Volume 78 — Arkansas Reports

Winfield, Judge; 1. Books and records are legal evidence only when the entries are made by the person whose duty it was to have made them. Greenleaf on Ev. § 117. The entries must be shown to have been correct, and made contemporaneously with the facts recorded. 66 Ark. 316; 60 Ark. 333.

Wood, Judge; On May 13, 1901, James M. Goza and Lizzie F. Kimberlin filed a complaint in the Chicot Chancery Court against J. W. Wade (and certain other parties who have not appealed), setting up, in substance, that plaintiffs were sole heirs at law and devisees under the will of Aaron Goza, who died seized and possessed of the south half of south half of section 6, township 18 south, range 1 west; that on an unnamed date the south half of the southeast quarter was patented…

Smith, Judge; Prior acts of incest between the same parties may be proved. Underhill, Crim. Ev. 475. There was positive evidence of the commission of the crime within three years. Evidence of other incestuous acts between the same parties did not prejudice the defendant, and was admissible as tending to show the opportunities and inclinations of the parties.

Francis Circuit Court; Hance N. Hutton, Judge; STATEMENT BY THE COURT. L. H. Pippin filed a petition in the St. Francis County Court for the establishment of a road from his place across land of defendant, May, to connect with the public highway.

Duffie, Judge; 1. A railway company owes a trespasser on its tracks no duty save to refrain from doing him wanton injury after his presence is known. 45 Ark. 246. 2. The first instruction given by the court was erroneous and misleading. The “lookout statute” does not apply to a case of this character. Defendant was not required to keep a lookout for persons and property off the track nor adjacent to the cars. 57 Ark. 464.

Chapline, Judge; Letters introduced do not establish a valid contract. Conceding that a contract of agency was established, no power was conferred to employ counsel and make abstract of title, and can not be implied. Beach on Agency, § 288. The parties must have authority to contract in relation to the subject-matter. Ib. § 300. And the authority of the agent is limited to the contract. Ib. § § 306, 307 and 318.

Winfield, Judge; STATEMENT BY THE COURT. In December, 1893, Dr. McCulloch died in this State. He held a policy on his life for $10,000 in the Mutual Reserve Fund Life Association. The beneficiaries in this policy were his two sons, Gilbert and Ben McCulloch, who were minors at the time of the death of their father. He left a will, directing that his wife should be appointed guardian of his sons without bond. This was done, and the company paid the money to her.

Meeks, Judge; 1. There was no abuse of discretion in refusing the motion for continuance. 2. The court’s right to instruct the jury as to the weight to be attached to the defendant’s testimony is fully settled. 62 Ark. 556.

Conway, Judge; statement by the court. Appellant was indicted for the crime of murder in the first degree, was tried upon this indictment, and convicted of murder in the second degree, and his punishment fixed at twenty-one years in the penitentiary. Appellant killed one Carl Michael. Fie admitted the killing; and, according to appellant’s statement, he had been out hunting squirrels, and was retunring home, when Michael overtook him.

Rowe, Judge; STATEMENT BY THE COURT. The acts of Congress (March 3, 1901; July 1, 1902) provide: “That the owners or managers of every coal mine shall provide an adequate amount of ventilation of not less than 83 1-3 cubic feet of pure air per second, or 5000 cubic feet per minute for every 50 men at work in said mine, and in like proportion for a greater number, which air shall by proper appliances or machinery be forced through such mine to the face of each and every…

Robertson, Chancellor; STATEMENT by the court. This is a suit in equity brought by the Bagnell Timber Company against J. M. Cook and R. N. Cook to cancel and rescind a written contract for the sale of timber by defendants to the plaintiff, and to recover the price of the timber paid to the defendants.

Winfield_ Judge; STATEMENT by ti-ie court. This is an action brought by Mrs. E. E. Tiffin, as administratrix of the estate of her son, James Roy Tiffin, deceased, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the killing of said decedent.

Campbell, Special Judge; Action by Merchants Grocery Company 'against Honea & Son to recovefjjUpon account for goods sold. An order of general attachment was sued out and levied on a. stock of goods in the possession of E. J. McCuin. McCuin interpleaded, and a trial, upon the interplea resulted in a verdict and judgment in favor of the plaintiff, and the intervener-appealed to this court.

The plaintiffs, B. T. Temlej'' and M. F. Work, are the owners of lot 27 in block 89 in the city of Hot Springs, on which is situated a two-story brick building, the center of the south wall of the building being on the line between lots 47 and 48. Tot 48 is owned by D. C. Rugg, who leased the same to defendant Ed Spear.

Winfield, Judge; 1. Witness Wassell was called upon in the capacity of a scrivener only. The relation of attorney, and client did not exist between him and Spears; but, if in any sense he was acting as an attorney, it was as attorney for both parties jointly, and in such case the rule as to privileged communications does not prevail. 1 Greenl. on Ev. (16 Ed.), § § 239, 245. 2.

