Volume 83 — Arkansas Reports

Shaver. Chancellor; STATEMENT BY THE COURT. H. L. Remmel is the general agent of the Mutual Rife Insurance Company of New York for the State of Arkansas. As such general agent, he, in November, 1900, appointed Alf Harris his agent for the purpose of soliciting and procuring applications for insurance and for collecting and transmitting to Remmel moneys .that became- due -and payable on account of policies issued by the company on such applications.

B. Shafer, Special Judge; The statute of limitation in such cases is one year, instead of three years. Appellant’s demurrer to the complaint on that ground should therefore have been sustained. The servants and agents of the defendant company were required by law to compel this party to ride in his own coach. Kirby’s Digest, § 6629.

Appeal -from Phillips Circuit Court; Hance N. Hutton, Judge; The court erred in construing the contract under which the timber was cut from other lands. Parol evidence is admissible to show that the parties considered time of the essence of the contract, i De G. & Sm. 444; 50 Am. Dec. 600, and note to same; 2 Barb. 270. There could have been no other object in inserting the clause limiting the time in which the timber was to be removed from the land. 1 Sandf.

<p>Appeal from Union Circuit Court; C. W. Smith, Judge;</p> <p>W. F. Main ’& Co., a firm, sued the El Dorado Dry Goods Company, a corporation. Judgment was for defendant, from which plaintiffs appealed.</p>

If fraud is established, the judgment should be vacated; if the showing made is not sufficient to establish fraud, the judgment should nevertheless be vacated on the ground tof unavoidable mistake. Kirby’s Digest, § 4431, subdiv. 7; 73 Ark. 281; 63 Ark. 323. 2.

Francis Circuit Court; Hance N. Hutton, Judge; To stand on a moving train should no more be negligent per se than to get off one. And it is not negligence per se to alight from one. 49 Ark. 182; 4 S. W. 755. It is a question for the jury to say whether a passenger is guilty of contribu.tory negligence in stepping from a street car on the side next to a parallel track. 93 S. W. 990.

Steel, Judge; The indictment alleged that the pistol was not such a pistol as is commonly used in the army or navy of the United States, and this, being in the enacting clause of the statute, was a necessary allegation. 77 Ark. 139; 18 ■ Ark. 109; 24 Ark. 483; 33 Ark. 557. The burden was, therefore, on the State to prove this allegation.

Mahoney. •Chancellor; STATEMENT BY THE COURT. On -the 4th of June, 1904, Guy Murphy was appointed receiver of the El Dorado Eumib.er & Planing Mill Company, a corporation organized under the laws of Arkansas.

' The motion for change of venue should have been sustained. 2. The evidence is clear that there was no alteration; but, if made, it was not material. When an amount is clearly stated in writing, the writing governs. 18 So. 514. 1. It was no abuse of discretion in the trial .court to deny the motion.for change of venue.

T. Wood, Judge; STATEMENT BY THE COURT. Appellee E. A. Hollingsworth was a minister, and lived at Camden, and his brother, Hugh, at Bearden. These towns are close together, but are not directly connected by railroad. A hack line ran between them. Mr. E. A. Hollingsworth was an older man than Hugh Hollingsworth, and had partially raised him, and was tenderly attached to him. Hugh Hollingsworth was a man of delicate health.

The conclusion is irresistible that the transactions between the appellee and McNeeley constituted a mere subterfuge to cover up a sale. Kirby’s Digest, § 5112. The instruction was properly refused because it excludes from consideration McNeeley’s statement that he gave appellee the money, not in payment for .the whisky received, but as his agent to buy other whisky. A bona fide loan of whisky does not come within the meaning of the statute. See Kirby’s Digest, § 51x2.

