Volume 79 — Arkansas Reports

Francis Chancery Court; Edward D. Robertson, Chancellor; 1. The sale under the trust deed was void for two reasons: (a) The beneficiaries, unless there was a provision in the deed to that effect, could not purchase at a sale for their benefit. 32 Ill. 13; 8 Fed. Cases, 443; 4 Minn. 32; 58 Mo. 537; 107 N. C. 552; 9 R. I. 225; 23 Ark. 622; 52 Ill. 130; 49 Mo. 389; 76 N.. C. 99; 126 N. C.’ 525; 80 Miss. 31. There is no distinction between a mortgagee and the beneficiary in law.

Hart, Chancellor; statement by the court. Terrence O’Dougherty and Plarry Mesler are the owners of land on west side of block 353, in the city of Little Rock, while Adam C. Penzel owns land in block 354 west of the land owned by O’Dougherty and Mesler. Between the land of O’Dougherty and Mésler and the land of Penzel is a strip of land fifteen feet wide which they, since 1888 or 1889, have used as public alley separating the .two blocks.

Hutton, Judge; 1. The court erred in the instructions to the jury as to the duty of the appellant to equip its locomotives with appliances to prevent injury to property upon its right of way. It is chargeable with the duty to exercise only reasonable care in the selection of these appliances. 76 Ark. 132; 14 Fed. 140; 83 Fed. 300; 15 Conn. 124; 73 Pa. St. 121; 44 Ill. 28; 31 Ind. 143; 18 Kan. 261; 41 Wis. 78; 36 N. J. L. 553; 31 la. 176; 77 Ark. 434. 2.

Francis Circuit Court; Hance N. Hutton, Judge; The president of the board of directors is limited strictly to the terms of the act. The exercise by him of any powers not expressly conferred by the act is ultra vires and void. 67 Ark. 413. Since the act only authorizes him, upon presentation of the treasurer’s receipt for the money, to execute a deed, he is not authorized to go further and incorporate a warranty of title.

Robertson, Chancellor; statement by the court. Appellant sues for an undivided one-half interest in a tract of swamp or wild land.

Rowe, Judge. J. H. Vaughn, as next friend to Joseph J. Fitzpatrick, sued the Archer-Foster Construction Company to recover damages for personal injuries alleged to have been received in its employment, and recovered judgment, from which defendant appealed. If any negligence is shown, it was that of a fellow-servant.

Conway, Judge; STATEMENT BY THE COURT. • Appellant, a negro, and the Gleghorn brothers, John and Count, white men, lived near each other in Nevada County. On the 28th of March, 1905, John and Count Gleghorn were clearing new ground. They had assisting them a negro named Will Preston. On the morning of the above day, a neighbor saw appellant leaving his home running. He looked like he was scared, had a slicker on his arm and a pistol in his right hip pocket.

Wood, Judge; statement by ti-ie court. Mr. A. E. Hogue, of Lake Village, Arkansas, and Miss Bama Glosup were engaged to be married, and Sunday August 7, 1904, was the day on which the marriage was to take place. A week or two previous to that date he was taken sick with fever.

Winfield, Judge; 1. This is not a case of forfeiture of a policy. The insurance by the express terms of the contract ceased upon the nonpayment of .the premium. The payment of the premium was a condition precedent to the continuation of the risk. 85 Ky. 677; 77 Iowa, 233; 6 Ind. 502; 43 S. E. 433; 41 S. E. 227; 4 Ill. App. 145; 212 Ill. 382; 109 Mo. App. 137; 101 Ill. App. 318; 212 Ill. 382; 70 N. E. 1122; Deitch’s Ins. Dig. 1903, p. 310; 67 Ark. 147; 109 Mo. App. 137. 2.

Elliott, Chancellor; STATEMENT BY THE COURT. The General Assembly of 1905 enacted a statute establishing the Plum Bayou Levee District, embracing certain lands in Pulaski, Lonoke and Jefferson counties, for the purpose of _ constructing and maintaining a levee along the bank of the Arkansas River in said district.

Appeal.from Pulaski Chancery Court; Jesse C. Hart, Chancellor; STATEMENT BY THE COURT. This is a suit in equity to dissolve' a domestic corporation, the El Dorado Compress Company, having its principal place of business at the city of Little Rock in Pulaski County, and to dispose of its assets and distribute the proceeds among its creditors and shareholders.

Evans, Judge; 1. Under the rules established by this court, the evidence is insufficient to prove negligence on the part of appellant. 44 Ark. 529; 46 Ark. 567; 51 Ark. 467; 54 Ark.' 395; 74 Ark. 19; 67 Ark. 295. Appellee assumed the risk. One who, knowing and appreciating the danger, enters upon a perilous work, even though he does so by order of his superior, must bear the risk.

Chapline, Judge; 1. The question as to the amount sued for was controlled by the allegations of the complaint. A judgment by default for $3,000 would have been upheld, if no objection other than the amount were urged against it. If such judgment would have been sustained, the cause was removable, and, petition and bond having been filed, the amendment did not divest the Federal court of jurisdiction. 40 Ark. 170; 60 Ark. 388. 2.

