Volume 77 — Arkansas Reports

DuFFiF, Judge; statfmfnt by thf court. That part of the complaint purporting to state the cause of action is as follows: “That on September 17, 1902, the said A. Watt Doughty was in the employment of the said defendant company as fireman upon one of its freight trains running from Hot Springs to Little Rock, Arkansas, and while he was thus engaged in the discharge of his duty as such fireman on said defendant’s freight train, as it approached the city of Little Rock and…

Shaver, Chancellor. Suit in chancery by Thomas J. Stewart against the Longview Lumber Company and Wm. M. Howell. Plaintiff recovered judgment, and defendant Howell appealed. Pending the appeal Stewart died, and the cause was revived in the name of John H. Crawford, as his administrator. The mere fact that the buyer is, to his own knowledge, insolvent at the time of purchase is no ground for relief to the seller. Bigelow on Fraud, 484.

Meeks, Judge; Defendant could not be convicted on the testimony of the prosecutrix alone, and the letters introduced were not sufficient corroboration. It was error to read them to the jury, in the absence of the witness. Kirby’s Digest, .§ 3145. It was error to admit evidence of contradictory statements by a- witness, without first having inquired of him concerning them. Kirby’s Digest, § 3139; 37 Ark. 324; 52 Ark. 303; lb. 273; 62 Ark. 286.

<p>Appeal from White Circuit Court; Hance N. Hutton, Judge;</p>

Court, Southern District; George M. Ci-iaplinE, Judge; STATEMENT BY TILE COURT. This is an action by S. H. Knight against the St. Louis Southwestern Railway Company for being put off the train away from the station to which he wished to go.

Tike-man, Judge; statement by the court. Appellant Wallace Rucker was indicted by the grand jury of Benton County for the crime of obtaining carnal knowledge of ¡ari. unmarried female by virtue of a false promise of marriage, and, on change of venue .to Washington County, was tried and •convicted, his punishment being fixed by the jury at five years •confinement in the penitentiary and a fine of.$ioo.

WinEield, Judge; The act of the local soliciting agent, who was only empowered to procure applications for insurance and forward the same to the company, in authorizing the assignment of the policy after its delivery to plaintiff, was without authority, did not bind the company; and violated the policy. 54 Ark. 75.

Nicholas Miller, a resident of Hot Spring County, died in the year 1880, intestate, the owner of the tract of land in controversy containing 80 acres, which was assigned, as a part of her dower, to his widow, who died in-1901. He left surviving eight children, among the number being Mrs. Mary J. Kelly, one of the defendants, and S. Thomas Miller.

17 Am. & Eng. Enc. Law (1 Ed.), 379, and references. The father may waive his right to collect his minor son’s wages. 66 Ark. 413. Assignment of the judgment by the next friend is not binding upon the infant. Enc. PI. & Pr. 1037-8. An attorney cannot take advantage of the relations between himself and client to obtain from the latter an unjust or unreasonable compensation for his services. 3 Am. & Eng. Enc. Law (2 Ed.), 433; 68 Tex. 565; 59 Ala. 581; 57 Ark. 93; 29 Am.

Conway, Judge; To sustain the charge of assault with intent to rape, it is necessary to prove such acts as show an intent to obtain carnal knowledge of the female forcibly and against her will. 8 Ark. 400; 11 Ark. 390; 13 Ark. 360; 29 Ark. x 16; 32 Ark. 702; 63 Ark. 470. The assault is not denied, and the jury have passed upon the intent.

Shaver, Chancellor; statement by ti-ie court. The plaintiff, R. A. Boyette, has for many years been engaged in the business of keeping a warehouse at Hope, Ark., for the purpose of storing cotton for farmers, merchants, and cotton buyers. The cotton therein was usually kept insured against fire.

Chaprine, Judge; Smith’s indorsement being without consideration as to time, it was error to give instruction No. 1; and it was error to exclude evidence as to the intention°of the parties. 40 Ark. 454; 54 Ark. 97. As an indorser he was entitled to notice of nonpayment. 57 Ark. 437. It was the duty of appellee to protect the collateral, and not to hold it until greatly depreciated in value. 4 L. R. A. 586; lb. 194.

.Tillman, Judge; STATEMENT BY THE COURT. Action by R. J. Rhea against the Planters’ Mutual Insurance Association to recover upon a policy for the sum of $2,500, insuring a dwelling house and personal property contained therein totally destroyed by fire on September 26, 1902. Verdict and judgment for the defendant, and the plaintiff appealed. A mortgage upon .the homestead is not valid unless the wife join in the execution of it, and acknowledge the same.

Virgil Bourland, Chancellor; Parol evidence was not admissible to vary, explain or contradict the terms of the policy and of the indorsement thereon. 49 Ark. 285; 54 Ark. 525; 55 Ark. 347; 62 Ark. 43. The words, “Pay the within policy to M. E. Bledsoe,” were only an order, and not an assignment of the policy. 76 Mass. 501; 119 Mass. 240.

Fulkerson; Judge; statement by the court. This is an appeal from a judgment in favor of Rhoda Nuckolls against J. T. Miller for the sum of $2,000, in an action for slander and libel. The complaint contained two causes of action.

M. Dueeie, Judge; STATEMENT BY THE COURT. This action wás brought in the Garland Circuit Court by J. C. Burrows against Waters-Pierce Oil Co., Arkansas Gas Co., Chambers & Walker, Sam Mayer, and Leo Mayer, to recover damages for personal injuries caused by an explosion of gasoline vapor, which occured on the 24th day of December, 1902, in a building at Plot Springs known as the Turf Exchange, while gasoline was being delivered by an employee of the Waters-Pierce Oil Company…

Conway, Judge; Though the recording of a deed is prima facie evidence of its delivery, yet it is not conclusive, and may be overcome by positive evidence that there was, in fact, no delivery. 18 Law. Ed. U. S. Sup. Ct. Rep. 262; lb. 542; 19 N.-J. Eq. 357; 49 N. J. Eq. 510; 161 Mass. 381; 105 Mass. 560; 19 Col. 371; 2 Houston (Del.), 246; 185 111. 101; 150 Ind. 465; 2 Am. St. Rep. 72; 35 Am. Rep. 166; 7 lb. 554; 37 Am.

83 S. W. (Ark.) 837; S3 Ark. 484; 6 L. R. A. 58; 7 L. R. A. 385; 1 Bish. on Marriage, Div. & Sep. § 1641; 2-lb. 344, 346, 349.