Smith, Judge; 1. The damages -claimed for the loss of cotton and extra time in running the gin and extra wood burned are too remote for recovery in this case. 72 Ark. 275. 2. -There oould have been no rescission of the contract except upon notice to the plaintiffs and setting the elevator aside. 53 Ark. 157.. Under the pleadings in this case the only defense was recoupment. The rules as to recoupment are well defined. See 22 Ark. 244, 245; 53 Ark. 159. 3.

G. Schoonover, Special Chancellor; Unless such evidence has been produced as would warrant the court in divesting the title out of appellant Pickren and vesting it in Maude Tracey in a suit between them, it would not be warranted in divesting the title out of Pickren. for the benefit of appellees.

D. Robertson, Chancellor; STATEMENT BY THE COURT. The General Assembly of 1905 created a levee and draináge district, called the St. Francis Drainage District, in Clay and Greene counties, the purpose’of said district being to maintain the levee then in existence on the west shore of the St. Francis River, and to construct such other levees on said shore line as in the opinion of the board of directors should be deemed proper and necessary, and for the purpose of…

Smith, Judge; STATEMENT by the court. C. W. Luhrsen was a young man engaged in the civil ■engineering department of appellant railroad. He was recently graduated from the Agricultural & Mechanical College of Texas in civil engineering, and obtained employment from appellant in its engineering service at $45 per month about six weeks before his death, which occurred on the 9th of October, 1900. He was then 21 years of age, and had graduated the preceding June.

Shaver, Chancellor; 1. The statute has reference to the amount of the judgment rendered. If rendered for more than ten dollars, exclusive-of costs, a transcript of the judgment may be taken and filed in the office of the circuit clerk, and that the principal amount was. reduced by payment below ten dollars does not affect the case., Kirby’s Dig. § 4631.

Hart, Chancellor; Defendant’s plea of limitation should have been sustained. The land was bought in 1884, and from the tiipe of its acquisition the Cunninghams and appellants have kept it enclosed and in cultivation asserting legal title thereto. 59 Ark. 628; 77 Ark. 203; 80 Ark. 444; 75 Ark. 400; 120 U. S. 544; 38 Ark. 181. The plea of limitation was properly overruled.

<p>Appeal from Sevier Chancery Court; /. D. Shaver,' Chancellor ;</p>

Steel, Judge; In replevin, where bond is not executed by the defendant within two days, it is -the duty of the constable or -sheriff to deliver the property to the plaintiff. Kirby’s Digest, § 6863. From the moment of seizure by the sheriff or constable the propérty taken in .replevin is in custodia legis, and the officer serving the process is responsible for its safekeeping. 77 Ark. 497; Cobbey on Rep. § 706; 10 Pet. (U. S-) 40.

The sixteenth instruction is erroneous in that it leaves out of consideration the question whether or not the defendants honestly believed at the time they struck that their father was in great danger, and it was not proper to tell the jury that defendants had no right to strike if at the time deceased had ceased the assault. 59 Ark. 132. 2.

Grace, Judge; 1. The second clause of the contract is a clear stipulation against liability on the part of this appellant for loss or damage occurring on any other line than its own, and such stipulations are upheld by the courts. Hutchinson on Car. (3 Ed.), § § 232-4; 6 Am. & Eng. Enc. of L. 639; 6 Cyc. 480; 16 Am. & Eng. R. Cas. .229. In .order to bind the carrier for liability over the entire route, the intention must clearly appear from the contract.

Conway, Judge; Action by Chappell & Billingsley against the St. Louis, ' Iron Mountain & Southern Railway Company. Plaintiffs recovered judgment, and defendant has appealed. 1. There is no primary liability on the part of appellant. If the lumber company had the right to use appellant’s switch track, such use amounted to no more than a license or leasehold interest. Both parties should have been made defendants. 68 Ark. 171. 2.

