Volume 82 — Arkansas Reports

Hawkins, Chancellor; I. The appellants, being owners of part of the land, are owners of part of the timber, or its value, and it was the duty of the court to afford relief for the timber cut and removed. 95 Ala. 527; 51 Cal. 505;.35 Vt. 449; 33 W. Va. 60; 20 Fla. 58; 29 111. 294. 2. It was error to adjudge one half the costs against appellants, when the mandate of this court awarded all the costs against appellee.

S. A. Clements lived near Whitehall, a station on the Iron Mountain Railway in Poinsett County. In 1904 he purchased five bales of cotton, and had them placed on the platform of the railway at that place for the purpose of shipment. The railway company kept no agent at that station, and Clements did not.get a bill of lading for his cotton, but he made a demand for a car in which to ship the cotton.

Duffie, Judge; The title to the piano has never passed to appellant, and he was not bound to pay for it after it was destroyed by fire. 77 Ga. 501; 94 Mass. 377; in Id. 355; 128 Ala. 162; 1 Benj. Sales, § § 452, 427; 7 Wall. 331; 79 Ala. 547; 88 Id. 605; 70 Me. 288-9; 2 Tex. App. Civil, 152; 63 Fed. 536; 12 Allen; 381; 1 Beach on Contracts, § 773; 48 Ark. 160, 166; 118 U. S. 663; 67 Vt. 427, 430.

Evans, Judge; 1. The court erred in refusing to direct a verdict for defendant. The proximate cause of the injury was plaintiff’s own contributory negligence. 108 Fed. 747; 128 Id. 529; 144 Id. 668; 70 Ark. 603; 51 Id. 467-; 53 Id. 117; 54 Id. 389. 2. It was error to refuse to allow defendant to introduce the application for employment by plaintiff. 3.

Elliott, Chancellor; 1. Where a vendee has been induced to purchase a section of land relying upon the representations of the vendor and his agent that there was . not over forty acres of the land in timber and that six hundred acres of it was prarie land susceptible of being mowed for hay, and it develops afterwards that these representations were untrue, and that there was 144 acres of the land in timber, and not over 350 acres of “mow” land, the vendee is entitled to a…

S. McDaniel, Special Judge; There is error in this record, but none of which appellant can complain. The evidence was amply sufficient to sustain a conviction for a higher degree of homicide, but none whatever upon which to base an instruction warranting a verdict of involuntary manslaughter. 80 Ark. 225. An accessory is he who stands by, aids, abets or assists, or * * * hath advised and encouraged the prosecution of the crime. Kirby’s Digest, § 1560.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. In August, 1895, Catlet Fitch borrowed $275 from W. A. Vernon, and executed to him the following note therefor with G. W. Vaughan as surety: . “Hindsville, Ark. 8-20-1895. $275- “Twelve months after date we promise to pay to the order of W. A. Vernon two hundred and seventy-five dollars at ten per cent, from date until paid, for value received. “Catret Fitch, “G. W. Vaughan.” The note, was not paid at maturity, but the…

Humphries, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellees, the only heirs of E. O. Reid, to quiet title to a tract of land in Cleburne County. The appellees in their complaint deraigned title from the United States to one Fuller, from Fuller to Barnard, and from Barnard to E. O. Reid, the ancestor of appellees.

H. Humphries, Chancellor; STATEMENT BY THE COURT. This suit was begun in the Washington Chancery Court against appellees to have dower assigned in the lands in controversy to Anna G. Young, widow of Robert A. Young, deceased, and to have the title to said lands declared to be in Robert A. Young at the time of his death, and to be declared assets of the estate of Robert A. Young for the payment of his debts, subject to the dower rights of the widow.

Robertson, Chancellor; 1. The question as to delivery of the deed from Yount to Smith depends entirely upon the intention of the parties to the transaction, and the burden of proving that there was no delivery devolved upon appellee, Stephens. 2. The chancellor's finding on the facts is contrary to the weight of evidence, and should not be upheld. r. The deed from Yount to Smith was not delivered. 2.

D. Robertson, Chancellor; 1. As to the Gage tract: The tax sale was void, the levy for 1875 being three mills, and for 1876 one mill, in excess of the constitutional limit. Art. 8, § 9,.Const. Void also because the sale was made on June 11, 1877, a day not provided by law for tax sales at that time. 33 Ark. 749; Gantt’s Dig. § 5188. The land sold for penalty and cost alone, contrary to the provisions of the law. 56 Ark. 96. 2.

Appeals from Phillips Circuit Court; Hance N. Hutton, Judge; STATEMENT BY THE COURT. The indictment in this cause charges, in apt words, that the appellant, Pickens Deal, on or about the 15th day of Decernber, 1902, committed the offense of murder in the first degree by shooting one Cuba Bronson in Phillips County, Arkansas. Trial was had at the October term, 1906, of the Phillips Circuit Court, which resulted in a verdict of murder in the first degree.

Wood, Judge; 1. The verdict was excessive. Where‘there is an injury, wherein there are no broken bones, and resulting in no permanent disability, and from which the child suffered not exceeding two weeks, a verdict for $1,500 is clearly the result of passion and prejudice. 40 La. Ann. 64; 7 N. Y. Supp. 663; 52 111. 451; 74 Ark. 326; 76 Ark. 190. 2.

Conway, Judge; statement by the court. Appellant was convicted of an assault with intent to kill. The testimony of Effie Satterwhite, daughter of appellant, was about as follows: She and Jim Wallis were sweethearts, but not engaged. Wallis had proposed to her, but she had not answered him. He had been visiting her for about one year before the night of the shooting, commenced to visit her when she lived with her brother about one year before and when she was 17 years of age.

