Volume 81 — Arkansas Reports

Steel, Judge; STATEMENT BY THE COURT. Appellee sued appellant for the loss of a box of clothing, which he alleged was delivered to appellant at Memphis to be shipped to J. W. Hill at Nashville, Arkansas. Appellee alleged that appellant refused and neglected- to deliver the box of clothing to him at Nashville, Ark. He alleged that the box of clothing was of the value of $210, and prayed for judgment in that sum.

Shaver, Chancellor; statement by the court. In 1895 J. W. Bowlen, the father of John Bowlen, an infant child about a year old whose mother was dead, apprenticed his infant son to D. L,. Coleman of Howard County, Arkansas, during t-he full period of his minority.

Steel, Judge; Action by Nannie Read, administratrix of the estate of C. H. Read, against T. J. Dodd & Co. to recover damages caused by destruction of plaintiff’s house by fire alleged to have been communicated from a stationary steam engine which defendants were operating. The plaintiff recovered judgment for $300 damages, and defendants appealed. 1. The verdict was excessive.

Evans, Judge; STATEMENT by the . COURT. The court, after the jury had been out twenty-four hours, gave the following additional instructions over objection of defendant : “Gentlemen of the jury, all you know about this case, since you knew nothing about it at the beginning, you have learned from the legitimate evidence in the trial. All your impressions and beliefs must have been derived from the same source. Now, what do you honestly believe about the case from the evidence?

Rowe, Judge; statement by the court. The appellant was indicted as follows: “The said defendant, in the county and district aforesaid, on the 1st day of September, 1905, and being then and there the bailee of Ft. Smith Commission Company, a corporation, and as such bailee having received from Dave Mayo, Tom O’Leary and Frank Mason $10.50, gold, silver and paper money of the value of $10.50, the property of said Ft.

Meek, Judge; Claim of Thos. I. Herrn, prosecuting attorney, against the county of Sharp for commissions on amount collected on a judgment rendered upon a forfeited bail bond. The circuit court on appeal from the county court refused to allow the claim, and the claimant appealed. Prosecuting attorneys shall be allowed ten per cent, of the amount on forfeited bail bonds and recognizances.” Kirby’s Digest, § 3488.

Ther.e was evidence tending to prove that the train could have been stopped in time to have avoided .frightening the horse. The jury found that appellant was guilty of negligence, and judgment was rendered accordingly, from which appellant had appealed. 1. A railway company is only required to use ordinary care to avoid injuring stock after it is discovered on its track.

C. Pinnix, Special Judge; W. E. Carter was indicted for soliciting orders for the sale of whisky in a prohibition district.

Petition for quo warranto; 1. Did the county court have the power to declare a vacancy in the office when none in fact existed, and proceed to fill the vacancy by appointment? Compare Acts 1895, 463; Kirby’s Digest, § 7230; Mansf. Dig., § 5893; Acts 1889, 156; Kirby’s Digest, § 7342; Acts 1899, 353 § ,13; Kirby’s Digest, § 7228. The statute prescribes no time within which a road overseer shall qualify after he is elected.

Virgil Bourland, Chancellor; 1. The question whether appellee signed as a witness or as a guarantor was one of fact upon which appellant was entitled to have a jury to pass; and appellant should have been placed in position to have this question properly submitted, in a court of law. 35 Ark. 125. 2.

Hawkins, Chancellor; STATEMENT BY THE COURT. Clara Walworth and others brought an action in equity against Thomas Birch and others to recover possession of the west half and southeast quarter of section 4, township 12 south, range 3 west, in Desha County, and to cancel a tax deed under which defendants held the land, alleging as a reason for going into equity that they held an equitable title to the land, and for that reason their remedy at law was inadequate.

Hutton, Judge; 1. Manufacturers were exempted from the provisions of the act of 1879, and were permitted to sell in original packages of not less than five gallons without license. Acts 1879, p. 33. They were also exempted from the provisions of the amendatory Act of 1883, and by that ac-t permitted to sell without license, upon the same terms. Acts 1883, p. 192. The “three mile” law was enacted March 21, 1881.

Dufñe, Judge; STATEMENT BY THE COURT. The grand jury of Garland County returned an indictment against O. H. Sumpter, county judge of Garland County, for nonfeasance in office for failing to hold the common pleas court on the 13th day of September, 1906, that being a day of an adjourned term of that court which the county judge was required to hold.

<p>Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge;</p>

Appeal .from Carroll Circuit Court; J. S. Maples, judge; 1. This court will reverse where there is a total absence of evidence on a material point. 44 Ark. 259; 46 Ark. 142; 47 Ark. 197; 51 Ark. 467; 52 Ark. 314; 57 Ark. 577. 2. Appellant was entitled to interest 'on acceptances after maturity. 19 Ark. 16; 36 Ark. 355; 43 Ark. 275; 46 Ark. 87. 3. The verdict is contrary both to the evidence and the law.

Blliott, Chancellor; .1. Property purchased in the firm name, and paid for with partnership funds, becomes eo instanti partnership property; and in the case of real estate, charging the purchase price, subsequently, on the books of the concern against the account of one of the partners can not have the effect of divesting the title to the real estate out of the partnership. That could only be effected by proper deed of conveyance from both partners to the purchaser.

Wallace, Chancellor; 1. The conditional agreement -relied on to vest title in George Julian was verbal, and not enforcible under the statute of frauds. Held: through his tenants, peaceable, open, adverse and continuous possession for more than seven years. He is entitled to the possession of the lot and the house thereon. Kirby’s Digest, § 5056; 34 Ark. 534. 5.

Steel, Judge; STATEMENT BY TI-IE COURT. Eugenia Ward brought an action of ejectment against W. A. J. Sturdivant and certain of his tenants in the Howard Circuit Court to recover an undivided one-half of 160 acres of land in that county.