<p>Trial — instruction—when not misleading. — An instruction . open. to criticism, when standing 'alone, will not be ground for reversal if, taken in connection with the evidence and the other instructions, - it is clear that the jury could not have been misled.</p>

Original petition for mandamus; 1. Petitioners were entitled to have master appointed. As remaindermen they had the right to stop the cutting of timber, and to be compensated for that already cut, before the death of the widow. Competent for chancery court to require an accounting for waste, and avoid a multiplicity of suits. 1 Wash. Real Prop. 161; Story, Eq. Jur, § § 517-18, 917; Fed. Cas. 68; 5 Johns. Ch. 170-71. 2. It was the duty of the chancellor to make the order.

Appellant, W. H. Lowe, brought this suit in equity to cancel, on account of alleged usury in the contract, a certain mortgáge or deed of trust on lands executed by himself and wife, Roxie, to secure a note to Mrs. Jennie F. Rice, which had been assigned to appellee, George Walker. -Mrs. Rice, Walker and the trustee in the deed were all made parties defendant, and answered separately.

Steer, Judge; STATEMENT BY THE COURT. This is an action against appellant to recover for mental pain and anguish suffered by reason of the alleged negligent failure of the defendant to deliver a telegraphic message.

Robertson, Chancellor; statement by ti-ie court. This is a suit by appellants against appellee to quiet title to a tract of land in Mississippi County, and to restrain appellee from removing timber from such land. Appellants and appellee claim from a common source of title. The heirs of Jacob Corbett were originally the owners of the land.

Meeks, Judge; Parties showing good reason therefor should .be permitted to withdraw their names from the petition. 40 Ark. 291. The proceeding was in the nature of an election, and it should have been tried by the circuit court upon the issues made by petitioners before the county court. 51 Ark. 159; 70 Ark. 175.

Fulkerson, Judge; The burden was upon the State to show affirmatively by the proof that it was a gambling transaction — that actual delivery of the cotton was not contemplated. The intention of Matheny could not bind the defendants. 67 Ark. 172-181, and cases cited. The jury were instructed to acquit if they believed it was deféndants’ intention actually to deliver the cotton. There was evidence to support their verdict to the contrary.

Muuks; Judge; STATUMUNT BY THU COURT. . '■ At the July term, 1905, of the Randolph Circuit Court, appellant, Ed Hubbard, was indicted, tried and convicted of the crime of murder in the first degree, and sentenced to be hanged. He is charged with killing one W. P. Burns by drowning him in Spring River, which is the boundary line, at the place where the crime is said to have been 'committed, between Randolph and Eawrence counties.

'Appeal from Pulaski Circuit Court, Second Division; Edward W. WinRieXd, Judge; reversed; statement by the court.

Meeks, Judge; A negative averment need not follow the words of the statute, as an affirmative one must; but any negation in general terms, covering the entire substance of the matter, will suffice. 1 Bish. Crim. Proc. (3.Ed.), § 641; 34 Me. 503; 103 Mass. 213; Bish. Stat. Crim. 485. Since the exception in the statute is in the enacting clause, the indictment should have contained such an averment as to show that the defendant was without its terms. Bishop’s Crim. Proc.

<p>Homicide — instructions—sele-deeense.—An instruction in a murder case which seemed, standing alone, to cut off the right of self-defense was not prejudicial if other instructions given covered that defense; nor if there was no evidence to sustain the plea of self-defense.</p>

Smith, Judge; STATEMENT BY THE COURT. The defendant, R. S. Winton, was indicted, tried and convicted in Union Circuit Court for selling a quart of liquor without license.

<p>Appeal from Sevier Circuit Court; James M. STEER, Judge;</p>

Original petition for prohibition; Where the jurisdiction of the court is doubtful, or where the petitioner has other legal remedy, the grant or refusal of the writ of prohibition is discretionary, 155 U. S.; 402, 166 U. S. 136. In any case where the party aggrieved may have ample remedy by appeal, prohibition will not lie. 65 Ark. 214.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT BY THE COURT. This suit was by appellee -against Long on account, consisting of three items, for materials furnished in the construction of a certain building in Forrest City, Ark. The account amounted in the aggregate to $828.15.

Chapline, Judge; Action in replevin in the common pleas court by Guy Beau-man against Wells Fargo & Company Express and Sherwood Lithograph Company to recover one hundred and fifty maps, of the alleged value of $150. The plaintiff gave bond, and the property was seized by the officer under the writ, -and delivered to the plaintiff. Defendant answered, asking that the maps be returned or the sum of $70 and costs be paid, amounting in all to $75.35.

Francis Chancery Court; Edward D. Robertson, Chancellor; This suit was brought by Charles T. Abeles & Company, a corporation, against E. A. Long and T. L. Humphreys in the St. Francis Chancery Court, to fix and enforce a lien for material furnished, amounting to $891.52, alleged to have gone into a building erected by T. L. Humphreys as contractor for appellant.

Cross appeals from Jackson Circuit Court; Frederick D. Fulkerson, Judge; 1. The county court has power to grant license in all parts of the county where license has carried, except portions affected by prohibitory orders. 2. The second revocation of the prohibitory order revived the licenses. The judgment of the county court was self executing, and -could not be suspended by filing supersedeas bond. 73 Ark. 66. 3.

Hawkins, Chancellor; STATEMENT BY TI-IE COURT. On the 2d day of December, 1898, D. B. Bain and wife executed a deed conveying to J. M. Parker, trustee, 240 acres of land in Ashley County.

Shaver, Chancellor; 1. Defendant as a corporation had power, if acting within its legitimate purpose, to make promissory notes, to draw and accept bills of exchange and to indorse bills and notes in payment or as security. 81 Fed. Rep. 45; 104 U. S. 192; 67 Ala. 253; 95 111. 215 ; 85 Ind. 244; 43 Md. 466; 58 Miss. 301; 41 N. J. Eq. 531. Its charter need not expressly confer such power. 10 N. Y. 456; 15 N. Y. 66.

Evans, Judge, on exchange of circuits; Railroads are not liable for injuries to persons caused by the usual and ordinary noises incident to running of trains. 140 Mass. 79; 56 S. W. 1; 32 N. E. 209. They are only required to use ordinary care, and so to manage their trains as not to carelessly or negligently injure persons on the highway or off their right of way. 60 Ark. 409; 77 Pac.

Shaver, Chancellor; 1. The complaint alleged title by adverse possession only, and the court’s finding upon an issue not raised by the pleading —that the alley had never been dedicated- — -was error. 13 Ark. 88; lb. 187; 30 Ark. 612; 41 Ark. 393; 46 Ark. 96; 49 Ark. 94; 70 Ark. 319. 2. The burden was upon plaintiff to establish adverse possession. 65 Ark. 422.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. In 1876 Matthew Bristow died in Boone County, being at his death the owner of personal and real.property in that county.

Martin, Chancellor; statement by the court. Appellants, Mattie B. and J. C. Cowley, allege in their complaint that they are the children of J. O. Cowley. That he owned northwest quarter section 31, township 8 north, range 11 west, in Faulkner County, Arkansas, and an adjoining tract on which he resided as a homestead at the-time of his death in 1887.

