Volume 80 — Arkansas Reports

Hart, Chancellor; 1. The statute expressly authorizes- the attachment of a fund in court. Kirby’s Digest, § 358. Compare Code Ky. § § 227, 228 and 231; Bullitt’s Codes, Ky. § § 202, 203, 207 and sub-div. 3, § 51; Ind. Ter. Stat. 1899, § § 342, 345; 2 Hill’s Ann. Stat. and Codes of Wash. § § 300, 307; Code, Iowa, § § 3897, 3898, 3899 and 3937, and note the construction placed thereon by the courts of said States: 9 Ky.

Appeal • from Benton Chancery Court; T. H. Humphreys, Chancellor; x. The title to the land vested in D. D. Ames upon delivery to, and acceptance by, him of the first deed; and the second deed, although made at his request, conveyed no title'or interest, either legal or equitable. 21 Ark. 80; 42 Ark. 170; 43 Ark. 203; 52 Ark. 493; 53 Ark. 509. 2.

<p>Juror — opinion as disqualification. — The opinion of a juror, formed merely from newspaper reports, touching the guilt or innocence of the accused, does not disqualify.</p>

Francis Chancery Court; Bdward D. Robertson, Chancellor; i. There was a contract of sale. Possession under this contract and improvements made take the case out of the statute of frauds. I Ark. 391; 8 Id. 272; 30 Id. 249742 Id. 246; 44 Id. 334- 21.

Chapline, Judge; 1. The plaintiff must be held to have seen and heard that which was plainly .to be seen and heard. 4 Elliott on Railroads, § i7°3 i 38 S. W. 311; 65 U. S. 697; 62 Ark. 158; 65 Ark. 238. 2.

<p>1. Partnership — definition.—A partnership may be defined as the relation existing between two or more persons who have agreed to carry on a business together and to share the profits thereof as joint owners of the business. (Page 26.)</p> <p>2. Same — Flow proved. — While a partnership is the result of an agreement between the partners, the existence of that relation may be inferred by the jury from admissions of a party sought to be charged as a member thereof. (Page 28.)</p> <p>3. Same — instruction.—In a case where plaintiff sought to charge a defendant with liability as member of a firm it was error to instruct the jury that such defendant could not be a member of the firm “without having money in the business,” as the consideration for his entering the firm might be his agreement to furnish his services or his credit. (Page 29.)</p> <p>4. Same — estopped to deny. — One who holds himself out as member of a firm will be estopped from showing that he is not in fact a partner, not only as to those to whom the representation is directly made, but as to all others who have knowledge of such representation and in reliance thereon sell goods to the firm. (Page 29.)</p> <p>5. Triad — argument—impeachment oe witness — A statement by appellee’s counsel in argument that two of appellant’s witnesses were “liars and scoundrels,” being unsupported by evidence, was improper and prejudicial. (Page 30.)</p>

Hawkins, Chancellor; statement by the court. On June 9, 1902, lot No. 1 in block No. 2 of Finn’s addition to the town' of Dermott was sold by the collector of Chicot County for the nonpayment of taxes assessed against same for the year 1901, and was struck off to the State for want of bidders.

Humphries, Chancellor; reversed in part; 1. The cause of divorce must have occurred or existed within five years next before the commencement oi the suit. Kirby’s Digest, § 2678, subdiv. 3. Evidence tending to prove acts of adultery subsequent to the commencemént of the action, and with a party other than the co-respondent named in the complaint, should have been excluded. The particular offense alleged must be proved. 51 Am. Dec. 219; 6 Johns.

Hawkins, Chancellor; STATEMENT BY THE COURT. This suit was begun by appellee against appellant in ejectment in the Chicot Circuit Court 'for the east half of the southwest quarter of section 1, township 14 south, range three west. The plaintiff claimed title and right of possession by virtue of a tax deed made by the State Land Commissioner conveying the land to him, upon a sale made to the State for the alleged nonpayment of taxes for the year 1900.

; John M. Elliott, Chancellor; STATEMENT BY THE COURT. The American Bonding Company of Baltimore is a foreign corporation doing business in the State of Arkansas as a surety company, and on August 31, 1900, executed to the Bank of DeVall’s Bluff, of DeVall’s Bluff, Arkansas, a surety bond in the sum of $5,000, undertaking to indemnify said bank against any loss sustained on account of any larceny or embezzlement committed by its cashier, G. C. Strong, during the term of one…

App°eal from Marion Circuit Court; Blbridge G. Mitchell, Judge; 1. The justice of the peace was related'to appellant by affinity within the fourth degree. ' 12 Ark. 657. He was therefore disqualified and without jurisdiction to try the case. His judgment was void. Const, art. 7, § 20; Kirby’s Digest, § 1526; 48 Ark. 151; 1 Ark. 144; 85 U. S. 457; 12 Am. & Eng. Enc. Daw, 311 and notes; 41 R. R. A. 414; 4 Words and Phrases, 3876, 3881. 2.

<p>1. Rule of court — submission of bill of exceptions to opposing counsel. — It is a reasonable rule of practice in the circuit court to require bills of exceptions to be submitted to opposing counsel before being submitted to the judge. (Page 61.)</p> <p>2. Mandamus^ — judicial discretion. — Mandamus will compel a circuit judge to act when he -should act and refuses, but will not be used to tell him how to decide a judicial question, such as settling a bill of exceptions. (Page 62.)</p>

Chapline, Judge; The county treasurer is entitled to charge 4 per cent, where the amount received does not exceed $1,000 in one year, and 2 per cent, on sums exceeding that amount, to be paid ou^ of the respective funds. Kirby’s Digest, § 3508. He is required to keep a separate account with each road district. Kirby’s Digest, § 7332.

Wiwñeld, Judge; 1. The judgment as against the Arkansas Stables can not stand because thére was no evidence to show that it is such a corporation as can bind itself by indorsement on a note, io Cyc. 1109, ya; Ib. 1113, 2, 1115, 4. It is the duty of every person dealing with a corporation to inform themselves as to the extent oí its powers. 10 Cyc. U48e, (1) (11); 62 Ark. 33; 12 Cent. Dig. col. 1902.