Robertson, Chancellor; 1. Strict conformity with the statute, in the three essential mandatory particulars required therein to be shown in the petition, is jurisdictional. 64 Ark. 1x8; lb. 566.

<p>Appeal from Crawford Circuit Court; Jeptha H. Fvans, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>This is an action against appellant on a policy of life insurance. The complaint alleged the issuance of the policy and the déath of the assured, and recites: “That said company issued to her, the said plaintiff, its policy of insurance, to which it attached the receipt of said company for the said premium, signed and countersigned as the contract requires.” The answer admitted the issuance of the policy upon which the action was brought, and admitted that the policy had attached to it a receipt for the first premium. But it denied that such premium had in fact been paid, and alleged that the policy was void for want of consideration.</p> <p>The appellee introduced the policy and receipt’ for the premium. The policy contained the following stipulation: “This contract shall not take effect until it is delivered to the insured while in good health and the first premium paid.” The death of the assured was admitted.</p> <p>• The appellant adduced the following evidence: V</p> <p>Henry Howell testified: That he knew Jack Perkins in'his life time and Nicholson, who was agent of the defendant company; that Nicholson sent him the policy for Perkins as it is now produced here in court or one similar to this one, with the receipt for the first premium as it is now produced in court or similar one; that he sent said policy and receipt to Jack Perkins by his son, Macy Howell.</p> <p>Macy Howell testified: That he received the policy in suit, or one like it, with the receipt for the first premium attached as now, or one like it, from his father, Henry Howell, and delivered the same to said Perkins; that Perkins did not pay him the first premium, and he said he did not have the money to do so; said that his family was away, and he had to send for them; that after-wards Perkins and he had an interest in some lumber, and Perkins asked witness to allow him to take the lumber to the amount of $5.00 to Van Burén, saying that he wanted to use that in paying this premium, to which witness agreed; that after that time Perkins showed witness a letter from Nicholson, demanding the payment of the premium on the policy, and asked witness to read it, which he did. Witness then asked Perkins i:f he had not used that lumber money in paying on the policy, and he said, “No.”</p> <p>Mrs. Nancy Howell testified: That she was present when her husband, Macy Howell, delivered the policy with the premium receipt to Jack Perkins; that Perkins did not pay the premium at the time, saying that he did not have the money; that his family was away from home, and that he had to send for' them; that about a week before Perkins’s death he told witness that he had not paid for the policy.</p> <p>C. E. Strickland testified: That he was the secretary of the defendant company who prepared and signed the policy and premium receipt here offered in evidence; that the .defendant never received the first premium; that Nicholson is not 'in- the employ of the defendant, and witnéss does not know his whereabouts.</p> <p>Thereupon the defendant rested.</p> <p>The appellant asked a peremptory instruction which Was refused. The court at the request of appellant gave the following:</p> <p>“A. If you find from the evidence that Jack Perkins never paid the first premium on the policy sued upon, then the policy never was in force, and you will find for the defendant. ;</p> <p>“B. If you find from the evidence that the first premium was not paid when the receipt and policy were delivered tb Jack Perkins, the burden is then upon the plaintiff to prove the payment of that premium before the death of Jack Perkins.”</p> <p>The court on its own motion gave the following:</p> <p>' “(1) If you find from a preponderance of the evidence that Perkins paid the first premium at the. time the policy was 'delivered or at any other 'time before his death, then you will ‘find for the plaintiff the amount of the policy sued on; and unless this appears from a preponderance of the evidence, you will find for the defendant.</p> <p>“(2) The issuance of a properly signed and countersigned premium receipt for the first premium is not conclusive' of the fact that the premium was paid, but in the absence of countervailing evidence the jury would be warranted in finding that the premium was paid. But. when other evidence tending to show that the policy and receipt were delivered without the actual payment of the first premium is introduced, then it is for the jury to say on all the evidence whether the evidence tending to show payment outweighs that which tends to show nonpayment. If it does, you will find for the plaintiff; if it does not, you will find for the defendant.”</p> <p>Counsel for appellee in his argument to the jury stated that, as the defendant had failed to produce its agent, Nicholson, the presumption., of law was that if he had been produced his evidence would have been against the defendant’s claim. The court of its own motion interrupted the- counsel, and told him in the presence and hearing of the jury that there was no such presumption, but that the counsel for the plaintiff might call attention to the matter as a fact, and the jury would be the judges of whether the absence of the agent- Nicholson would warrant any unfavorable inference against defendant or not, under all the circumstances of the case. Counsel for the defendant then interposed, and objected to the court permitting counsel for the plaintiff to call .the attention of the jury to the absence of Nicholson at all. The objection was overruled, and defendant excepted. The counsel for the plaintiff then in his argument to the jury called the attention of the jury to the fact that the defendant had not produced Nicholson, and insisted that its failure to produce him would warrant the jury under the circumstances to draw an unfavorable inference against defendant that the premium had been paid, as Nicholson was perhaps the only living person who knew certainly the facts about the payment of the premium. At the conclusion of the argument the defendant, in writing, requested the court to instruct the jury that: “(c) The're is no presumption against the defendant by reason of the absence of Nicholson, it being shown that'he is no longer in the employment of the defendant,” which instruction the court refused to give, and the defendant at the time excepted.</p> <p>There was a verdict for the plaintiff in the sum of $500 with 6 per cent, interest from April 3, 1905.</p> <p>1. The case, should have been taken from the jury by peremptory instruction, and the verdict is not sustained by the evidence. A receipt is only prima facie evidence of payment, and may be contradicted and explained by the party signing it. 5 Ark. 61; 46 Ark. 219. See, also, 65 Ark. 581; 69 Ark. 287; 13 111. App. 537; 103 N. W. .7; 213 111. 138.</p> <p>2. It was error to permit counsel in argument to call the attention of the jury to the absence of Nicholson, and to refuse to instruct the jury that no- presumption could be indulged from that fact. 9 So. 566; 85 S. W. 383; 37 Mo. App. 454; 47 Atl. 1081; 27 Conn. 316; no 111. App. 588; 138 111. 539.</p> <p>1. The delivery of the policy by Nicholson was an act within the scope of his authority, and when delivered the insurance was in force whether the premium was paid or not, and the company was liable unless it immediately repudiated the act of Nicholson. 11 S. W. 1024. But the question whether or not the premium was paid was passed upon by the jury, and their verdict will not be disturbed. 46 Ark. 142; • 51 Ark. 467; 56 Ark. 314; 47 Ark. 196; lb. 469.</p> <p>2. Appellant had more than three months in which to find and have summoned the witness Nicholson. Its failure to produce him or his deposition was a circumstance proper for the jury to consider.</p>

