixth and seventh clauses are concerned, which are as follows: “Sixth.

The demurrer to the complaint should have been sustained. Acts 1899, p. 154; 73 S. W. 1096. A verdict for defendant should have been directed. 84 N. W. 342; 29 Fed. 614; 21 S. W. 1047; 62 S. W. 712; Minor, Confl. Laws, 371; 54 Am. St. 45; 45 Ark. 420; 47 Ark. 378; 80 N. W. 779; 21 la. 523; 49 N. E. 222.

The defendant should not have been compelled to accept or reject persons from a panel who the law says are not eligible. Kirby’s Dig. § § 4529, 4509. It was error to introduce the paper purporting to be the dying declaration of deceased. 70 Ark. 157; 2 Ark. 229; 39 Ark. 221. The questions propounded to witnesses, Adams and Wallace, were improper. 53 Ark. 394; 54’ Ark. 25. It was error for the court to intimate his opinion of testimony given by a witness. 71 Ark. 113.

Schenck sued Griffith in replevin for a mare. Defendant answered that he was the owner of the mare by purchase from one Ike Davis; that he was an innocent purchaser without notice of plaintiff’s rights. Plaintiff testified that he was owner of the mare; that he made a contract with Ike Davis to sell him the mare for some work; that nothing was said at the time about retaining the title of the mare until the work was done.

Nppellee brought suit before a justice of the peace in Pope County, alleging in his complaint that he purchased a pump and fixtures from appellants, and paid therefor $35 in cash, upon the representation of appellants that it would lift water thirty-three feet on a straight lift; that it would not work as represented, and by reason thereof he had been damaged in the sum of $35 paid for the pump, and in loss of labor' of men and teams and other items; and praying judgment for…

STATEMENT BY TH® COURT. This is an action of ejectment by the trustee of Clark County against Mrs. S. L. Brown, to recover a tract of land described as follows, towit: the undivided half of the fractional north half — north of Ouachita River — of section 4, township 7 south, range 19 west, containing 71.31 acres, which the complaint alleged was situated in Clark County.

In the year 1873 James B. Smith obtained from the State a donation deed conveying to him the southeast quarter of section 3, township 11 south, range 19 west, in Clark County, which had been forfeited and sold £0 the State for nonpayment of taxes for the years 1865, 1866 and 1867. Afterwards Smith became insane, and failed to pay the taxes for 1893, and the land was sold in 1894 for the nonpayment of such taxes, and purchased by the Gurdon Dumber Company.

statement by ti-ie court. Appellant was indicted at the June term of 1904, of the Crawford Circuit Court, charged with the crime of forgery and of altering the forged instrument, and at the November term, 1904, was tried and convicted upon both counts of the indictment.

The tax sale was regular in all things and valid. 55 Ark. 218; 68 Ark. 248. The certificate was not placed on the record before ’ the day of sale, and the sale is therefore void. Black. Tax T. § 214.. Jurisdictional facts must affirmatively appear of record. 55 Ark. 30, 218; 51 Ark. 34.

Appeal 'from Lonoke Circuit Court. STATEMENT' BY THE COURT. This was an action brought, by order of court, by creditors in the name of the receiver of the Bank of Lonoke, against directors of that bank,, charging that they had become liable, under section 863, Kirby’s Digest, for intentionally .neglecting and refusing to comply with their duties as directors. The complaint sets forth with particularity the alleged neglectful conduct of the directors.

The complaint did not state a cause of action. Sand. & H. Dig. § § 6238, 6239; 72 S. W. 574; 55 S. W. 134; 68 S. W. 879; 57 Ark. 16; 72 S. W. 574; 47 Ark. 330. The complaint was sufficient under the statute. Kirby’s Dig. § § 6644, 6645. Whether or not the cattleguard was properly constructed was a question for the jury. 70 Ark. 431; 71 Ark. 235.

1. John S. Simpson, previous to the sale under execution issued on the Peters Shoe Company stay bond, was the owner of at least an equitable interest in the property in suit. ■ 2. The interest of said Simpson was subject to sale on said execution. 3. Even though the legal title in the land was in the name of the wife, the husband could not expend his money in improving it, to the detriment of creditors. 66 Ark. 419; 17 Ark. 105. 4.

statement by the court. The appellee, Marshall, desired to ship potatoes to Cleveland, Ohio, and applied to the station agent of the appellant railroad company, at La Grange, for a ventilator car for such shipment.

Previous verbal agreements or declarations are conclusively presumed to be merged into the written contract. 62.Ark. 49. It was improper to admit the testimony of Dr. McGinty. 60 Ark. 141; 12 Ark. 692; 7 Ark. 112. It is error to give an instruction where there is no evidence to support it. 70 Ark. 441; 71 Ark. 357. Appellant’s motion for judgment against the obligors in the bond should have been sustained, ix Enc. PI. & Pr. 912.

The verdict is not supported by the evidence. 14 Ark. 502; 21 Ark. 468; 24 Ark. 234; 13 Ark. 71; 39 Ark. 491; 54 Ark. 641; 27 Ark. 592; 33 Ark. 651. The verdict will not be disturbed where there is evidence to support it. 46 Ark. 142; 40 Ark. 122.

Action by J. U. Brown and Robert Fultz against Prescott & Northwestern Railway Company to recover damages for the killing of a mule. Plaintiffs recovered, and defendant appealed. STATEMENT BY THE COURT. This was an action by appellees for damages for the killing of a mule on appellant’s railroad.

statement by the COURT.' On the 28th day of October, 1902, the appellee, a minor, by his next friend, A. J. Hughes, instituted this action, and alleged that on the 4th day of July, 1902, in the town of Brinkley, an employee of the appellant negligently threw a trunk out of its car, which fell on the appellee’s fo.ot, without his fault; that he was passing over Memphis avenue, upon which the appellant’s track is laid.

statement by the court. Appellee sued the two appellant corporations, Paris Mercantile Company, and Paris Mining & Coal Company, and R. J. Troy, O. C. Wood and Henry Stroup, basing his cause of action upon various accounts, 'assigned to him by coal miners, aggregating the sum of $1,159.80.