Martin, Chancellor; STATEMENT BY THE COURT. J. O. Cowley died in 1886 or 1887, owning lands in Faulkner County in the following shape as shown by plat: [[Image here]] Cowley at the time of his death had his residence on the land at the place designated by star. He left four children. The lands designated on plat as 81 acres and 64 acres (total 145 acres of fractional S. W. section 31, township 8 north, range 11 west) are the tracts in controversy.

H. Humphreys, Chancellor; STATEMENT by the court. This action arose under section 2326, Rev. Stat.

G. Settees, Special Judge; STATEMENT BY THE COURT. Action in ejectment by J. W. Daugherty against Thomas Bayles and others to recover possession of the tract of land described in the complaint. The plaintiff recovered judgment below, and the defendants appealed. 1.

WinRirrd, Judge; The power of a foreign corporation to make a contract in this State is limited by the statute. Act May 23, 1901, § § 1, 2. It is in the discretion of the State to exclude a foreign corporation entirely, or, on admitting it, to prescribe the terms upon which it may transact business. 8 Wall. 168; 57 Ark. 33; Murfree on Foreign Corporations, § 2; 49 Ohio St. 440; 119 U. S. no; 155 U. S. 648, and cases cited; 2 Cook, Corp. 697-700.

Rowe, Judge; The county court having exceeded its jurisdiction, the circuit court acquired none on appeal. In such case certiorari lies. 29 Ark 173; 38 Id. 159. Where jurisdiction is conferred by special statute, which is to be exercised in a special manner, no presump, tions as to its jurisdiction will be presumed. 57 Ark. 483, and cases cited. Defects in complaint, not supplied by the answer, are not cured by judgment. 24 Ark. 602.

Rowe, Judge; Appellant’s case differs from the Sarlo case in that appellant signed the agreement, not voluntarily, but under protest. Appellant was not required to refuse license without conditions attached and appeal, but had the right, if required to sign the agreement under protest, to refuse to be bound by it. 43 Ark. 364. In- the absence of express enactment conferring the power, the ■ county court is without jurisdiction to revoke the license after it has granted it.

Hawkins, Chancellor; 1. The court will sustain the sale, in the absence of affirmative proof that it was fraudulent, unfair or prejudicial to the defendant or contemplated purchaser. 99 Am. Dec. 461; 61 lb. 134; Jones on Mort. § 1676. 2. It is the policy of the law to uphold judicial sales. 145 U. S. 349; 61 Am. Dec. 134; Jones on Real Mortgages, § 1676.

Hawkins, Chancellor; STATEMENT BY THE COURT. This is a suit in equity brought by appellee, Sam Epstein, against appellant, Walter Davies, to restrain the latter from erecting a building on the sloping bank of Take Chicot, between the town of Fake Village, as laid out and platted, and the water’s edge.

Tillman, Judge; statlmlnt by thl court. This is a suit by appellee against appellant on a promissory note for $500 with interest at ten per cent, from date until paid. The note was dated October 15, 1896, and was due twelve months after date. The complaint alleged that nothing had been paid on the note. The answer set up want of consideration and the statute of limitations. The latter defense alone is urged here.

Moose, Judge; STATEMENT BY THE COURT. This is a garnishment proceeding, originally brought in justice court by appellant against the appellee in an effort to collect* a judgment, interest and cost, all amounting to about $25, due from Dick Freeman, appellee’s husband, to appellant.

Chatline, Judge; statement by the court. J. O. Vannatta, a farmer .of Monroe County, sold seven carloads of hay to J. F. Whaley, a dealer in hay at Stuttgart, Ark. The hay was delivered in 'cars at Roe, Arkansas, the nearest station to the home of Vannatta. Afterwards Whaley paid Vannatta $349.48 on the purchase price, and gave him a statement showing a balance of $131.88 due.

Francis Circuit Court; Hance N. Hutton, Judge; statement by the court. Mrs. Gavin was the owner of land in St. Francis County, Arkansas. In 1895 W. R. Kendrick, as collector for and in behalf of the Board of Directors of the St. Francis Levee District, brought an action in the chancery court of St. Francis County to recover levee taxes alleged to be due on the land.

Steel, Judge; 1. It is not necessary that plaintiff in ejectment show a title perfect against the world in order to recover. 31 Ark. 334; 41 Ark. 465; 37 Fla. 464; 8 Wheat. 1. Possession of a part of a body of land under ■ color of title will draw to it possession of the whole. 71 Ark. 390. 2. The court erred in excluding testimony tending to show the execution of deed to Fred J. Richters.

Meeks, Judge; STATEMENT BY THE COURT. George Beattie, a citizen and resident of Missouri, was indicted for herding, grazing and permitting his cattle to run at large in the Northern District of Sharp County.

T. Wood, Judge; Petition by T. A. Jackson to the circuit court of Ashley Coúnty for mandamus to compel Henry Stillwell, the colléctor of taxes, to accept from the petitioner county warrants in payment of his taxes levied for county purposes. The circuit court sustained the prayer of the petition, ordered the issuance of a peremptory writ of mandamus, and the collector appealed to this court.

<p>Appeal from St. Francis Court; ITancs N. ITutton, Judge;</p>

Rowe, Judge; STATEMENT by the court. This is an action brought by G. T. Williams against Jas. B„ McDonough to recover damages for fraud and deceit alleged to-have been practiced by the defendant to plaintiff’s injury in the purchase by defendant from plaintiff of shares of stock in the Montreal Coal Company, a domestic corporation owning and operating a coal mine in Sebastian County.

Fuekerson, Judge; STATEMENT BY THE COURT. Appellee alleged, in substance, that on November 24, 1902, h§ bought of appellant certain timber on a certain tract of land in Jackson County, paying therefor $275; that appellant also agreed to sell him all the timber on nine hundred acres adjoining the first tract at the rate of $2.75 per acre; that on same day appellant sold him a half interest in a sawmill on the premises for $350, to be paid for at the rate of $20 per month,…

Durrie, Judge; 1. It was error to take the case from the jury and direct a verdict for plaintiff. It was for the jury alone to pass upon the sufficiency of the evidence to establish fraud, and the existence of a conspiracy. 23 Ark. 115; 37 Ark. 580; 45 Ark. 165; 45 Ark. 492; 58 Ark. 108; 19 Ark. 648; 39 Ark. 413; 43 D. R. A. 505. 2.