A. Dozvns, Special Judge; It was efror to exclude testimony to prove'that defendant had gone to Wilton to obtain evidence to put deceased under a peace bond. It was competent as tending to prove defendant’s motive. 49 Iowa, 328. Past threats, hostile acts and circumstances tending to show malice on the part of deceased toward the defendant are admissible for the purpose of showing apprehensions of personal danger from the deceased. 17 Ga. 465; 11 Tex.

Conway, Judge; The law does not recognize fractions of days. The contracted liability of the company was to run one year from 12 o’clock noon, December 11, 1902, and the contract being silent as to the exact moment of time when it should cease, the whole of the day of December 11, 1903, must be counted. 1 Biddle on Ins. § § 591, 592 and foot-notes; May on Ins. (2 Ed.), § § 400, 401.

Duffle, Judge; It was error to admit testimony as to the value of timber cut, without showing that it was cut from the right of way. It was also error to admit testimony as to damage to the crops caused by fire, and the value of timber cut, both of which occurred after the suit was brought. 44 Ark. 362. Where personal property is destroyed by the taking of land for a railroad right of way, its value is a proper element of damage.

Grace, Judge; Weil, an attorney, sued Mrs. Fineran, to recover for professional services rendered her. His complaint contains two counts, substantially as follows: “1.

Smith, Judge; It was error to permit the introduction of the deed in evidence to establish the plea of payment. Under a plea of payment, evidence of accord and satisfaction is inadmissible. 1 Cyc. 342; 24 So. 994; 57 Pac. 757; 9 N. E. 736; 16 Ark. 651. In the absence of proof that defendant had a valid title, or that he or plaintiff was in possession of the land, the deed as offered was incompetent. Sedgwick, Trial. Tit. to Land, § 792; 48. N. E. 922.

H%Uton, Judge; STATEMENT BY THE COURT. This is an action of ejectment by W. F. Hardin against the. Cottonwood Lumber Company to recover land in Lee County. The plaintiff inherited the land from one W. F. Hardin, who held it by mesne conveyance from the Government. The defendant company and their grantors had claimed the land under color of title from 1870 to the time of action, and they had paid taxes continuously from 1870 to 1902, inclusive.

Robertson, Chancellor; Actual possession of a portion of the land in controversy was constructive possession of the whole tract described in the deed, and adverse possession thereof by appellants for two years gave title to the whole. 71 Ark. 122; lb. 393.

Evans, Judge; statement by ti-ie court. This is an action brought by John E. Jackson, as administrator of the estate of Sam Jackson, deceased, to recover damages for the alleged negligent killing of plaintiff’s intestate. Deceased was employed by the company as a laborer doing track and grade work, and while at his work was run .over by a train of empty cars pushed by an engine.

Shaver, Chancellor; Annie Meredith, one of the four daughters of Sam Reeder, who died intestate, sued her brother, W. S. Reeder, who was administrator of the estate of their father, alleging that at his death her father owned the following land, towit: “The southeast quarter of the northeast quarter; the north half of the northwest quarter; the southeast quarter of the northwest quarter; the north half of the southwest quarter; the southeast quarter of the southwest quarter,…

Hart, Chancellor STATRMRNT BY THR COURT. In 1905 the Legislature of this State passed an act to authorize the Special School District of Little Rock to borrow money to erect, complete and equip a new high school building. After-wards the board of directors of the district passed a resolution and undertook to issue 160 bonds of the district, of the denomination of $500 each, bearing intérest at 6 per cent, each as set forth in the bonds.

Grace, Judge; 1. The rings were delivered to defendant with the agreement and understanding that if she was pleased with them she should keep them, and account to plaintiff at the value fixed, and, if not pleased, would within a reasonable time return them to plaintiff. This was not a purchase by defendant under contract of “purchase or return.” Defendant was only a bailee of the goods, and was not liable for the loss, unless she was negligent. Beach on Mod.

52 Minn. 83; 38 Am. St. Rep. 526; 94 Am. Dec. 51. There was no payment. The money on deposit was under plaintiff’s dominion, subject to his order at all times until after it was appropriated, which was not done until after the fire. 2 Jones’ Daw (N. C.), 199; 40 Kan. 744; 85 Mo. 173; 12 N. Y. Sup. 433; 15 Johns. 224; 120 Pa. 441; 57 Ala. 20; 2 Watts & Serg. (Pa.), 70.

Winñeld, Judge; 1. It was error to admit evidence of a witness to show his knowledge of the rate of speed of street cars on the various streets of the city. 187 Ill. 612; 63 App. Div. (N. Y.), 423; 36 Ore. 315; 58 Ark. 455; 6 Wash. 75; 19 Am. & Eng. R. Cas. 79; 93 Ill. App. 411; 96 Ill. App. 10; 78 Hun, 13; 75 S. W. 86.