Appeals from Sebastian Circuit Court, Fort Smith District; Styles T. Rowe, Judge. The first case is reversed; the second, Mrs. McBride’s right of action is based upon the statute, sections 6289, 6290, Kirby’s Digest. It is intended to award compensation to the widow and next of kin who suffer damages by reason of the death of the injured party. This action is for such compensation, and not for the benefit of the estate.

Fulkerson, Judge; The rule of caveat emptor applies, in the absence of fraud, where the purchaser inspects the goods, or where he demands and is afforded an opportunity to inspect and fails to do so. Benj. on Sales, § 851; 4 Camp. 144; 56 Am. Rep. 570. Having examined the peas, and expressed himself as satisfied, and accepted them, it became a completed contract, and plaintiff took the goods, regardless of defects. 21 Iowa, 508; 18 Am. Dec. 323; 122 Pa.

’Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor; 1. The deposit in bank was a completed gift, inter vivos, of the entire deposit. Having been deposited in the sole name of Mrs. Wilson, she being always thereafter, in the mode of drawing checks, recognized as being the sole depositor, Payne acting as her agent, the money was absolutely hers.

'Appeal from Crawford Circuit Court;- Jeptha H. Evans, Judge; 1. The evidence does not support the verdict. There is no proof that partially undermining one of the mudsills would materially affect the strength of the bridge, or that the undermining of the mudsill caused the train to be wrecked.

Grace, Judge; The repairs required are limited to the repairs distinctly, specified in the contract. In this case the objects specified were, in the case of houses, to accommodate the labor necessary to successfully cultivate the place, and, in the case of fences, to amply protect the crops to be grown upon the place. 18 Am. & Eng. Enc. Law (2 Ed.), 252.

Winfield, Judge; STATLMEÍNT BY THL COURT. The pleadings and so much of the evidence as has been abstracted shows that this is the same case as Little Rock Ry. & Electric Co. v. Dobbins, decided a few days ago, and this appeal is in fact but a cross-appeal from the rulings of the trial court against Dobbins (appellant here) in that case. There was a full abstract of the evidence in that case.

Hart, Chancellor; Mrs. Ida E. Martin was the owner of a piano which the Houck Music Company undertook to repair for the sum of $135, The work on the piano was finished in September, 1901, and Mrs, Martin was notified. Mrs. Martin desired to make the payment in monthly installments, and she offered to pay $25 in cash and the remainder in monthly installments. The company declined' to accept this, and insisted that the amount charged should be paid in cash.

Elliott, Chancellor; Where the purchaser of lands under a parol agreement has been put in possession, under a part performance of contract, it need not be in writing. Receipt of purchase money in part performance takes the case out of the statute of frauds. 19 Ark. 23; lb. 48; Tiedeman on Eq. Jur. § 296, and authorities cited; lb. § 309.

Robertson, Chancellor; 1. Unless upon inspection the decree vesting title discloses on its-face want of jurisdiction, it is not subject to collateral attack. 27 Gratt. (Va.), 624, 629; Mitford on PI. 240. 2.

Hart, Chancellor; statement by the court. The plaintiff, Dixie Cotton Oil Company, was a Tennessee corporation engaged in the cotton seed oil business, as its name implies, and operated a mill near Little Rock, of which defendant Conley was manager during the period covering the transaction out of which this litigation grew.

Grace, Judge; 1. The court erred in excluding testimony of members of the grand jury to show that the finding of the indictment was concurred in by only eleven of their number. Notwithstanding the former decision, appellant again presses this question, and urges that since it is a question purely of practice and of criminal procedure, the court is not bound by the rule of stare decisis. 10 Ark. 289.

Conway, Judge; 1. Whether a verdict be so excessively large or excessively small as to shock one’s sense of justice, it ought to be set aside. 10 Ark. 491; 2 Ark. 360; 5 Ark. 407; 6 Ark. 86; 10 Ark. 638; 39 Ark. 491; 9. Ark. 394. 2. The court erred in its first instruction given at request of appellee as to the measure of damages. 54 Ark. 140.

Moose, Judge; STATEMENT OE EACTS. In September, 1905, Jesse Sullins killed Sam Ratcliff in Pope County, Arkansas, by stabbing him with a knife. Sullins was indicted for murder in the first degree.

159 U. S. 603. The question whether or not the deceased was guilty of contributory negligence was one for the jury to determine. 21 N. W. 212; 37 N. W. 149; 107 Pa. St. 8; 33 N. W. 161; 18 L. R. A. 60; 9 L. R. A. 521; 73 Me. 591; 21 N. Y. Supp. 159; 20 S. W. 490; 101 N. Y. 419, 426; 88 Am. Dec. 353; 14 Abb’s Prac. N. S. 29; 40 N. Y. 11; 89 Hun, 596; 23 N. Y. Supp. 193; 140 N. Y. 639; 147 Mass. 495; 116 Mass. 540; 4 Am.

Conway, Judge; The proceedings in this case were under Kirby’s Digest, § 5137. The motion for change of venue was properly denied, as there is no law authorizing same before a mayor. 73 Ark. 163; 36 Id. 305. Betts had no power as mayor to grant a change of venue; it was his duty to hear and determine the matter. His judgment is conclusive, and the only remedy is by appeal. 2.