<p>1. Master and servant — risks assumed. — In an action against an employer for personal injuries of an employee caused by the negligence of co-employee, the court instructed the jury that “the true inquiry in each cáse is, was the accident one of the natural and normal risks in the ordinary course of business? If so, then there is no common-law liability on the part of the employer; if not, there is such liability.” Held vague and misleading. (Page 292.)</p> <p>2. Trial- — -refusal to instruct.- — It was error, in a proper case, to refuse to instruct the jury as to who were fellow-servants. (Page 292.)</p> <p>3. Fellow servants — definition.—At common law persons employed by the same master to accomplish one common object, and so related in their labors performed in the service of the master as ordinarily to be exposed to injuries caused by each other’s negligence, are fellow-servants. (Page 293.)</p> <p>4. Master and servant — reasonableness of rules. — Whether a rule or regulation adopted by a master for the protection of his servants was reasonable and sufficient was a question of law to be decided by the court, and not by the jury. (Page 294.)</p>

Dueeie, Judge; Appellant was protected by the license issued to him under the order of the county court. The county court having jurisdiction to pass upon the sufficiency of the petition presented for license, its order, even if erroneous, was not void. 55 Ark. 208; Black on Judgments, § 183. It will be presumed to have acted on facts sufficient to sustain its action. 53 Ark. 478, and cases cited.

CitaplinE, Judge; statement by the court. This is an action in replevin, brought by appellant, W. N. Carpenter, against the appellees, I. W. Ingram, C. M. Farmer, John G. Quertermous and the Carpenter Investment Company, the latter being a domestic corporation, for recovery of a lot of law books and office furniture situated in the office of the defendant corporation in Stuttgart, Arkansas.

O. Mahoney, Chancellor; A judgment rendered out of term time is absolutely void. Black on Judgments, § 179, and authorities cited; 71 Ark. 226. Every presumption is indulged in favor of the regularity of the proceedings of courts of superior jurisdiction, and of the verity of their records. The notation by the clerk of the time when the decree was recorded is not sufficient to overcome the presumption that it was rendered in term time. 72 Ark. 320.

Eeeiott, Chancellor; STATEMENT BY THE .COURT. The plaintiff, Emmett Vaughan, sold, and by deed containing covenants of warranty of title conveyed, to the defendant, J. W. Eetchworth, a body of land containing 1,009.09 acres. The. purchase price of the land was ’$1,000, of which $500 were paid upon delivery of the conveyance.

