Volume 76 — Arkansas Reports

Styles T. Rowe, Judge. statement by the court. This suit was instituted in the circuit court of Scott County by appellee against appellant on account, the complaint alleging: “That defendant, the Cauthron'Lumber Company, is indebted to him in the sum of'$923.14 for goods and merchandise sold and delivered to defendant’s hands and employees at defendant’s request, and upon contract made by and between plaintiff and defendant; particulars of which are set out in an account…

Joee D. Conway, Judge. STATEMENT BY THE COURT. This is a suit begun in a justice’s court on the 2d day of August, 1902, by Bowen-Merrill Company, a corporation under the laws of Ohio, against Glitsch & Alley, a law firm.

George M. Chapline, Judge. statement by the court. On the 14th day of October, 1901, appellant was conducting a hay, farming implement, and lumber business at Stuttgart. This business brought him often to appellee’s depot at Stuttgart, where he had barns on each side of the numerous switches of appellee at the depot, and wagon scales between the barns where hay and other farm products were weighed.

<p>Appeal from Miller Chancery Court.</p> <p>James D. Shaver, Judge.</p> <p>The deposition of Rachel McNutt should have been stricken out. 53 Ark. 279; 55 Ark. 235. A court of equity will not rescind a contract on the ground of fraud, unless the fraud is clearly established. 8 How. 134; 37 Ark. 145; 38 Ark. 419; 55 Ark. 148; 94 U. S. 207; 16 Atl. 640. The findings of the chancellor are against the preponderance of the evidence. 43 Ark. 307; 50 Ark. 185; 34 Ark. 112.</p> <p>The findings of the chancellor are supported by a preponderance of the evidence, and are conclusive. 67 Ark. 287; 68 Ark. 134, 314; 71 Ark. 605. The deed should have been canceled. 33 Ark. 762; 67 Ark. 527. The decree is equitable. 54 Ark. 499; 63 Ark. 376; 51 Ark. 188, 530; 48 Ark. 17.</p>

■ Charees W. Smith, Judge. statement by the court. During the years 1897, 1898 and 1899, S. K. Young was employed by the Wrought Iron Range Company to take supervision of salesmen engaged in selling Home Comfort Ranges manufactured by the defendant. The company agreed to allow him for his services about $2 on each range sold by men under his supervision. But when a range was sold on credit, the commission was not due until the notes given for the same were collected.

James D. Shaver, Chancellor. Roads and streets are synonymous terms. 24 Am. & Eng. Enc. Law, 986; 27 N. Y. 269; 36 Ela. 196; 3 Nev. 361; 93 Am. Dec. 416. Expenditure of money raised under section 7358 of Kirby’s Digest upon the streets is not a diversion of the funds. 36 Ela. 196. All doubts are resolved in favor of the validity of an act. 59 Ark. 528; 39 Ark. 355; 51 Ark. 539.

Jesse C. Hart, Chancellor. STATEMENT BY THE COURT. This is a suit by appellee Lockert against appellants Fannie Thalheimer and her husband, Ben S. Thalheimer, and John- F. Smith, for the reformation of a deed executed by appellant Smith to appellee.

Edward D. Robertson, Judge. A divorce will not be granted on the,ground of cruel and intolerable treatment, unless the proof clearly shows that such treatment was habitual. 38 Ark. 119, 324; 53 Ark. 484. The facts in the case do not justify the decree of the chancellor. 34 Ark. 317; 53 Ark. 482. There is sufficient corroboration to justify the granting of the divorce. 94 Cal. 225; 38 Atl. 950; 94 N. W. 765.

James S. Steel, Judge. statement by the court. Appellee recovered judgment against John R. Probst for $125 before a justice of the peace of Polk County, and later filed a certified transcript of the same in the office of the clerk of the circuit court of that county, and the clerk entered such judgment on the docket of that court for judgments and decrees, as provided by statute.

John N. Tikuman, Judge. The record fails to show any negligence on the part of appellant. 39 Ark. 413; 40 Ark. 336; 41 Ark. 161; 47 Ark. 321; 53 Ark. 96; 66 Ark. 439; 67 Ark. 514. Upon disputed facts the verdict will not be disturbed. ¿1 Ark. 467; 31 Ark. 163; 25 Ark. 474. The proof of appellant did not overcome the statutory presumption of negligence. 64 Ark. 236. The issue of fact was properly submitted to the jury. 71 Ark. 445; 66 Ark. 363; 62 Ark. 63.

<p>Appeal from Howard Circuit Court.</p> <p>James S. Steer, Judge.</p> <p>The remarks of the prosecuting attorney were improper and prejudicial. '38 Ark. 368; 48 Ark. 106; 65 Ark. 625; 71 Ark. 418.</p>

The court’s instruction as to the existence of probable cause was erroneous. 63 Ark. 387; 98 U. S. 195; 13 Gray, 201; 15 Mass. 243; 3 B. Mon. 4; 69 Ark. 439; 71 Ark. 362. This case should be dismissed for noncompliance with Rule IX. 85 S. W. 776. The jury’s findings upon questions of fact are conclusive. 23 Ark. 208, 131; 40 Ark. 168; 19 Ark. 684. Exceptions to the instructions were not properly saved. 32 Ark. 224; 28 Ark. 18; 39 Ark. 339; 38 Ark. 539; 59 Ark. 465.

Wirriam D. M00SR, Judge. The court may reform a deed, so as to make it conform to the intention of the parties. 50 Ark. 184; 66 Ark. 155; 51 Ark. 394; 68 Ark. 544; 68 Ark. 547. Perry’s deed did not carry with it all accretions. 69 Ark. 34; 71 Ark. 390; 59 U. S. 150; 134 U. S. 178; 76 Cal. 169; 7 How. 593. All accretions passed in the description contained in Perry’s deed. 71 Ark. 390; 40 Fed. 386; 134 U. S. 178; 55 S. W.-241; 3 Wash.

JESSE C. Hart, Chancellor. STATEMENT BY THE. COURT. Held: the council of the city of Little Rock granted to the street car company a franchise to build and maintain a street railway over certain' streets in the Eighth Ward.

William L. Moose, Judge. The county court of Yell County appointed viewers to lay out and designate a public road. They laid out the road across the land of Brooks, Neely & Company, and fixed the compensation at a sum named. Brooks, Neely & Company filed a motion to disapprove the report of the viewers, alleging numerous irregularities. The county court overruled the motion, and approved the report of the viewers. Brooks, Neely & Company appealed to the circuit court.

Joee D. Conway, Judge. A servant who knowingly consents to work in a place of danger will be held to assume the attendant risk. 56 Ark. 53; 57 Ark. 82-; 68 Ark.'316; 56 Ark. 232; 58 Ark. 168; 27 Minn. 367; 34 Minn. 94; 78 S. W. 363; 124 Ind. 326; 134 Ind. 625; 41 Minn; 289; 88 Wis. 376; 18 R. I. 513; 31 S. W. 525; 34 S. W. 298; 39 Fed. 65; 115 Ind. 566; in N. Y. 520; 54 Wis. 226; 66 la. 305; 18 Fed. 239; 126 Fed. 494.