The notes were executed, indorsed and payable in Indiana. The contractual rights of the parties are governed by the laws of Indiana. Rorer on Interstate Law (2 Ed.), p. 85; 14 Ark. 189; 125 Ind. 375; 25 N. E. 452; 13 Pet. 65. Our courts take judicial notice of the lawá of Indiana. .Kirby’s Digest, § 7823. There being no statute governing the question in Indiana, the general law merchant applies. 118 Ind. 586; 21 N. E. 316; 61 Ark. 81; 32 S. W. 65. 2.

It was error to permit the witness to testify to the value of the lands without first qualifying by showing his knowledge of market values. 51 Ark. 329; Lewis on Em. Dom. § 436. And to permit testimony as to the difference in profit from renting- land and hiring the same cultivated. 1 Greenleaf, Fv. (16 Fd.), § § 430 I, 441 B; 59 Ark. 105.

Conway, ■ Judge; 1. Appellees warranted that the stock was “new stock,” of the cash value of $1,600. The evidence shows it was an old bankrupt stock, worth not more than $400. Goods are to be estimated at their market value without reference to their cost, the fair cash value in the market. 2 May on Ins. § 424, and cases cited; 11 L. C. 170; 74 N. C. 89; 71 N. C. 121. Parties are bound by their contract and their warranties. 72 Ark. 484, 490; 2 May on Ins. § 374; 66 N. C. 70.

Kirby’s Digest, § § 3654, 3664. The effect of the allegations in third and fourth paragraphs is to set up an equitable interest in the land in defendant. Such arrangement could not be binding without being in writing or evidenced by some memorandum in writing signed by deceased or his agent. Payment of purchase money is not such part performance as to take the case out of the statute, i Ark. 391; 18 Ark. 466; 21 Ark. 533.

Rowe, Judge; STATEMENT BY THE . COURT. This is an appeal from the judgment of the circuit court allowing the claims of appellees for services alleged to have been rendered by them as commissioners of accounts for the Greenwood District of Sebastian County. The claims were presented to the county court, and -by it disallowed, and, on appeal by appellees to the circuit court, the claims were allowed, and appellant prosecutes this appeal.

Fulkerson, Judge; statement by ti-ie court. This action was begun before a justice of the peace by the appellee filing the following complaint, omitting caption: “The plaintiff, Susan Montgomery, states that she is the owner of the following property, towit:” Here the complaint describes certain real estate, and continues: “Upon the above described property several buildings were located; that the plaintiff leased said buildings and grounds to the defendants, a copy of said…

Smith, Judge. Suit by Stainback, Crawford & Company against Graves, Henderson and Cargile. Judgment was for defendants, and plaintiffs appealed. STATEMENT by ti-ie court. This action was instituted by appellants to recover of one W. T. Graves the sum of $178 and interest at six per cent, from November 1, 1901. The complaint alleged that appellants furnished Graves certain glass for a store front in the town of Junction City.

The complaint alleged that “Elijah Horner was on June 24, 1904, employed to work on defendant’s plow car; that said plow and machinery thereon was operated by the use of air; that said machinery was in a defective condition, as the defendant well knew, or could have known by the exercise of reasonable diligence; that the said defendant negligently and carelessly permitted said machinery to be in the defective condition, and to be handled by unskilled and untutored workmen,…

Tillman, Judge; statement by the court. J. G. McAndrew, as administrator of the estate of Seth Hollingsworth, filed his petition in the probate court of Benton County, asking for an order to sell a certain lot in the town of Siloam Springs, Benton County, Arkansas. The appellant Deborah Hollingsworth, who was the widow, and appellant Minnie Strange, who was the daughter, of Seth Hollingsworth, were made parties to the petition in the probate court.

Robertson, Chancellor; statement by the court. The complaint in this case was filed by appellants to review and vacate a decree of the Mississippi Chancery Court, rendered at the March term, 1900, against them, divesting their interest 'in all of section 14, T. 10 S., R. 8 west, except 2.57 acres, and ■ quieting the title of appellees thereto. Appellants, except Nannie C. Jones, the widow, were children and heirs at law of B. F. Jones.

Dufñe, Judge; The appeal was granted within the time allowed by law, and upon an authenticated copy of the record. This gave this court jurisdiction. Kirby’s Digest, § 1196. 73 Ark. 608 is not in point. This court, having jurisdiction, has power to grant a new trial, in order to prevent appellant from losing the benefit of an appeal which he had as a matter of right. The fire was an unavoidable accident with which appellant had no connection.

Evans, Judge; STATEMENT BY THE COURT. Tn 1901 J. T. Sneed and R. H. Sneed were engaged in a mercantile business in Booneville, Arkansas, under the firm name of Sneed Brothers. In that year R. H. Sneed sold his interest in the firm to his sister, Mrs. Hamilton, but the business was carried on in the name of the old firm.

Robertson, Chancellor; 1. A judgment rendered in an adversary suit without notice is void. 49 Ark. 397; Freeman on Judgments, 4 Ed. § 117; 58 Ark. 181; 71 Ark. 565. 2. Appellant is not estopped by the decree rendered at the October term, 1902. The burden is upon the appellees to show to the satisfaction of the court an estoppel by virtue of this decree. 55 Ark. 286. The complaint in that suit was an effort to remove a cloud from title.