- Wood, Judge; - 1. Appellee failed to comply .with the terms of the iron-safe clause of the policies. The credit book was not kept in a fireproof safe, and was destroyed by the fire. This clause in the contract has been upheld as reasonable, and its provisions have been .sustained as promissory warranties to be' strictly performed' to entitle the insured to recover for a loss. 19 Cyc. 761,-note'i;-58'Ark 565; 53 Ark. 353.

Chapline, Judge; STATEMENT BY THE COURT. H. L. Briggs and his wife, Blanche W. Briggs, were in January, 1905, the owners of 320 acres of land in Lonoke County. George C. Lewis, an attorney at law and real estate dealer, undertook to sell this land for them.

Humphries, Chancellor; A chancery court’s jurisdiction of any particular case is determined by the allegations of the complaint. Wells on Jur. § 4. Courts of equity have no power to appoint a receiver of a corporation ancillary to a stockholder’s suit to wind up its affairs. 5 Tex. Cir. App. 18; 23 S. W. 819; High on Rec. 287-289; Smith on Rec. 220, note 1; Wait on Insol. Corp. 172; 2 Spelling on Corp. 842; 1 Mor. Priv. Corp. 283; 53 Cal. 530.

Robertson, Chancellor; The two_ years time fixed in the reservation in the deed was the limit of title. It did not give the appellee an absolute interest in the trees, nor a perpetual right to enter and remove the standing timber on the land, but his estate in the trees was determined if they were not removed from the land within two years. 130 N. Y. 465; 34 Barb. 566; 60 Mich. 622; 63 Ark. 10; 69 Ark. 442; 57 Wis. 118; 37 Wis. 360; 26 Mich. 523; 19 Am.

Hart, Judge; 1. Poolrooms and turf exchange are gaming houses, and are per se common public nuisances. 51 N.'J. L. 387; 30 Ark. 428; 79 Ky. 361; 39 Fla. 441; 55 Pa. St. 294; 58 Ark. 82; 51 Mich. 203; 51 Cal. 78; 16 Minn. 209; 60 N. PI. 73; 2 Ky. L. R. 339; 98 Ky. 635; 80 Pac. 877. Book-making is a gaming device or gaming table within the meaning of the law. 6 App. Cas. (D. C.), 6; 98 Ky. 576. 2.

Smith, Judge; STATEMENT BY THE COURT. The defendant, J. R. Burns, was indebted to the plaintiff, B. E. Yocum, in the sum of $974.61 evidenced by his promissory note secured by mortgage on land, and on August 18, 1903, delivered to her his check on the Bank of El Dorado, Ark., for that sum, which s-he accepted, and she surrendered to ihim the note and mortgage.

Smith, Judge; If one party induces another to sign a contract without reading it, this may give the signer, if he be deceived thereby, the right to avoid the contract as fraudulent. 9 Cyc. 390; 17 Ark. 498. A contract is an entire thing, and when altered in any of its integral parts is not the same contract. 5 Ark. 655. A general objection to an instruction has been condemned. 65 Ark. 259; 73 Id. 534.

. Humphries, Chancellor; statement by the court. Appellee, by her next friend, F. A. Hill, brought this action, and alleged that she was a minor under eighteen years of age, that she and appellant were married on the 29th day of February, 1904, and lived together until the 24th day of May, 1904.

<p>Real property — constructive possession. — Constructive possession of land follows the title until there has been an invasion of the possession of the rightful owner by actual occupancy of at least a part of the tract; and actual occupancy of part of a contiguous tract owned by another does not oust the constructive possession of the true owner, even though both tracts be described in the same instrument.</p>

TV. Smith, Judge; The action of the separate members of a school board is not the action of the board. There must be a meeting, after due notice to each director, which should be in writing, stating the time, place and purpose of the meeting. Until this is done, the action of a majority of the directors is not binding unless it be in a matter involving no exercise of discretion. 52 Ark. 515-16; 64 Ark. 491. 1.

The stipulation that no suit to recover under the policy should be brought after one year from the death of the insured is a limitation in conflict with the law, and will not be enforced. 70 Ark. 1; Kirby’s Digest, § 4380. See 6 Am. & Eng. Enc. Daw, 937 et seq. Remedial statutes are construed liberally to accomplish the object sought. Id., ’939. Statutes of limitation are purely remedial, and a fortiori are limitations in contracts. 18 Ark. 384; 21 Ark. 287; 56 Ark. 187. 2.

Wallace, Chancellor; 1. Mrs. Kenady made and delivered to W. H. Kenady her warranty deed to the land in controversy. Acknowledgment of an instrument raises a presumption of its due execution, and is a fact entitled to be considered in determining whether there has been a delivery. 1 Cyc. 540.

Humphries, Chancellor; 1. It was error to transfer the case to equity. The only issue raised by the pleadings was whether the land was the homestead of Elijah Dane, and that defense could have been interposed at law. 2. If the land was the homestead of appellee and her husband, it was abandoned when they separated, and each moved away from the land. x. The appeal should be dismissed for failure of appellant to file a proper transcript. 2.