Charles D. Greaves, Special Judge. The contract was not a severable one. 7 Am. & Eng. Enc. Law, 95; 75 111. 205; 41 N. E. 465; 43 N. W. 864; 44 Pac. 544; 84 Am. Dec. 728. The contract sued on was a severable one, consisting of several distinct items, and founded on a consideration apportioned to each. Beach, Contracts, § 731; 40 Cal. 251; 66 Pa. St. 351. Appellants failed in their defense as to the quality of the goods. Mech. Sales, § § 1320, 1328; 7 Allen, 29; 30 Oh.

GEorge M. Chapeine, Judge. Spratlin sued the St. Louis Southwestern Railway Company, alleging that hé purchased a carload of corn at a point on defendant’s road in the State of Missouri, and shipped it over defendant’s line, consigned to himself to De Witt, Arkansas; that the bill of lading stipulated that the freight on the carload was $56; but when the car arrived, defendant demanded and plaintiff was compelled to pay $12 overcharge in freight and $11 in demur-rage.

<p>1. Murder — SuEEiciEncy oe indictment. — An indictment for murder which uses the word willingly in lieu of “willfully” is not defective where it charges that the defendant “unlawfully, feloniously and of his malice aforethought and after deliberation and premeditation did kill and murder,” etc., as these words include all the meaning which could be conveyed by the word “willfully.” (Page 84.)</p> <p>2. Juror — challenge—presumption.—Where the record shows that the State was permitted to challenge a juror peremptorily after he had been accepted by both sides, it will be presumed, in the absence of a contrary showing, that the challenge was allowed before the juror had been sworn in chief, as prescribed by Kirby’s Digest, § 2357. (Page 85.)</p>

Alexander M. DueeiE, Judge. This suit was brought by McMillan against the Hot Springs Railroad Company to recover damages for the crushing and mangling of his left hand. McMillan was a brakeman of the Hot Springs Railroad Company, and his injury was caused while he was coupling cars at Butterfield.

ArRxandRr M. DuRRir, Judge. Adams obtained judgment against Gibbs on a claim of $345.99, and instituted garnishment proceedings against the Dalhoff Construction Company, alleging that Gibbs had a contract under it to construct one and one-third miles of railroad, and that plaintiff furnished supplies for his laborers and for his teams'.

<p>1.' Railroad. — stock-killing—negligence.—Where a train, passing through a town at the rate of forty miles an hour, struck and killed a cow, which came from behind a house distant twenty or thirty feet from the track, testimony of the engineer that it was too late after he saw the cow, when she came from behind the house, to do anything towards checking the speed of the train, and that he did not have time to give the stock alarm, without going into the particulars, is not sufficient to overcome the statutory presumption of negligence, as the jury might have found that he had time to sound the stock alarm. (Page ioi.)</p> <p>2. Same — running* Train Through Town. — A higher degree of care is required of railroads in running a train at a high rate of speed through a town than when going through the open country. (Page 102.)</p>

Antonio B. Grach, Judge. STATEMENT BY TREE COURT. E. W. Williams, on the 5th day of December, 1898, rented to Bunch & McKenzie a part of the Eeland plantation in Jefferson County for one year for the sum of $4,000.

Alexander M. Duffie, Judge. -, . , STATEMENT by the court. > Levi Reed was a machinist in the employ of the “Cotton Belt” Railway Company at Texarkana, Ark. His home was at Malvern, .Ark., .where his family lived.

<p>1. Homicide — burden oe prooe as to mitigating circumstances. — While it is true that when a killing is proved the burden of showing circumstances that mitigate or excuse the crime devolves upon defendant if there is nothing in the evidence on the part of the State that tends to mitigate, excuse or justify the killing, still the burden on the whole case is on the State; and when evidence is introduced, either on the part of the State or of the defendant, which tends to justify or excuse the killing, the jury must acquit if upon the whole case they have a reasonable doubt as to defendant’s guilt. (Page 112.)</p> <p>2. Same — instruction.'—An instruction in a murder case that if the jury had a reasonable doubt they should acquit, yet as to matters of mitigation defendant “would be required to furnish a preponderance of the evidence,” was erroneous and misleading; if the defendant introduced proof tending to prove that the killing was justifiable or excusable, this tended to rebut the allegation of malice; and if the jury had a reasonable doubt on that point, they 'should acquit. (Page 112.)</p>

Sam FrauEnthal, Special Judge. An attorney cannot recover a fee from a party who has not employed him. 5 La. Ann. 481; 20 So. 862; Thompson, Stockholders, § 4; 13 Mete. 539; Cook, Corporations, § 243. In the absence of an express contract appellants had a right to presume that appellees looked to the principal. Mech. Ag. § 558; 21 Conn. 627; 44 N. Y. 349; 48 N. Y. 300; 68 N. Y. 400; 84 Mo. 578; 46 N. Y. 70; 6 Har. & J. 418; 101 U.S. 392.

• E. G. Mitci-iell, Judge. STATEMENT BY THE COURT. W. M. Anglin and-H. H. Hilton brought this suit in chancery against appellees to foreclose a deed of trust on real estate executed by appellees to appellant Hilton, as trustee, to recover payment of an alleged debt to Anglin, and also to declare a lien for an amount paid by Anglin in redemption of the lands from tax sale.

Joel D. Conway, Judge. statement by the court. Action brought by the State of Arkansas against the Western Union Telegraph Company to recover the statutory penalty of $500 for refusal to transmit a message. The court, sitting as a jury, found for the defendant, and rendered judgment accordingly, and the plaintiff appealed.

Edward D. Robertson, Chancellor. STATEMENT BY THE COURT. Appellants, Johnson, Berger & Company, a firm of merchants at Jonesboro, Ark., brought this suit in chancery to foreclose a mortgage executed to them by appellee, A. R. Downing, on January 3, 1899, upon certain land in Poinsett County, to secure payment of a debt in the sum of $521.31, evidenced by promissory note.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. Appellee Coombs was the owner of a cotton compress plant, consisting of building and machinery in the city of Batesville, near the track of appellant’s railroad, which was destroyed by fire on May 5, 1902, between 3 and 4 o’clock in the afternoon.

<p>Appeal from Yell Circuit Court.</p> <p>William L. Moose, Judge.</p>

Wieeiam T. Moose, Judge. H. R. Remmel sued the firm of Graham Brothers, consisting of Henry C., J. R., T. J., Nimrod, Nathan, Josephus S. and James Graham, on the following note: “Tuckerman, Ark., Feb. 27, 1902. “On the delivery, or thirty days thereafter, of a joint life policy of the sum of thirty-five thousand dollars ($35,000), on the ten-year distribution plan, in the Mutual Rife Insurance Company, of New York, on the lives of Henry C. Graham, J. R. Graham, T. J.…

<p>Cross appeals from Hempstead Chancery Cóurt.</p> <p>James D. Shaver, Chancellor.</p>

S. H. Mann, Special Judge. The court erred in considering-incompetent evidence. The award was invalid because: First, the refusal of Rawes to proceed on the improper basis insisted on by Hampton and the umpire operated, in law, as a revocation of the reference. Morse, Arb. 236; 46 Atl. 92. That the submission may be revoked before award, see 3 Cyc. 610, 613.