Robertson, Chancellor; The dereliction of the viewers constituted, not only a fraud upon the landowners, but also such a fraud upon the county court as was sufficient to vitiate the entire proceedings in that court. Every principle involved in this case was settled by this court in Driver v. Moore, 81 Ark. 80.

N. Hutton, Judge; 1. Marriage is a civil contract, the validity of which depends, not on forms, ceremonies or witnesses, but upon the consent of competent parties only. Kirby’s Digest, § 5x71; 3 Greenleaf on Ev. § 460; 1 Bishop on Mar. & Div. § § 435, 449; 96 U. S. 82.

Winfield, Judge; The undisputed testimony shows that appellee not only was guilty of contributory negligence but also violated the orders and directions as to the manner of doing the work, received from the foreman. Under the rule laid down in 71 Ark. 57, and Id. 521, the question of negligence in this case was one solely for the jury under proper instructions from the court, and their verdict is conclusive.

Steel, Judge; STATEMENT BY THE COURT. On the 5th day of January, 1901, James J. Gibhart borrowed $100 from the Howard County Bank, and gave a promissory note therefor to the bank payable in sixty days with ten per cent, interest. On the 6th day of March, 1901, Gibhart borrowed an additional sum of $130 from the same bank, and gave a note therefor payable in 65 days with ten per cent, interest.

As to mispresentations, see 2 Cooley’s Briefs on Law of Ins. 1158; 12 Cush. (Mass.), 416; 59 Am. Dec. 192. See, also, 9 La. 163. 1. Where buildings are severed, actually or constructively, from the realty, they become personal property. This is settled law.

<p>Telegraph companies — damages for mental distress — conflict of laws. — Where the telegraphic message announcing the death of a brother was sent from another State to a person in this State, and by the negligence of the telegraph company was not delivered promptly, the telegrah company is liable for damages for mental distress caused • by such negligence, though such damages are not recoverable in the State from which the message was sent. Western Union Telegraph Co. v. Ford, 77 Ark. 531, followed.</p>

Hays, Judge; 1. Appellant should have been granted a new trial because of newly discovered evidence — matters known to the defendant, it is true, but of the legal effect of which she was utterly ignorant, and which were not disclosed to her counsel until after the trial. 2. The evidence was not sufficient to sustain a verdict for murder in the first degree.

<p>Appeal from 'Cross Circuit Court; Allen Hughes, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>This action was instituted in the Cross Circuit Court by the plaintiff, Mary J. Smith, against the defendant, St. Louis, Iron Mountain & Southej-n Railway Company, to recover damages for personal injuries alleged to have been sustained by reason of a collision between two trains on defendant’s road, on one of which plaintiff was a passenger. Negligence of defendant’s servants is alleged to have caused the collision. The defendant filed its answer containing two paragraphs, in one of which it denied all the material allegations of the complaint, and in the other it pleaded a settlement in full with plaintiff and a written release of liability signed by plaintiff, and which was filed with the answer.</p> <p>During the pendency of the action and before trial, the plaintiff commenced a suit against the defendant in the chancery court of Cross County, setting forth in her complaint the same matters and things alleged in the complaint at law, and also alleging that the defendant, through its claim agent, had by false and fraudulent representations procured said settlement with plaintiff, and praying that said written release purporting to have been executed by plaintiff be cancelled. When the action at law was called fo.r trial, the defendant filed a motion to abate the action, setting forth the pendency of the suit in equity, and that defendant had filed an answer and cross-complaint seeking to restrain the plaintiff from further prosecution of the action at law. This motion was overruled, and the defendant excepted.</p> <p>A trial of the case before a jury resulted in a verdict in favor of the plaintiff in the sum of $5,000, judgment was .entered accordingly, and the defendant appealed.</p> <p>There was no serious controversy in the trial as to the negligence of the defendant’s servants which caused the collision and the injury to plaintiff in consequence thereof. ' The only material controversy was as to the extent of the injury and the validity of the settlement with plaintiff and the release alleged to have been executed by her.</p> <p>The defendant introduced in evidence a written instrument purporting to have been signed by the plaintiff, reciting in detail the plaintiff’s injury in consequence of the collision and releasing the defendant from all further liability in consideration of the sum of seventy-five dollars paid to her by defendant.</p> <p>The plaintiff denied that she signed the instrument or that she had ever seen it before it was shown to her while on the witness stand. She denied also that she had ever signed any paper or release of any kind to defendant. Her daughter, whose name appeared subscribed to the instrument as witness, testified that she had never signed the paper.</p> <p>The plaintiff testified further that the defendant’s claim agent visited her at her home shortly after the injury and proposed to pay her $75 for the delay and inconvenience on account of the interruption of her journey, and that she accepted it, and that the agent told her at the time that the payment was not fo.r her personal injuries, but that she could put in a claim against the company for compensation for them. Her statements concerning the transaction with the claim agent are as follows:</p> <p>“He came Monday evening, after I landed there Saturday night. He came to the fence, and I was lying down. Came and asked me if I was Mary J. Smith. I said I was, and he stated that he had come to pay me money for laying over. I said it wasn’t enough. He said it wasn’t for my hurt. He said he had given them all that much. I thought if they were all getting that I could take it too. But said I wouldn’t take it for my hurt, and he said it wasn’t for that. He said I could put in my claim for that. Said I could put in five claims if I wanted to.- For me to go and see a doctor, and see how bad I was hurt, and to put in my claim for that. He said he was sorry for me, and that he was working for me — that he had a widowed mother in Little Rock. There was no one else in the -house when he came but a little ohild. He asked, if I had anybody about the place, and I went and called my daughter. She was working near the house and came in. He asked her to sign a paper, and she signed it. When he stepped out, she asked me what she had signed it for, and I said he paid me $75.”</p> <p>The defendant introduced the claim agent as a witness, who denied the statements of plaintiff, and testified that she signed the release and accepted said sum of $75 in full payment of all claim against the company for damages. Other witnesses were introduced who testified, by comparison with plaintiff's genuine signature, that the signature to the written instrument appeared to be that of plaintiff’s.</p> <p>The defendant moved the court to exclude all of plaintiff’s testimony tending to impeach the written release, which motion was overruled, and exceptions were duly saved.</p> <p>1. The court erred in refusing to abate this suit, or continue it, pending the decision of the chancery suit. 45 Ark. 192; 34 Ark. 410; 14 Ark. 666; 36 Ark. 513; 24 Ark. 272.</p> <p>2. It was error to permit the plaintiff to contest the genuineness of the release filed by appellant as a part of its answer without first having denied its genuineness by affidavit before the trial was begun. Kirby’s Digest, § 3108; 34 Ark. 622.</p> <p>3. After the plea in abatement was overruled, the appel-' lant should have been granted a continuance on the ground of surprise, in order to enable it to meet an issue which it had not been advised it would have to meet. 67 Ark. 142. See, also, 55 Ark. 163.</p> <p>4. The court erred in giving the first and second instructions asked for by plaintiff with no allusion therein to the issue in regard to the settlement, whereby the jury were in effect invited to ignore the defense in the case and look simply to the collision itself and the measure of damages. 53 Ark. 130; 60 Ark. 613; 71 Ark. 38.</p> <p>5. The court erred in refusing the fourth and sixth instructions asked for by appellant, and in modifying and giving them as modified. 59 la. 416; 13 N. W. 429; 67 la. 547; 25 N. W. 772; 75 Md. 162; 23 Atl. 307; 50 Ark. 397; 19 Am. & Eng. Ry. Cas. 224; 46 Ark. 217; 62 Ark. 342.</p> <p>6. Before being permitted to recover, appellee should have tendered back to the appellant the money she had received by way of settlement and the court erred in refusing to give instructions to that effect. 83 Ga. 558; 62 Ark. 274; Id. 347; 117 Mass. 479; 17 Ark. 240.</p> <p>7. The case should be reversed because of improper argument of appellee’s attorney and the court’s approval thereof in the presence and hearing of the jury, the effect of which was to permit the jury to return a verdict, not for such sum as would compensate appellee for her injuries, but “commensurate with the negligence in placing these trains on the track,” etc. 53 A,rk. 7; 70 Ark. 136; 61 Ark. 137; 65 Ark. 626; 48 Ark. 131; 69 Ark. 656; 70 Ark. 184; Id. 306; 72 Ark. 427; 74 Ark. 256; 76 Ark. 366.</p>