D. Fulkerson, Judge; 1. Instructions 3, 4, 5 and 6 were erroneous. Kirby’s Digest, § § 529, 530; 64 Ark. 244. 2. The court erred in orally instructing the jury that they must make concessions. 58 Ark. 282; 60 Ark. 49. 3. The court erred in orally instructing the jury over appellant’s objection. 71 Ark. 367.

<p>Sale — shipment—delivery of bill of lading. — Where, in an action to recover the purchase price of goods sold and delivered to a carrier to be transported to defendant, the defense was that only a part of the goods was delivered, it was error to instruct the jury that the plaintiffs could not recover unless they furnished defendants a bill of lading showing that the goods were delivered to the carrier, if the non-delivery of the bill of lading was hot pleaded as a defense.</p>

Hart, Chancellor; STATEMENT-BY THE COURT. In August, 1902, the Longview Lumber Company of Prescott, Arkansas, made a contract for the purchase of certain steel rails which were located on a branch railway at Harlow, in Calhoun County, and which the company desired to use at Prescott, Arkansas.

Chapline, Judge; statement by the court. This was an action for damages for the alleged negligent killing of one Hopkins, who at the time of the killing was in the employ of appellant as a section hand, and working under the directions of its section foreman.

Robertson, Chancellor; STATEMENT BY TI-IE COURT. This is a suit to enforce the specific performance of an oral agreement to convey an interest in real estate. Appellant alleges that in the year 1881 he entered into an agreement with appellee, whereby appellant undertook to clear 160 acres of land in north half of section 25, and put the same in cultivation.

Appeal, from Pope Circuit Court; William L. Moose, Judge; Coffin brought suit upon the official bond of Bruton, a notary public, alleging that Bruton, as such notary, affixed his seal and official signature to a document and affidavit purporting to have been executed before him by David Mayberry, Jr., late of Company G, Second Regiment Arkansas Infantry Volunteers.

Hughes, Judge; Alexander, Amberg & Company, a partnership, as parties of the first part, made a written contract with Smeltzly and Stametts, parties of the second part, whereby they sold to the latter all the mill timber on certain described lands.

Hutton, Judge; Where a contract has reference to another paper for its terms, the effect is the same as if the words of the paper referred to were inserted in the contract. 1 Beach on Mod. Law of Cont. § 9 Cyc. 582.

<p>Appeal from Yell Circuit Court, Danville District; Edzvard W. Winfield, Judge, on exchange;</p>

Moose, Judge; 1. Where a warranty is upon condition, or when some duty is devolved upon the purchaser by the terms of the warranty, such condition must be fulfilled upon his part before he can interpose the breach as a defense. 28 Am. & Eng. Enc. Law, 830; 75 Ark. 206; 76 Ark. 74; 71 Iowa, 101; 36 Nan. 439; 18 S. W. 789; 3 Wash. 603. The vendee must show that the conditions have been complied with. 14 Pa.

Chapline, Judge; It was not an interstate transaction. There was no arrangement for continuous shipment, no through bill of lading, and on arrival at Brinkley freight charges were paid, and the car delivered to appellant. 162 U. S. 184; 1 Int. St. Com. Rep. 30; 2 Ib. 142; 63 Iowa, 732; 26 S. W. 172; 81 Fed. 783; 77 Fed. 942; Judson on Interstate Com. § 114.

Virgil Bourland,Chancellor; Appellant, being a domestic corporation, is required to assess its personal property for taxation only in the county of its domicil. Kirby’s Digest, § § 6903-4-10-16-18-36 and 6937; Cooley on Taxation (3 Ed.), 398 and cases cited; 10 Mass. 504; 37 Mo. 266; 156 Pa. St. 488; 2 Ark. 291; 5 Ark. 204; 46 Ark. 312; 84 S. W. 715; 1 Cooley, Tax. 394; lb. 673; 1 Desty on Tax. 341; 21 Ohio St. 555.

Shaver, Chancellor; The welfare of the child is of paramount importance. The courts are not bound to deliver the custody of the child into the hands of any particular claimant, but will exercise a sound discretion, and leave the child in such custody as may appear best for it. Hurd on Hab. Corp. 528; Tyler on Infancy and Coverture, § 187 and cases cited; 37 Ark. 31; 50 Ark. 351; 32 Ark. 92.

Chapline, Judge; The judgment of the court below discloses error on its face. It was not necessary that the defendant he made a party to the action in which the decree of assessment was made.

Grace, Judge; The fourth clause of the contract precludes a recovery by the plaintiff. The contract was reasonable, and plaintiff is bound by its terms. Inasmuch as the contract provided that the agreement could be terminated at the pleasure of either, appellant committed no wrong in terminating appellee’s agency. A reasonable construction of the contract will not defeat the plaintiff of pay already earned at the time the agreement is terminated. 3 Ark. 222; Ib. 258.