<p>1. Witness — Exemption erom process. — A party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence either as a party or a witness, or while going thereto or returning therefrom. (Page 160.)</p> <p>2. Same. — Where a nonresident was attending court in order to avoid a forfeiture of his bail bond, service on him of process in a civil suit will be quashed. (Page 161.)</p>

<p>Appeal from Little River Chancery Court.</p> <p>James D. Shaver, Chancellor.</p>

<p>Appeal from Arkansas Circuit Court.</p> <p>George M. Chaprine, Judge.</p>

<p>Railroad — stock case — defective headlight. — Where the engineer in charge of a locomotive which killed plaintiff’s cattle one night testified that he could not have stopped the train under 200 yards, and that his headlight enabled him to see only 100 feet ahead, and there was evidence that a good headlight would have enabled him to see 200 yards ahead, a verdict against the railroad company will be sustained.</p>

<p>State charitable institutions' — contract for supplies — enforcement.— A contract entered into by the board of trustees of the State charitable institutions for the furnishing of supplies for those institutions for a period of three months will not be enforced; Kirby’s Digest, § 4130, requiring such contracts to be let monthly on the first Monday in each month.</p>

Circuit Court, Northern District. John W. Meeks, Judge. The grand jury of Sharp County, for the Northern District, indicted Will Songer for keeping a saloon and dramshop and selling intoxicating liquors without license. On the trial the sale was admitted, and the defendant, to show his right to sell, introduced a license issued. by the county court authorizing him to keep a saloon for the sale of intoxicating liquors in the town of Hardy, in that county.

Wireiam D. Moose, Judge. STATEMENT BY THE COURT. W. D. Jacoway was on the 16th of March, 1867, appointed administrator of the estate of Samuel Dickens, who had died in Yell County on the 2d day of the same month. Jacoway gave bond as administrator, and entered upon the discharge of his duties as administrator of that estate.

Charles W. Smith, Judge. Action by J. F. Hartin Commission Company, a corporation against J. S. Pelt to recover damages for alleged breach of implied warranty of the grade of cotton purchased by the plaintiff from the defendant. Judgment was rendered in favor of the defendant, and plaintiff appealed.

John M. Eeeiott, Chancellor. STATEMENT BY THE COURT. This is a suit brought in the chancery court by the State of Arkansas for the use of the Saline River Shingle & Cumber Company, a domestic corporation, against the Phoenix Insurance Company, of Brooklyn, a- foreign insurance corporation doing business in the State, and the sureties on its bond, to reform a policy and to recover the amount thereof, $2,000 and interest, on account of loss by fire.

John N. Tillman, Judge. Deceased was guilty of contributory ’ negligence. 71 Ark. 590; 66 Ark. 238; 62 Ark. 156; lb. 164; Id. 239; 57 Ark. 461; 69 Ark. 380; 48 Ark. 106; 56 Ark. 457; 54 Ark. 431, et seq. The verdict was excessive. As to right of deceased to rely upon instructions of foreman, see 65 Ark. 140. The instructions were correct, and the evidence sustains the verdict.

<p>Appeal from Pulaski Chancery Court.</p> <p>Jesse C. Hart, Chancellor.</p>

<p>Accomplice — corroboration.—A conviction of murder upon the testimony of an accomplice was sufficiently corroborated by proof that defendants acted suspiciously before and after arrest, that one of them told the sheriff where to find the spoke with which the fatal blow was dealt, and that when the blood-stained spoke was brought to defendants one of them broke down and cried.</p>

<p>1. Appeal — failure to abstract evidence. — Where appellant fails to bring the evidence into his printed abstract, the presumption is that the evidence sustained the findings of the trial court. (Page 218.)</p> <p>Guardian and ward — account—burden op proof. — The burden of proof rests upon a guardian to establish the validity of any item of credit in his account which is challenged, and for want of. sufficient prima facie proof such credit will be rejected. (Page 218.)</p> <p>3-Same — interest on unloaned funds. — Where a guardian, after being ordered by the probate court to lend out his ward’s money, waited for ten years without lending the money, and without making any report to the court of his failure to do so, it was not error, after allowing him reasonable time to make the loan after being ordered to do so, to charge him with interest thereafter at the legal rate. (Page 219.)</p>

<p>Appeal from St. Francis Circuit Court.</p> <p>Allen Hughes, Judge.</p>

<p>1 Railroad — accident at crossing — duty to look and listen. — In a suit for an injury received by a traveler in collision with a train at a. highway crossing it was error to instruct the jury that mere proof that plaintiff looked and listened as he started to drive upon the track, and that he did not look again, did not .alone establish contributory negligence. If there were no exculpatory circumstances, the jury should have been instructed that the duty was upon plaintiff to continue to look and listen until the danger was past; otherwise the whole question should have gone to the jury, and no part been determined by the court. (Page 525.)</p> <p>2. Instructions — effect of conflict. — The rule that all the instructions should he read together does not apply where the instructions are conflicting, and the jury are left without guidance as to which they should follow. (Page 226.)</p>

JoER D. Conway, Judge. STATEMENT BY THE COURT. These facts are deducible from the evidence most favorable to sustain the verdict: On Sunday night, in January, 1902, the Hitts drove from their home, near the central part of Nevada County, into Prescott, a town of more than 3,000 inhabitants. They were in a covered wagon, and arrived at the crossing at Elm street after dark.

<p>Appeal from Pulaski Circuit Court, Second Division.</p> <p>Edward W. WinEield, Judge.</p>

Edward W. Winfield, Judge. Under sections 6545-6 of Kirby’s Digest, the sole power of determining whether a particular railroad will be for'the benefit of the public is vested in the board of railroad incorporation, and its decisions thereon are final and conclusive. The answer of defendants should haye been stricken from the files.

T. H. Humphreys, Chancellor. statement by the court. On January 19, 1895, Nugent sold and conveyed to Jones a tract of land in Washington County for $500, payable in five equal annual installments evidenced by five promissory notes bearing interest. The vendor’s lien was expressly reserved in the face of the deed. Nugent sold, indorsed and delivered the notes before maturity to Haupman, who in turn sold, indorsed and delivered them before maturity to appellee Lorwein.

<p>1. Municipal ordinance — declaring drunkenness a nuisance. — A town ordinance declaring it a nuisance for any person to appear or be found on any street, alley or public square of the town, in a state of intoxication or drunkenness, is not in conflict with Kirby’s Digest, § § 2550, 2552, 2553, providing for the arrest and punishment of drunken persons, and is a valid exercise of the power given to cities and towns by Kirby’s Digest, § 5438, to prevent by ordinance’injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy,” and § 5461, Id., authorizing the publication of such ordinances as are necessary for the suppression of “disorderly conduct.” (Page 250.)</p> <p>2. Same — nuisance and disorderly conduct. — Drunkenness in a public place is a nuisance and disorderly conduct within Kirby’s Digest, § § 5438, S461, authorizing the prevention of nuisances and suppression of disorderly conduct. (Page 251.)</p>

James D. Shaver, Chancellor. Mrs. Waters was entitled to what her husband owed to her; and on this point her evidence, being uncontradicted, must control. S3 Ark. 96; 66 Ark. 513, 522; 66 Ark. 439, 441; 55 S. W. 940; 61 Ga. 202. The statute of limitations is a plea personal to the debtor, and no one else can interpose it for him, n Ark. 512; 33 Ark. 491; 36 Ark. 476, 479; 68 Iowa, 132; 63 Me. 326; 53 Ark. 178.