Steel, Judge; statement by the court. Stroude sued appellant for damages for mental suffering on account of the alleged failure of appellant to deliver to him a telegram which read as follows: “Your wife is not expected to live. Come home at once. “John Carter.

Appellant endeavored to purchase a ticket from appellee’s station agent at Manilla to Leachville, another station on appellee’s road. The' agent did not have the printed tickets, and did not have time to fill one out, so appellant through the negligence of appellee was unable to procure a ticket. The rules of the company require passengers without ticket to pay five cents per mile.

Smith, Judge; 1. The fact of usury was res judicata. A judgment of a court having jurisdiction of the subject-matter is conclusive between the parties until reversed or set aside. 2. The debt, being usurious, was void, and the securities or their proceeds must be surrendered. 1 Schoulers Pers. Prop. 343; 29 Am. & Eng. Enc. of L. (2 Ed.), 516; 48 Ark. 479; 1 Edm. Sel. Cas. 475; 4 Pet. 205; Tyler on Usury (1 Ed), 431. 1.

Steel, Judge; statement by the court. E. F. C. Walden presented to the administrator of the estate of R. E. Walden the following claim: To taking care of R. E. Walden during his last sickness in which he was confined to his bed for three years at $7.50 per month, $270. The account was duly verified. The administrator refused to allow it, and it was presented to the probate court fo,r allowance.

Evans, Judge; STATEMENT BY THE COURT, o This was a suit begun in the Crawford Circuit Court by the appellees to recover damages which it was claimed they had suffered by reason of failure of the St. Louis, Iron Mountain & Southern Railway Company to keep properly iced a refrigerator carload of berries, which they allege were shipped by themselves from Alma, Arkansas, to Kansas City, Missouri.

Dwfñe, Judge; STATEMENT BY THE COURT. In April, 1903, D. W. Claiborne made an application to the Security Mutual Fire Insurance Company of Little Rock, Arkansas, for three thousand dollars insurance on property in Hot Springs, Arkansas. In the application for the insurance which he filed with the company the property is described as a “combined rooming and frame dwelling house” having twenty-four rooms, with the furniture, bedding, etc., contained therein.

S. Maples, Judge; STATEMENT BY THE COURT. This is an action by appellee against appellant to recover damages for alleged breach.of contract. It is alleged in the complaint that appellant for a specified sum to be paid by appellee agreed to furnish appellee stone for a building to be erected at Mena, Arkansas. -It is alleged that appellant agreed to cut the stone according to details of the architect of the building and to deliver same at Mena ready for use.

Grace-, Judge; When a railroad company is occupying a public street in a city, it can permit nothing to remain in such street that is liable to injure property without being held guilty of negligence. It is the duty of a street railway so to maintain and operate its railroad as not to unnecessarily impede travel or obstruct the. highway. Elliott on Roads and Streets, p. 579.

Fulkerson, Judge; The statute requiring railroad companies to construct cattle-guards is in derogation of the common law, and penal in its nature, and should be strictly construed. 67 Ark. 358; 59 Id. 356; 68 S. W. 879; 57 Ark. 16; 48 Id. 493; 72 S. W. 574; 57 Ark. 330; 86 S. W. 764.