Conzvay, Judge; The complaint is sufficient in law, and the court erred in sustaining the demurrer. Kirby’s Digest, § 1667; lb. § 7589; H>! § 2773; lb. § 2772. 1. The statute upon which this action is based (Kirby’s Digest, § 1667) was repealed by the .later election law which covers the entire ground of the subject-matter of the former statute. Kirby’s Digest, c. 57; 70 Ark. 25', and cases cited.

Hart, Chancellor; 1. The Nebraska judgment stands unappealed from and unreversed. Under the “full faith and credit” clause of the Federal Constitution, and the repeated decisions of this court, that judgment should have been recognized by the lower court. 52 Ark. 160; 35 Ark. 331; 30 Ark. 469; 47 Ark. 17; 13 Ark. 33. Neither the question of fraud nor want of jurisdiction in the court rendering the judgment is raised by the pleadings or evidence.

Wood, Judge; statement by ti-ie court. The White Sewing Machine Company, of Cleveland, Ohio, brought this action against T. J. Shaddock and the other defendants who were sureties on a bond executed by him to the plaintiff, to recover the aggregate amount of two promissory notes executed by Shaddock for the purchase price of sewing machines purchased by him of plaintiff.

Wood, Judge; STATEMENT BY THE COURT. The plaintiff, Samuel E. Cain, brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages sustained on account of being run over by cars on defendant’s road at Eudora, Arkansas. The circumstances attending the injury were, substantially, as follows: The railroad at Eudora runs north and south, and there are four tracks at the point where the injury occurred.

Appéal from Jefferson Chancery Court; John M. Elliott, Chancellor; 1. If the levee board has power to issue the evidences of indebtedness, it must be derived from the special act. The general act forbids the issuance of the kind of bonds or evidences of indebtedness in question. Kirby’s Digest, § § 4962, 4963.

Rowe, Judge; STATUMUNT BY TI-IU COURT. The General Assembly of 1905 passed an act providing in substance: That the treasurer and collector of Scott County deposit all county funds in their possession in the bank in Scott County which will pay the highest rate of interest on daily balances of the same; provided that the bank receiving said funds make a good and sufficient bond equal to one and one-fourth times the amount in cash that is held at any time during any year, to be…

It was his duty to look and listen, and to continue looking and listening until all danger was passed. 69 Ark. 134; 119 Fed. 157; 86 S. W. 283. If it be conceded that there was negligence on the part of appellant, still this did not excuse appellee from the duty to exercise care as a reasonable and prudent person for his own safety. 105 N. W. 557; 95 U. S. 697; 16 Atl. 624; 20 S. W. 162.

Chapline, Judge; The uncontradicted evidence clearly exonerates the company from liability. A jury can not arbitrarily disregard the evidence of witnesses, unless their testimony is in some way contradicted. 67 Ark. 514; 66 Ark. 439; 53 Ark. 96; 62 Ark. 182; 43 Ark. 225. Appellee’s proof made out a prima facie case of negligence on the part of appellant. The contradictory evidence of appellant’s witnesses was not sufficient in the minds of the jury to overcome it.

Winfield, Judge; j. As to the railway company, the suit was ex contraclu. The amount involved was less than $100. The circuit court was without jurisdiction as to it. Sec. 40, art. 7, Const. This court will consider the question of jurisdiction, though not raised below. 45 Ark. 346; 45 Ark. 450; 48 Ark. 301. The court erred in permitting it to be brought in by amendment. 44 Ark. 375. 2. The evidence is not sufficient to sustain the verdict.

Rowe, Judge; The record presents a case where an attempt was made between attorneys to settle. A misunderstanding arose as to the terms of settlement, and the compromise ended. An attorney has no right to compromise a suit without the express authority of the client, and none is shown in this case.

Hart, Chancellor; STATEMENT BY THE COURT. Appellant and appellee were co-sureties on notes executed by the Gravity Boiler Feeder Company, a corporation, to the Bank of Commerce. The notes were respectively for $300 and $500. Appellant paid the notes, and this suit was brought by him against appellee as co-surety for half the amount paid; appellant alleging in his complaint that the maker and the two other indorsers were insolvent.

Error from Hempstead Circuit Court; Joel D. Conway, Judge; statement by the court. Appellee presented to the county court of Hempstead County an account as follows: “Hempstead County to J. W. Phillips, Dr. “For expenses incurred in opening and repairing the vault door of the County Treasurer’s safe.” Then follows an itemized statement of what was done and the charge for each item, amounting in the aggregate to $261. The account was duly verified.

Conway, Judge; STATEMENT BY THE COURT. This is a súit on a policy of fire insurance. The property insured was a stock of general merchandise valued at $800, furniture and fixtures including iron safe for the store and office, valued at $50, and store building, valued at $150.

Duffle, Judge; Whether or not one wrongfully abandons a contract is a question of law, and not of fact. 58 Ark. 617. The contract was verbal, and its conditions and terms were disputed. It was a question of fact for the jury.

Mitchell, Judge; statement by the court. In 1890 John G. Gray and N. T. Bennett were the owners of a mining claim of 20 acres in Marion County, Arkansas, known a.« the “Blue John Lode Claim.” Afterwards, in December, 1891, John G. Gray, William Kaler, E. V. M. Powell, J. C. Berry, C. W. Hequenberg, J. H. Bethune, C. B. Adams and W. A. Dripps located a mining claim known as the “Blue John Placer Claim.” This placer claim contained 160 acres.