Edward W. WinEieed, Judge. STATEMENT BY THE COURT. In 1893, D. A. Robinson was a member of an incorporated society known as the “United Brothers of Friendship and Sisters of the Mysterious Ten.” He held the office of Grand Master for Arkansas in that society.

Jepti-ia H. Evans, Judge. The court erred in propounding questions to the witness, and in aiding counsel for appellee to try their cause, in that such questions indicated to the jury the court’s opinion of the facts. 51 Ark. 154, 157; 80 N. Car. 483; 1 Whart. Ev. § 496; 60 Ark. 429; 24 Mich. 244. The court also erred in its rulings upon the evidence and instructions.

Jeptha H. Evans, Judge. The description of the land in the deeds introduced in evidence was insufficient to identify the land. 3 Ark. 18; 15 Ark. 297; 48 Ark. 419; 60 Ark. 487; 56 Ark. 175; 68 Ark. 150. The court erred in admitting testimony as to the measure of damages for the right of way across the land. 54 Ark. 140; 42 Wis. 538; 55 Ark. 70; 59 Ark. no; 62 Ark. 7; 70 Ark. 403; 68 Ark. 224. The description contained in the deeds was sufficient. 64 Ark. 580; 66 Ark. 422.

Antonio B. Grace, Judge. The peremptory instruction of the court was error. 62 Ark. 154. The appellee was guilty of negligence in making the running or drop switch at the time and place made. Thomp. Neg. 412; 32 N. Y. 597; 94 Mo. 150; 18 L. R. A. 66; Shearman & Red. Neg. § 466; 19 S. W. 738; 55 111. 379; 31 L. R. A. 855; 32 L. R A. 53°; *39 U. S. 469; 33 C. C. A. 644; 64 Ark. 535; 78 S. W. 220.

Robert J. Lea, Judge. Two offenses were improperly joined in the indictment. 59 Ark. 326; 48 Ark. 94; 71 Ark. 82; Kirby’s Dig. § § 2230, 2231; 36 Ark. 55; 5 Am. Cr. Rep. 1; 9 Id. 343 5 3§ Ark. 555; 32 Ark. 203; 50 Ark. 305; 33 Kan. 538. The offense must be named and described in the indictment. 161 U. S. 29; 96 U. S. 360; 57 Hun, 367; 106 N. Y. 505; 4 N. Y. Cr. Rep. 193; 98 Ky. 143.

James S. Steed, Judge. STATEMENT BY THE COURT. This is an action in replevin, brought by appellant against appellee. Appellee claimed the property by virtue of a levy made by him as sheriff under an execution issued by the circuit clerk of Sevier County on June 16, 1902.

Charres W. Smith, Judge. STATEMENT BY THE COURT. The appellee filed the following affidavit before J. S. Newton, J. P.: “The plaintiff, R. H. Cone, states the defendant, Gray Roger- ' son, by a ve.rbal promise agreed to pay to the plaintiff two cents apiece for all the pipe staves and one cent apiece for all the West India staves he should make on the northeast quarter, northwest quarter, section 32, township 15 south, range 14 west, as the purchase price of the timber used…

Frederick D. Fulkerson, Judge. STATEMENT BY TI-IE COURT. The amended record brought here by the Attorney General shows that appellant was convicted before a justice of the peace of Independence County on a charge made by the affidavit of the prosecuting attorney under the following statute: “Every person who shall convey into any jail or place of confinement any disguised instrument, arms or other thing proper or useful to aid any prisoner in his escape, with the intent…

Allen Hughes, Judge. STATEMENT BY THE COURT. James Mulholler rented a farm in Clay County from one McGrew for the year 1901. In February of that year he hired Joseph Carter to assist him in making the crop, agreeing to pay him about $15 per month and board.

<p>1. Evidence — opinions op nonexperts. — Nonexpert witnesses' who have detailed the facts upon which their opinions are based may be allowed to testify their opinions as to defendant’s sanity. (Page 288.)</p> <p>2. Murder in second degree — drunkenness.—As the specific intent to kill is unnecessary in murder in the second degree under our statute, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder in the second degree, just as if he were sober. (Page 289.)</p> <p>3. Exclusion op evidence — prejudice—While it was error to exclude the opinions of nonexpert witnesses that defendant was temporarily insane from drink when he killed the deceased, yet the exclusion of such evidence was not prejudicial if the evidence showed that he voluntarily became drunk, and that the insanity which he manifested was only his ordinary condition when drunk, and if the jury found him guilty only of murder in the second degree. (Page 289.)</p> <p>4. Trial — argument op prosecuting attorney. — A statement of the prosecuting attorney in his closing argument that “the case is so cruel and barbarous that it is without a parallel in the history of crime” was not objectionable, being merely the expression of his opinion as to the gravity of the offense. (Page 290.)</p>

Francis Circuit Court. Hance N. Hutton, Judge. Authority to reject or confirm sales must be exercised according to legal principles, and the court’s action is subject to correction upon appeal to the circuit court, where the question is tried de novo. Kirby’s Dig. § 1492; 33 Ark. 508; 43 Ark. 42; 34 Ark. 240. A bidder at a judicial sale has rights which a court of equity will protect. 36 Ark. 591; 17 Am. & Eng. Enc. Daw, 996.

Francis Circuit Court. Hance N. Hutton, Judge. statement by the court. E. A. Long was the owner of a building in Forrest City, Ark., known as the “Imperial Hotel.” One of the lower rooms of the building was rented by Long to D. F. Keath to be used as a barber shop.

DaniEE B. Granger, Special Judge. STATEMENT BY THE COURT. Appellant was indicted, tried and convicted of the crime of seduction, alleged to have been committed by obtaining carnal knowledge of Fannie Bruton, an unmarried woman, by virtue of a false promise of marriage. The case was here on a former appeal (72 Ark. 398), and after it was reversed and remanded he was again tried and convicted, and again appeals to this court.

<p>Appeal from Monroe Circuit Court.</p> <p>George M. Chapeine, Judge.</p>

<p>1. Personal injury suit — evidence—habitual 'trespass. — Where, in a suit against a street railway company for personal injuries received in alighting from defendant’s car, the issue involved was whether the injury was caused by the negligence of defendant’s servants, or was the result of plaintiffs own negligence, testimony tending to show that plaintiff had been in the habit of jumping on passing cars to steal rides was immaterial. (Page 303.)</p> <p>2. Witness — impeachment.—A witness cannot be impeached on immaterial collateral facts. (Page 303.)</p>

Edward W. WinFieed, Judge. The State brought this action against the Hartford Fire Insurance Company, and alleged that defendant was an insurance corporation organized under the laws of Connecticut, and on January 23, 1905, and on March 25, 1905, transacting and conducting the business of insuring property in this State, and was a member of and party to a pool, trust, agreement, combination, confederation and understanding with other insurance corporations to regulate and…

Hance N. Hutton, Judge, on exchange of circuits. A tender after commencement of suit must also include all costs of suit. 1 Ark. 11; 2 Cyc. 77; 13 Am. Dig. § 142; 54 Ark. 215; 64 Vt. 566; 58 Mo. App. 647. There was no error in judging costs against appellant. 45 Ark. 37; 13 Ark. 436; Kirby’s Dig. § § 972, 6283; 17 Ark. 361; 65 Ark. 219; 30 Ark. 505.