<p>Appeal from Marion Chancery Court; E^bridge G. Mitch-. EEE, Judge;</p> <p>STATEMENT' BY THE COURT.</p> <p>This was a suit brought in the Marion Circuit Court, by L. L. Young, Katherine Sowell, Elvira Stockton, Sarah Morris, Allie Childs, George Seawell, William Seawell and A. C. Seawell, as plaintiffs against E. L. Seawell and John M. Nowlin, as defendants, for the possession of six-sevenths interest in the east half of the east half of the east half of the southeast of the southeast yi of section 4, in township 18 north, range 16 west, in Marion County, Arkansas.</p> <p>E. E. Young, Katherine Sowell, Elvira Stockton and Sarah Morris, each, claim an interest in said lands as children and heirs, at law of A. E. Seawell, deceased; Allie Childs, George Seawell and William Seawell claim one interest, as heirs at law of Eranlc Seawell, deceased, who was a son and heir-at-law of A. E. Sea-well, deceased; A. C. Seawell claims an interest in said land by conveyance from W. Q. Seawell, who was a son and heir-at-law of A. E. Seawell, deceased.</p> <p>E. L. Seawell, one of the defendants below, was a son and heir at law of A. E. Seawell, deceased, and he conveyed said above described land to John M. Nowlin, the other defendant below, the said E. L. Seawell claiming to be the owner of the entire tract of land at the time he made said conveyance.</p> <p>The suit was originally brought on the law side of the docket, and was afterwards transferred to the chancery docket on motion of the defendants.</p> <p>From a decree for the plaintiffs below, the defendants have appealed.</p> <p>The complaint, after deraigning title in L. E. Seawell and A, E. Seawell, alleges that the defendant, L. L. Seawell and A. E. Seawell, deceased, each owning an undivided one-half interest, held said lands in common until the 13th day of April, 1896, at which time they made a division of said lands, the defendant, E. E. Seawell, taking the west half of said tract, and A. E. Sea-well taking the east half, and they agreed to make deeds so as to' complete the conveyance of said lands, and on the 13th day of April, 1896, the said A. E. Seawell, in accordance with said agreement, made, executed and delivered to the defendant, E. L. Sea-well, her deed, conveying to him all her right, title and interest in and to the west half of the east half of the east half of the S. E. 34 of the S. E. 34 of said section 4, and that said deed is duly-recorded, and a copy of the same is made a part of this complaint, and marked “Exhibit G.” They further state that the said E. E. Seawell, after receiving the deed from the said A. E. Seawell to the west half of said tract of land, as above set out, failed and refused to execute a deed to the said A. E. Seawell for the east half of said tract.</p> <p>The complaint then sets up the death of A. E. Seawell, and alleges that she died seized and possessed of the lands in controversy, and, after naming the heirs, alleges that E. L. Seawell wrongfully took possession of said lands, falsely claiming to be the owner thereof, and, after certain other allegations unnecessary to set out, the complaint continues as follows:</p> <p>“They further state that the defendant L. E. Seawell, as they are informed and believe, falsely and fraudulently combined with the defendant J. M. Nowlin to defraud these plaintiffs out of their interest in and to the aforesaid lands, and, as they are informed, executed his deed to the said John M. Nowlin, purporting to convey all of the above-described lands to the said John M. Nowlin, etc. They further state that the said John M. Nowlin had full knowledge of the right, title and interest of these plaintiffs and those under whom they hold at the time he made said pretended trade with the said E. E. Seawell.”</p> <p>After setting up that the heirs were all of age, and that there was no administration on the estate “of A. E. Seawell, the complaint concluded as follows:</p> <p>“Wherefore plaintiffs pray judgment of this court 'settling their interest in said estate, for the possession of the same, and for-$100 damages for the wrongful withholding of said lands, by the defendants, E. E. Seawell and John M. Nowlin, and for judgment for their costs, etc.”</p> <p>The defendants, L. E. Seawell and John M. Nowlin, answered jointly, denying the unlawful possession, and each filed separate answers. Nowlin in his answer denies that he had any knowledge of any equities existing in favor of said plaintiffs against the said E. L. Seawell, other than those shown by the records of Marion County, Arkansas, and denies any complicity in any fraudulent -design in attempting to obtain title to said property, if any .there were. -</p> <p>. . ■ L. E- Seawell denied any division of the lands between himself and A. E. Seawell or any agreement to divide same as alleged, in the complaint. The answer then continues as follows:</p> <p>“Said E. E. Seawell admits-that plaintiffs have set forth in their complaint, filed herein, a full statement of the title, which shows the record title to said lands to be as follows, towlt: Four and one-half sevenths thereof in the defendant John-M.Nowlin,-and two and one-half sevenths in plaintiffs, but he avers the facts to be that he and the said A. E. Seawell were tenants in common of said tract of land by virtue of purchase thereof and deeds thereto, as shown in plaintiffs’ complaint. And that, while in the actual possession and occupancy of said lands aforesaid, his cotenant, the said A. E. Seawell, agreed with him, the said E- E. Seawell, that he should erect on said lands a dwelling house and other improvements at his own cost, for the use and occupation of the said A. E. Seawell, during her lifetime, and that she, the said A. E. Seawell, would convey to him her undivided one-half interest in said tract of land. That, in performance of his part of said agreement,- and in full compliance therewith, he caused to be erected on the tract of land in controversy a dwelling-house and other improvements, at the sole cost and expense of him, the said L. L. Seawell, which costs amounted to the sum of eight hundred-and fifty ($850) dollars, and which house and premises she, the said A. E. Seawell, had the occupation and use of not only during her lifetime, but that the rents and profits thereof, after her death, were, by the consent of the said .E. L. Seawell, devoted to the paying funeral expenses of the said A. E. Seawell. And further,- in 1896, when the said E. L. Seawell had become involved, by reason of expenditures in improving the tract of land in controversy in order to provide' his mother, the said A. E. Seawell, a comfortable home, and in part compliance with said agreement, the said A. E. Seawell made, executed and delivered to the said E. E. Seawell a deed to the west half of said ten-acre tract, conveying all her interest in said west half to him, so that he could secure his creditors, and thereby save the home intact for his mother, the said A. E. Seawell, and not by reason of any agreement to partition the said ten acres, as alleged by plaintiffs in their complaint.</p> <p>■ ■ “Defendant, L. D. Seawell, states that he has paid the taxes on the land aforesaid to the amount of $125 as will more fully appear by the tax receipts herewith filed and made a part hereof. And that he has been in the peaceable and uninterrupted possession of said lands until he sold and conveyed the same to his codefendant, John M. Nowlin.”</p> <p>The prayer was that the title to all of said lands be decreed to be in the said John M. Nowlin, or that the plaintiffs be decreed to be the owner of a two and one-half sevenths interest, with a lien thereon for the sum of nine hundred and fifty dollars in favor of the said John M. Nowlin to be paid within such time as the court may decree, and before the said John M. Nowlin shall be required to deliver possession of said premises aforesaid.</p> <p>The plaintiffs filed a reply to the answers of Nowlin and Sea-well, denying that Seawell or Nowlin had any interest in the land in controversy except a one-seventh interest, which L. L. Seawell acquired as heir at law of E. A. Seawell, deceased, and denying all the allegations set up in the separate answer of E. E. Seawell, and praying for damages as in the original complaint, and that the conveyance from E. L. Seawell to Nowlin be canceled, and for costs and all equitable relief. The cause was heard upon depositions, and the court made the following findings, and entered decree accordingly:</p> <p>1. That the plaintiff’s ancestor, A. E. Seawell, died seized and possessed of the E. of the E. of the E. of the S. E. % of the S. E. /4 of section 4, in township 18 north, range 16 west, situated in Marion County, Arkansas.</p> <p>2. That she left surviving her as her only heirs at law the plaintiffs and the defendant, E. E. Seawell.</p> <p>3. That the defendant, John M. Nowlin, purchased the land with knowledge of the'rights and title of plaintiffs.</p> <p>4. And that plaintiffs are the owners and entitled to the possession of six-sevenths interest in said lands.</p> <p>5- And that the rents and profits of said lands collected' by the defendant, E. E. Seawell, shall offset the taxes and improvements made by him on said land.</p> <p>1. The record title is in the appellants. A mere preponder-; anee of. evidence is not sufficient to overcome such title. 9 Cyc. 393-</p> <p>2. The proof shows that E. A. Seawell’s interest in the land vested in L. L. Seawell at her death, by virtue of their agreement with reference to improvements placed on the land by him.</p> <p>3. If appellees were tenants in common with L. L. Seawell, he is entitled to reimbursement for improvements. 7 Ballard’s Real Prop. § 375; 1 Id., § 245; 56 S. W. 781.</p> <p>1. The proof establishes a division of the tract of land between E. A. Seawell and L. L. Seawell, whereby she became the owner of the east half thereof. Her acts and declarations are admissible in evidence to explain the character and extent of her possession. 24 Am. & Eng. Enc. Law (2 Ed.), 690 and cases cited; 178 111. 556; 59 Ark. 303. This partition was binding on them, though not in writing. 11 Am. & Eng. Enc. Law, 1142, and note; 10 L. R. A. 763; 6 Id. 67; 9 Id. 343; lb. 584; 16 Id. 326; 39 Id. 637; Beach, Mod. Eq. Jur. § 981 and notes; 117 Ind. 322; Freeman on Part. § 398. Voluntary partition of lands by cotenants may be established by- any competent evidence. 17 A. & E. Law, 667; 8 Id. 672.</p> <p>2. The proof shows that appellant Nowlin purchased with knowledge of appellees’ claim.</p> <p>3. This court will sustain the findings of the chancellor upon the pleadings and depositions, unless the preponderance of evidence is clearly against them. 44 Ark. 2x6; 24 Ark. 431; 49 Ark. 465; 41 Ark. 294; 50 Ark. 185; 55 Ark. 112; 71 Ark. 105.</p> <p>4. If any agreement- was entered into with reference to improvements, it was rescinded by the subsequent division of the land.</p>

Erriott, Chancellor; STATEMENT BY THE COURT. G. F. Wiljey and others brought a suit in equity in the cháneery court of Arkansas County against Mary K. Moore, for the partition of certain lands in that county owned jointly by plaintiffs and defendant as tenants in common.

The verdict is not supported by the evidence. 68 Ark. 487. It is the result of prejudice, and should be reversed.. 5 Ark. 394; 21 Ark. 468; 13 Ark. 712; 24 Ark. 224; 40 Ark. 168; 44 Ark. 121; 46 Ark. 141. 2. The indictment fails to charge that the nets were placed in the waters of this State. 30 Ark. 496. An indictment upon a statute must state all the circumstances which constitute the statutory offense. 1 Bishop, Cr. Pro. 3 Ed. § 618; 47 Ark. 488; 62 Ark. 512. 1.

Wood, Judge; The alleged sale for taxes was void. The State acquired no title, and conveyed none, and the two years statute does not apply. 55 Ark. 5491 Acts 1883, pp. 265, 266, 293; § § 128, 129, 226; Kirby’s Digest, § 5061. Appellants were barred by the two-years’ statute. Kirby’s Digest, § 5061; 59 Ark. 460. The bar is complete where two years adverse possession under donation deed is shown, even if the deed is void. 60 Ark. 163; lb. 499.