Duffle, Judge; ■The Constitution and statute law confer unconditional right of appeal. Art. 7, sec. 42, Const. Ark.; Kirby’s Digest, § 4665. See also Kirby’s Digest, § § 1223, 1234, 1235 and 1236. An action for recovery of penalty for nonpayment of wages is a separate action, and may be maintained separately from an action to recover wages. 70 Ark. 226.

Wallace, Chancellor; STATEMENT BY THE COURT. J. E. McCall was the owner of a quarter section of land in Yell County, which he occupied as his homestead, and on January 20, 1888, he borrowed $300 from Mattie E. Freeman, and execu ed to her a note for that sum, payable two years after date with interest, and a mortgage on said land to secure the payment of said note.

Chapline, Judge; The court erred in directing a verdict for the defendant.. It was a question for the jury. 130 U. S. 652; 152 U. S. 107; 149 U. 5. 44; 2 Labatt, M. & S. 2377-80; 1 Ib. 814; 39 Ark. 491; 62 Ark. 69; 63 Ark. 94; 66 Ark. 363; 70 Ark. 230; 71 Ark. 305; Ib. 445.

Duffle, Judge; statement by the court. This was a suit for personal injury. Plaintiff charged that on December 4, 1903, while he was in a box car in the railway company’s yards at Hot Springs, Arkansas, unloading brick into his wagon, the employees of the railway company negligently and carelessly, with great force, caused another car to be driven against the car which he was in with such force as to injure him for life, and asked for damages in the sum of $5,000.

Steel, Judge; 1. The court erred in refusing to postpone the trial until the defendant was in physical condition to prepare for it. Where the defendant is too ill for trial, he is entitled to a continuance. Clark’s Crim. Proc. 412. Likewise if his counsel becomes ill and can not attend the trial. 26 S. W. 60. 2. The record does not disclose that the jurors selected and impaneled to try the case were sworn as required by law.

Conzvay, Judge; The estate intended to be conveyed must be determined by the intent of the parties to be ascertained by the contents of the deed. 53 Ark. 185; 28 Ark. 285. The whole deed should stand, as under that construction there might be an estate for the heirs of the grantee to take after her death if practical, and every part of it be made to take effect. 6 Ark. 109; 15 Ark. 286; 18 Ark. 65; 2 Devlin on Deeds, § 837.

Steel, Judge; STATEMENT by The court. Appellant sued the appellee for damages growing out of the alleged negligent killing by appellee of two mules, the property of appellant. The testimony on behalf of appellant by a witness to the accident was as follows: “From the point where I was sitting, the track looking in the direction of Mena was very nearly straight for as much as one and one-half miles or more. I noticed the train when it first came in sight.

Conway, Judge; The bond was not such as is required by the statute. Kirby’s Digest, § 6863. It was in the alternative, and the delivery of the mule was a complete satisfaction of the bond. Not being in the statutory form, it was error to render a summary judgment upon it. 54 Ark. 13; 56 Ark. 291. The judgment for costs against appellants was void. Kirby’s Digest, § 4424. See also 59 Ark. 483; 60 Ark. 369; 62 Ark. 439; 64 Ark. 108; 64 Ark. 556.

Elliott, Chancellor; The court erred in transferring the cause to the chancery court, thereby depriving appellant of a trial by jury upon the facts. Kirby’s Digest, § 5984; lb. § 5985. Suits involving purely questions of law should not be transferred to a court of equity. 71 Ark. 222; 46 Ark. 272; 71 Ark. 484; 56 Ark. 391; 56 Ark. 398; 52 Ark. 411; 40 Ark. 155; Const. Ark. art 2, § 7; 32 Ark. 553; 47 Ark. 205; n S. W. 953; 6 S. W. 362.

Smith, Judge; statement by the-court. This is an action brought by N. F. Frazier, appellant, against E. S. Poindexter, appellee, on account to recover money alleged to have been collected by the defendant upon certain promissory notes delivered to him by one J. W. Ferguson as agent of plaintiff.

Conway, Judge; The statute of limitation does not begin to run in favor of a policy holder of an insolvent mutual insurance company until notice of an assessment has been given. 135 U. S. 533; 105 U. S. 143; 122 Ill. 630; 4 Blackf. 77; 107 Pa. St. 352; 60 Md. 93; 81 Ga. 383; 80 Ala. 159; 87 Ala. 619; 62 Vt. 148; 13 Va. L. J. 91; 68 Cal. 353; 2 S. C. 51; 19 Nev. 171. 1. No complete transcript of the record of the Ohio case was offered in evidence in this case.

Fulkerson, Judge; 1. The injury resulted, not from any negligence on the part of the defendant, but from the contributory negligence of the plaintiff. 2. The 4th and 5th instructions, given at request of plaintiff, were erroneous. Where plaintiff’s own evidence shows negligence on'his part contributing to his injury, the burden is not on defendant to show it. 48 Ark. 130; 61 Ark. 556; 46 Ark. 193.