Appeals from Clark Chancery and Circuit Coúrts; James D. Shaver, Chancellor, and Joel D. Conway, Judge; 1. A special judge can not be lawfully elected or appointed, except in the manner provided by the Constitution. 72 Ark. 320; art. 7, § § 11 to 18, and 21. Under the facts in this case, there was no court within the rule stated in 2 Ark. 229.

Virgil Bourland, Chancellor; A decree for divorce can be set aside to the extent only of permitting a defendant constructively summoned to appear and defend as for alimony. Kirby’s Digest, § 6259. Before a judgment or decree will be vacated, the defendant must allege and prove that he has a valid defense to the action. Kirby’s Digest, § 4434; 54 Ark. 539; 73 Ark. 281.

Hutton, Judge; statement by the court. The defendant, Govan Beard, was arrested upon the charge of having committed the crime of rape, and was indicted, tried and convicted at a special term of the circuit court called by the judge of the circuit for the purpose of trying the case, and was sentenced to be hanged. No objection was made below to any step in the proceedings, no demurrer to the indictment, motion for new trial nor motion in arrest of the judgment was filed.

<p>1. Insurance — estoppel by act oe agent. — An insurance company may be estopped by the conduct of its agent, acting within the apparent scope of his authority, from availing itself of a false answer to a material question or of any other breach of warranty or violation of the provisions of the application or policy, notwithstanding clauses in the application or policy provide that it shall not be bound by any such conduct of its agent. (Page 322.)</p> <p>2. Same — parol evidence oe waiver. — Parol evidence is admissible to show that an insurance agent, in writing the application for a policy, waived a forfeiture on account of a false answer to a material question or a violation of provisions of the application or policy, in the face of clauses in the application or policy to the effect that no waiver shall be effective unless indorsed in writing on the policy at the office of the company. (Page 322.)</p>

Rowe, Judge; 1. Larceny is not proved. 37 Ark. 274; 41 Id. 173. No proof of value. 33 Ark. 567. 2. Verdict contrary to the evidence. 56 Ark. 217; 57 Id. 467; Id. 402. 3. A felonious intent is an essential of larceny. . The law presumes in favor of innocence and the burden of proving guilt is on the State. 32 Ark. 232; 68 Id. 529. The intent must be specific with an intent to steal. 34 Ark. 341, hot. p. 344. The evidence sustains the verdict.

Fulkerson, Judge; 1. The proximate cause of the injury to deceased was her own carelessness, in violation of the company’s printed warning at the time posted in the coach. Railroads have the general power to make, and to require passengers to conform to, reasonable rules and regulations for the government'of their business. 4 Elliott, Railroads, 1576; 45 Ark. 263; 47 Ark. 79; 49 Ark. 357. Passengers must take notice of and obey these general rules.

Fulkerson, Judg'e; STATEMENT BY THE COURT. I. Less was the vice-president and general manager of the Walnut Ridge Mercantile Company, a corporation doing business ip Walnut Ridge, Arkansas. In 1903, acting for the Mercantile Company, he made a contract for the sale of a certain quantity of middling cotton to R. Cohn, of Memphis, Tenn., at 9cents per pound. The Mercantile Company afterwards delivered to Cohn 34 bales of cotton, but refused to deliver more.

Chapline, Judge; statement by the court. The grand jury of Monroe County returned an indictment against appellant, Wes Thrash, containing two colints, one charging the crime of grand larceny by stealing a hog, and the other the crime of -receiving stolen property. He was tried and convicted. The jury returned a general verdict, without specifying the count upon which the verdict rested, and fixed the punishment at a term of one year in the penitentiary.

Steel, Judge; x. It is admitted that it was not necessary to allege nor prove an intent to violate the law . in this case, but it was admissible for the defendant to prove that it had been imposed upon by the shipper, and that it was ignorant of the fact that it was receiving game for shipment. Proof of justification or excuse must come from the defendant. 48 Ark. 27. See also 1 Bishop’s Crim. Eaw, § 303. 2.

Moose, Judge; Garner Brothers sued the St. Louis, Iron Mountain & Southern Railway Company, alleging that on the 23 d of December, 1901, they delivered to the defendant on the cotton platform at the station of Knoxville on the L. R. & Ft.

Wood, Judge; C. B. Atwood died in Cleveland County, Arkansas, about the 3d day of May, 1904, leaving personal property amounting in value to the sum of $10,292.10 and certain real property. On the 1st day of May, 1904,' he made the following will: In the name of God, Amen. I, Curtis B. Atwood, of Smith township, Cleveland County, Arkansas, being in ill health, but of sound mind and memory, do make and publish this my last will and testament. “1.

Hawkins, Chancellor; The action is barred by the statute. Kirby’s Digest, § 5061; 53 Ark. 418; 71 Ark. 117; 59 Ark. 460; 60 Ark. 499; lb. 163; 67 Ark. 411; 71 Ark. 390; 30 Ark. 44; 32 Ark. 131. 1. The question is, were the taxes charged against this land for the year 1887 paid before the sale on June 11, 1888? The tax book shows that they were paid June 9, 1888, and the number of the receipt record page, where the receipt is recorded, is 680.