Appellant Frank C. Place was duly elected to and held the office of clerk of Garland County for three successive terms from 1894 to 1900, and gave separate bonds, as provided by law, for the faithful performance of his duties during the several terms.

Evans, Judge; STATEMENT BY THE COURT. The defendant, John Hudson, was indicted by the grand jury of Crawford County for the crime of murder in the second degree for killing John Colvard by shooting him with a pistol. On the trial the evidence showed that Hudson and John Colvard lived in the same house. They were both young men. Colvard was married, and Hudson was boarding with him. In October, 1904, they went in a wagon with one Steele to Alma.

<p>1. Assault with intent to kill — indictment.—An indictment for assault with intent to kill which alleges that the assault was made “unlawfully, willfully, feloniously, and with malice aforethought with the felonious intent to kill and murder” is sufficient. (Page 337.)</p> <p>2. Instruction — prejudice.-—An instruction in a criminal case which stated to the jury the maximum punishment to be assessed in case of conviction, but failed to name the minimum punishment, was not prejudicial if the jury assessed the lowest punishment. (Page 337.)</p>

Robertson, Chancellor; 1. Meander lines along or near the margin of a stream or other body of water are run to ascertain the quantity of public land sold, and are not boundary lines; the waters themselves constitute the real boundary.

Shaver, Chancellor; STATEMENT BY THE COURT. This suit is by appellee, and cross-appellant, present guardian, against appellant, former guardian, of Bettie M. Jones, an insane person, to surcharge and falsify the settlements of appellant with his ward which had been approved by the probate court.

Hughes, Judge; STATEMENT BY THE COURT. On the 3d day of August, 1903, the appellee instituted this action against the appellant, and alleged that it was a railway corporation operating a line as a common carrier in Missouri and Arkansas, and the appellee was in the months of October, November, and December, 1902, engaged in shipping cotton seed from the town of Rector, in Clay County, Arkansas, to a customer at Cairo, 111., and that during said months it had for. shipment 65…

W. WinpiEed, Judge; STATEMENT BY THE COURT. This was an action commenced before a justice of the peace in Pulaski County by Eli Dante against appellant, Brockman Commission & Cold Storage Company, to recover the price of thirty-one dozen chickens shipped by jplaintiff from Danville, Ark., to the defendant at Tittle Rock. Defendant sold the chickens at $1 per dozen, and rendered an account to plaintiff with checks for the amount, less commission of 5 per cent.

DuEEie, Judge; STATEMENT BY THE COURT. On the 3d of May, 1903, Ebenezer Jones was working for the Choctaw, Oklahoma & Gulf Railroad Company as a member of a bridge gang under a foreman named Collier. On that day Collier and his gang were ordered to assist Tillman, the foreman of another gang, in the erection of a rock crusher on the line of the railway. The wooden structure on which the rock crusher rested was built of heavy sawed timbers.

Wallace, Chancellor; statement by the court. On January 31, 1884, Richard C. Ludwick and wife, Mary J., executed a mortgage on the land in controversy to secure the payment of a debt to appellee, New England Mortgage Security Company. The mortgage was under seal, and contained an express promise to pay the debt on January 31, 1889.

Eleiott, Chancellor; 1. Equity will enjoin an illegal issue of bonds at the suit of any taxpayer, when it is shown that the illegal issue will create a charge, in the way of debt, against his property in common with that of other taxpayers. 132 Ind. 217; 59 N. Y. 192; 36 Pac. 293; 8 L. R. A. 291; 37 Wis. 168; 57 Wis. 430; 85 Wis. 411; Fed. Cas. No. 3725 (U. S. 1868) ; 112 Cal. 537; 24 Barb. 187; 84 111. 626; 30 Ark. 101; lb. 278; 34 Ark. 603 ; 46 Ark. 471. 2.

Moose, Judge; Robert L. Greer sued the Little Rock & Ft. Smith Railway Company, alleging that he owned a dwelling house situated on Railroad Avenue, in the city of Morrilton; that defendant filled in its roadbed opposite plaintiff’s premises, obstructing the public street, so as to prevent plaintiff and the public from the free use and enjoyment thereof in front of plaintiff’s residence. The prayer was for $500 damages.

Smith, Judge; Action by W. J. Cochran against the St. Louis Southwestern Railway Company for damages resulting from the death of his son, caused by alleged negligence of the defendant in the operation of its train. The plaintiff recovered Judgment, and defendant appealed. In an action by the father to recover for the death of a child, contributory negligence of the father bars such recovery. 68 Ark. 1; 72 Ark. 1.

This action by Lizzie Barry, as administratrix of the estate of her deceased son, George Allen Langdon, deceased, sought to recover the sum of $15,000 for the benefit of such estate, and the further sum of $25,000 as compensatory damages for the benefit of herself as next of kin, because of the wrongful killing of deceased through the negligence of defendants, the Kansas City, Fort Scott & Memphis Railroad Company and the St. Louis & San Francisco Railroad Company.

3 Elliott, Railroads, § § 1303, 1313; 1 Rabatt, Master and Servant, 843; 70 Ark. 606; 41 Ark. 547. Failure to obey the rules of the company will defeat a recovery by the injured employee, if the injury was the proximate result of his disobedience. 3 Elliott, Railroads, § 1282, and cases cited; 51 Ark. 467; 45 Ark. 318; 51 Miss. 641; 50 Wis. 66. The rule will be presumed to be reasonable. 33 Ohio St. 227; 31 Mich. 430; 67 Mo. 239; ss Ark. 510; 139 U. S. 223.

Conway, Judge; statement by the court. G. T. Spratley brought suit on January 2, 1903, before W. J. Smithers, a justice of the peace for Garland Township, Miller County, Arkansas, against the defendant, the Louisiana & Arkansas Railway Company, alleging a certain sum to be due him by the defendant for wages. Service of summons was attempted to be had by delivering a copy thereof to the auditor of said railway in Texarkana, Miller County, Arkansas.

Moose, Judge; STATEMENT BY THE COURT. The • defendant, James W. Ince, was indicted, tried and convicted of the crime of murder in the first degree for killing his wife and three children. Counsel was appointed by the court to conduct his defense, and a plea of insanity was interposed. The fact that he committed the homicide is not disputed, and the proof discloses a most shocking deed.

’Appeal from Yell Circuit Court; Wirriam E. Moosb, Judge; 1. The. evidence was not sufficient to sustain the verdict. The testimony of experts establishes the insanity of defendant at the time the murders were committed. Test by which to distinguish between the homicidal maniac and the murderer: Ray’s Med. Jur. 224. See also 3 Witthaus & Becker on Med. Jur. 276; lb. 247; lb. Melancholia, 233; Reese, Med. Jur. (3 Ed.), 604; 5 Pepper’s System of Med., 147.