Duffle, Judge; Under the facts and circumstances alleged in the complain) as originally drawn, no. action for compensatory damages could be maintained. 47 Ark. 330; 71 Id. 232; 74 Id. 589. Complainant is not at liberty to abandon the entire cause made by his. bill and make a new and different case by way of amendment. 17 How. 409; 23 Ark. 474; 14 Id. 45; 13 Id. 188; Id. 93; 61 Ark. 253; 59 Id. 441; 75 Id. 465.

Moose, Judge; 1. The court erred in denying to appellant the right to examine witnesses with reference to representations made by Binley to retail merchants in his territory that his house had bought a large bankrupt stock at 40 per cent, of its value, and proposed to sell them to its customers at prices correspondingly low. •And it was also error to refuse to permit the cross examination of appellee’s witnesses on the same subject.

Rowe, Judge; On motion to strike out bill of exceptions: 1. After the court had signed appellant’s bill of exceptions, appellee moved to set aside the order allowing, the bill of exceptions, which was denied. This was not a matter from which appellee could appeal to this court. Kirby’s Digest, § § 1189, 1190; 26 Ark. 468; 27 Ark. 113.

Service of the notice on their attorneys was not a compliance with the statute. Kirby’s Dig. § § 3166 to 3169, inclusive; lb. § 6273. Where a statute requires service on a person, it means personal service unless some other mode is specified. 18 Barb. 393; 25 Barb. 635; 13 Hun, 211. Section 6274, Kirby’s Digest, is not applicable in this case.

Robertson, Chancellor; STATEMENT BY THE COURT. G. A. C. Beattie is the owner of a plantation in Crittenden County, Arkansas. In 1903 he rented a part of this place to one Broadnax for $750, and Broadnax obtained his supplies, or part of them, from Hughes & Mercer, merchants of Memphis, Tennessee.

H. Bvans, Judge; 1. Upon the appellant’s plea of insanity it became material to inquire into his past history.

V. Bourland, Chancellor; Petition in the chancery court of Crawford County by Henry E. Fitzhugh, as trustee in bankruptcy of the estate of John Sharp, against the defendant, Hila R. Sharp and W. R. Bolling, surety, for judgment on a supersedeas bond executed by them. From a decree in favor of the plaintiff in accordance with the prayer of the petition, the defendant and said surety appealed.

Hutton, Judge; In case of conflict in a deed, the granting clause must prevail. 3 Ark. 18; 93 S. W. (Ark.) 979 and cases cited. 1. The intent of the grantor should prevail in the construction of a deed. 3 Ark. 56; 87 Ky. 26; 142 Mo. 310; 71 Mich. 633; 1 N. Y. 102; 46 Mich. 305; 3 Atk. 136; 53 Ark. 185. 2. A deed should be construed as a whole, and effect should be given to every part of it, if possible. 3 Ark. supra, and other cases cited by appellant; 42 Pa.

Moose, Judge; 1. The court erred in excluding the expressed opinion of the witness Pope that deceased could not have fallen in the position in which he was found but must have laid down, and of the witness Evans to the same effect; and also in excluding the statement of the witness Sword that the wound looked just like it had been made by the pilot of an engine.

Conway, Judge; STATEMENT by The court. The appellant sued the appellee on a written contract whereby- it was agreed that appellant should erect for appellee a system of five stations of cash and package carriers.

Robertson, Chancellor; statement by the court. Appellant, in consideration of the sum of $16.50 paid byappellee as premium, issued its policy of fire insurance to appellee, insuring his dwelling house in the town of Eeachville, Arkansas, “against all direct loss or damage by fire, lightning, tornadoes and cyclones.” The policy was in a sum not exceeding $1,000 and of date December 5, 1903.

Hart, Chancellor; 1. The complaint does not state facts sufficient to constitute a cause of action. The right is clearly conferred on plaintiffs by statute to have writs of garnishment. Kirby’s Digest, § 3694. See, also, lb. § 3701. And the appellee had the privilege to file-a schedule and claim his exemptions. Ib. §v § 3904, 3905. A party can not be held liable for doing what he has a legal right to-do, where the act is done in the manner provided by law.

F. Lamb, Special! Judge; There is nothing before this court for review, nothing really before the court except the fact that the circuit court adjudged the title to the land in controversy to be in appellee. Without a bill of exceptions bringing before this court all the evidence, pleadings, etc., in the case, nothing remains but to affirm the judgment.

Appellee’s intestate, Hampton, had an arrangement with appellant whereby appellant was to furnish appellee money with which to buy junk; also appellant was to furnish a lot upon which to put the same. Hampton claimed the right under the contract to ship the iron. He was to find a purchaser for the junk, and after same was sold appellant was to have six dollars per ton of the purchase price, and Hampton was to get all that, the junk brought over $6 per ton.

The court erred in charging the jury with reference to the notice that appellants were not thereby protected if they found that Duty had absconded, leaving in the State no property. The statute is unequivocal that a failure to sue after notice is a perfect defense in favor of the sureties. Kirby’s Digest, § 7921.

Winfield, Judge; Action by Mrs. Maude Gorsuch against William G. Whipple for malicious prosecution. The plaintiff recovered damages in the sum of $500, and the defendant appealed. . 1. The lease was forfeited by the acts of appellee, under section 1901, Kirby’s Digest, and the prosecution was justified. 1 L. R. An. (N. S.) 331; 41 Ark. 532; 93 S. W. 986; 1 Washb. Real Property (4 Ed.), 436; 53 Atl. 394; 93 111. App. 609; 184 111. 320; 153 U. S. 540. 2.

Moose, Judge; The account was not proved, nor was the account verified. Only books of original entry are admissible in evidence, and a proper foundation must be laid. 10 Ark. 402; 63 Id. 562; 60 Id. 320; Id. 342; 53 S..W. 271; Abbott, Trial Evidence (2 Ed.), 400; 2 Wigmore, Ev. § 1530. No abjection to incompetent testimony necessary. 42 Ark. 310. There is no testimony to sustain the judgment.