Edward W. Winfield, Judge. The continuance of the policy was conditioned upon the payment of premiums. The third was not paid, and the policy lapsed, and the agent of appellant had no authority to waive the forfeiture. .60 Ark. 532; 62 Ark. 348; 86 S. W. 815; 187 U. S. 336; 93 U. S. 30; 54 Ark. 75; 104 U. S. 91. Presumptively, a promissory note is only conditional payment. 48 Ark. 267; 68 Ark. 233; May, Ins. § 345.

John W. Meeks, Judge. Thomas Hamilton and G. F. Cunningham jointly sued the White River Railway Company' and George C. Smith, a contractor in the employ of such company, alleging that Cunningham owned 120 acres, and sold defendant company a right of way 100 feet wide over and across same; that defendant company contracted to rebuild, replace and keep up all fences in and over said right of way, so as to protect the crops; that, in violation of said contract, defendants…

Edward W. WinRiejrd, Judge. The condition contained in the grant of license was not authorized by law. 43 Ark. 42; Kirby’s Dig. § § 5119, SI2°- The right to regulate the liquor traffic is vested in the Legislature. 43 Ark. 364; 45 Ark. 356; 34 Ark. 397. The county court merely has the power to license. 41 Ark. 485; 31 Ark. 462; 46 Ark. 358.

Aeren Hughes, Judge. Mortgaged property is not subject to sale under execution. 42 Ark. 239. If the assignee of a mortgage attaches the property, such action is a waiver of the mortgage lien. 64 Ark. 2x3. The appellee could not claim the property as exempt. 42 Mass. 476; 17 N. E. 73; 21 Oh. St. 402;- Kirby’s Dig. § 4966. A vendor’s lien is assignable. 47 Ark. 293; 36 Ark. 91; 62 Ark. 397; Jones, Mortg. § 565; 122 Mass. 303.

Jksse C. Hart, Chancellor. In their dealings with each other partners occupy a position of trust, and are required to exercise scrupulous good faith. 17 Am. & Eng. Enc. Law, 1054, 1056.

Fulkerson, Judge; This court will not reverse a cause where there is evidence to support the verdict. 13 Ark. 317; 51 Ark. 115, 324; 57 Ark. 577; 23 Ark. 208; 13 Ark. 385; 25 Ark. 89, 482; 27 Ark. 517; 46 Ark. 524; 4 7 Ark. 196; 50 Ark. 511. Testimony introduced without objection cannot be complained of. 1 Ark. 224; 6 Ark. 456; 7 Ark. 488; 9 Ark. 389; 10 Ark. 184; 13 Ark. 437; 15 Ark. 128; 17 Ark. 188; 18 Ark. 34; 36 Ark. 653, 221, 304; 39 Ark. 221; 52 Ark. 180.

JoEu D. Conway, Judge. Eucien M. and E. B. Nelson filed separate suits against the Armour Packing Company. The facts appear in the opinion. Manufacturers of food stuffs are held to great caution to see that the articles of food contain nothing deleterious to life or health. 74 Ark. 144; 139 Mass. 411; 12 Johns. 468; 18 Mich. 50; 6 N. Y. 396; 41 S. E. 190; 47 Atl. 965; 48 S. W. 971.

Styles T. Rowe, Judge. . STATEMENT BY THE COURT. This action was brought by Ida L. McGinty in her own right and as next friend of Lucretia A. McGinty, Bernice W. McGinty and Lois L. McGinty, against the Kansas City Southern Railway Company to recover judgment for the damages to them caused by the killing of Joseph W. McGinty by the negligent operation of defendant’s railway.

• Appeal from Calhoun Circuit Court in Chancery: .Charles W. Smith, Judge. STATEMENT BY THE COURT. Elizabeth Cross was the owner of 120 acres of land in Calhoun County, which she contracted to sell to B. B. Johnston on the 1st day of March, 1899. He agreed to pay Mrs. Cross $285 for the land. He paid $50 of this at the time of the contract,- and was to pay the remainder when the deed was executed.

Francis Circuit Court. Hance N. Hutton, Judge. Hinson and Scott were convicted of an assault with intent to kill, and have appealed. statement by The court. R. H. Hinson and E. S. Scott were in March of this year engaged in logging, and lived with their wives in tents on the bank of the St. Francis river northeast of Forrest City.

ChareES W. Smith, Judge. STATEMENT BY THE COURT. Action by W. F. Main & Company, wholesale jewelry merchants of Iowa City, Iowa, against Tracey & Witherington, retail merchants of Woodbury, Calhoun County, Arkansas, to recover .the price of a bill of jewelry sold by the former to'the latter. A verdict was rendered in favor of the defendants, and plaintiffs appealed. Appellee could not rescind the contract of purchase. Tied. Sales § 40; Benj. Sales § 64; 47 Ark. 519.

<p>Appeal from Calhoun Circuit Court.</p> <p>ChareES W. Smith, Judge.</p> <p>STATEMENT OE EACTS BY THE COURT.</p> <p>This is an action brought by appellant, Remmel, against appellee, Witherington, to recover the amount of a negotiable promissory note for the, sum of $414.60, executed -by appellee to one Ward, and by the latter assigned before maturity to appellant. Appellant- was the general agent for a life insurance company, and Ward was a sub-agent, or, as he is designated in the proof, a special agent working under appellant. The note in question was executed to cover the first annual premium for a policy of $10,000 in said insurance company. Appellee, Witherington, was illiterate, and unable to write his name, but signed the note by mark, and the note and signature were written and witnessed by Ward. Ward also wrote the signature of appellee to the application for insurance.</p> <p>The policy for $10,000 was issued by the company, and mailed to appellee, who declined to accept it, and refused to pay the note, for the alleged reason that he intended only to apply for insurance in the sum of $2,000 and to execute a note for premium on a policy for that amount, and that Ward had taken advantage of his illiteracy, and fraudulently imposed upon him by writing his signature to an application for a $10,000 policy and a note for premium thereon, instead of for $2,000, as agreed upon. He pleaded this as a defense to the action, and the jury returned a verdict in his favor.</p> <p>A principal may intrust his interest to an agent, who has an interest that may be adverse to the principal’s. Mech. Ag. § 713. Every person is presumed to know the contents of a writing signed by himself or by another at his request. Brad. Ev. 601; 141 N. Y. 559; 142 U. S. 56.</p>

Styles T. Rowe, Judge. STATEMENT BY THE COURT. Action by J. E. Marshall against Mrs. E. H. M. Hunton to recover the amount of commission alleged to have béén earned by the plaintiff as a real estate agent under employment by the defendant for the sale of certain real estate, in the city of Fort Smith, owned by her. The plaintiff recovered judgment for the amount sued for, and defendant appeals.

Alexander M. DueBie, Judge. STATEMENT BY THE COURT. This action was brought by the widow and administratrix of the estate of Arthur Tomlinson, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for his death. The case has been here on a former appeal, and the facts are fully stated in the former opinion. St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark.-489.

Jusse C. Hart, Judge. In order to create a resulting trust in favor of one who pays the purchase money for property bought in the name of another, the payment must be contemporaneous with the purchase. 30 Ark. 230; 29 Ark. 612; 26 Ark. 445. As to lot 6 appellant was ■entitled to the declaration of a resulting trust. 134 Ind. 529; 116 Ind. 175; 134 Ind. 115; 92 la. 610; 40 la. 152; 69 Ky. 339; 77 Me. 465'; Am. Dig. 1904 A, 1451; Am. Dig. 1904, B, 4422.