T. Wood, Judge; 1. Testimony of the husband was incompetent. Kirby’s Digest, § 3095; 31 Ark, 684; 33 Ark. 207; 33 Ark. 259; 33 Ark. 861; 34 Ark. 663. He cannot establish agency by his own declaration. 44 Ark. 213; 2 Whart. Ev. § 1284; 43 Ark. 298; 71 Ark. 192. 2. The statutory presumption of negligence was overcome by undisputed testimony. Darkness and rain are circumstances the jury may take into consideration in determining negligence. 36 Ark. 451; 37 Ark. 562.

-Grace, Judge; 1. No presumption of negligence arises until it is shown by competent evidence that a spark or coal from one of defendant’s engines started the fire. 49 Ark. 540; 33 Ark. 816; 59 Ark. 111. 2. Instruction 2 given by the court was erroneous.

H. Humpi-ieRYS, Chancellor; STATEMENT BY THE COURT. Appellant, Osborne, was a distiller, and had the right, under a government license, to sell whisky in quantities of not less than five gallons. He shipped a quantity of whisky to his agent in a prohibited district, instructing him to sell the same in legal quantities. Said agent, without the knowledge or consent of appellant, was selling same in violation of the law.

STEEE, Judge; 1. There is no proof that the sale was within one year fiext before the finding of the indictment. Kirby’s Digest, § 2106. Proof of the time of commission of the act is essential. 67 Ark. 495, 497- 2. The court erred in peremptorily instructing the ..jury that the defendant was guilty. 87 Ala. 17. There was no proof that “Peruna” was prepared .to be sold for use and to be drunk as a beverage.

WinEield, Judge; 1. The conspiracy, and that appellant was a party thereto, should first have been proved, before the acts and declarations of Mayberry and Cook were admissible. 1 Greenleaf on Ev. (15 Ed.), § § in, 112; 16 Cyc. 982, 983; no 111. 47; 104 Ind. 70; 51 Iowa, 596; 23 Me. 69; 53 'Am. Dec. 134; 12 N. J. Eq. 108; 95 N. C. 377; 9 Humph. 750; 28 Tex. 759; 5 Tex. 211; 6 Whart. 169; 10 Serg. & R. 75; 20 Cent. Dig. Tit.

Steee, Judge; 1. It was error to permit witnesses Coleman and Huddleston to testify to statements of appellant before the grand jury. One accused of crime cannot be compelled to incriminate himself before the grand jury, nor his testimony before them be used against him on the trial. 15 Ark. 649; 13 Ark. 307; 14 Ark. 539; 20 Ark. 106; 2 Ark. 229. 2. Instructions 1 and 2 asked by defendant should have been given. 1.

E/vans;; Judge; 1. The matters alleged as false were immaterial. 49 Ark. 179; 61 Ark. 599; 1 S. W. 465. The indictment fails to allege that the testimony was willfully, corruptly and falsely given, which was fatal error. 2 S. W. 137. 2.

Fueic-ERSON, Judge; statement by trie court. The plaintiff, Jim Spotts, brought this suit against the Southern Cotton Oil Company to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant. The defendant (a foreign corporation) was operating a cottonseed oil mill at Newport, Ark., and plaintiff was in its service as a day laborer.

Moose, Judge; The fourth instruction was erroneous, in that it was based • upon a hypothesis for which there was no foundation in the evidence, ix Enc. PI. & Pr. 128; 54 Ark. 338; 8 Ark. 185; 57 Ark. 627; 16 Ark. 655; 36 Ark. 133; 42 Ark. 61; 48 Ark. 130; 49 Ark. 374; 70 Ark. 443; 71 Ark. 363. The tenth instruction was erroneous. The jury should be instructed to consider all the facts and circumstances tending to establish the question of provocation. 21 Am. & Eng. Enc.

Fuekerson, Judge; No time or place was ever fixed for marriage, therefore no breach. 5 Cyc. 1005. The court’s instructions as to corroboration of prosecutrix was erroneous. The essence of the crime is that the promise of marriage is false or feigned, and corroboration in that respect is necessary. 25 Am. & Eng. Enc. Law, 244-5 J 40 Ark. 482.

Robinson, Chancellor; 1. In ejectment, defendant being in possession, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s. 86 S. W. 852; 37 Ark. 644; 47 Ark. 215; 47 Ark. 418; 65 Ark. 610; 38 Ark. 191. 2. The suit against Higginson for levee taxes was in personam. Purchasers at judicial sales acquire only the title of parties to the suit. Rorer, Jud. Sales, § 459; 9 Wheat. 616; 32 Ark. 321; 17 Am. & Eng. Enc.

Hughes, Judge; STATEMENT BY THE COURT. Appellant was convicted of the crime of selling liquor without license, on the following indictment: “The grand jury of Mississippi County, Chickasawba District, in the name and. by the authority of the State of Arkansas, accuse C. W. Harrington of the crime of “Sabbath breaking,” committed as follows, towit: The said C. W. Harrington, iii the county and 'State aforesaid, Chicasawba District, on thé 1st day of January, 1905, A. D., did…

STEEL, Judge, on Exchange of Circuits; 1. Delivery by the railroad company to the compress company designated by the shipper in the bills of lading was a complete compliance with the contract, and released it from further. •liability. 29 Wis. 611; 2 Am. Rep. 577; 45 Barb. 502; in Mass. 163; 9 Barb. 158; 14 Wall. 98; 16 N. Y. 515 ; 48 111. 425; 77 Ga. 376.

Taylor, Judge; STATEMENT BY THE COURT. This was an action brought in the circuit court of Mississippi County, at Osceola, by the appellee, E. M. Ayres, against the appellants, Sarah A. Hearn, as administratrix of the estate of the late J. E. Hearn, deceased, and the sureties upon the official bond of said J. E .Hearn, as sheriff of Mississippi County, for the recovery of the value of a lot of cottonwood logs, claimed to have been lost through the negligence of the said J. E.…

The act is not in conflict with the Constitution, either State or Federal. 39 ’Ark. 357 and cases cited. See, also, 50 La. Ann. 1358; 58 L. R. A. 925; 79 Pac. 706; 159 Ind. 211; 54 N. E. 862; 59 L. R. A. 190; 113 U. S. 27. It provides for due process of law, affects all alike who are similarly situated, and is not invalid on account of injust discrimination. 79 Pac. and 113 U. S. supra; 101 Ind. 564; 73 N. E. 1063. 2.

Hawkins, Chancellor; 1. The order of sale and confirmation were without jurisdiction and void. 74 Ark. 81. The acts of Connerly in abandoning his trust under the contract, his relationship of attorney for the estate and agent and attorney for his wife in the purchase of the notes, were a violation of trust, which equity will not uphold.