H. Humphreys, Chancellor; While, in view of the act, § § 2103-4-5, Rev. Stat.

Wood, Judge; Law was estopped to rely upon the defense of nonperformance of the contract. 5 Ark. 595; 21 Ark. 145. One who claims under an assignment can not attack it. 30 Ark. 453; 52 Ark. 389. Nor can one assume inconsistent positions respecting the same transactions. 36 Ark. 577; 53 Ark. 532; 101 Mass. 193; 26 Wis. 84; 99 Ala. 119; 108 Mass. 50; 45 Ark. 37; 57 Ark. 632, 638; 157 U. S. 198; 156 U. S 180; 11 So. 760; 47 N. W. 986; 49 Ark. 253.

Winfield, Judge; r. Instruction No. 3 given at plaintiff’s request was erroneous. There is no evidence that the speed of the car was suddenly increased. The motorman’s testimony shows that, after he cut off the current, it was not reapplied until after the car was brought to a stop at Nineteenth Street, and this is uncontradicted. 37 Ark. 598.

Conway, Judge; STATEMENT BY THE COURT. On the 13th day of July, 1901, the appellant, a citizen of Arkansas, commenced this action by filing before W. H. Rankin, a justice of the peace of Big Rock Township, Pulaski County, Arkansas, an account and bill of particulars, in the sum of $90.15, caused summons to issue for defendant, Walter Drake, which was returned on the 24th day of July, 1901, served, and on said 24th day of July, 1901, appellant recovered a judgment by default…

Smith District; Styles T. Rowe, Judge; statement by thb court. J. F. Soard had a grocery store in the city of Ft. Smith, which was also his residence. The store was located on North Eleventh Street near its intersection with Twelfth Street. North Eleventh Street runs northeast, and plaintiff’s store is south of this street. About 200 feet northeast of the store of plaintiff the street crosses a brook or small stream which flows northward.

Conway, Judge; 1. The account, and every item thereof, is barred by the statute of limitations. 44 Ark. 534; Kirby’s Digest, § 5079; 60 Am. Rep. 254; 17 Am. Rep. 171; xi Ark. 32. The burden was on plaintiff’s to show the action was not barred. 69 Ark. 311. 2. The proceeds of the cotton should have been credited as of the date of the delivery, in January, 1896. Defendant testified that he delivered the cotton on the account, and did not instruct plaintiff to hold it.

H. Humphreys, Chancellor; The court had no jurisdiction. No warning order was ever made upon the complaint. Kirby’s Digest, § 6065; 71 Ark. 322; 55 Id. 30; 70 Id. 409. The judgment debtor is an indispensable party. 8 Am. & Eng. Enc. Law, 7.75; Pomeroy, Rem. & Rem. Rights (1 Ed.), § 447. Actions like this are based on the fraudulent intent to hinder and delay creditors and a participation by the debtor’s vendee in such intent. 17 Ark. 146; 31 Id. 554; 41 Id. 316.

Winfield, Judge; Replevin by Neff Harness Company, a corporation, against A. S. Grooms. Plaintiff recovered, and defendant has appealed. x. There is no evidence that appellee retained title to the surrey. On the contrary, it is shown that Neff had the right to sell, and that it was sold and charged as an open account in the usual way. Plaintiff, to support its action, must show title. 4 Ark. 94; 42 Ark. 313; 39 Ark. 438. 2.

Wallace, Judge; The sale of the homestead by the administrator was void. 47 Ark. 445; 50 Id. 729; 49 Id. 75; 56 Id. 565; 37 Id. 316. Since the decision in 47 Ark. 445, the sale of a homestead may be conceded to be void, but prior to the act of 1873 such sales were common. 37 Ark. 316; 40 Id. 17. The sales were treated as void only as to the interests of the minors. But plaintiffs are estopped. 12 Am. & Eng. Enc.

The claim was not properly authenticated. Kirby's Digest, § 118. The statute directing a nonsuit if authentication is not made is peremptory. 30 Ark. 756; 48 Ark. 304. 2. The claim was never, in fact, assigned. Presentation of the claim by Crawford, duly authenticated, was, in effect, the beginning of suit (see 28 Ark. 238), and there was no effort to comply with the statute (Kirby’s Digest, § 4457) with reference to the sale of a cause of action after suit filed.

Shaver, Chancellor; STATEMENT by ti-iE court. This suit is by appellee against appellant Foster et al. to set aside certain deeds.

Conway, Judge; statement by the court. S. H. Bourland and his wife, Carrie Bourland, let C. D. Reynolds have land to cultivate during the year 1903. In the early part of that year Reynolds gave a mortgage or deed of trust to McKnight & Bro., merchants, to secure them for supplies to be furnished to him and for a debt which he owed them.

Rowe, Judge; 1. Possession of part of stolen property is not sufficient to convict. 48 Cal. 123; 41 Tex. 289; 40 Mich. 292. 2. The statute on burglary does not include a “chicken house.” Kirby’s Digest, § § 1603-1608; 1 Blackstone, § 3. Proof of breaking a chicken “coop” is not sufficient to sustain a charge of breaking a chicken “house.” 1.