Hughes, Judge; 1. The court erred in finding that the issues in this case were adjudicated in the case of Rowland v. Wadly, 71 Ark. 273.

Evans, Judge; 1. Appellee’s intestate, an old man, very deaf, and of failing eyesight, was walking along appellant’s railroad track, at about noon. For about a mile west of the trestle where he was struck, from which direction the train was coming, the track was perfectly straight, and nothing intervened to obstruct his view. He did not look for a train as he approached the track, nor after he reached it and started across the trestle.

D. Fulkerson, Judge; STATEMENT by the court. Appellant made the following affidavit before a justice of the peace of Jackson County, toiwit: “J. D. Thomas, Plaintiff, v. Rodney Stephenson, Agent for Western Tie and Timber Company, Defendant. “The plaintiff, J. D. Thomas, states that the claim in this action against the defendant is for money due on cross ties made on certain land (describing it) in Jackson County, Arkansas; that it is a just claim; that he ought, as he…

62 Ark. 611. Where it is shown that the conduct of the husband toward the wife is such as to make it dangerous or unsafe for her to' continue to live with him, where his conduct amounts to desertion, or is such as to make her life with him intolerable, her cross> bill should prevail where the husband has sued for divorce. 77 Ark. 94; 73 Ark. 281; 97 S. W. 659; 17 'Cent. Dig. 197.

Robertson, Chancellor; 1. It was error to award alimony in gross out of the real estate of the appellant by awarding to appellee a life estate in one-half of the real estate and .sufficient woodlands to maintain the farm. 24 Ark. 533; 38 Ark. 324; Id. 477; 37 Wis. 217. 2. As to the woodlands, the allowance was void for uncertainty. Appellant having died, the cause should be abated, and the estate should be distributed according to the respective rights of the widow and heirs.

Smith, Judge; Replevin by W. D. Gunnels, plaintiff, against Rittle Rock Cooperage Company, defendant, for possession of a lot of staves. The plaintiff recovered judgment, and the defendant appealed. 1. The construction of the contract is for the court, and it should have told the jury that the contract of sale conveyed all the staves in Union and Columbia counties.

Rowe, Judge; 1. Instruction one for plaintiff is clearly erroneous, 'and the second is equally so. A railway company is not an insurer of the safety of its passengers.

BUiott, Chancellor; 1. The original survey and plat, and actual location according to the survey and the intention of the parties, must control. 8 Ballard, Real Prop. 619; 2 Id. 506; 6 Id. 685; 7 Id. 617; 10 Id. 550; 1x0 la. 585; 15 Ark. 297; 9 Enc. of Raw, 57, 59; 32 U. S. 554; Tiedeman, Real Prop. 828; 48 Ark. 498.

<p>Appeal from Pulaski Circuit Court, Second Division; Edward W. Winfield, Judge;</p>

Winfield, Judge; Sections 825 and 832 of Kirby’s Digest have no application to corporations engaged in interstate commerce. 57 Ark. 24; 54 Id. 566. The States can not tax any instrumentality of the government or interstate commerce. 96 U. S. 1. Commercial intercourse is an element, of commerce. 9 Wheat. 1. The electric telegraph is one of the necessities of commerce.

The motion to quash should have been sustained. Nash v. State, 73 Ark. 399, is not applicable in this case. No witnesses were introduced before the finding of the last indictment. 100 N. C. 539; 53 Ala. 481; 90 N. C. 714. . 2.

Hays, Judge; 1. It was error to admit the purported dying statement of deceased. Dying declarations are only admissible as to actual facts which point distinctly to the cause of death. 16 Ala. 672; 56 L. R. A. 369; 132 Ind. 317; 31 N. E. 536. . Nothing can be admitted as a dying declaration, no fact stated by deceased is competent, unless it would be permitted if he were a witness on the stand. Cases supra; 102 Ala. .135. The statement was not complete. 1 Gr. Ev. § 161b. 2.

Norman, Chancellor; 1. No meritorious defense is shown, but if there was there was no showing that plaintiff had no adequate remedy at law. No application was made for a new trial, Kirby’s Digest, § 4601. 2. Equity will not enjoin a judgment merely because it is void. Plaintiff must show no adequate remedy at -law by appeal or certiorari or application -to the court rendering the judgment or other legal manner. 58 Ark. 314; 48 Id. 510; lb. 331; 50 Id. 458. 1.

Fulkerson, Judge; 1. The court erred in allowing plaintiff to open and close the argument. 61 Ark. 628; Kirby’s Digest, § 6196, par. 6. The burden was on defendant. 95 S. W. Rep. 145; Kirby’s Digest, § 3107. 2. It was error to give instruction No. 5, in which the jury are told that if Roberts kept the policy any time after he could reasonably have surrendered it after examination he was estopped, etc. 3. Instruction No. 1 asked by defendant should have been given.

Smith District; Styles T. Rowe, Judge; 1. The court erred in directing a verdict for the defendant. There was some evidence, legally sufficient, to support a finding that appellee knew of the perilous position of deceased, before and at the time of the injury.

N Maples, Judge; 1. It is undisputed that the rate sheets were posted as required by statute, Kirby’s Digest, • § § 6802-3-9; and, such being the case, the agent was under no obligation to tender to the shipper two different contracts. 49 Am. & Eng. R. Cas. 168.

Byrne, Special Judge; 1. The Third Amendment to the Constitution was never legally adopted, and the Governor has no power to fill a vacancy. Rice v. Palmer, 78 Ark. 432. 2. Nor could the Governor declare a vacancy under section 2631, Kirby’s Digest, as construed in Taylor v. State, 1 Ark. 20, No appointed officer, since the Constitution of 1874, can lawfully succeed an elected officer holding after his term has expired.