Francis Chancery Court; Edward W. Robertson, Chancellor; 1. At the time of the purchase by appellee under the sale ordered by the chancery court for nonpayment of levee assessments, the State’s lien for taxes'of 1897 had become fixed as against both owner and purchaser. 2. The costs charged against land were not excessive. Kirby’s Digest, § § 3494, 4922. 3.

Chapline, Judge; STATEMENT BY THE COURT. This is an action of replevin brought by J. W. Carpenter and Gus Breitzke against W. N. Crow to recover possession of ninety-five milk cows and seventy-five calves. The plaintiffs were the owners.of the cattle, and sold them to one I. M. Tuller, who in turn sold to defendant Crow.

Robertson, Chancellor; statement BY THE COURT. Appellants, Haggart & McMasters, brought this suit in equity to restrain appellee, Chapman & Dewey Land Company, ■from cutting timber on a tract of land owned- by appellants. They deraign title to the land from the State of Arkansas through a patent issued to H. R. Allen, and show a perfect chain of title.

STEEL, on exchange of circuits; STATEMENT BY THE COURT. This is an action to recover damages for delay in the delivery of a telegram. The plaintiff resided at Texarkana, Arkansas, and had a sister at Carthage, Mo.

Rowe, Judge; statement by the court. Appellant was indicted for forgery and uttering a forged instrument as follows (omitting formal parts) : “The said defendant, in the district and county aforesaid, on the 1st day of November, 1905, fraudulently and feloniously did forge and counterfeit a certain writing on paper, purporting to be a check upon a bank, which said writing on paper is in substance as follows; “CHATWELL BROS. No. .120 “Fine Wines, Liquors and Cigars, “8 North…

Rowe, Judge; STATUMUNT BY THU COURT. E. B. Crossland was indicted and convicted of grand larceny of a check made payable to James G. Frizzell. His defense was that it was given to him by Emmet Frizzell, who was the manager of James G. Frizzell’s business. The facts of the transaction are detailed in the companion case of Crossland v. State, ante p. 537.

Rowe, Judge; STATEMENT BY THE COURT. The plaintiff, Clyde Dean, of Portland, N. Y., commenced this action against the defendant, George Truschel, of Fort Smith, Ark., to recover $457.61 on open account for one carload of ' grapes sold and delivered on board car at Portland.

Mrrks, Judge; 1. The appellant was not responsible for the negligence or wrongful acts of an independent contractor. 53 Ark. 503; 55 Ark. 510. 2. It was error to admit testimony to establish a parol contract to fix the fences in time to make a crop. The deed could not be varied by parol evidence. 3. The court admitted improper testimony as to the value of the crop. For measure of damages, see 56 Ark. 612. 1.

Moose, Judge; A case should not be withdrawn from the jury unless it can be said as-a matter of law that no recovery could be had upon any reasonable view of the facts which the evidence tends to establish. 71 Ark. 447. There was evidence from which the jury might have found the defendant guilty of negligence in maintaining its tracks.

Smith, Judge; Persons using the way and crossing did so as mere licensees, and the company is not liable for injuries sustained because the crossing was not properly constructed or kept in repair. Elliott, Railroads, 1151; 83 Wis. 547; 57 Wis. 600; 42 111. App. 93.

Conway, Judge; Instruction No. 1 was erroneous, there being no evidence of a gift by D. P. Terry to plaintiffs, and it was foreign to the issues. 37 Ark. 580; 7 Ark. 470; 16 Ark. 628; 41 Ark. 282. It was error to admit testimony,to the effect that D. P. Terry used and controlled the property after the death of plaintiff’s mother. 43 Ark. 320.

Hawkins, Chancellor; statement by the .court. In 1881 John D. Adams, Mrs. M. L. Dickinson, wife of J. W. Dickinson, and Mrs. M. W. Lewis, wife of E. C. Lewis, owned, as tenants in common, a large body of land situated near the corporate limits of the town of Arkansas City. Mrs. Dickinson also owned separately an adjoining tract containing 80 acres.

ChaplinE, Judge; 1. The sale of the liquor being contrary to statute, the contract was void. 48 Ark. 487; 3 Am. & Eng. Enc. Law, 1 Ed. 872; 32 Ark. 620; 108 Mass. 519. When the immediate object of an agreement is illegal, the agreement is void. 3 Am. & Eng. Enc. of Law (1 Ed.), 886. Sale of liquor after judgment of circuit court annulling the license is illegal. 70 Ark. 312; 53 Ark 236; 71 Ark. 419. 2. Courts will take judicial notice of their own records. 12 Am. & Eng.

WinEiERD, Judge; 1. On appeal from the justice of the peace court, the jurisdiction of the circuit court is derived from, and dependent upon, the appeal. It can render no judgment that the justice is not authorized to render. 44 Ark. 379; 40 Ark. 556; 43 Ark. 107; 61 Ark. 33; 57 Ark. 258. In matters of damages to personal property the jurisdiction of the justice, and of the circuit court on appeal, is limited to one hundred dollars.

Meeks, Judge; statement by the court. On April 6, 1905, appellants obtained from the county court of Stone County a license to operate a public ferry at Sylamore, Ark., across White River between Stone and Izard counties; and on April 10, 1905, they obtained a license from the county court of Izard County to operate the same ferry.

Humphries, Chancellor; 1. The defendants will not be permitted to rescind the contract, and at the same time retain the machinery. Bishop on Cont. § 829; 2 Addison on Cont. § 645; 24 Am. & Eng. Enc. Eaw, 624; lb. 645, 646; 17 Ark. 228; 25 Ark. 196; 14 S. W. 1095; 52 Ark. 458- 2. The want of varnish on the reels, if any, was a defect too trivial to prevent recovery under the contract. 9 111. 319; 78 111. 27; 32 Iowa, 101; 60 Mich. 26.

WiníiBld, Judge; 1. Plaintiff can not complain because the conductor testified ■to the motorman’s statement'that “the hog jumped on the track right in front of the car,” having brought it out on cross-examination. It was a part of the res gestae and competent. 2. The court erred in refusing defendant’s first, .fourth and sixth instructions, and in giving the fourth as modified.

Wilson, Special Judge; 1. Plaintiff will not be permitted to sue on one contract, and prove and recover on another and different one. 1 Estee’s Pldg. § 205; 45 Cal. 514; 56 Cal. 262; 35 Mich. 274; 36 Miss. 458; 41 Miss. 256. 2. The court erred in refusing to reduce instructions to writing. Art. 7, § 23, Const.; 47 Ark. 407; 51 Ark. 177; 71 Ark. 367; 81 S. W. 382. 4. Plaintiff’s measure of damages was the worth of his labor up to time of breach. 30 Ark. 280.

Fuekerson, Judge; STATEMENT BY THE COURT. Appellant was a corporation, carrying on a retail liquor business in Batesville, Arkansas. Arthur Anderson was in its employ as bartender.