Edward D. Robertson, Chancellor. An administrator is liable personally for transactions subse quent to the- death of his intestate, and a suit 'against him personally is proper. 19 Ark. 671. The suit having been brought against John P. Moore as an individual, he had no right, in his fiduciary capacity, to file a cross-bill. The cross-complaint was not proper because not responsive to the case made in the complaint. 30 Ark. 249; 31 Ark. 345.

Edward W. Wineield, Judge. statement by the court. Godbold was a cotton seed broker; Taylor, a planter, owning a plantation at South Bend on the Arkansas River. They had a transaction over the purchase of Taylor’s cotton seed, and Godbold’s version of it was given in this letter: “Tittle Rock, Ark., Feb. 4, 1903. :‘Dr. C. -M. Taylor, “City. “Dlar Sir :— “I was very much surprised when I received your letter of the 31st ult., saying that you had sold your cotton seed.

Geo. M. Chaprine, Judge. By the statute (Kirby’s Dig. § § 3057, 3064) copies of entries made in the books of the land - office, certified by the proper officer, are made evidence to the same extent as the original books and papers would be, if produced. The transcript of the record entries of the land office was sufficient as a link in the chain of title in ejectment.

Marcus L. Hawkins, Chancellor. statement by the court. Appellant, J. T. W. Tillar, brought this suit, claiming a lien,, as vendor, on eighty acres of land in Desha County, and praying-for foreclosure of the same. He alleged that he first sold the land by verbal contract to one C. C. Clayton, who died intestate before paying any part of the purchase price; leaving appellees, his widow and heirs, who were all defendants to the suit.

Charles W. Smith, Judge. STATEMENT BY THE COURT. Appellee, D. W. Fultz, recovered a judgment for $2,500 in .the Circuit Court of Ouachita County against the Minneapolis Fire & Marine Insurance Company on a policy of insurance to him upon his property which was destroyed by fire, and on appeal to this court the judgment was affirmed. 72 Ark. 365.

Eebridge G. Mitcheee, Judge. The deed carried the after acquired title to the appellants. Kirby’s Dig. § 734. The deed is, in effect, not a quitclaim deed, but a special waranty deed, and is sufficient to pass title. 53 Ark. 1531 5 Ark. 693; 33 Ark. 251; 15 Ark. 73; Bisph. Eq. 218. The record of the deed was constructive notice to the world, and there could be no innocent purchasers. Kirby’s Dig. § 762; 69 Ark. 442.

. Eebridge G. Mitcheee, Judge. The court erred in permitting the introduction of the affidavit «of Honeycutt and Gardner and the evidence of Cook in reference to the same matters. Gr. Ev. § 94; 1 Ene. Ev. 722-3; 8 Ark. 363; 1 Snyder, Mines, § § 485, 486; Barr. & Ad. Mines, 275, 301. The evidence does not sustain the finding that appellant suffered a forfeiture of the land in controversy. Appellants had title by adverse possession. 1 Snyder, Mines, § § 357, 672; Barr. & Ad.

<p>1. Appeal — right to prosecute — res judicata. — Under Kirby’s Digest, § § 1227, 1228, providing that an appellee may, by motion or answer, raise the question oí the appellant's right to prosecute an appeal further, an appellee may plead that since the appeal was taken a court of competent jurisdiction has settled against appellant the rights asserted on the appeal. (Page 425.)</p> <p>2. Judgment — conceusiveness.—A judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or could have been interposed in the suit. (Page 426.)</p> <p>3. Same — former recovery. — A judgment in ejectment upholding a certain deed may be pleaded in bar of the further prosecution of a suit in equity between the same parties to cancel the same deed, though the equity suit was first begun. (Page 426.)</p> <p>4. Former suit pending — waiver.—The defense of a former suit pending is*waived by failure to plead it. (Page 426.)</p>

Hance N. Hutton, Judge. STATEMENT BY THE COURT. This is an action brought by appellee, B. W. Greer, against appellant, C. A. Price, for trespass upon several tracts of lands claimed by appellee, aggregating 495.97 acres, by cutting timber therefrom.

Frederick D. Fuekerson, Judge. STATEMENT BY THE COURT. The complaint alleged that, while plaintiff was a passenger on defendant’s train, he was wantonly and maliciously assaulted, beaten, cursed and abused by the conductor and brakemen in charge of said train and by certain other employees of defendant, whereby he suffered greatly in mind and body, to his damage in the sum of $15,000, for which sum he prayed judgment.

<p>Appeal from Hempstead Circuit Court.</p> <p>Joel D. Conway, Judge.</p> <p>The court erred in admitting certain evidence of witness Forgy. Kirby’s Dig. § 3090; 31 Ark. 684; 34 Ark. 663; 13 Ark. 295; 21 Ark. 77; 58 Ark. 441.</p>

Joel D. Conway, Judge. statement by the court. On July 29th, 1902, plaintiff, Lee Walker, filed his amended and substituted complaint, in which he alleged that he was a minor, and sued by D. C. Walker, his next friend, and that, on the 22d day of November, 1901, he was in the employ of the defendant as a common workman, assisting in running one of its trains, which train was engaged principally in hauling logs to the mill owned by the defendant at Sayre, Arkansas; that he…

Thomas B. Martin, Chancellor. M. Gomillion filed his bill January 24, 1902, against Sarah S. and George Sibly to quiet his title to the east half of west half of section 19, township 1 south, range 7 west, alleging that he donated, same in 1886, and on April 17, 1888, procured deed from the State, and that he had been in adverse possession of it ever since.

Alexander M. DuFFiE, Judge. E. S. Willis brought replevin against the incorporated town of Benton, alleging that he was the owner of eleven hogs which had been impounded by defendant.

John M. Eeeiott, Chancellor. Appellant is not bound by laches. 70 Ark. 256; 100 Fed'. 520; 66 F. 834; 71 Ark. 310. The seven-year statute of limitation does not apply; nor does the five-year statute, there being no judicial sale. 52 Ark. 290; 63 Ark. 1; 71 Ark. 310. The facts do not warrant the claim of adverse possession. 2 Wall. 328; 65 Ark. 422; 57 Ark. 589.

Zac'hariah T. Wood, Judge. 1. No interlocutory proceeding constitutes res judicata. x • Freeman, Judg. 325. The difference . between orders which work no estoppel and judgments is, explained in .11 Enc. PI. & Pr. 828; 56 S. W. Rep. 971; 11 S. W. Rep. 950. Mere orders create no estoppel. 75 N. Y. 599; 1 Cow. 482; 35 Pac. 796; 45 Pac. 724; 76 Fed. 761; 108 Id. 564; 34 Ala. 135; 14 Gratt. 48; 86 Va. 625; 6 How. Pr. 321; 24 Kans. 442; 104 Ind. 373; 33 Minn. 419. 2.

Hutton, Judge; statement by the court. Ed Berry brought an action of ejectment against Lucy Covington to recover six and one-half acres of land in St. Francis County. This land was a part of the east half of the southeast quarter-, of section 30, township 5 north, range -4 east, that was east of the St. Francis River. The Choctaw' Railroad crosses this tract, and the six and one-half acres in controversy lay north of the railroad.