Winfield, Judge; 1. Placing the most favorable construction upon the testimony introduced by plaintiff, the Shaws were in arrears when the fire occurred. The conditions in the note were a part of the policy, and a breach of its conditions was a breach of the conditions of' . the policy. 93 S. W. (Ark.), 752; Vance on Ins. 237. There was no substantial compliance with the clause with reference to keeping a set of books.

Humphries, Chancellor; The substituted complaint of Beasley and another against B. F. Burns and wife was as follows: That on and prior to the 7th day of June, 1898, one Robert F. Payne was seized in fee of the lands in controversy, holding under patent from the United vStates; that on said date said Payne departed this life, leaving as his sole heirs at law the plaintiffs, defendant Fannie Burns and Forest Payne, and that said Fannie Burns was and is the wife of B. F. Burns;…

H. Humphreys, Chancellor; statement by the court. This suit was begun by appellee in the Marion Circuit Court as an action of ejectment. Held: used, and occupied said lands at all times since they were given to her as above stated, and has so held said lands at all times as her property, and claimed the same as her land openly and notoriously, and held it adversely to J. F. Hudspeth and to everybody else at all times since the 27th day of February, 1894, to the present time.

Shaver, Chancellor; STATEMENT BY THE COURT. This suit was begun by the appellant to quiet title to the N. W. yi, S. W. sec. 3°> T. 9 S., R. 22 W., in Nevada County. Appellant claimed title from the Government through patent to the Cairo & Fulton Railroad Company, with which company it was consolidated.

Winfield, Judge; 1. The testimony of M. D. E. Cook that he gave money to Covington was incompetent and inadmissible.

Conway, Judge; 1. This was an unusually bright boy, ten years of age, who had often walked along the railroad tracks to and from school. By his own testimony it appears that he frequently had to get out of the way .of cars, knew the risks incident to his walking along the tracks, and that it was necessary to his own safety to look out for approaching cars.

Rowe, .Judge; 1. If the relation of landlord and tenant existed between the parties, the court had jurisdiction, and plaintiff was entitled to recover. 2. The question whether or not this relation existed was one for the jury to decide from the whole testimony under proper, instructions. The title to the land was necesarily involved in this suit, and the justice of the peace was without jurisdiction to try it. Const. 1874; 7 Ark. 305.

<p>1. School district — employment of teacher — liability.—Where a school district employed a teacher .holding a second-grade license, which would expire before his term of employment would end, and subsequently he was examined before his school was to begin, and received license in the third grade, which authorized him to teach the school, the schpol district was liable for his salary, if he held himself ready to teach, though the directors refused to permit him to do so. (Page 194.)</p> <p>2. Same — employment of teacher — warranty as to grade. — The recital in a contract of employment 'of a teacher that he holds a license of the second grade is not a warranty that he will continue to ’ hold that grade. (Page 195.)</p>

Meeks, Judge; STATEMENT BY TI-IE COURT. The complaint charged that the Batesville & Winerva Telephone Company was a corporation organized under the laws of Arkansas, and owned prior to October, 1901, a telephone line through the counties of Independence, Izard and Baxter, and that in the early part of 1901 it constructed its telephone line on the north or east bank of White River from Syllamore to Penter’s Bluff, Independence County.

Mitchell, Judge; Reynolds sued the Mutual Life Insurance Company and E. V. M. Powell, alleging that he had paid $329.90 as the first premium on a policy of $5,000 which the insurance company declined to issue, and he sought to recover the premium. • The insurance company denied that it received the sum of money set out, or that any one authorized to do so received any money on account of the proposed insurance.

Where, through either fraud or mistake, a written instrument, which is part of a contract, does not state the facts, before it can be corrected, the evidence of the fraud or mistake must be clear, full and convincing. 15 Ark. 275; 71 Ark. 614; 75 Ark. 72. 2. Among the questions propounded to the deceased, Riffey, were the following: “Do you use, or have you ever used, .ardent spirits, wine or malt liquor? If so, to what extent — average quantity each day? State fully.

After the city council has appointed commissioners, names of petitioners can not then be withdrawn from the petition. Such a procedure could have .no other effect than to create endless uncertainty and confusion.

<p>Appeal from Marion Chancery Court; T. H. Humphreys, Chancellor;</p> <p>1. Appellee’s notice of their alleged location in September, 1899, was insufficient, in that it was not posted on the land claimed. It also failed to conform to the requirements of § 2324, U. S. Rev. Stat., in failing to describe the location with reference to natural objects or permanent monuments so as to identify the claim.</p> <p>2. If appellees acquired any rights under such location, they have forfeited the same by failure to do the assessment work required by law. Section 2324 supra; 73 Ark. 610; 72 Ark. 225; 70 Ark. 525.</p> <p>1. Neither the Federal nor the State laws require that notice of location be posted, hi U. S. 356; 1 Snyder on Mines, § 374; 1 Findley on Mines, 350; Barringer & Adams on Mines, 234. If posting or recording is required, it must come from some local rule.or custom of the district, and none is proved. 99 U. S. 261; 1 Snyder on Mines, § 128.</p> <p>2. The question of forfeiture does not enter into this case. It is simply a question of who has the valid location. If appellant’s attempted amended location of May 10 and September 26, 1904, were good, he can not rely on the deeds made by his co-locators to him, and received prior to that time, because they were only quitclaim deeds. Kirby’s Digest, § 734; 76 Ark. 417. No rights were acquired under the notices made by appellant in 1898. They do not comply with the act of Congress, and .are void on their face. U. S. Rev. Stat. § 2324. Appellee's notices of September, 1899, were similarly defective, and within themselves conferred no rights, but appellees did take actual possession of the lands at that time. When, in August, 1903, appellees procured the services of the county surveyor, went upon the lands, had same surveyed and the “location distinctly marked on the ground so that its boundaries could be readily traced,” this gave appellees all rights of possession against the Government, and against all claimants who did not hold a valid location. 113 U. S. 527; White on Mines and Mining Rem. § 35.</p>

Grace, Judge; Delivery of goods to a common carrier pursuant to the directions of the purchaser is delivery to the purchaser. Benj. on Sales, 6 Am. Ed. 181, 1040; 44 Ark. 556; 53 Ark.' 196; 79 Ark. 456.