Evans, Judge; The court, erred in refusing to give instructions 6, 7 and ii, and in substituting therefor and giving its instruction No. 1. It withdraws from the jury the question whether or not the defendant, furnishing a car without a brake, or having a defective brake, complied with its duty to use ordinary care to provide its employees with reasonably safe appliances for the particular work in which they are at the time engaged.

Fulkerson, Judge; 1. As to double damages, the right of action is barred by the statute. Kirby’s Digest, § 6776; 38 Ark. 205. 2. In the absence of proof or admis'sion that the mule was killed by the running of defendant’s train, no presumption of negligence arises against the defendant. 33 Ark. 819; 68 Ark. 177.

Hawkins, Chancellor; STATEMENT BY THE COURT. In 1897 the State granted to the Mississippi River, Hamburg & Western Railway Company certain lands which had been forfeited to the State for nonpayment of taxes. Among the lands granted were the following tracts: West of the west ¿4 of section 4, township 16 south, range 3 west, 160 acres; west of section 28, township 16 south, range 3 west, 320 acres.

4 Ark. 199. The deed is plain, and explicitly grants the land for the purpose of constructing and maintaining any and all levees that may be built thereupon as a protection against overflows. The surroundings and circumstances under which the deed was executed are admissible, and should be considered in construing its meaning. 65 Ark. 18; 52 Ark. 95 ; 46 Ark. 122.

Elliott, Chancellor; I. The possession of appellants and their ancestor for more than seven years perfected their title, even if the deed was void on its face, the lands claimed being therein aptly described. 60 Ark. 499; 40 Ark. 237; 20 Ark. 508; lb. 542; 34 Ark. 547; 38 Ark. 181; 48 Ark. 312; 91 S. W. 22; 91 S. W. 178. See, also, 34 Ark. 534; lb. 598. 2.

Mahoney, Chancellor, 1. The fact that a part of the consideration paid for the purchase of land was a pre-existing indebtedness will not prevent the purchaser from being entitled to protection as an innocent purchaser where the rest of the consideration is new. 64 Ark. 197. 2.

<p>Appeal from Ouachita Circuit Court; Charles W. Smith, Judge;</p>

Hutton, Judge; STATEMENT BY THÍ COURT. The defendants, Plenry Floyd and Isaiah Bogan, two negroes, were indicted by the grand jury of Phillips County for the crime of robbery.

Norman, Chancellor; 1. The purpose of filing the lists with the county clerk is to furnish him information. They are not the exclusive source from which he can obtain information as to the property within the district. If he waives the lists and obtains the necessary information from other sources, the owner is not thereby prejudiced. 2. .

Robertson, Chancellor; 1. When one pays money without knowledge of the facts, upon the fraudulent representation of another, he may recover the money so paid. 39 Mich. 33; 102 Mass. 221; 3 Hun, App. 595; 9 Hun, App. 400; 13 N'. Y. Supp. 615; 131 Mass. 397; 18 Mo. 229; 68 N. W. 445.

Rice, Special Chancellor; statement by the court. J. S. Lackey and eighteen other taxpayers of the City of Fayetteville brought this suit in their own behalf and on behalf of all other taxpayers in the city to enjoin the appellee and the city from enforcing ordinance numbered 135 of the City of Fayetteville, alleging among other things: “That the passage of said ordinance was procured by undue influence of the said water company in that J. H. Mcllroy, the president thereof,…

H. Humphreys, Chancellor; 1. The acts of assessors are presumed to be valid and correct until the contrary is shown. The burden is on the taxpayer to establish a charge of illegality. 25 Am. & Eng. Ene. Eaw, 236; 63 Ark. 592. 2. In this State all property except such as is specifically exempted by the Constitution is subject to taxation. 70 Ark. 554.

Original petition for mandamus; 1. The Constitution says: “The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for-in this Constitution.” Sec., 24, art. 19, Const. Under this provision, the Legislature is invested with the power and discretion to confer authority on the chancellor at chambers or the chancery court to try contests of this nature. 72 Ga. 812; 43 Pa. 384; 73 Ga. 377; 52 Tex. 335; 62 Tex. 555.

Statutes constitutional in part, if separable, will be valid pro tanto. 2. Every doubt arising as to the constitutionality of a legislative enactment must be resolved in favor of its validity. £0 Ark. 513; 39 Ark. 353. 1. The proviso to section 4 of the act confers immunity on citizens or residents of one district against suits in the other district, and is in violation of sections 3 and 18 of art. 2, Const. 2.

Winfield, Judge; STATEMENT BY THE COURT. The appellee alleged that on September 3d he boarded and paid his fare on a car of appellant going north on Main Street, which was bound for East Markham Street, and obtained a transfer to a West Markham Street car.

Fulkerson, Judge; 1. There being a misjoinder of parties and actions, the court erred in refusing to strike out the second paragraph of the complaint or to require plaintiff to elect on which paragraph it would proceed. An open account is not assignable, so as to vest in the assignee the right to sue alone. The ássignor must be joined as a party to the suit. Kirby’s Digest, § § 509, 5999 and 6000; 65 Ark. 216; 47 Ark. 541; 46 Ark. 420; 16 Ark. 106; 10 Ark. 304.

Rowe, Judge; STATEMENT BY THE COURT. Appellee alleged -that, while she was attempting to cross Garrison Avenue in the city of Fort Smith, she was struck, knocked down and run over by one of appellant’s cars and greatly injured, to her damage in the sum of $10,000, for which amount she asked judgment.

<p>1. Statute op limitations — necessity op plea. — The statute of limitations, to be available as a defense, must be pleaded in some form in oases in equity as well as at law. (Page 182.)</p> <p>2. Same — -suppiciEncy op plea. — A plea of the seven years statute of limitations which alleges that “defendant states that this cause of action, if cause of action it be, did not accrue within seven years before the commencement of this suit” is sufficient, if not objected ito, to raise the defense of the general statute of limitations. (Page 182.)</p>

Shaver, Chancellor; Park brought ejectment against Plutchinson and wife to recover land conveyed to him by them. The cause was transferred to equity on defendants’ cross-complaint, asking that the deed to plaintiff be removed as a cloud on their title. Plaintiff recovered, and defendants appealed. The cause on former appeal was reversed with directions to cancel plaintiff’s deed, on repayment of taxes paid by plaintiff. Hutchinson v. Park, 72 Ark. 509.