Lea, Judge; If the questions which petitioner declined to answer were illegal and improper, whether from impertinence, immateriality or other cause, the court exceeded its authority in adjudging him guilty of contempt for refusing to - answer them. Kirby’s Digest, § 720, subdiv. 5; 9 Cyc. 18; 71 Cal. 238; 131 Cal. 280; 38 Kan. 408; 28 Am. St. 451 and note; 3 Blatchf. 113; Ib., 148; 34 Tex. 666; 46 Neb. 402.

Dufñe, Judge; The court erred in permitting the State, in rebuttal, to introduce testimony to prove that the prosecuting witness had made, shortly after the assault, a statement consistent with his testimony on the witness stand, to the effect that he recognized appellant as one of his assailants. 63 Ark. 470; 62 Ark. 494; 66 Ark. 110; 72 Ark. 412; 16 Ark. 628; 56 Ark. 345; 42 L. R. A. 432; 49 C. J. L. 440; 51 S. W. 930; 70 S. W. 215; 85 S. W. 1179; 1 Ark.

H. Humphreys, Chancellor; statement by the court. Plaintiff, N. J. McBride, brought this suit in equity against the defendant, Mary Arnold, a married woman, alleging that defendant was the owner, as her separate estate, of certain land described, which was under mortgage, and that on October 11, 1897, she borrowed from said plaintiff $4,418.27, and executed to him therefor seven notes with interest, one falling due each year thereafter, the first five of said notes being for…

Rowe, Judge; statement by ti-ie court. The plaintiff, Andy Carr, sues to recover damages caused by being knocked down and injured by one of the street cars of the defendant, Fort Smith Light & Traction Company, operated along the streets of the city of Fort Smith. The injury occurred about eleven o’clock at night. The plaintiff boarded a crowded street car at a park where a public entertainment was in progress, for return to his home in the .city.

Hutton, Judge; STATEMENT BY THE COURT. On June 10, 1905, the body of a man was found floating in the St. Francis river, and taken out at Madison. It was temporarily buried in the sand. It was identified as that of Walter Gray, a young man who had a store on the bank of the St. Francis River, about ten or twelve miles above Madison. The body bore unmistakable evidence of violence.

Rice, Special Judge; 1. It was prejudicial to defendant to require him to testify to having, 18 months before the alleged offense for which .he was on trial, bought a sack of sugar from the same Reed, there being no evidence that it was stolen sugar. 2.

<p>Appeal from Lawrence Circuit Court, Western District; Frederick D. Fulkerson, Judge;</p>

<p>Appeal from Columbia Chancery Court; Bmon O. Mahoney, Chancellor;</p>

H. Humphreys, Chancellor; statement by the court. The Bonanza Mining & Smelter Company is a corporation of Virginia, authorized to do business in this State. Appellee sues it on two promissory notes for $6,000 each, dated March 23, 1901. One of the notes was payable on or before September 16, 1901, the other on or before March 16, 1902. The notes bore interest from March 16, 1901, at the rate of 8 per cent, per annum, and the interest was payable semi-annually.

Grace, Judge; 1. It was error to exclude testimony offered by defendant to prove that one Stone had called on the agent at four or five different times asking for plaintiff’s trunk before its arrival, at one time presenting the check therefor, and at another representing that she was his wife, and exhibiting a letter from her directing that the trunk be returned to Haileyville. 2.

Grace, Judge; statement by the court. The appellant on 21st day of May, 1900, sued out an attachment against one G. W. Hargrove in the Desha Circuit Court for $1,012.16, amount due appellant for certain cottonwood, ash, and oak timber which appellant had sold to Hargrove. The sheriff levied the attachment on 392 cottonwood logs, 336 ash logs, and 197 oak logs, lying in Cypress Creek.

Steel, Judge; 1. Appellant acted only as a broker, did not sell the feed-stuff himself, had no part in filling the order, had no interest in the company that filled the order, and is not liable. The commission company shipped the corn to appellee, direct, with bill of lading attached. The mere sending of an order did not constitute a contract. 2. The order sent to appellant was merely an offer to buy.

Rowe, Judge; 1. There was nothing in the evidence to justify a verdict for more than compensatory damages. 53 Ark. 7; 70 Ark. 136. Negligence, however gross, will not justify a verdict for exemplary damages unless the negligent party is guilty of willfulness, wantonness or conscious indifference to consequences from which malice may be infered. Cases supra; Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109. 2.

Elliott, Chancellor; STATEMENT BY THE COURT. The plaintiff, A. S. Caldwell, commenced an action at law against the defendants, J. P. Smith and H. W. Long, to recover the amount of a note, dated September 23, 1897, and payable October 1, 1898, for $324, given for rent of certain lands in Monroe County. The note recited the fact that it was given for rent of the lands described.