Rozve, Judge; Where the plaintiff was guilty of contributory negligence, the defendant was only bound to exercise ordinary care to avoid injuring him, after discovering his perilous position. 62 Ark. 164; 64 Ark. 420; 91 S. W. 748; 101 N. W. 298; 78 S. W. 82. 2. It is error, for which this court will reverse, if the trial court refuses to reduce oral instructions to writing when requested. Kirby’s Dig. § 6196; 51 Ark. 177. 3.

Virgil Bourland, Chancellor; The powers exercised by the English chancery courts over what we call the cy pres doctrine are not exercised by the courts of this country. 9 Am. Dec. 577, and note; 44 Am. Dec. 98, and note; 64 Am. St. Rep. 755, and note. If the beneficiaries are to be determined by arbitrary and uncertain standards, the bequest is void. 9 Am. Dec. 586. The purpose of the trust must appear from instrument creating it. 9 How. U. S. 55.

Cross appeals from Lee Chancery Court; Bdward D. Robert-son, Chancellor; 1. The president'of the levee district is restricted in' his disposition of the land to the terms and conditions of the grant. He was therefore unauthorized to sell the land on credit. Acts 1893, p. 172; 67 Ark. 413. 2. Receipt of taxes by the officers of the district does not amount to a ratification of the act of the president.

Conway, Judge; 1. The court erred in giving the third instruction asked for by the plaintiff, and in refusing to give the fourteenth instruction asked for by the defendant. Rules are generally only necessary to be promulgated by railroads and like corporations. 58 Ark. 332. They are required only to avoid accidents, and when from the dangerous nature of the business'accidents would most likely occur without them. 64 Am. St. Rep. 785; 20 Am. & Eng. Enc. of L. (2 Ed.), 101.

H. Humphreys, Chancellor; 1. The fact that 'One who pays off a prior lien retains in his own possession the note and deed evidencing such lien is not sufficient to give a right of subrogation. 44 Ark. 504. A mere loan of money for the purpose of enabling the borrower to pay a debt is not sufficient to entitle the lender to be subrogated to the rights of the creditor whose debt is thus paid.

Hazvkins, Chancellor; Action by Mrs. Katie Connerly and others against J. W. Dickinson and another to quiet title to land. Judgment was for defendants, from which plaintiffs appeal. 1. As between Mrs. Dickinson and Thornton, the question as to whose is the better title has been settled. 65 Ark. 610. Since by that decision his title was established to the twenty acres east of the brake, it extends Jo -the whole of the tract described in the Jones deed. 57 Ark. 97.

- Dicffie, Judge; i.- The verdict ignores the complete accord and satisfaction of all claims made by the plaintiff before suit was brought. • 2.. The court erred in refusing the fourth instruction asked for by the appellant. 86 N. Y. 79; 61 Fed. Rep. 54; 65 Fed. 460; 113 Fed. 915; 62 Ark. 278. And also in refusing the 5th and 10th instructions on the same point. 3. There can be no recovery for fright, hence the 3d instruction given was erroneous. 69 Ark. 405.

and the witness Jones, which showed that they were keeping a proper lookout, and that the engineer stopped the train as quickly as possible after discovering the animals on the track in the effort to avoid injuring them. Their testimony ought not to have been arbitrarily disregarded by the jury. 67 Arle 516; 43 Ark. 225; 57 Ark. 21; 66 Ark. 439.

Steel, Judge; It is admitted that the appellee was of sound mind and business ability, and was able to read and write with ease. It was his duty to examine the policy on receiving it, or within a reasonable time thereafter. Railing therein, he must abide the consequences of his own negligence. 31 Ark. 170; 7 Ark. 167; 30 Ark: 686; 11 Ark. 58; 26 Ark. 28; 19 Ark. 522; 22 Ark. 244.

Smith? Judge; Upon appeal from the action of the justice of the peace it was the duty of the plaintiff, appellee here, to file a bond as required by statute, Kirby’s Digest, § § 3908, 4666. And if the appeal is taken without bond it does not operate to suspend proceedings on the judgment appealed from, nor to recall an execution issued. Id. § 4667. See Id. § 3096.

<p>1. Appeal- — reversal—land titles.- — Where real estate is involved, the practice, on reversal, is to remand the cause to the trial court, in order that the title may be cleared and supplementary proceedings be had where the land is situated. (Page 274.)</p> <p>2. Same — reversal—right to restitution — Where a decree awarding possession of land to plaintiff was reversed on appeal, and the complaint dismissed, the effect of the reversal was to vacate the decree for possession, and the' trial court should, after proper notice, make ' restitution of what was taken under its erroneous decree, if possession was in fact taken under it. (Page 27=;.)</p>

Fulkerson, Judge; 1. The court erred in instructing the jury, that, the killing by the operation of appellant’s train being proved,- the presumption was that it was due to negligence on the part of those in charge of the train, and that, unless deceased was guilty of contributory negligence, the burden was on appellant to prove that its employees were not negligent in operating the train. 79 Ark.- 76; 44 -Ark. 527; 46 Ark. 555; 51 Ark. 467; 1 Cold.

■ Appeal from Howard Chancery Court; James D. Shaver, Chancellor; 1. The plea of limitation is personal to the debtor. If he elects to waive it, or for any reason refuses or neglects to claim its benefits, a stranger will not be heard to. complain, 45 W. Va. 620; 44 W. Va. 229; 71 Ark. 302. 2.