Moose, Judge; statement by the court. Appellant sues appellee for personal injuries, alleging various grounds of negligence.

Lea, Judge; 1. The issue was whether or not deceased committed suicide ; and the court erred in admitting the testimony of Kohlus as to the reason given by Banister for keeping the pistol in his bed. It was also error to permit him to testify as to the habit of deceased to get up at night when he heard strange noises. 2. The evidence is insufficient to support the verdict.

Robertson, Chancellor; STATEMENT BY THE COURT. The Culver Lumber & Manufacturing Company, a corporation, was placed in the hands of a receiver by order of the chancery court of Lawrence County in a suit brought in that court by a stockholder, alleging, amongst other things, fraud and mismanagement of its affairs and insolvency, and asking for the sale and distribution of proceeds of its assets.

<p>Certiorari to Jefferson Circuit Court; Antonio B. Grace, Judge;</p>

<p>Appeal from Jefferson Circuit Court; Antonio B. Grac'e, Judge;</p>

<p>Taxation — peddlers.—'The act of March 13, 1883, relating to taxing of peddlers (Kirby’s Digest, § 6876), was not repealed by the later act of April 29, 1901 (Kirby’s Digest, § 6886), which was held in Ex parte Deeds, 75 Ark. 542, to be unconstitutional.</p>

Winfield, Judge; STATEMENT BY THE COURT. On the 7th day of February, 1904, William Arendt shot and killed himself at his residence in Little Rock. After his death about nine or ten o’clock at night of the ■ day of his death, the following letter was found on the dresser of his bedroom: “Little Rock, Ark., 2-7-1904. “Mrs. Sarah Arendt, City. “Dear wife: You will find everything all right, I hope. Whatever I have in worldly goods, it is my wish that you- should possess them.

Hawkins, Chancellor; STATEMENT BY Trie COURT. Mrs. C. Meyer and Abe Jenkins made the following contract in reference to a forty-acre tract of land in Chicot County, owned by Mrs. Meyer. “Grand Lake, Arkansas, August first, 1899. “The following agreement made between Abe Jenkins and C. Meyer, towit: C. Meyer leases to A. Jenkins the N. W. S. W. J4 of section 2 in T. 18 S., R. 1 W., for a term of 3 years, beginning January 1, 1900, and terminating January 1, 1903, on the…

Steel, Judge; The court erred in giving the fifth instruction .requested by defendant. An indorsement without recourse is effective to transfer the legal title to the instrument, but does not render the indorser liable thereon in case of its non-acceptance or non-payment. 4 Am. & Eng. Enc. Law (2 Ed.), 276; Chitty on Bills, 13 Am. Ed. 235; Story on Prom. Notes, 146; 18 la. 202; 24 Kan. 604; 12 Kan. 618; 33 Me. 424; 5 Met. (Mass.), 201; 23 Wend. (N. Y.), 301; 8 Pa.

G. Wallace, Chancellor; 1. To establish the lien, the things advanced to the tenant must be supplies necessary to enable the tenant to make and gather the crop. Kirby’s Digest, § 5033. The statutory lien exists only for advances and supplies contemplated by the statute, and can not be extended to include other indebtedness. 18 Am. & Eng. Enc. Law (2 Ed.), 352; 61 Ala. 416; 75 Ala. 44; 90 N. C. 276.

<p>1. Forgery — defense.—It is no defense to a prosecution of one for forgery of his father’s name to a bank check that he in good faith believed that hi® father would pay the check in order to-protect him. (Page 223.)</p> <p>2. Same — presumption as to intent. — Where the name of a person is forged to a check, the law presumes the intention to defraud the person whose name is forged, in the absence of any proof to the contrary. (Page 224.)</p>

Rowe, Judge; 1. Instruction numbered 7 is erroneous in that it sets out disjunctively the elements necessary to constitute appellant a principal offender. 122 Cal. 486. It is not a correct statement of the law as regards an accessory to the crime of involuntary manslaughter. It is also erroneous in that it is not applicable to the facts in the case. 79 Iowa, 460. 2. Instructions 18 and 19 are also erroneous. Kirby’s Digest, § 1563.

T. Wood, Judge; 1. There was a misjoinder of actions, and the special demurrer should have been sustained. 58 Ark. 136. Breaches of contract requiring different findings are independent causes of action, though arising on the same contract. 47 Mo. 7°; 47 Mo. 239; 51 la. 576. 2. L. W. Kittrell, not being a party to the contract with defendant, could not maintain this suit. Some privity between the plaintiff and the defendant must be shown. 12 Rich. (S. C.), 101; 76 Ark. 352.

Francis Circuit Court; Hance N. Hutton, Judge; 1. The action brought by the lessor of this appellant on February 28, 1904, is a bar to this action. The complaint in that case, without alleging damages for any particular year or time, alleged that 12 acres of land was damaged to such extent as to prevent its cultivation “or use for any purpose.” The -damages sued for and awarded were for a permanent injury. 62 Ark. 360. 2.

<p>Contributory negligence — question for jury. — Where ,the evidence tended to show that a miner; in entering a place of danger, where he was killed, either did not know of the source of danger at all, or else believed that his immediate superior was in the place, and consequently that it would be safe for him to enter, the question whether ihe was guilty of contributory negligence was properly submitted to the jury.</p>

Robertson, Chancellor, 1. Appellant should have been allowed one-half of the expense of gathering the crop. 2. Refusal on the part of Reese and Wilson to work the land under direction of appellant was a violation of the contract.' 40 Am. Rep. 680. 3. It was the duty of Reese and Wilson to make reasonable repairs, and they can not, under the contract, be heard to complain that cattle got into the crop.

<p>Appeal from Marion Circuit Court; B. G. Mitchell, Judge;</p>

Winñeld, Judge; 1. As to the claim for loss of profit on account of her injuries, and for expenses for medical attention, appellant is barred by the statute of limitations, the amended complaint setting up these claims having been filed more than three years after the accident. 64 Ark. 348. 2. A cause of action for medical expenses, if any, accrues, not to plaintiff, but to her husband. 46 Kan. 109; 61 Minn. 224; 77 Ga. 756; 65 Conn. 478; 107 Ind. 32; 65 Ark. 627. 3.