S. Maples, Judge: 1. There was no contributory negligence on the part of appellant; nor did he assume the risk. He was young and inexperienced, and it was the master’s duty to give due information and timely warning before calling on an employee .to incur the risk. 69 Fed.

Robertson, Chancellor; I. The interveners are clearly attempting to take advantage of inconsistent remedies. “All actions which proceed upon the theory that the title to property remains in the plaintiff are naturally inconsistent with those which proceed upon the theory that the title has passed to the defendant.” 15 Cyc. 257-8; 49 N. Y. 301; 121 N. Y. 161; 74 S. W. 596; 102 Wis. 436; 211 111. 597; 124 la. 332; 123 Wis. 116; 49 Mich. 53; 97 Wis. 446.

N Maples, Judge; 1. The first delay was caused by failure of machinery. Under the contract the company was not liable for this delay. 55 Fed. 1003; 39 Ark. 148; 40 Id. 375; 52 Id. 26. 2. There are no allegations to impeach the contract, and no evidence introduced for that purpose. The contract was binding, and under it the measure of damages was the amount expended for feed and care of stock. 39 Ark.' 523; 40 Id. 375; 52 Id. 26.

Hawkins, Chancellor; STATEMENT EY THE COURT. This appeal is from a decree of the chancery court in favor of the State for the benefit of Chicot County against Desha County in the sum of $42,923.15, with interest thereon from the nth day of September, 1901, at the rate of five per cent, per annum until paid.

Conway, Judge;, 1. The property having been taken for a tax under a valid' ordinance authorized by statute, replevin could not be maintained against the officer having possession thereof. 57 Ark. 195; Kdnby’s Dig. § §5506, 6854, 6873. 2. There is no testimony that appellant ever had possession of the property replevied. “Plaintiff must show that at the time the writ was issued the property was in the defendant’s possession.” Cobbey on Replevin, § 433; 66 Ark. 135.

Chapline, Judge; 1. The court erred in directing a verdict for the plaintiff. 2. Without previous notice to the agents of the company that such things as field glasses, opera glasses, jewelry, etc., are to be included, no recovery can be had for their loss and in this case the question should have been submitted to the jury whether such articles were fairly to be construed as baggage. 100 U. S. 24; 57 Am.

Robertson, Chancellor; 1. There is no estoppel in this case. None of the elements of estoppel appear. 2 Pomeroy, Eq. Jur. (3 Ed.) § 805; 39 Ark. 131; 38 S. W. 348; 52 id. 52; 46 111. 252; 11 Humph. 183; '5 id. 26; 49 A,rk. 225. 2. The trust deed was on a different tract of land. But if on the land it would not work an estoppel. 99 S. W. .83; 34 id. 827-8. 3.

Evans, Judge; 1. The .court should have given the peremptory instruction asked for by appellant The presumption is that the bar was not cracked when it was last inspected, and there was no evidence that it was. 46 Ark. 555; 51 A,rk. 467; 54 Ark. 389. The burden of proving want of inspection was on the plaintiff. 44 Ark. 524; 2 Rorer on Railroads, 1200; 3 Elliott’on Railroads, § §1273-4; 1299; 56 111. App. 181; 11 111.

DuMe, Judge; 1. The verdict is not sustained by the evidence. It was appellee’s own fault that his May check was not paid, and under Kirby’s Digest, § 6650, he cannot recover. 2. It was error to submit to the jury the question as to the reasonableness of the company’s rules in paying off the Woods crew on the afternoon of pay day. This was a matter of law. 73 Ark. 298; 84 Fed. 944. See also 1 Thompson on Trials, § 1057; 52 Ark. 406; id. 134; 58 id. 324.

E. Maples, Judge; 1. A real estate broker who is negotiating a sale o.r exchange of real property, or otherwise acting in the line of his business, cannot represent both parties to the transaction without their mutual knowledge and consent; and if he attempts to do so, he forfeits all right to any compensation or commission from either. 23 Am. & Eng. Enc. of E. (2 Ed.) 907 and notes, 921-2; Mechem, Agency, § § 66, 67, 598, 643-4; 19 S. W. 268.

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

. Appeal from Franklin Circuit Count; Jefitha H. Evans, Judge; x. After permitting the plaintiff to amend his complaint so as to set up another cause of action, the court erred in refusing to postpone or continue the trial. Under the original complaint, appellant had no .reason to anticipate that the testimony of the engineer and fireman would be required.

<p>Appeal from Hempstead Court; Joel D. Conway, Judge;</p>

Steel, Judge; The sale and purchase of the liquor occurred in the State of Texas. Appellant violated no statute of Arkansas. 45 Ark, 365; 54 Ark. 544; 17 Am. & Eng. Enc. of L. (2 Ed.) 333. Wm. F. Kirby, Attorney General, and Dan’l Taylor, Assistant, for appellee.

Conway, Judge; 1. Appellee was not a proper party, and the demurrer should have been sustained. He had no legal capacity to sue, no right to the possession of the note, which should have .been turned over to his successor in offic. He had no interest in the note nor any right to assume it. 12 Ark. 125; 13 Ark. 437; 19 Ark. 602; 23 Ark. 30; 27 Ark. 15; 42 Ark. 449; 46 Ark. 420; 36 Ark. 501; 43 Ark. 33; 48 Ark. 420; 47 Ark. 54; 51 Ark. 205; 53 Ark. 140. 2.

Smith, Judge; 1. The attachment was void for lack of jurisdiction. Where the defendant is a foreign corporation having an agent in this State, there is no excuse for a warning order.' Kirby's Dig. § 6055. Graham having been regularly appointed agent for process, service upon Cook was a nullity. Kirby’s Dig. § § 6018, 825, 834; 69 Ark. 396; 64 S. W. 225. On the point-that an officer executing void process is liable in trespass, see 36 Ark. 268; 58 Ark. 181; 8 Ark. 406.