Tillman, Judge; Action of replevin by Goldman Mason against George Bofiannan to recover possession of a horse and damages for detention. Judgment for defendant, and plaintiff appealed. 1. Upon the sale of a chattel by one in possession, the law implies a warranty of title, and the seller is answerable to the purchaser if it be taken from him by one having a better title than the seller, whether the latter knew of his defect of title or not. 19 Ark. 447.

Chapline, Judge; There is no testimony in the record legally sufficient to sustain the verdict.

Robertson, Chancellor; statement by the court. . The plaintiffs, IT. A. Suggs and others, are the owners of fractional section 7, township 15 north, range 13 east, in Mississippi County, containing 358 acres, as shown by the original government survey, and bordering upon Buford’s Bake, a body of water meandered and platted upon said public survey.

Steel, Judge; STATEMENT BY TI-lE COURT. On Sunday, January 17, 1904, the following message to J ohn W. Lee was delivered to an agent of the Arkansas & Louisiana Railway Company, hereinafter referred to as the railway company, reading as follows: “Pa died last night. Wire me what time you can reach here. “W. D. LEE. The railway company does a telegraph business for hire.

Duffie, Judge; X. It was error to instruct the jury that in arriving at the value of the bicycle they were not to consider its value at the time of the trial, but must base their verdict upon its value at the time it was stolen — thereby assuming that there had been a larceny of a bicycle, and that the one in court was the one that had been stolen. 14 Ark. 286; lb. 530; 16 Ark. 568, 593; 18 Ark. 521; 20 Ark. 171; 24 Ark. 540; 36 Ark. 117. 2.

Chapline, Judge; 1. The contract, when construed in the light of the testimony, including the letters of appellee, was intended to be executory. Appellants had the right, in season, to return the jewelry and rescind the contract by putting the appellee in statu quo. 4 Ark. 467; 5 Ark. 395; 25 Ark. 196.

Smith, Judge; x. The record fails to show affirmatively that the appellant was present in court when the jury returned into court and delivered its verdict. The indictment being for a felony, he was entitled to be present when any step was to be taken affecting his life or liberty. Kirby’s Digest, § 2339; 5 Ark. 431; 10 Ark. 325; 19 Ark. 209; 24 Ark. 627; 44 Ark. 332; 50 Ark. 492; 62 Ark. 537; 66 'Ark. 208. 2.

Winfield, Judge; 1. This is a penal suit, or, at least, a suit ex delicto to enforce a statutory liability. The justice of the peace had no jurisdiction, and the circuit court acquired none on appeal. Kirby’s Digest, § § 848, 859; art 7, § 40, Const.; 101 U. S. 188; 113 U. S. 452; Thompson, Liability of Directors, 455, 456; lb. 416; lb. 425; 146 U. S. 567; 64 Ark. 271; 37 Mich. 416; 12 Met.

The complaint did not allege damages for failure to furnish the car, nor that notice was given of intention to claim damages for such failure. It was therefore error to admit evidence, over defendant’s objection, tending to prove damages accruing before the hogs were loaded. 71 Ark. 197; 29 Ark. 372; 70 Ark. 232; 75 Ark. 465; 59 Ark. 165. 2.

Humphries, Chancellor; STATEMENT by the court. A. W. Shirey, appellant, brought suit for divorce against Fair Belle Shirey, appellee, February 26, 1906. He alleged in his complaint such indignities to his person as to render his condition intolerable. Appellee answered March 19, 1906, and denied specifically the allegations of the complaint. She also on same day filed her written motion for “suit money” and alimony pending the suit for divorce.

Steel, Judge; statement by The court. This is a suit by appellee on a standard policy of fire insurance. The complaint alleged the issuance of the policy, the loss, a compliance by appellee with the requirements of the policy as to notice and proof of loss, and prayed for judgment in the sum of $1,250, the amount of the policy with interest.

Conway, Judge; statement by the court. John Reagan was, in 1904, a section foreman in charge of section No. 50 on defendant's road. This section was located at and near Stephens, Ouachita County. On the 8th day of February, 1904, while riding on a handcar in the course of his duties, Reagan was injured by the explosion of a torpedo which had been placed 'on the track to warn passing trains.

Smith,. Judge; STATEMENT BY THE COURT. The facts in this case'are stated in the opinion. On the trial the circuit judge gave among other instructions the following over the objection of the plaintiff, and to the giving of each of which the plaintiff duly saved exceptions at the time: “5.

Humphries, Chancellor; 1. The evidence in this case establishes a partnership agreement. 22 Am. & Eng. Enc. Law (2 Ed.), 13; lb. 41; 37 Ark. 308; 131 Eed. 124; 130 Eed. 475. Having agreed to engage in the joint venture, each owed the utmost good faith to the other, and neither could surreptitiously circumvent the other. If he should, the law would hold him to account lor the profits, if any, and withhold from him the right to demand contribution for losses. 22 Am. & Eng. Enc.