Edward D. Robertson, Chancellor. statement by the court. mortgaged the place to Morris Lesser to secure an account for supplies that he owed Lesser. Afterwards Johnson left the State, and Lesser brought a suit in equity to foreclose his mortgage. Lesser filed an affidavit that Johnson was a non-resident, and the clerk made the following indorsement on the complaint: Ben Johnson owned 80 acres of land in Lee County.

Hance N. Hutton, Judge, on exchange of circuits. STATEMENT BY THE COURT. McElvaney was the owner of a farm in Craighead County which he rented to Smith for the year 1899. Smith continued to remain on the land after the expiration of his term, and was put out by an action of unlawful detainer.

Gustave Jones, Special Judge. STATEMENT BY THE COURT. R. L. Maxey, a merchant of Independence County, borrowed two thousand dollars from the Bank of Batesville, and executed therefor the following note: “$2,000.00. Batesville, Ark., Dec. 23, 1901. ;> “Four months after date, we, or either of us, promise to pay to the Bank of Batesville, two thousand dollars at ten per cent, interest per annum from date until paid, for value received. [Signed] “R. L. Maxey.

George M. Chapeine, Judge. The court erred in permitting the witness Josephine Evans to give the number and names of her children. 58 Ark. 473. Eacts which go to prove another offense distinct from the offense charged should not be admitted. 43 Ark. 367; 52 Ark. 303; 54 Ark. 489. The evidence of W. E. Jeffries in- regard to the two shells should have been admitted. 14 Cent. Dig. § § 861, 862; 99 N. Y. 140.

<p>Appeal from Greene Circuit Court.</p> <p>Allen Hughes, Judge.</p>

Charles W. Smith, Judge. Junior and Tatum were convicted of an assault with intent 0 kill, and have appealed. statement by The court. Appellants were convicted of an assault with intent to kill one Ed. Ware. Ed. Ware was offered as a witness, and appellants objected to his testifying on the ground that he had been convicted of petit larceny.

<p>'I. Slander — revival oe judgment. — While an action of slander abates with the death of either the plaintiff or the defendant, yet, if final judgment has been entered in plaintiff’s favor, and defendant appeals, and thereafter dies, the action does not abate, as the action has become merged in the judgment. (Page 486.)</p> <p>2. Appeal — effect of. supersedeas. — An appeal with supersedeas does not .have the effect of vacating a judgment, but only of staying proceedings thereunder. (Page 486.)</p>

W. S. McPherson, Special Judge. A new trial should have been granted on account of newly „ discovered evidence. 57 Ark. 1; 66 Ark. 620; 78 Tex. 421; 42 N. W. 112; 29 Tex. App. 328, 169; 26 Ark. 496; 14 R. R. A. 609; 99 N. Y. 125. It was error to admit evidence of conversations had in the absence of appellant. 36 So. 609; 46 S. E. 840; 76 S. W. 563; 46 S. E. 733. The remarks of the court upon the testimony of Ruth Rewis were improper.

Joel D. Conway, Judge. STATEMENT BY THE COURT. The defendant, Seburn Tignor, was indicted, tried, and convicted. of murder in the first degree for killing Andrew Lary in Miller County, on the 22d day of July, 1903, by shooting him with a gun and striking him with an ax.

Joer Dyer Conway, Judge. Defendant, pleading to the indictment, waived all irregularities. 29 Ark. 165; 42 Ark. 94; 62 Ark. 303. The presumption is that the grand jury was properly impaneled. 60 Ark. 450.

James D. Shaver, Chancellor. Assignment of an interest in a judgment is an assignment of an interest in the cause of action. Freeman, Judg. § 431. Appellant should have first offered a return of the land before bringing suit to annul the contract. 59 Ark. 259; 1 x 1 Ind. 544; 117 Mass. 479; 61 Fed. 54. Bush had no interest in the cause of action. Kirby’s'Digest, § 4457; 71 Ark. 327; 74 Ark. 551. And cannot complain of the settlement made. 66 Ark. 260.

Jesse C. Hart, Chancellor. STATEMENT BY THE COURT. The Little Rock Vehicle & Implement Company, by their attorneys, Bradshaw & Helm, brought an action in equity against the Bank of Little Rock, alleging that the plaintiff was a creditor of the bank and that the bank was insolvent, and praying that a receiver be appointed to take charge of the assets of the bank and for other relief. A receiver was appointed, who took charge of the assets,of the bank.

Charres W. Smith, Judge. Action by-. J. C. Russell as trustee of the estate of L. E. Bteathwit, a.bankrupt, against Haltom & Lester to recover possession of personal property. : ' Verdict and judgment below for defendants, and plaintiff appealed. . Appellant should have been permitted to show that the bill of sale was intended as security for a debt past due. 54 Ark. 32. An unusual degree of secrecy observed between the parties in making the sale is a badge of fraud.

Edward D. Robertson, Chancellor. • STATEMENT BY THE COURT. Appellees, Mallory, Crawford & Co., commenced this suit in equity on February 4, 1901, against Stephen James, Joseph N. James, and J. L. King, to cancel a conveyance by, said Stephen James, alleged to be fraudulent, of certain lands, and to subject the same to the payment of appellees’ claim. Stephen James died while the suit was pending below, and the cause was revived in the name of the administrator.

Robert J. Lea, Judge. . STATEMENT by the court. Crite Petty was indicted by the grand jury of Pulaski County for murder in the first degree for killing one Arthur Pursur by stabbing him with a knife. On the trial it was shown that during the afternoon of the 18th day of February, 1905, the defendant, Petty, and Pursur engaged in a friendly game of cards at the Turf Exchange Saloon in Argenta.

Chapline, Judge; statement by-the court. Appellant, J. D. Rodgers, sued the Choctaw, Oklahoma & Gulf Railroad Company to recover damages for injuries caused by negligent operation of its train while he was a passenger thereon. A trial was had before a jury, appellant testified in his own behalf, and rested his case, whereupon the court instructed the jury to return a verdict in favor of the defendant, which was done.

Edward D. Robertson, Chancellor. STATEMENT BY THE COURT. This is an action by the children and the grandchildren of Ashley B. Rozell to quiet the title of two sections of wild and unoccupied lands in Mississippi County, Arkansas, which they claim as the heirs of the said Rozell. The complaint alleges that Rozell purchased this land fom Jeptha Eowlkes on the 14th day of February, 1855, and received from him a warranty deed for the same.

<p>1. Ejectment — TITLE.—As the burden of proving title in himself is undertaken by one who sues in ejectment, the defendant may rely upon the weakness of plaintiff’s title. (Page 531.)</p> <p>2. Accretion — intervening creek.' — Where the evidence establishes that there was a process of accretion going on against the north shore line of a certain river at a given locality, and that this process continued until the bed of the river rose to the level of the bed of a creek which had previously run into the river above, and that then, as the waters of the river receded, the flow from the creek prevented further deposits in its extended channel, and established a permanent channel along the old bed of the river, the land which formed as accretion between the river and the creek became an addition to the land beyond the creek lying adjacent to the former shore line of the river. (Page 532-) .</p> <p>3. Adverse possession — enclosure—natural barriers. — For the purpose of establishing adverse possession of land, it is no objection that natural barriers are taken advantage of, if the natural, together with the artificial, barriers used are sufficient to clearly indicate dominion over the premises, and to give notoriety to the claim of possession. (Page 533.)</p> <p>4. Same — character of possession. — The fact that defendants built a fence across the mouth of a peninsula formed by the junction of a river and a creek on land owned by them, and pastured cattle therein, was not sufficient notice to plaintiff, who owned part of the land so inclosed, that her land was being held adversely. (Page S34-)</p>

Emon O. Mahony, Chancellor. STATEMENT BY THE COURT. On the 10th of February, 1898, H. L. Lyon and wife, N. C-Lyon, executed a deed of trust to D. W. Bass, to secure a note for the sum of $270, due and payable on the 1st of October, 1898, and all other indebtedness due by the mortgagors to Bass at that time. Afterwards certain other advances were made by Bass to Lyon and wife, and certain payments were made by Lyon.