H. Humphreys, Chancellor; statement by the court. The city council of the City of Eureka Springs, by an ordinance passed September 6, 1889, created and laid out an improvement district known as “Water District No. 3” for the purpose of constructing a system of waterworks for the territory embraced in said district; and at the same time also created out of contiguous territory another district known as “Water District No. 4” for the purpose of constructing waterworks in that…

Robertson, Chancellor; Albert H. Chatfield was in 1897 the owner of the northeast quarter of section thirty-three, township eight north, range six east. Taxes for that year not having been paid, the land was sold for said taxes on June 13, 1898, to W. N. Brown, Jj.; and, the same not having been redeemed within two years, a deed was niade to said Brown by the clerk on the 7th day of July, 1900, which deed was put on record July 11, 1900.

Rowe, Judge; John McLean was convicted of violating Acts 1899, c. 219, known as the Screen Law. It was agreed that he violated the terms of the statute, and the only question raised by the appeal is whether the act is valid. The act is in violation of the State Constitution, art. 2, § § 2, 3, 8, 29. And of the Federal Constitution, 14th Amendment, § 1. Similar statutes have been declared unconstitutional. Cooley, Const.

Rowe, Judge; 1. When the court fixed the time in which to file the bill of exceptions, and that time lias been permitted to pass without application . for, and order by, -the court changing the limitation of time originally fixed, the court is thereafter without jurisdiction to extend the time for filing the bill of exceptions. Compare Arkansas and Missouri statutes, Kirby’s Digest, § 6222; Rev. Stat. Mo., § 2168. 83 S. W. 539; 119 Mo. 69; 113 Mo. 559; 24 Ind. 347.

E. DeVall sued Cooper Bros., the Little Rock & Hot Springs Western Railroad Company, and George R. Belding, as mayor of Hot Springs, alleging that plaintiff and defendants Cooper Bros, were engaged in the livery and transfer business at Hot Springs and in hauling passengers to and from defendant’s depot; that the railroad company entered into an agreement with the Coopers whereby they obtained the exclusive right to approach the depot at a certain ’ point and to solicit…

Robertson, Chancellor; 1. The title of appellee’s vendor was divested by previous tax forfeitures, occuring in 1871 and 1882, so that the ancestor of the vendor had no title at the time of his death which could pass to or vest in his heirs at law under the patent obtained by them in 1903. Hence neither appellee nor those under whom he claims to hold had any title at the time of collector’s sale in 1895.

S. Maples, Judge; Where one drives upon a railroad track without looking to see if there is an approaching train, as a matter of law he is guilty of contributory negligence, and can not recover' if injured. 54 Ark. 431; 56 Ark. 457; 61 Ark. 549; 62 Ark. 156; 64 Ark. 364; 65 Ark. 235; 69 Ark. 134; 78 Ark. 55. The train in this 'case was in plain view, as is admitted by the driver. He is charged with having seen it. 79 Ark. 241.

This is a suit by appellee against appellant for the loss of four boxes of picture frames and pictures alleged to have been, lost and converted by. appellant, to appellee’s damage, etc.

• Appeal from Polk Chancery Court; James D. Shaver, Chancellor; In transactions between husband and wife whereby her property become vested in hinq the onus is on him, and on those holding under him, to show the bona tides of the transactions'. Where a disposition of her property is attempted which is beneficial to him and injurious to her, he becomes her ,trustee, and every reasonable intendment is indulged against him.

<p>Appeal from Hempstead Circuit Court; W. S. Bakin, Special Judge;</p>

Kirby’s Digest, § 6870; 47 Ark. 316. The record failing to disclose the testimony from which this court may determine the facts upon which the decree is based, it will be presumed that the decree is correct and based upon sufficient testimony. 58 Ark. 135; 63 Ark. 513; 64 Ark. 609. The findings of a chancellor upon a question of fact will be sustained unless clearly contrary to the weight of the testimony. 67 Ark. 287; 68 Ark. 134; Id. 314; 71 Ark. 605.

<p>Liquors — sale oe native wine. — Under Kirby’s Digest, § 5100, a grower of grapes and berries in the State may sell wine made therefrom anywhere except where especially prohibited in the three-mile districts by order of the county court, regardless of the vote on the question .in the county, township or ward.</p>

Fulkerson, Judge; Dixon Brothers sued Massey Brothers and one Hudson in replevin for a certain carload of cedar posts.

Roive, Judge; The verdict is not supported by the evidence. The rule is settled that when one enters the service of another he takes upon himself the ordinary risks of the employment in which he engages.

Hutton, Judge; Melio brought suit against Graves and Solomon, alleging that, on January 1, Í905, he entered into a verbal contract with defendants to deliver to them, at their place of business in the city of Helena, during the months of February and March following, 400 bushels of potatoes at the price of $1.10 per bushel, and to -make the deliveries at such times and in such quantities as defendants should direct him; that pursuant to said contract, he delivered to…

Robertson, Chancellor; 1. It is admitted that the sale for taxes of 1868 is void. The State acquired no title by virtue of the overdue tax forfeitures under the law of 1881.

Lea, Judge; 1. In this case, before the State could properly ask for a conviction, it was necessary to prove that the appellant published a newspaper article containing the libel set out in the indictment. Proof of what was contained in the headline alone was not sufficient to sustain the allegation. To charge that one offers a bribe can not properly be construed to mean that he commits the crime of bribery, nor can the indictment in this case be aided by innuendo. 93 Am.

W. Meeks, Judge; 1. The building of a depot on the land before the execution of a deed.was a condition precedent; and no title passed to appellee nor right to a deed, upon which rested the license lawfully to enter upon the land for the purposes of track laying, etc., until this condition' was performed. The depot was built in the latter part of the summer of 1903, and the deed is dated September 28, 1903. Appellant’s lease had long previously been made. 2.