G. Mitchell, Judge; The evidence fully shows that the county court did not abuse its discretion in fixing the compensation of the jailer, and that the allowance was equal to the value of the services rendered. Kirby’s Digest, .§ § 3399, 4402, 1375, 1452, 1453, 1454, 3518; 64 Ark. 162; 47 Ark. 80; 44 Ark. 437; 34 Ark. 395.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. The plaintiff, G. M. Patterson, instituted this suit in the chancery court of Marion County against the defendant, Ark-Mo Zinc Company, a New Jersey corporation doing business in this State, to recover the contract price for the erection of a concentrating and ore-dressing plant at the “Climax” zinc mine in Marion County, owned and operated by the defendant, and to enforce a statutory mechanics’ lien therefor.

Winfield, Judge; Anti-trust acts are enacted in the exercise of the police power of'the State, and are not unconstitutional. 152 Mo. 46; 61 O. St. 547; 104 Term. 715; 19 Tex. 1; 44 S. W. 940. The State may permit foreign corporations to do business in the State on such terms as it sees proper, or it may deny 'them the right altogether. 66 Ark. 466; 8 Wall. 168; 57 Ark. 33; Murfree on Foreign Corporations, 2; Noyes on Intercorporate Relations, § 414.

Francis Circuit Court; Hance N. Hutton, judge; statement by the court.

DwfRe, Judge; The plaintiff, the Woman’s Christian National Library Association, a corporation, brought this action against S. W. Fordyce and Charles H. McKee.

Dufde, Judge; statement by the court. On the 29th day of June, 1881, several ladies filed a petition in the Garland Circuit Court, praying that they might be incorporated under the name of the “Woman’s Christian National Library Association” “for the purpose of establishing, providing and keeping in the City of Hot Springs, Garland County, Arkansas, a library for the free use of the public generally, and of soliciting and receiving donations and aid for said purposes.” The…

Chapline,. Judge; 1. Heirs, having the legal title, are not required to act in order to protect it. They can not be kept out of their inheritance unreasonably by the laches of creditors in subjecting the lands-to the payment of probated claims. 73 Ark. 440; 37 Ark. 155; 47 Ark. 475; 48 Ark. 277; 54 Ark. 65; 56 Ark. 633; 63 Ark.. 405; 70 Ark. 185.

Smith, judge; 1. The auditor’s report is erroneous, and the administrator should be charged in accordance with the statement of the account -as viewed by him. 2. When the probate court appoints an auditor, he is governed by the rules laid down for masters in chancery. Kirby’s Digest, § § 144, 6326-6341. On appeal, the practice in chancery appeals should apply, and the cause be heard de novo and decided according to the weight of evidence.

Hawkins, Chancellor; Suit by Sarah Walworth and others against T. W. Birch and others to quiet title. Defendants relied upon a tax title. Decree was for plaintiffs, and defendants have appealed. 1. A charge of $13.72 as taxes, penalty and costs imposed upon country property assessed at $300 is excessive. 56 Ark. 93; 61 Ark. 36. 2. There is no proof of publication of the list of delinquent lands, as required by statute. Kirby’s Digest, § 7086; 65 Ark. 218; lb. 595.

H. Humphreys, Chancellor; 1. The location of appellees was void for failure to mark the same on the ground, so that its boundaries could be readily traced. 72 Ark. 215, and cases cited. 2. Notwithstanding the waiver by the parties and -their submission of the cause upon a single issue, the court is not bound by such agreement in a case where the matter to be determined is the right to a patent under the laws of the United States.

(1) Appeal from Madison Chancery Court; T. H. Humphreys, Chancellor; (2) Appeal from Pulaski Circuit Court; Edward W. Win-field, Judge; affirmed. (3) Appeal from Madison Circuit Court; J. S. Maples, Judge; affirmed. Although there are three different suits decided by this opinion, the issues are practically the same. 1.

<p>Appeal from Saline Chancery Court; A. Curl, Chancellor;,</p>

Appellant was indicted at the December term (December 20), 1905, of the circuit court for the Chickasawba District of Mississippi County for the murder of Eulick Knight. The indictment contained two counts, the first count charging him with murder in the first degree, and the second count charging him with being accessory before the fact to murder in the first degree, alleging that James and Ches.

Steel, Judge, ■on exchange of circuits; 1. When appellee gave permission to inspect the corn before receiving it, this conferred the right to reject it; and if the right to inspect did not exist under the original contract of purchasej but was subsequently given, it was a waiver of the original contract. 2. When the appellee’s manager came to Texarkana, took possession of and resold the corn, appellee was thereby estopped to assert this claim. 3.

Robertson, Chancellor; Mrs. Taylor executed the deed, relying upon the assurance that the levee would be constructed so as to protect her plantation, and was justified in relying on the representation. 2 Pomeroy’s Eq. Jur. (2 Ed.), § 876; 47 Ark. 335 ; 1 S. W. 610. Having constructed the levee so as to practically destroy the plantation, there was a total failure of consideration.

Duffle, Judge; STATEMENT BY THE COURT. This is a suit brought by Martin Knisel in the Garland Circuit Cojirt against the appellant, Waters-Pierce Oil Company, hereafter called the “oil company,” Arkansas Gas Company, R. C. Chambers and Charles Walker, Ed Burke, and Sam and Leo Mayer, to recover damages on account of personal injuries alleged to have been caused by the joint negligence of the defendants in producing an explosion of gasoline vapor in a building called the…