Chapline, Judge; 1. The homestead is limited as to quantity and value, and must be owned and occupied as a residence. Kirby’s Digest, § 3900; art. 9, § 5, Const. It appearing by the evidence that the lot contained more than one-fourth of an acre, it was incumbent on appellee to show that it did not exceed $2,5qo in value. 2. Appellee, as appears by the evidence and her acts, has abandoned her homestead .rights in the premises.

Chapline, Judge; STATEMENT BY THB COURT. This is an application for allotment of dower in personal property.

Chapline, Judge; STATEMENT BY THE COURT. Boysen was a real estate dealer, and engaged Frink to work for him in the sales of land.

<p>Appeal from Lawrence Chancery Court; George T. Humphries, Chancellor;</p>

Steel, Judge; statement by the court. This is an action brought 'by Abner N. Morris against the 'Harris Lumber Company to recover damages alleged to have been received by the plaintiff while working for defendant in the sawmill operated by the latter at Eagleton, Arkansas.

Rowe, Judge; Confesses error in the refusal of the court to give the eighth instruction asked by the defendant. 1.

Rowe, Judge; 1. The court erred in its first instruction. The Arkansas lookout statute was never extended over the Indian Territory; hence at the time of the accident there was no duty incumbent upon the engineer to keep a lookout for stock on the track of the railroad. 49 Ark. 257, and cases cited. Neither would it be the engineer’s duty to use ordinary care to discover stock on the track 2.

Tillman, Judge; statement by the court. This was an action to recover the value of a cow alleged to have been negligently killed by appellant. The proof tended to show that appellee’s cow, valued at $35, was killed on the railroad track by appellant’s train.

Smith, Judge; If plaintiff's contention be correct, it sold defendant a tombstone. The tombstone, until it was completed' and delivered to defendant, remained the exclusive property of plaintiff. It was such a contract as that a chattel was ultimately to be delivered, and, being oral, it falls within the statute of frauds. 1 B. & S. 272; 51 N. H. 94; 33 U. C. Q. B. 442; 87 S. W. 61.

Grace, Judge; 1. The hearsay testimony of Nannie Pitts should have been excluded. 10 Ark. 638; 16 Ark. 628;.i Greenleaf, Ev. § 99; 15 Am. & Eng. Ene. Eaw (2 Ed.), 309; 6 Ark. 86; 23 Ark. 282. 2. It was error to refuse to permit witness Jarvis to.testify as to whether or not he executed the note in controversy.

Elliott, Chancellor; 1. The statute means that, of the taxes levied and to be extended on the tax books for county purposes, not over ninety per cent, shall be appropriated for that year; but this does not prevent the levying court from considering other revenue of the county in making appropriations. 34 Ark. 307. 2. The power to purchase the necessary site is incident to the power to construct and maintain a county building. 7 Am. & Eng. Enc. Law (New), 933/934, note 1. 1.

Tillman, Judge; The court should have granted appellant’s request for a peremptory instruction. The testimony of the engineer clearly removes the presumption of negligence. 67 Ark. 576, and cases cited. The engineer’s testimony was unreasonable, and the jury was justified in disregarding it. See 88 S. W. 584; Id. 593; Id. 599; Id. 851; Id. 961; 54 Ark. 214.

Grace, Judge; The probate court should have required the creditor holding a secured claim to exhaust his security before allowing his claim against the estate. 25 Ark. 163; 59 Ark. 560.

Hutton, Judge: The question is whether the gift of a child by its mother will be enforced affirmatively. Such gifts are against public policy, and are not strictly enforceable. 50 Ark. 354. See, also, 22 Ark. 92; Rodgers, Dom. Rel. § 564; 37 Ark. 27; Schouler, Dom. Rel. § 252; 79 Pac. 482; 27 G. R. A. 56, and note. The welfare and best interest of the child are first to be considered.

Tillman, Judge; STATEMENT BY THE COURT. The complaint alleges the negligent burning of a frame residence. It is alleged that the fire'was caused by sparks communicated from an engine which was being negligently operated by appellant. The answer denied that the fire was set by appellant’s engine, and denied that the engine was negligently operated. 1. There is not any proof that the fire was communicated by the appellant’s engine to the house.

Chapline, Judge; It is the duty of the jury to fix the punishment, and, except in cases of judgments upon confession until the question has first been submitted .to them, the court is not authorized to fix the punishment. Kirby’s Digest, § § 2408, 2433. As illustrative of the spirit of the law in this respect, see art. 7, § 23, Const., forbidding trial judges from charging juries with reference to the facts.

Meek, Judge; 1. The execution, levy and sale was a satisfaction of the judgment. 2 Black on Judgments (2 Ed.), § 1008; 17 Cyc. 1394a!; 2 Ark. 578; 4 Id. 229; 12 Id. 421; 14 Id. 568. 2. The property levied on was sufficient in value to satisfy the execution. 3. The entry of satisfaction was not vacated nor set aside, and the sale is not shown to be void. Nor was any notice given defendant, nor was the property returned.

Wallace, Chancellor; 1. Where judgments have been obtained at law by fraud, courts of chancery have power to decree new trials. Am. Dig. 1901, B. p. 2392, § 72; lb. § 77Z); 61 S. W. 854; 108 Fed. 138; 47 C. C. A; 246. See, also, 61 S.'W. .541; Am. Digest, 1901, E. 2386; hi Fed. 269; 46 C. C. A. 309; 55 L. R. A. 538. 2.

<p>1. Embezzlement. — by custodian of public funds. — Under Kirby’s Digest, § 1990, making it an indictable offense for an officer having custody of public funds to misappropriate them or “to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office,” it is an offense for an officer having custody of public funds (1) to misappropriate them, or (2) wilfully to fail to pay them over to his successor in office. (Page 312.) .</p> <p>2. Treasurer — failure to pay over funds to successor. — An indictment of a county treasurer for failure to pay over public funds to his successor in office which alleges that on a certain date he had funds belonging to a school district, and that on a subsequent date when his term expired he failed to pay over such funds to his successor, is defective in failing to state that he had such funds when his term expired. (Page 313.)</p>

Moose, Judge; This case is governed by § 2614, Kirby’s Digest. The record must be lodged within sixty days after judgment. If not so lodged, this court has no jurisdiction. 30 Ark. 39; 48 Id. 148; 45 Id. 397. Kirby’s Digest, §' 2614, does not apply to violations of city ordinances, but only to misdemeanors, violations of State laws. Expressio unius, etc., applies. The appeal was from the judgment for costs.