Winfield, Judge; 1. The second instruction given at plaintiff’s request was erroneous, in charging the jury that any manifestation by defendant of an intention not to perform the contract authorized plaintiff to repudiate it. Nothing short of complete renunciation will suffice. 9 Cyc. 636, II, A. & B. 2. The court erred in giving plaintiff’s third instruction and in refusing the second asked by defendant.

Shaver, Chancellor; STATEMENT BY THE COURT. Appellant was granted a divorce from appellee on September 25, 1903, on the ground of indignities which rendered his condition intolerable. In the complaint for divorce appellant alleged concerning property as follows: “That finally about two years ago * * * a separation was agreed between them, and plaintiff turned over to her about $5,000 of property,- $3,600 of which was cash.

Winfield, Judge; 1. It was error to refuse defendant’s request for a peremptory instruction. A traveler upon the highway is bound to exercise ordinary care and diligence at the intersection of a railway to ascertain whether a train is approaching, in order to avoid collision with it. If he fails to do what an ordinarily prudent person would do under the circumstances, he is guilty of negligence. 54 Ark. 431; 56 Ark. 457.

Hughes, Judge; While parol evidence is competent to show that a court made an order or rendered a judgment which by inadvertence was omitted from the record, such evidence is not admissible to contradict or change a record already made. 86 S. W. 822; 40 Ark. 224; 50 Ark. 338; 49 Ark. 397. Parol evidence of a judgment which was omitted from the record is sufficient to authorize a nunc pro tunc judgment. 40 Ark. 224; 86 S. W. 822.

Roive, Judge; 1. The record of the deed conveying right of way to the railway company was notice to appellee that it had acquired the right of way. Kirby’s Digest, § 762. Under the law the appellee could only recover the fair rental value of the land included in the right of way for the remaining period of his lease.

Bvcms, Judge; STATEMENT BY THE COURT. Appellee was in the employ of appellant as “cable man” in a crew that was engaged in construction work on appellant’s roadbed. The crew used a construction train, consisting of an engine, tender, and three cars, and on the day appellee was injured the crew was engaged in hauling dirt and unloading it. The train was on a side track, and was backing on to the main line at the rate of eight or ten miles an hour.

Hutton, Judge; statement by the court. In 1902 J. W. Steadman was employed by the Stecher Cooperage Company. He worked for the company at a machine called an edger. This machine had a large wheel, some four or five feet in diameter, made of cast iron with a rim of wrought iron or steel to make it more secure and hold it together somewhat as the tire of a wagon wheel binds the wheel and makes it stronger.

Grace, Judge; 1. The court shall hear and determine all demands presented for allowance, in a summary manner, without the forms of pleadings,… Held: in a subsequent action prosecuted by the administrator against the appellee upon the same account involved in this appeal, that the appellee herein did not owe the account, and the administrator having failed to appeal from that judgment, he has therefore lost the right to further prosecute this appeal, and the same should be…

Winfield, Judge; 1. The act calling in the outstanding bonds was passed after they had fallen due.- It was an act of limitation, and such securities were received subject to any reasonable changes the Legislature might make in this respect after the bonds were due. The right to a particular remedy is not a vested right, and the State has control over the remedies it offers suitors in its courts. Cooley’s Const. Lim. 361.

Meeks, Judge; 1. A commission merchant is only required to exercise ordinary and reasonable skill and diligence in his employment, and to obtain only the common market price in effecting sales, and is not liable for losses except through failure to use such diligence and skill. 12 Am. & Eng. Enc. Law, 658, and note 2; lb. 667 and note 3; 66 Am. Dec. 316; 18 111. App. 273; 61 Mo. App. 627. 2.

JJlliott, Judge; statement by the court. The Wellman Lumber Company brought this suit in equity to restrain the defendants, Joseph Hall and J. N. Albright, from cutting and removing the cypress timber owned by plaintiff from certain lands in Jefferson County. The lands were formerly owned by Abraham Rhea, J. S. Anderson and Leonidas Bills; and W. H. Langford is the owner thereof under mesne conveyances from those parties.

Mahoney, Chancellor; statement by the court. Appellant, Arkadelphia Dumber Company, sued appellee, John W. Mann, in replevin in the circuit court of Dallas County for possession of 10,000 oak staves, of the value of $200, alleged to have been cut by Mann from land belonging to W. Burres Head and others, who had sold the timber to the lumber company.

Robertson, Chancellor; The undisputed facts, Raggio’s age, his weakened physical and mental condition, defendant’s daily and constant intimate attendance upon and association with him, and her supervision over him and every detail of his business affairs, remove the prima facie presumption that the deed was his voluntary act, free from undue influence, and impose upon her the burden of establishing the legal integrity of the conveyance. 29 Am. & Eng. Enc.