<p>Appeal from St. Francis Chancery Court; Edward D. Robertson, iChancellor;</p>

Conway, Judge; STATEMENT BY THE COURT. Appellant sues appellee on a promissory note fo,r $350 to the Howard County Bank, signed 'by Purdom, Roberson & Co., makers, and indorsed by appellant. The note was dated April 9, 1900.

Steel, Judge; statement by ti-ie court. Will Sanger, Laura Sanger, Blanche Withrow, Libbie Sanger and George Sanger were proponents of the will of Mrs. Mary J. Johnson. Mollie E. McDonald and Lula Wolff contested the will. They alleged that ithe testatrix died seized of a large estate of real estate and personal property situated in Arkansas and Texas, and of the value of $41,000.

Evans, Judge; The clause printed on the ticket that “the person or persons accepting this pass assumes all risks of accidents and damages without claim upon the company” presents the only question for decision in this case. Appellee was charged with notice of' this condition. He had the option to pay for his transportation and have appellant to insure his safe carriage to his destination, or to accept the benefit of free carriage and himself assume the liability.

Chapline, Judge; STATEMENT BY THE COURT. The plaintiff, J. A. Wallis, complains of the defendants, the Little Rock & Ft. Smith Ry. Company and the St. Louis, Iron Mountain & Southern Railway Company, and for cause of action against them says: That defendant Little Rock & Ft.

Robertson, Chancellor; 1. It was error in the court to decree a specific performance of the contract without the Studebaker Manufacturing Company having been made a party to the suit. 19 Wall. 94, et seq.; Pomeroy on Spec. Perf. § 483; 78 Ark. 414, and cases cited; 38 Ark. 402; 20 Ark. 615. 2.

<p>Appeal from Crittenden Circuit Court; Frank Smith, Special Judge;</p>

V. Bourland, Chancellor; statement by the court. Appellee instituted habeas corpus proceedings before' the chancery court of Franklin County for the custody of 'his son, Bennie Wofford.

Conway, Judge; 1. The contract involved is a limited liability contract on the part of appellant, and these limitations are binding on the shipper. 50 Ark. 406. 2.. The burden was on plaintiff to show that the damage was caused either by reason of furnishing a defective car, or by the negligent handling of the car. 50 Ark. 414. 3.

Simpson, Special Judge; 1. The insured is required to take such an inventory as will show the character of the goods, and a mere summary is not sufficient to comply with the clause. 67 S. W. 153. In Texas it has been held that the rule as to substantial compliance does not apply where there has -been no compliance, or where there has been a clear case of negligence on the part of the insured. 25 Tex. Civ. App. 518; 77 S. W. 424. See also 19 Tex. Civ. App. 338.

<p>Original petition for mandamus;</p>

Appeal . from Mississippi Circuit Court; Allen Hughes, Judge; • The Charles F. Luehrmann Hardwood Lumber Company-sued M-oore & McFerri-n, partners, to recover the value of timber wrongfully cut by them from plaintiff’s land. Plaintiff owned the timber in sections 28, 29 and 33 -in township 14 south, range xo east, while defendants owned the timber in section 32 adjoining. ■ Defendants had procured one Fenner to make survey of section 32.

<p>Liquors — illegal sale. — Where whisky was shipped to an express office, the agent of which was also the postmaster, and the consignee applied to the postmaster for a money order in payment of the whisky, which he received and mailed to th'e shipper, and -then applied to the express agent for the whisky, and received it, the postmaster and agent of the express company was not liable for being implicated in an unlawful sale unless the application fbr and issuance of the money order was a device adopted to enable defendant Ito collect the purchase money, while avoiding the appearance of doing so.</p>

Grace, Judge; In the absence of a statute authorizing it, an appeal can not be taken from an order granting a new trial. 2 Fnc. PI. & Pr. 131, note 3; 14 Id. 956. Our statute authorizing suc-h an appeal provides that the notice of appeal shall contain an assent on appellant’s part that if the order be affirmed, judgment absolute may be rendered against him. Kirby’s Digest, § 1188. This statute must be complied with, or the appeal is ineffectual.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. John M. Morton owned and lived on a farm in Washington County, Arkansas, consisting of more than 200 acres, and valued at about six thousand dollars. He was an old bachelor. ■He died on the 29th of November, 1904.

Evans, Judge; STATEMENT BY THE COURT. Appellee Buchanan and one Korkille were employed in appellant’s coal mine to remove track from a certain portion of the mine which was no longer in use. This was in the “Fifth North” entry, and the places where'the track was to be taken up at the time in question were the “straight heading” and the ■“back heading,” terms describing passageways of said entry.

W. Smith, Judge; 1. Appellant’s first request for instruction should have been granted.

. Appeal from Sebastian Circuit Court, Ft. Smith District; Styles T. Rowe, Judge; 1. The first instruction was erroneous. It was immaterial who had control of the dirt at the. time of the injury. If the defendant placed, or caused to be placed, the obstruction in the street, and was negligent in so doing, he is liable, unless the plaintiff was guilty of contributory negligence. 2. There was nothing in the record on which to base the fourth instruction. 1.

Winfield. Judge; statement by the court. Henry Claiborne, a boy about 12 years of age, was injured on the turntable of the Hot Springs & Western Railway Company. His father, D. W. iCiaiborne, acting as next friend, employed the firm of Wood & Henderson, attorneys at law, to bring an action against the railway company to recover damages for the injury.

Winfield, Judge; Action by Martha C. Bunch, administratrix of' estate of J. C. Bunch, deceased, on behalf of his estate, alleging that intestate’s death was due to defendant’s negligence in operating its train. Plaintiff recovered, and defendant appealed. It was conceded on -the trial that deceased was guilty of contributory negligence.