Robertson, Chancellor; 1. The several acts of the Legislature in regard to the St. Francis Levee District are private acts, or local and special legislation under § 25, art. 5, Const., where a general law can not be made to answer the purpose. 59 Ark. 513, 529, 530. The courts take judicial notice of them for the purpose of their local administration (19 Ark. 630; 23 Id. 387), yet they are not public laws. 1 Vent. 175; 1 Kent, Com. *pp. 459, 460; 2 John.

If the owner of property, knowing of the wrongful act of the defendant, could yet have avoided the accident, there can be no recovery. 38 Ark. 357; 11 E. R. A. 361; 53 D. R. A. 618; Beach on Con. Neg. § 19. 2. Instructions No. 2, given on the part of plaintiff, and No.’s 2 and 7 given on the part of defendant, are conflicting and irreconcilable, and therein the court erred. 87 S. W. 446; 88 S. W. 911; 59 Ark. 417; 77 Ark. 201.

Steel, Judge; statement by the court. W. P. Barton, of Antoine, was the father of three sons, Clib Barton, W. P. Barton, Jr., and Ross Barton, who were doing business at Antoine under the firm name of Barton Brothers. A petition in involuntary bankruptcy was filed against Barton Brothers, growing out of the robbery of their safe of the sum of $7,000 or $8,000.

Conway, Judge;, Appellant brought replevin before a justice of the peace against Block and another to recover certain hogs. Judgment went for defendants.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT by the COURT. In 1893 E. P. Featherston was 'by the probate court of St. Francis County appointed administrator of the estate of Mary A. Cole, deceased. lie gave bond and qualified, and took charge of the estate as administrator. E Bonner and certain other residents of St. Francis County became sureties on his bond.

The court erred in its instructions numbered 17 and 18. There is no authority, either in the statute or decisions of this court, for the use of the words “in the act” of killing, etc. It is sufficient if the danger appeared to the defendant to be urgent and pressing. Kirby’s Digest, § 1798; 68 Ark. 310; Hoard v. State, cunte, p. 87; 69 Ark. 658; 21 Cyc. 800. 2.

Mandamus to Woodruff Chancery Court; Edward D. Robertson, Chancellor; 1. The question as to notice of filing mandate and supplemental pleadings is settled by the facts that the cause was continued for three terms, and counsel for the guardian and executor filed an answer for all the defendants, including the minor. No particular notice is required; Kirby’s Digest, § 6174. 2.

T. Wood, Judge; 1. Appellant having moved for a change of venue and having strictly complied with the statute, he became entitled' to the change as a matter of right; and, since the supporting witnesses are unimpeached, and showed a knowledge of the condition of the minds of the inhabitants of the county, it was arbitrary to deny the application. 68 Ark. 466; 25 Ark. 445. 2. The court erred in its charge as to murder ,in the first degree. 11 Ark. 445; 51 Ark. 189.

<p>Railroad — stock case — negligence.—A verdict against a railroad company for negligence in killing a hog will not be set aside, notwithstanding the engineer and fireman testified that the injury was unavoidable, if their testimony was contradicted by testimony tending to show negligence on their part.</p>

Conway, Judge-; It was error to permit counsel for the State, in examining the witness Johnson, to state before the jury that he, the witness, had made, in counsel’s presence, different statements before the grand jury and to detail what they were, without first submitting to the witness his written testimony taken by the grand jury. Kirby’s Digest, § 3139.

BUiott, Chancellor; 1. There can be no dissolution of a partnership at will until notice is given of the intention to dissolve or the fact of withdrawal, and such notice to be effectual must be explicit and be communicated to all the partners. 17 Am. & Eng. Enc. Law (1 Ed.), 1097-8. One partner can not bind another by purchasing the interest of a third. 121 Ind. 87.

Prohibition to Garland Circuit Court; 1. As the office of county judge is a county office, the circuit court neither has, nor can it be invested with, original jurisdiction to hear a contest concerning the title thereto, where the basis of the contestant’s claim is alleged fraudulent and illegal voting and false certifying by election officers. Sec. 24, art. 9, and sec. 52, art. 7, Const.; 51 Ark. 559; 32 Ark. 553; 69 Ark. 610. 2.

Chapline, Judge; 1. • The court should have granted a continuance, (a) A continuance goes as a matter of right if the moving party complies with the requirements of the statute, and if the evidence for the production of which the continuance is sought is material— unless the adverse party will admit that the absent witnesses would testify as stated in the application. Kirby’s Digest, § 6173.

Robertson, Chancellor; 1. The property of a married woman which came to her by gift, bequest, descent, grant or conveyance shall be and remain her sole and separate property, and at her death revert to her heirs. Kirby’s Digest, § § 5213, 5226; 47 Ark. 1x5; 29 Ark. 202; 73 Ark. 338.

Tillman, Judge; The animals were in a cut, and could not be seen by engineer or fireman, proper lookout was being kept, and the engineer’s testimony was reasonable. The case should have been taken from the jury. 67 Ark. 576. There was a conflict of testimony.

Virgil Bourland, Chancellor; 1. Appellant was entitled to have appellees charged, in a settlement of the mortgage debt, with the fair value of the mortgaged property. The dealings of trustees with trust property are narowly scrutinized by courts of equity. If impugned, they can not stand unless characterized by the utmost good faith and candor. And the burden is upon the trustee to show their entire fairness. 41 Ark. 269; 1 Story, Eq. Jur. § 321.

Winfield, Judge; I. It appears by appellee’s own testimony that he had sold some of the goods, and had made no remittance therefor. This was a breach of the contract, which released appellant and gave it the right to demand a new contract. Anson on Contracts, (2 Ed.), 363; 60 C. C. A. 623; 125 Fed. Rep. 892; Lawson on Contracts (2,Ed.), 531. The breach was sufficient to justify appellant in stopping the car. By his own testimony appellee was insolvent.