Hutton, Judge; Mrs. J. L. Jacks sued W. D. Reeves for damages for personal injuries alleged to have been caused by the negligence of defendant in the construction and maintainance of a telephone line along a highway.

Court; Antonio B. Grace, Judge; R. R. Rice brought suit, under the usurpation statute (Kirby’s Digest, c. 155), against Henry D. Palmer to recover possession-of the office of circuit clerk of Lincoln County.

Hart, Chancellor; 1. The Constitution nowhere provides for a method of ascertaining the result of the vote upon an amendment. Hence the Legislature is without authority to pass an act prescribing the method of arriving at the result of the vote upon an amendment to the Constitution that would, within itself j be conclusive upon the courts in inquirng into the legal adoption of such amendment. Rice v. Palmer, ante p. 355; 48 L. R. A. 655. 2.

The probate court was without authority to order a sale of the land without first assigning the widow’s dower. 33 Ark. 294; 40 Ark. 17. 2. The probate court is without jurisdiction to order a sale of land to pay debts of the estate. Unless the sale was made to pay debts of the decedent, the sale was void for want of jurisdiction, and confirmation of the sale does not cure the defect. 84 S. W. 1044; 52 Ark. 320; 46 Ark. 373. 3.

Steel, Judge; STATEMENT BY TITU COURT. Appellee sued appellant on the following: “REWARD. “One thousand dollars reward will be paid upon the arrest and conviction of any person or persons found maliciously, without regard to the lives of employees or passengers, placing obstructions upon the track, changing switches, etc., for the purpose of causing derailments or wrecks. “Arkansas Southwestern Ry.

The burden was on appellee to show that the wages were due on the orders given, and were not paid. 14 Ark. 389; 40 Ark. 187. There was no contract requiring appellant to return the unpaid orders to appellee, and it was under no obligation to do so, unless they come within the provision of Kirby’s Digest, § 500.

Conway, Judge; 1. Sections 647 and 648 were repealed by the act approved March 14, 1881. Acts 1881, pp. 73, 74 and 75. The whole subject covered by the statute (act 1875) was covered by the act of 1881, and the latter was evidently intended as a substitute for the former.

Smith, Judge; Action in replevin by Brown Shoe Company against W. H. Baker, as sheriff of Lafayette County, to recover a lot of shoes, valued at $134, held by the defendant as sheriff as the property of one O. W. Todd under orders of general attachment sued out by creditors of Todd. The plaintiff recovered judgment below, and the defendant appealed. 1. The evidence was not legally sufficient to sustain the verdict.

Conway, Judge; 1. This case is distinguishable from 53 Ark. 347 and 70 Ark. 290, relied on by plaintiff, in that in each of those cases the plaintiff was injured in the course of his duties, while at the work he was. employed to do, at a time when he was upon tracks over which the railway company^ operated trains under contract with the owner, while in this case the employees of one company used at their own request a handcar upon tracks of a railway company, a stranger, for…

JJdrt, Chancellor; STATEMENT BY THE COURT. This was an action in equity by W. K. Shaw against the German National Bank and G. M. Block, trustee in bankruptcy of the George Taylor Commission Company, to enforce an equitable claim of plaintiff to proceeds of certain cotton held by the bank. The chancellor found in favor of plaintiff, and gave judgment accordingly. Block, the trustee in bankruptcy, appealed. The other facts sufficiently appear in. the opinion.

Winfield, Judge; 1. The statutory liability of the president of a corporation is a secondary liability, in the nature of a suretyship. In this case the president being a married woman, and the liability incurred not being for the benefit of her separate estate, she can' not be held liable. 37 Mich. 185; 39 Mich. 671. 2. A married woman is not bound by a judgment against her where her coverture does not appear in the proceeding. 58 Ark. 484. 3.

Evans, Judge; t: Under the proof in this case, the physical facts and surroundings of the plaintiff contradict and annul his claim. He was guilty of negligence which contributed to his injury. 4 Elliott on Railroads, § 1703; 38 S. W. 311; 63 S. W. 362; 30 Am. & Eng. Rd. Cas. (N. S.), 94; 23 Ib. 373; 67 N. W. 1120; 75 N. W. 169; 65 N. W. 852; 77 N. W. 179; Ib. 729; 74 N. W. 360; 70 N. W. 687; 78 N. W. 585; Ib. 1084; 80 N. W. 644; 82 N. W. 295.

Hawkins, Chancellor; 1. Since there had been no forfeiture declared of appellant’s contract up to the time of the assignment, nor any demand upon him for a surrender of the contract, and since appellee received the deed under the contract upon paying the amount due, he would not be permitted to plead a forfeiture made before the execution of the deed, even if it had been made. Equity does not favor forfeitures. 56 Ark. 107; 59 Ark. 405. 2.