Ferix G. Tayror, Judge. STATEMENT BY THE COURT. This was an action of ejectment, begun by the appellant in the circuit court of Crittenden County, to recover from the appellee seventy-seven acres of land alleged to be accretion to the E. of the S. W. of section 3, township 8 N., range 9 E. The appellee answered, and denied that the land in controversy was an accretion, and also pleaded the statute of limitation of seven years as a defense.

Geo. M. Chapline, Judge. The action is barred by the statute. 62 Ark. 360; 52 Ark. 240; 39 Ark. 463. It was error to instruct that the measure of damage would be the difference between, what the land would have otherwise produced and what it did actually produce. 62 Ark. 364; 56 Ark. 612, and cases there cited. The opinions of non-expert witnesses were inadmissible. 56 Ark. 612.

Frederick D. Fulkerson, Judge. STATEMENT BY THE COURT. Appellant was convicted upon an indictment charging him with grand larceny and unlawfully receiving stolen property.

M. L. Hawkins, Chancellor. statement by the court. This is a suit in equity brought by Stephen W. Irby, a minor, suing by next friend, against the defendants, Waterman, Wither-spoon and Smith, to redeem lands of the plaintiff sold for taxes.

<p>Appeal from Randolph Circuit Court.</p> <p>R. P. Macic, Special Judge.</p> <p>Plaintiff had no right to maintain this action. 53 Ark. 117; 13 S. W. 803; 52 Fed. 373; 91 Mo. 91; 16 S. W. 487; (Wash.) 40 L. R. A. 822; 4 L. R. A. 261. Sec. 5912, Sand. & Hill’s Dig.; Tiffany, Death by Wrongful Act, p. 139, § 116; 130 U. S. 201, etc. Plaintiff was not entitled to recover in this action, for the reason that there was absolutely no evidence even tending to show that plaintiff was in any pecuniary way damaged by the death of his son, that he received any pecuniary benefits from his son’s earnings at the time of his death, or that he had any reasonable expectation of doing so in the future. 41 Ark. 387; 55 Ark. 462; 18 S. W. 628; 57 Ark. 377; 21 S. W. 887; 51 Ark. 509; 4 L. R. A. 296; 73 S. W. 542; 62 S. W. 561; 5 L. R. A. 172; 76 S. W. 931; 28 L. R. A. 573.</p> <p>The statute is plain in its provision that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death.” Sand. & H. Digest, § 5912.</p>

N. T. Hawkins, Special Judge. 1. The contract was the basis of the action, and, there being no proof that any cotton was raised on the farm Of M. D. Shelby, no recovery could be had. 36 So. 1005; 56 Atl. 672. 2. Appellee was not the real party in interest. 15 Enc. PI. & Pr. p. 713; Kirby’s Dig. § § 6001. 6002, 6004. An assignor cannot sue in his own name. 15 Enc. PI. & Pr. p. p. 709, 715; Kirby’s Digest, § 5999; 1 Ark. 220; 31 Ark. 597; 4 Id. 535.

. ■William L..Moose, Judge. The amount of alcohol in the drink, as shown by the proof, is not sufficient to bring its sale within the meaning of the statute.

Aeeen Hughes, Judge. STATEMENT BY THE COURT. James Johnson and James H. Davidson were the owners of á saloon business at Poplar Bluff, Missouri. They were also engaged in operating a sawmill near Corning, Ark. Johnson resided at Corning, and looked after the business there, while Davidson had charge of the saloon business at Poplar Bluff.

Carroll Armstrong, Special Judge. statement by the court. This is a suit by the appellant to recover damages from the appellee for breach of contract in refusing to accept and pay for 100 tons of cotton seed sold by appellant to appellee at $17 per ton.

Leeand Weatherman, Chancellor. A homestead may include land separated by an easement, and yet retain the exempt character. Waples, Homestead and Exemptions, p. 150; Thompson’s Homestead and Exemptions, p. 136; lb. p. 112. A garden separated by-a street may be part of an exempt homestead. 49 S. W. Rep. 633.

John M. Eeeiott, Chancellor. STATEMENT BY THE COURT. In December, 1896,* Joseph Thornburn, being the owner of 445 acres of land in Arkansas, entered into a contract with W. N. Carpenter by which he agreed to lease the land to Carpenter for five years for a specified rent for each year, to be paid on the first day of November of each year, commencing with the year 1897 and ending with the year 1901. The aggregate amount for all the years was nearly nine hundred dollars.

T. H. Humphreys, Chancellor. Equity will relieve against hardship caused by unavoidable accident, fraud or mistake. 61 Ark. 341; 38 Ark. 283. Having demurred to the petition, the facts alleged therein are admitted, and can not be controverted. Bliss, Code PI. (2 Ed.), sec. 418; 10 Conn. 62; 22 N. Y. 472. A court of equity will not interfere unless the judgment complained of gives the successful party such an advantage as it cannot, in good conscience, permit to stand.

Joel D. Conway, Judge. STATEMENT BY THE COURT. This is an action brought by appellee in the Miller Circuit Court against appellant, the Kansas City Southern Railway Company, to recover damages to a piano and sewing machine shipped by plaintiff over defendant’s road.

William L. Moose, Judge. ' statement by the court. This is an action to recover upon a fire insurance policy issued by the Security Mutual Insurance Company to appellant in the sum of $1500 on his stock of merchandise in a store house at Greenville, Ark. The jury returned a verdict in favor of the defendant, and the plaintiff appealed. The policy was issued September 24, 1901, and the property was destroyed by fire on the night of February 13, 1902.

Edward W. Winkirud, Judge. Garnishment proceedings based upon a judgment that is void for want of jurisdiction are also void. 2 Shinn, Attachments and Garnishments, § 660; 37 III. App. 393; 26 Ind. 441; 24 Ohio St. 481; 59 Texas, 3.

Antonio B. Grace, Judge. statement by the court. J. G. Morton was in 1902 the owner of a plantation in Desha County known as the “Creek Place” and his wife, Carrie Morton, owned a plantation in the same county known as “Mound Place.” In that year they leased both of those places to J. E. Eacy, C. A. Eacy and A. Kimball, who signed the contract as Lacy Brothers & Kimball. The lease was for a term of three years.

Charles W. Smith, Judge. Instruction No. 2. was erroneous. When the agent took charge of the telescope for the purpose of forwarding it to its destination, the company became responsible. 6 Cyc. 414c. But the liability of the company commenced when the conductor accepted the goods for transportation. It was, therefore, error to refuse instruction No. 4 asked by plaintiff. 60 Ark. 338; 6 Cyc. 431.