The original title to the land in dispute was in the United States. 26 Ark. 168. And the record title is in appellants. 2. The evidence fails to establish either fraud or mistake in the award of the commissioners. 3. The award of the commissioners was final, in U. S. 289; 158 U. S. 166; 44 Pac. 807; 34 Ark. 220. 4. Green is not estopped by his own conduct and admission to claim the land in dispute.

Rowe, Judge; 1. See argument in Ingram case. 2. Defendant’s request for a peremptory instruction should have been granted, because the court had no jurisdiction, and because plaintiff introduced no testimony whatever tending to show any degree of negligence on the part of defendant. 1. At common law this action could be brought anywhere. It is transitory, and may be brought in this State. 62 Ark. 254; 51 Ark. 559; 67 Ark. 295; 141 U. S. 127.

Rowe, Judge; STATEMENT' 0E EACTS. The Moran Bolt & Nut Manufacturing Company, a Missouri corporation, sued to obtain and enforce a lien for material furnished to Mike Kelly, a subcontractor, in the construction of the Midland Valley Railroad Company, making Kelly, his principal, the Cherokee Construction Company, and the railroad company parties defendant.

The declaration for a balance of $39.40 alleged to be due on staves delivered under the “El Dorado” contract was a separate cause of action, and the circuit court had no original jurisdiction thereof, i Ark. 252; 3 Ark. 494; 5 Ark. 34; 9 Ark. 463; 18 Ark. 249; 35 Ark. 287. 2.

<p>1. Appeal — time oe piling bill oe exceptions'. — A bill of exceptions may not be considered if it was not filed with the clerk within the time allowed by the court. (Page 411.)</p> <p>2. Same — province OE bill oe exceptions. — It is not the province of the bill of exceptions on appeal to bring up the record entries and pleadings in a case. (Page 411.)</p>

Elliott, Chancellor; Appellant was not barred. This court as late as April, X903, recognized the validity of § 6259, Kirby’s Digest. 71 Ark. 318. It is not repealed by the enactment in March, 1891, of § 6520, lb. Repeals by implication are not favored. 24 Ark. 479; 41 Ark. 151; 45 Ark. 92.

<p>Appeal from Benton Circuit Court; John N. Tillman, Judge;</p>

Meeks, Judge; 1. The White River Railway Company having bought the right of way, the vendor could not maintain an action for a wrong where he consented to the act which caused the injury. 47 Ark. 334. If it became necessary to blast rock, and in so doing this rock fell on the yendor’s land, the railway company was not liable to its grantors for damages growing out of the same. 54 Ark. 424. 2.

Smith, Judge; Action by Alice R. Jackson against the Woodmen of the World, a fraternal insurance society, to recover the sum of $500 on a benefit certificate or policy issued to the plaintiff’s husband, W. L. Jackson, in which she was named as beneficiary. The plaintiff recovered judgment below, and the defendant appealed. 1.

Humphries, Chancellor; A record being shown to have existed and to have been lost, and that loss satisfactorily accounted for, parol testimony is admissible to prove its contents. 11 Ark. 367; 26 Ark. 166; 47 Ark. 125; 52 Ark. 103; 33 Ark. 489; 49 Ark. 157; 58 Ark. 277; 22 Ark. 453; 75 Ark. .12; 24 Am. & Eng. Ene. Eaw (2 Ed.), 209, tit. Records. 1.

Elliott, Chancellor; 1. The debt and the mortgage are admitted. The seed bought by appellee from the mortgagor were included in the mortgage to appellants. 2. Appellee was charged with notice of the existence of the mortgage from the time it was filed. Kirby’s Digest, § 5396. And the lien was fixed from the time of registration. Kirby’s Digest, § 5398. A mortgage of a future crop is valid. Kirby’s Digest, § 5405.

Hawkins, Chancellor; 1. The land was wild and uninclosed, and was not in possession of any one prior to appellees. They, having paid the taxes thereon for seven years in succession under claim and color of title, have acquired title by limitation. Kirby’s Digest, § 5057. 2.

Lea, Judge; 1. The court erred in refusing to give the instruction numbered 1 asked for by the plaintiff. It tyas defendant’s duty to report any shortage which it claimed within a reasonable time; and if it failed to do so, such failure was a fact proper for the jury to consider. 61 Ark. 101. Failure to assert the claim works an estoppel. 16 Cyc. 770. 2.

Winfield, Judge; I. Under the contract between Torrey and appellant, the latter’s lease of the lobby of the hotel for barber shop purposes was renewed and extended by the renewal of Torrey’s lease of the hotel, and did not terminate until the expiration of Torrey’s renewed lease. 18 Am. & Eng. Enc. Law, 617; lb. 618; lb. 689; lb. 690; 17 Am. & Eng. Enc. Law, 21 et seq.; 55 Ark. 414. 2.

B. Poindexter, Special Judge; 1. Appellant had the county surveyor to lay off the land he wanted to fence, and has had it fenced, cleared and in cultivation for at least ten years. 59 Ark. 628. The evidence did not justify the giving of instruction 2.

The deed from Wm. Sumpter to Sumpter Land and Improvement Company was fraudulent and void as to his creditors. They had obtained judgments at the time the deed was executed, which.were unsatisfied. The land was worth from five to six thousand dollars; but the consideration expressed in the deed was only ten dollars, according to the evidence twenty-five dollars. 41 Am. Rep. 756; 15 Pac. 635; 14 Am.

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

Conway, Judge; STATEMENT BY THE COURT. Action brought by Lula Weldy, as administratrix of the estate of W. W. Weldy, deceased, against the Prescott & Northwestern Railway Company and the Ozan Lumber Company, to recover damages resulting on account of the death of Weldy caused, as alleged, by negligence of the defendants. The plaintiff recovered judgment below, and the defendants appealed. 1. The verdict is without proof to sustain it.

Virgil Bourland. Chancellor; 1. The court erred in holding that the instrument was in reality a will, intended to take effect at his death, and that it was never delivered, whereas the proof is clear that it was a deed, duly executed by James H. Smith to appellant, and by him delivered to her in his lifetime. 2.

Wallace, Chancellor; 1. There is'no evidence that the various • steps necessary to make a valid organization of a levee district, and the levy of an assessment, were actually taken as provided by the statute. The requirements of the statute, which would be a protection to the citizens, are mandatory and must be strictly complied with. 50 Ark. 116; 130 U. S. 177; 25 Am. & Eng. Enc. Law (2 Ed.), 1204. 2.