Chapline, Judge; STATEMENT BY THE COURT. James Bryant was a laborer on his father’s farm, through which the appellant’s railroad ran. On July 14, between one and two o’clock in the afternoon, appellee was going to his work on the farm, and was walking along a path near the railroad track. A freight train passed, to which was attached a boarding car on which was a bridge gang.

The complaint, after alleging .the incorporation of plaintiff, is as follows: “That the plaintiff was owner of a lot of elm sawlogs placed along defendant’s tracks at Crawfordsville, Arkansas, during the months of September, October, November and December, 1903, for shipment to its sawmill located at Wynne, Cross County, Arkansas; that during the said months plaintiff had made often and repeated demands for cars upon which to load and ship out logs; that it received only ,an…

Hart, Chancellor ; The suit by the board of improvement to sell the land for unpaid taxes was one in rem. 50 Ark. 188; 55 Id. 398. The Code provisions as to persons constructively summoned do not apply in a suit against land for taxes. 57 Ark. 49. When the jurisdiction of a court of general jurisdiction depends upon facts not appearing upon the record, they will be presumed in' a collateral preceding. 64 Ark. 464.

R. Maples, Judge; statement by the court. The complaint alleges that plaintiff was a passenger on de-' fendant’s train between Brentwood, Arkansas, and Kansas City, Missouri. That he was transported to Fort Scott, Kansas, at which point he arrived at about 3 o’clock in the morning of the 12th of July.

Mitchell, Judge; STATEMENT BY THE COURT. Appellee Ritter filed an account against Marion County “for waiting on and nursing smallpox patients at J. D. Hardy's under direction of board of health, ten days at $5 per day, from April 24, to May 5, 1906,” total $50. Appellee Bonds filed an account “for waiting on and nursing the family of Chas.

Wood, Judge; That portion of the testimony of the witnesses which purported to be the dying declaration of Monroe Nelson should have been excluded. Dying declarations are admissible only when made in extremis; when the party is at the point of death, and every hope of the world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, i Greenleaf, Ev. (16 Ed.), 245, § 156; 2 Ark. 229; 2 Johns. 31.

Hart, Chancellor; 1. From the testimony it is unquestionable that both Abeles and Savage knew and understood that the property conveyed by the quitclaim deed did not contain one-half of the land in question. • It is clear that there was not only no mutual mistake, but no mistake on either side, it being known and .understood that Abeles was getting only what was described by metes and bounds.

Shaver, Chancellor; I. When the appellant introduced its deed from the State, a prima facie case was made, and it was under no further obligation to prove the truth of the recitals in the deed. Sand. & H. Dig., § 4569; 49 Ark. 275. By this deed it is shown that the land was the property of the State at the time the deed purporting to convey title to the appellee was executed. Being the property of the State, appellee could not incumber it by making improvements. 57 Ark. 474.

Chapline, Judge; 1. Conceding that the appellee’s testimony is true, still, in view of the facts that he was earning at the time only $45 per month, and that the distance was only about two miles, which he could walk in not exceeding one hour; and in view of the further facts that he could have remained on the train with the loss of only one day’s time, and that he voluntarily debarked from the train, knowing the condition of the weather, the verdict was not only excessive,…

Rob-, ertson, Chancellor; 1. The tax sale of 1893 was invalid. 2. Compare Arkansas and Illinois statutes on seven-year payment of taxes. Kirby’s Digest, § 5057. x Wall. 638. Held: that a purchase at a tax sale, or a redemption, will not be treated as a payment, and (2) that the payment must be made by, and in the name of, the holder of color of title. 53 Pac. 426; 47 111. 21.

Martin, Special Judge; STATEMENT BY THE COURT. In 1882 Betty Gibson obtained in the Woodruff Circuit Court a decree of divorce from her husband, J. N. S. Gibson, known as “Spott” Gibson, on the ground that he was insane. The decree gave Mrs. Gibson the custody of their child, Sallie Spott Gibson. On the Stir day of April, 1884, Gibson died in Woodruff County, leaving 'an estate of personal and real property. On the 27th day of the same month L,.

S. Maples, Judge; 1. There was not sufficient evidence of negligence to warrant a recovery, and the court’s instruction upon the presumption of negligence from the fact of the animal’s death was erroneous. 50 Ark. 397; 34 Ark. ‘383; 39 Ark. 523'; 40 Ark. 375; 44 Ark. 208; 52 Ark. 26. The presumption is that the injury was from the viciousness of the stock. 5 Am. & Eng. Enc. of L. (2 Ed.) 471 and notes. 2.

Humphries, Chancellor; If, as declared in 53 Ark. 430, the law then in force fixing the time for redemption allowed to persons under disability is a special and particular clause, even then it ought not to be held that the act of 1881 repealed it. Repeals by implication are not favored. 11 Ark. 103; Id. 496. A general statute will not repeal a prior particular act, unless the two acts are irreconcilably inconsistent. 29 Ark. 225.

93 S. W. 570. Lraud must be pleaded by showing the facts which constitute the fraud. In this case the facts,. if properly pleaded, do not sustain the allegation, as the evidence must be full, clear and convincing. Title to real estate can not be overturned by a bare preponderance of oral testimony. 75 Ark. 448; 79 Ark. 418. There is no allegation setting up facts constituting breach of trust, Fletcher, Eq. Bl. & Pr. 131 § 98; 34 Ark. 70. See, also, 24 Ark. 464.

Shaver, Chancellor; Though the provision in the will that all the estate remaining at the déath of the testator’s wife, and not disposed of by her by will or other writing, should pass to the testator’s brother and sister, or their heirs, would be void in a deed, it is good as an executory devise. As to the law of executory devises, see 3 Ark. 147.

Moose, Judge; Action by J. C. Yancey against the Batesville Telephone Company and the Southwestern Telegraph & Telephone Company. A demurrer to the complaint was sustained. Plaintiff '.appealed. 1. The question presented is the construction of § 7948, Kirby’s Digest, being section 11 of the act approved March 31, 1885.