S. Maples, Judge; There being -no proof of notice to the company of the real ■relation of the parties, there can be no recovery. 30 S. W. 896; Id. 298; 34 S. W. 649; 39 Id. 198; 54 Id. 830; Id. 829. The verdict is excessive unless the appellant had been guilty of gross negligence.

Duffie, Judge; The circuit .court was without original jurisdiction in this case. Art. 19, § 24, Const.; art. 11, § 4, Id.; 51 Ark. 559; Kirby’s Digest, § 5602. It could only acquire jurisdiction by appeal. Art. 7, § 52, Const. Inasmuch as election contests are not civil actions in the ordinary acceptation, but special proceedings, the.circiut court has no concurrent jurisdiction. 80 Ark. 309.

Conway, Judge; No officer or member of the corporation, however much he may be interested in its proceedings, can, without authority, make contracts for it, or bind it by his declarations or admissions. 34 Ark. 249. Appellee was bound to know of the limitations on the authority of the mayor and other city officials, and his services were rendered at his own hazard. 51 Tex. App. 532. It is idle to say that appellant did no.t know of these services.

Conway, Judge; The master is only required to give instructions as to those dangers which are not patent to ordinary observation. 48 Ark. 333. The servant can only recover upon proof that he did not know of the danger and that the master knew it and did not give warning to him. 19 S. E. 723. The danger in this case was as apparent to Walsh as it could have been to anyone.

'Appeal from Monroe Circuit Court; Eugene Lankford, Judge; I. Before one can be convicted of assault with intent to kill, it must necessarily be found that, had death resulted from the assault, it would have been murder. 72 Ark. 569; 72 Ark. 569. • ■ 2. The court erred, in its charge as to accessories, in simply reading the statute without explanation to the jury. 63 Ark. 477. 3.

<p>Appeal from Garland Circuit Court; Alexander M. Duiñe, Judge;</p>

Hutton, Judge; 1. The cause should have been transferred to equity. 8 Ark. 57; 22 Ark. 391; 31 Ark. 345; 48 Ark. 426; 49 Ark. 576; 51 Ark. 201. 2. Appellant’s first request for instruction should have 'been given. “An account rendered, if not objected to within a reasonable time, becomes an account stated, and can not after-wards be impeached by either party except for fraud or mistake.” 68 Ark. 534; 41 Ark. 502; 53 Ark. 155; 1 Am. & Eng. Enc. of L. (2 Ed.), 448, Tit.

Smith, Judge; 1. There was error in permitting counsel to ask a witness on direct examination the question, “Did you not ask Lee Howell, ‘Why 'did you put a green man to work at that old rattletrap of a machine?’” 61 Ark. 52; 52 Ark. 78; 57 Ark. 287; 66 Ark. 494; 78 Ark. 381. That the court cautions the jury not to consider incompetent evidence does not cure the error of permitting it to be introduced. 60 Ark. 76.

S. Maples, Judge; It is a fundamental law that a party, even though he has signed no contract, who accepts a bill of lading limiting liability, is presumed to know its contents, and to be bound by it. 1 Hutchinson, Carriers, 3 Ed. by Matthews & Dickson, § § 408-9. If plaintiff had signed the contract without reading it, and had accepted the lower rate, he would have been -bound by its terms. 50 Ark. 397; 71 Ark. 185; 113 Fed. 91; Id. 92; 3 Am. & Eng. R. Cas. -N. S. 290.

Hart, Chancellor ; 1. The essentials necessary to establish a resulting trust, viz., payment of. purchase money by one and conveyance to another, are not shown in this case. Perry on Trusts, § 126; t.i Johns. 91; 27 Ark. 89; 57 Ark. 632; 9 Ark. 518. Clear and convincing proof of these essential facts is necessary and must be .made. 2 L. R. A. 146; 29 Ark. 612; 30 Ark. 230; 44 Ark. 365; 48 Ark. 169.

<p>Appeal from Union Circuit 'Court; Charles W. Smith, Judge:</p>

Robertson, Chancellor; STATEMENT BY THE COURT. This suit is by appellant against appellees to have the title to certain lands in Lee County vested in appellant under the following contract: “Memphis, Tenn., May 29, 1905. “Received of Indiana & Arkansas Lumber & Manufacturing Company the sum of one hundred dollars as earnest money and part payment for the following described property, á warranty deed to be furnished as soon as title is examined, which is guarantied perfect:…

G. Mitchell, Judge;, Appeal to the Circuit Court of Cleburne County by W. A. Cobb and other citizens of the county from an order of the county court allowing the salary of W. T. Hammock as county and probate judge covering a period of three months. The circuit court .sustained the order of allowance, and the appellants brought the case here by appeal. An officer who has served only a month 'and two days can not draw pay for a full quarter.

Winfield, Judge; , Bondsmen are bound only by the instrument they sign, and not by what the principal in the bond knew. They are bound only in the manner and to the extent provided in the obligation. 6 Cyc. 82. They are only chargeable according to the strict the plans of the building, if made without their consent. 59 Mo. App. 44; 65 Ark 550; 66 Id. 287; 71 Id. 199.

Carter, Judge; STATEMENT BY THE COURT. At the August term, 1906, of the Clark Circuit 'Court the grand jury returned an indictment against one Tom Burton for the crime of murder in the second degree. At the January-term, 1907, he went to trial under a plea of not guilty, was convicted and sentenced tó six years’ imprisonment in the penitentiary. The appellant admitted that he killed one L,. D. Crews.

Jewell was a passenger on appellee’s railroad going north, intending to get off at Nettleton. For some reason, not definitely explained by him but evidently on account of his being asleep, he failed to get off at Nettleton, although the station was duly called and stop was made of sufficient time to allow passengers to debark.