Hughes, Judge; The court erred in giving the second instruction asked by the defendant. The question of the amount” of the fee had been agreed upon and settled by correspondence. It had become an account stated. 1 Cyc. 370; 1 Am. & Eng. Enc. Law, .430. If appellee had made a mistake by reason of having misplaced his books and papers, that would not excuse his making a different charge from that agreed upon. Pomeroy’s Eq. Jur. (1 Ed.), § 856.

Hart1 Chancellor; 1. When appellee without objection received the first mule sold when it was returned to him, and afterwards resold it to other parties, this was a conversion of the mortgaged property by the mortgagee, and amounted tp a satisfaction pro tanto of the.mortgage and note. .Jones on Chat. Mortg. § 65b; 5 Mich. 423; 9 Mich. 42; 2 Bosworth (N. Y.), 558. See also Pingrey on Chat. Mortg. 597; 24 Me. 131. 2.

Grace, Judge; 1. The allowance of amendments is a matter within the sound discretion of the tidal court, subject to review by this court in case of abuse. 68 Ark. 314; 60 Ark. 526. When a cause has proceeded to trial upon the issues made, and no new defenses are disclosed by the testimony, it is an abuse of discretion to allow defendant to amend his answer by adding a new defense which comes as a surprise to the plaintiff. For an analogous case, see 75 Ark. 465. 2.

Hart, Chancellor; STATEMENT BY THE COURT. Appellee brought suit for divorce against appellant, alleging that she and appellant were married in Faulkner County in the year 1896; that they lived together as husband and wife until the 6th day of January, 1906, when appellant treated appellee in such manner as to render her condition in life intolerable.

Steel, Judge; 1. Appellant having become as surety for his wife on the bond for purchase money under the sale had on December 22, 1896, this constituted an insurable interest in favor of appellant. 1 Wash. 409; 95 U. S. 549'; 13 B. Mon. (Ky.), 311; 86 Pa. St. 493; 15 Fed. 707; 1 Biddle on Ins. § 179; May on Ins. § 82. 2.

Appeal fr.om Jefferson Chancery Court; John M. Elliott, Chancellor; 1. There must be an intent to appropriate the land to public use, and if the intent of the owner is absent there is no dedication. 63 Ark. 5; 56 Md. 187; 9 How. 10; x R. I. 93; 59 Ark. 26; Dill. Mun. Corp. 631. The owner cannot convert his land into a public highway without the consent of the public, nor can the public dedicate it before he has in sdme way clearly assented to the dedication. 9 How.

H. Harrod & J. N. Cypert, Special Judges; 1. The description was bad in the indictment, and it was error to allow proof to go to the jury to prove the loss and value. 32 Ark. 181; 29 Id. 68; 51 Id. 112. It should have alleged that some kind of gold, silver or paper money, or some general description of the same, as required by § 1844, Kirby’s Digest. 71 Ark. 418; 65 Id. 825; 60 Id. 141. 2.

Meeks, Judge; The Batesville & Winerva Telephone Company sued the St. Louis, Iron Mountain & Southern Railway Company and the Western Union Telegraph Company in tort.

Duffie, Judge; J. O. Hickman sued W. H. Lower and Dewell Gann, alleging that, on October 14, 1902, they executed to him a promissory note for $850, payable December 1, 1902, on which $210,65 had been paid, and that the remainder was due and unpaid; that the note was given for purchase of a certain sawmill and attachments. Prayer was that the property be seized and sold, and the proceeds applied on the note.

The first case was appealed from Columbia Circuit Court; the second from Ashley Chancery Court; the third from Hemp-stead Chancery Court. (1) Chas., W. Smith, Judge; (2) Marcus L. Hazvkins, Chancellor; (3) Jas. D. Shaver, Chancellor.

V. Bourland, Chancellor; STATEMENT BY THE COURT. Held: among other_ things, the following: “That upon the purchase of the interest of Joe Curtis by the plaintiff, the defendant, Ike Rose, became the surviving partner of said copartnership of Rose & Curtis, and entitled to the possession of all of the assets of said firm for the purpose of winding up the affairs of the copartnership and…

Wallace, Chancellor; 1. If appellee can recover at all, it must be on the ground that he has a lien; and if he has a lien, it can only be for labor that he personally performed, and he can recover only to the extent of the value of that labor. 71 Ark. 338. 2. By appellee’s own testimony he has no lien.

Pozvell, Special-Judge; The failure to require that a guardian ad litem be appointed for the minors upon the cross-complaint of Crebbins and Gibson, and that he answer the same, is absolute error on appeal. 49 Ark. 397; 40 Ark. 56. No judgment should be rendered affecting the interests of an infant until after defense by a guardian ad litem.

<p>Appeal from Lawrence Chancery Court; George T. Humphries, Chancellor;</p> <p>I. The executors were joined in the action to obtain an order preventing them from turning over funds in their hands to the widow and heirs.</p> <p>Where the cause of action does not come into existence until after the two-year period is up, or so near the expiration of that period as not to be capable of being asserted, within that time, or where the claim is inchoate or contingent, then the jparty having such cause of action or claim, although barred by the statute from suing the executors or administrators, may maintain a suit in equity against the heirs and distributees. 3 Ark. 559; 9 Ark. 416; 15 Ark. 413; 40 Ark. 437; 31 Ark. 221; 58 Ark. 91; 54 Ark. 37; 63 Ark. 223.</p> <p>2. Upon return of his pass book, Pitzele must have discovered the discrepancy; and his concealment of it for so long a period, coupled with the appellant’s ignorance, would have the effect to stop the running of the statute of limitations. Such being the case, the claim can be prosecuted against the heirs and distributees.</p> <p>3. Independently of the statute, this is a case for equitable rélief. Equity will interfere in cases of fraud or mistake to grant that relief which is proper. 160 Mass. 438; 63 N. Y. 455; 43 N. Y. 452; 1 Beach, Mod. Ed. Jur. § 54. And the statute of limitations does not begin to run until discovery of the mistake, or the time when by due diligence it ought to have been discovered. Pomeroy’s Eq. Jur. (3 Ed-), § 869, and note; 93 Va. 623; 29 Ga. 651; 17 Ala. 557; 84 N. C. 408; 31 Tex. 334; Kerr, Fraud & Mistake, 435-6; Daniel’s Ch. Pr. § 737. •</p> <p>The claim in suit is hot authenticated, and for that reason can not be enforced. It is also barred by the statute of non-claim. 45 Ark. 299; 66 Ark. 327; 69 Ark. 62; 23 Ark. 604; 18 Ark. 334.</p>

Steel, Judge; 1. The testimony of both the boy and the father is clearly against the contention that the latter “drove” the former from his home. 2. An offer by the father to the minor son of land upon which to make a share crop can not be construed as an act of emancipation, especially when made with a view to retain the services of the son. 1 la. 358; 7 L. R. A. 176.