Wood, Judge; 1. The petition for change of venue showed that the plaintiff was not then, nor at the time of filing the suit, a resident of the county in which' this suit was brought; and, the petition being duly verified as required by the statute, the petition should have been granted as a matter of right. Kirby’s Digest, § 7998, proviso. 2.

While the court had the jurisdiction to make the order requiring the payment of the sums of money named in the order, and to require of petitioner the execution of a bond to that end, yet he was entitled to a reasonable time in which to make the bond, and, upon failure therein, should have had an opportunity to show cause why he had not obeyed the order. The court ought not to anticipate a contempt and place the petitioner in custody before he had violated its order.

Hutton, Judge; 1.' The incumbrance on the property was specially pleaded in the answer. This was a breach of contract, to which appellee made no plea of waiver. Waiver must be both pleaded and proved, and the burden of proof is on the plaintiff. 3 Cooley, Briefs on Ins.-2768; id. 2773; 23 Ind. App. 121; 53 N. E. 787; 77 Am. St. Rep. 414; 7 B. Mon. (Ky.) 470; 72 Ark. 52.

<p>1. Insurance — liability oe eraternal association. — The constitution and by-laws of a fraternal insurance association form a part of the " contract, and must be complied with before the association becomes liable for a death loss. (Page 514.)</p> <p>2. Same — waiver oe requirement oe member. — If a requirement in the by-laws of a fraternal insurance company that an applicant for membership shall be initiated before any liability for his death accrues may be waived by the action of a subordinate lodge, the mere election to office in such lodge of an applicant for membership will not operate as a waiver of such requirement if the applicant was . never installed and never attended any meeting of the lodge. (Page 5I4-)</p>

N. Hutton, Judge; 1. The right to bring proceedings in the nature of coram nobis exists, even though one has prior thereto pursued his other remedies, n Mo. 661; 61 Pac. 690; 57 Kan. 398; 60 Kan. 51. A motion for the writ will lie to revoke the judgment at any time the matter is presented to the court by such motion, supported by affidavits or evidence. 44 Mo. App. 506. See also 34 Am. Dec. 395; 19 Wend. 620; 8 East, 414; 20 Wend. 626; 1 Swan. 341. 2.

Winfield, Judge; This was an action instituted in the name of the State of Arkansas upon the relation of the Attorney General against the Hammond Packing Company under the… Held: That the proceedings under which property is subjected need not be strictly a judicial proceeding. 18 How. 272.; 107 U. S. 265; 115 U. S. 330; 47 Ark. 296, 301. (b) That due process of law does not necessarily imply a proceeding according to the course of the common law. Cases supra; no U. S. 516.

This suit was brought by appellees against appellant to recover a balance of $686.48 alleged to be due appellees on lumber sold and delivered to appellant.

Mahoney, Chancellor; 1. Appellant ought not to be compelled to pay this tax regardless of benefit. The counts have the power in every case to determine whether there is any benefit which is direct and certain to the property of the complainant embraced in the improvement district, and, if it is found that no direct or certain benefit will result, to refuse their aid. 69 Ark. 68, 76. 2.

Lea, Judge; statement by the court. This is an action by appellee, the beneficiary in an accident policy issued by appellant, insuring the life of Herman E. Brittner against death by accident, in the sum of $1,500. The complaint alleged the issuance of the policy, and that the assured had been run over and accidentally killed by a railroad train.

Court; Jefitha H. Evans, Judge; 1. The charge of the court as to the corroboration of the testimony of an accomplice was correct. 64 Ark., 247. 2. Continuances are matters within the discretion of the trial court, and unless this discretion is abused a refusal to continue is not ground for new trial. 26 Ark. 322; 41 Id. 153; 54 Id. 243; 57 Id. 165; 71 Id. 63. 3.

Duifie, Judge; 1. The court erred in overruling appellant’s motion to strike out the amendment to the complaint because (1) it set up a new and distinct cause of action which (2) did not exist at the time the original complaint was filed; (3) the facts stated in the amendment were not material to the case set up in the original complaint; (4) the additional cause of action cannot be joined with that in the original complaint because (a) each kind of action does not affect…

Francis Circuit Court; Hance N. Hutton, Judge; i. The court erred in permitting the prosecuting attorney to challenge two jurors peremptorily after they had been accepted as jurors. Kirby’s Digest, § § 2356-7, 2347. '2. It was error to permit the prosecuting attorney to ask defendant if he had not been criminally intimate with a certain woman, and if he had not threatened to kill any man in the community that went to see her or had anything to do with her. 3.

Hutton, Judge; 1. Under the circumstances of this case, and because of the nature of the work in which deceased was engaged, there was no duty resting on appellant to provide him with a safe place to work, but deceased assumed all the risks and hazards of the employment. Appellee is aided by no presumption of negligence on the part of appellant. 79 Ark. 76; 179 U. S. '658; 76 Ark. 69; 58 Ark. 217; 73 Ark. 55 ; 65 Red. 48; 67 Red. 507; 144- Red. 605.

Hart, Chancellor; STATEMENT BY The COURT. On the 18th of March, 1904, W. F. Lenon was mayor of the oity of Little Rock. As mayor he was president of the board of public affairs of the city, which board was composed of himself,' Herman Kahn and J. L. Reid. This board was intrusted with the letting of paving and other contracts for the performance of work for the city and with the -inspection and acceptance of such work.

Steel, Judge; 1. The peremptory instruction for defendant should have been given. The issues are matters of law, as there is no conflict in the evidence, and no liability. The prima facie case resulting from the injury was clearly overcome by the evidence, and the jury could not disregard it. 67 Ark. 514, 516; 53 Id. 96, 97; 62 Id. 182, 185; 66 Id. 439, 441; -81 Ga. 202; 83 Id. 393; 70 Miss. 348. 2.