Shaver, Judge; 1. Since the administration is still pending, with both real and personal property in the hands of the administratrix unadministered, appellee’s remedy is at law against the administratrix. The administrator is not by law compelled to plead the statute of nonclaim or statute of limitations. 14 Ark. 246; 22 Ark. 290; 14 Ark. 309; 27 Ark. 252; Kirby’s Digest, § § 56, 59. 2.

Smith, Judge; 1. After the evidence was closed and the witnesses discharged, it' was an abuse of discretion on the part of the court to permit defendant to amend its answer so as to defend on the ground that “plaintiffs failed to give written notice of their claim ,for damages to it within 36 hours after notice of the arrival of the goods;” and, having permitted the amendment, it was further error to deny plaintiff a continuance in order to prepare to meet this issue. 2.

Steel, Judge; statement by the court. This is an action brought by T. W. Clark in the circuit court of Polk County against the defendant, Leidigh & Havens Lumber Company, a foreign corporation, to recover the sum of $1,849.59 alleged to be due plaintiff for services rendered as agent of defendant.

T. Wood, Judge; 1. There was no actionable wrong, even for nominal damages. “All messages * * * shall be transmitted in the order of their delivery.” Sand. & H. Digest, § 7331. A telegraph company has the right to establish reasonable office hours for its offices. Crosswell on Elec. § § 421, 422; 103 Ind. 505; 107 Ky. 600; lb. 829; ■lb. 469; 22 R. I. 344; 62 S. W. 136; 31 S. W. 211; 66 S. W. 17; lb. 592; 43 S. W. 1053.

Winfield, Judge; STATEMENT BY THE COURT. The complaint was in four paragraphs.

Conway, Judge; The question asked by the grand jury and the answers thereto were immaterial to the matter under investigation. The verdict should have been set aside because of its form, and because .a member of the grand jury was taken and served as a member of the petit jury. Appellant can not complain of the bias of the trial juror, after having neglected to challenge him when he had the opportunity. 59 Ark. 136; 40 Ark. 515.

Wood, Judge; STATEMENT by The court. In November, 1902, T. M..Dodson & Son brought an action in the Ashley Circuit Court against Joseph Meehan to recover a balance due on account held by them against him amounting to $3,121.63, which they alleged was past due and unpaid.

Smith, Judge; 1. Foster was in possession under a lease, and not as a purchaser, and the first three instructions should not have been given. The first two because all the evidence shows Foster a tenant. The contract is a lease in form; there is no ambiguity in it, and parol evidence was not admissible to show a purchase. 40 Ark. 237; 3 L. R. A. 308; 5 Id. 672; 15 Id. 543; 29 Id. 5441 45 Id. 177.

The act is unconstitutional, in that it provides for the taking of property without just compensation or due process of law. Under the act of Congress of September 28, 1850, the State took the lands as trustee for the reclamation of the lands by the construction of levees and drains. The object of the act was not that these lands should be used as a means of revenue to the State. 2.

Mitchell, Judge; 1. It is in proof that the contract sued on is the identical contract executed by the appellee. It was therefore error to admit testimony to vary or contradict its terms. 1 Greenleaf on Ev. § § 86, 87, 88; 24 Ark. 210; 50 Ark. 20; Ib. 393; 66 Ark. 393; 64 Ark. 650; 67 Ark. 62. See also 39 S. W. 328; 28 Tex. 553; 29 Tex. 395; 54 Tex. 294.

Conway, Judge; 1. The verdict is contrary to the evidence, and not justified by the facts. Over 13 per cent, of the length of the dump is shown by undisputed evidence to be devoted to bridges, trestles and openings for the passage of water. There is no testimony that the openings were not amply sufficient to pass off the water that annually and usually fell, nor that the embankment held water up to the injury of the upper lands.

Moose, Judge; 1. There were ten of the notes, each for an amount within the jurisdiction of the justice of the peace. They were separate causes of action. The amount of each separate claim or contract which one person holds against another, and not the aggregate amount, determines the jurisdiction. 1 Ark. 252; lb. 275; 3 Ark. 494 1 5 Ark. 34; 9 Ark. 463; 35 Ark. 287; 17 Ark. 385; 18 Ark. 249; 24 Ark. 177; 34 Ark. 188; 57 Ark. 531. 1.

<p>Appeal — prayer—amendment.—Where two defendants sought to appeal from a joint judgment against them, but their attorney inadvertently signed the name of only one of them, and the clerk treated the prayer as if on behalf of both and issued summons accordingly, the appeal will not be dismissed as to the defendant whose name was not signed, but the record will be amended to show that both defendants appealed.</p>

James H. Breckinridge brought suit for divorce against his wife, Mary Breckinridge, alleging cruelty as ground. He recovered a decree, and was awarded custody of their two infant children. Mrs. Breckinridge has appealed. 1. After the expiration of the term, a judgment can be set aside only in the way and for the reasons specified by the statute, Kirby’s Digest, § 4431, or by bill of review. 33 Ark. 434; 52 Ark. 316; 53 Ark. no. 2.