Tillman, Judge; 1. The court erred in permitting the plaintiff to prove the expectancy of life of the deceased by the physician. Mortality tables are admissible, but personal knowledge and unauthenticated books are not. 63 Ark. 491; 81 Tex. 523; 20 Am. Eng. Enc. Law (2 Ed.), 884-5. 2.

Smith, Judge; 1. If there is some evidence tending to establish the plaintiff’s cause of action, it is error to direct a verdict for the defendant; and this is true even though the weight of evidence may be with the party in whose favor the verdict is directed. 71 Ark. 445; 57 Ark. 527; 71 Ark. 305; 61 Ark. 442; 62 Ark. 63; 63 Ark. 94; 37 Ark. 164. 2.

Robertson, Chancellor; statement by ti-ie court. On April 27, 1897, the plaintiff, E. C. Watts, and the defendant, Jonesboro, Lake City & Eastern Railroad Company, entered into a written contract whereby it was agreed that the plaintiff should furnish to the .defendant at a certain price all cross-ties needed in the construction of defendant’s railroad from Nettle-ton to Lake City, Ark., $500 worth of said ties, according to the fixed price, to be furnished free of charge as…

<p>1. Telegraph company' — notice of claim of damages. — A stipulation in a telegraphic message that the telegraph company “will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission” is reasonable, and applies to claims under the statute for damages for mental anguish. (Page SS7-)</p> <p>2. Same — sufficiency of notice of claim. — Under a stipulation that a telegraph company will not be liable for damages or statutory penalty “where the claim is not presented in writing within ’ sixty days after the message is filed with the company for transmission,” the plaintiff must have presented his claim for damages within the time named, or the company will not be liable therefor; and, it is not sufficient that he notified the company of the facts constituting negligence. (Page 558.)</p>

Winfield, Judge; Lenon, as administrator of David Reeve, deceased, sued the Mutual Life Insurance Company of New York to recover the surrender value of two policies of life insurance, pne for $5,000 and one for $3,000, which were taken out by deceased in 1882, and on which the last premiums were paid in November, 1890.

Chapline, Judge; E. L. Chaney, as administrator of M. L. Chaney, deceased, brought suit against Bonner and Tichenor on an account, and sued out an attachment, which was levied on a lot of logs. The Sutherland-Innes Company, Limited, a corporation, intervened, claiming to own the logs.

Steel, Judge; 1. The lower court having made a special finding of fact and law, and embodied the same in the judgment, a bill of exceptions is not necessary to bring the issues before this court. 26 Ark. 536; Id. 662; 27 Ark. 464; 34 Ark. 684; 39 Ark. 258; 43 Ark. 398; 46 Ark. 17; 61 Ark. 33; 65 Ark. 278; 66 Ark. 180. 2.

Chap liner Judge; x. The issue is as to whether or not appellants and their ancestors had seven 3iears open, continuous, adverse possession of the land in controversy. Such possession confers title in this. State. Kirby’s Digest, § 5056; 38 Ark. 193; 48 Id. 316; 58 Id, 142. Appellant, Hudson, testified without contradiction, that he, his wife and her father had held the land continuously since-1878, claiming it up to the fence. No question was ever raised as to the boundary.

Shaver, Chancellor ; 1. The arrest and imprisonment of petitioner is for debt in a civil action, without allegation or proof of fraud in its contracting, and is a violation of his constitutional rights. 2. From the facts appearing by his sworn response, petitioner is not in wilful contempt. 3. Standridge & Meeks prayed for and were granted an appeal to this court.

Mitchell, Judge; 1. By ancient statute, -any act of waste was a cause of forfeiture of a life tenant’s estate. 6 Edw. I, c. 5; 2 Blackstone’s Com. 283; Coke on Littleton, 218. Neglect of a tenant to pay taxes is waste. 4 Kent, Com. 74; 5 Hun, 28; 22 Me. 331; 42 Ore. 437. And a life tenant is liable for all expenses for preservation of the property and the payment of taxes. Pingrey on Real Prop. § 318. See also 12 Me. 436; 19 Me. 291; 51 Me. 436; Code Ga. (1895), § 3090. 2.

Tillman, Judge; STATEMENT BY TI-IE COURT. Appellee stepped from the steps of the platform bn the rear end of the “smoker” of one of appellant’s passenger trains, and fell into a creek ten or fifteen feet below, and was injured.

Duffle, Judge; STATEMENT by the court. This action was begun in the circuit court of Garland County by the appellee, Brandt, to recover five hundred dollars damages, which appellee claimed he had suffered by reason of the appellant having carelessly and negligéntly set fire to a pile of rubbish so near to appellant’s house as to endanger it, and by the appellant afterwards so carelessly and negligently keeping said fire, that it was communicated to appellee’s house,-…

Chap line, Judge; 1. The testimony did not warrant the finding of the Court. The mere possession and use- of intoxicating liquors 'is 'not prohibited by the statute. There must be an intent to sell contrary to law,—and that intent ought to be shown to have existed beyond a reasonable doubt. 105 Mass. 595. 2. The testimony of the claimants is positive that they formed a club and purchased the liquor for their own use, and that it was not intended for sale.

<p>Appeal from Clay Circuit Court; Allen Hughes, Judge;</p>

Hart, Chancellor; STATEMENT by the court. The Arkansas Compress & Warehouse Company is a corporation, and during the years 1902 and 1903 was carrying on business in Little Rock, Arkansas. During the cotton season of 1902-3 the Compress Company handled a large amount of cotton for different parties.