Hutton, Judge. 1. The cour-t should have permitted defendant to show that witness Hattie Britney was temporarily absent from the State; also in refusing a continuance on account of -her absence. Const, -art. 2,' sec. 10; 50 Ark. 165; 4 S. W. Rep. 24; 57 Id. 165. 2. It was error to give the oral instruction to the jury.

y. Bourland, Chancellor. statement by the court. R. S. and J. D. Bennight are children of J. J. and Susan Bennight, who were the owners of certain land in Sebastian County, Arkansas. In 1901 J. J. and Susan Bennight brought an action against A. H. Sprague in the Sebastian Circuit Court for the Greenwood District.

<p>Liquors — "bund tiger” act — evidence.—A conviction of selling liquor under the statute against the clandestine sales of liquor is not supported by a certificate of the United States collector of internal revenue that defendant’s name appears on his list as having paid the special'tax as a retail liquor dealer; the statute (Kirby’s Digest, § 5144) providing that the finding by an officer upon premises being searched by him of “a United States license to sell liquors” shall be, prima facie evidence of the guilt of the party owning or controlling : the house.</p>

The plaintiffs, W. J. Hughes & Co., sold and delivered to the defendants, Johnson, Berger & Co., an oil tank for the price of $40.09 pursuant to a written contract which, after particularly describing the tank with -reference to its size and capacity and after the terms of the sale, contained the following: “Guaranty: “We guaranty -the tank and pump referred to in this -contract with ordinary use to remain in perfect -order for -three years from the date of invoice.

Shaver, Chancellor; STATEMENT BY THE COURT. Appellant, the First National Bank of • Honey Grove, Texas, filed its complaint alleging that appellees were partners under the firm name of Bedford, Zinnecker & Thompson; that appellees wer-e indebted to appellant in certain sums specified, evidenced by promissory notes and secured by mortgage on personal property described therein -owned by the firm; that on March 13, 1905, -appellant duly filed said mortgage for record with the…

Wallace, Chancellor; The statute contemplates that the supplies be furnished by the landlord. Kirby’s Digest, § 5033. If the advances are made by a third party to the tenant, with the understanding that he is to look to the tenant, although made at the request of the landlord, the latter can not claim .a lien therefor. Neither can he claim a lien if he assumes the debt or becomes surety therefor. 18 Am & Eng. Enc. of L. (2 Ed.) 352; 86 Ga. 702; 70 Miss. 60.

<p>1. Witness — accused Testifying in his own behalf. — When an accused takes the stand in his own behalf, he does so subject to the rule allowing the testimony of a witness to be impeached by proof of contradictory statements, as for example in an affidavit for continuance. (Page 120.)</p> <p>2. Homicide — evidence of character. — Where a defendant, accused of murder, offers evidence to prove his good reputation for being peaceable and decedent’s bad reputation in that respect, it was not error to permit'the State to rebut this evidence by showing that decedent’s reputation was good while that of defendant was bad. (Page 1229</p> <p>3. Homicide — self-defense—retreat of adversary. — Where the testimony of one accused of murder shows that he fired the fatal shot before there was any appearance of immediate danger to himself, and consequently that he was not justified in so doing, it was not error for the court to refuse to instruct the jury that if an assault with intent to kill or to inflict great bodily harm was made by deceased on accused, and if, when deceased was apparently withdrawing from the locality of the attempt, it reasonably appeared to accused that deceased was withdrawing for the purpose of securing a position from which he might renew the combat with effect, accused would be justified in killing deceased. (Page 122.)</p>

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

B. Shafer, Special Judge; 1. The verdict is contrary to the evidence and should be reversed for failing to comply with the “Proof of Toss” clause. No proof of waiver is shown. 2. It was error to modify the third request of appellant. 65 Ark. 240-249; 64 Id. 590-596; 35 Md. 101; 64 Ark. 596. 3. It was also error to refuse to instruct, as asked in appel- , lant’s fifth request, as to violation of the iron-safe clause. 61 Ark. 207. 1.

V. Bourland, Chancellor; STATEMENT by the court. ■ In June, 1882, S. D. Turner for a valuable consideration executed a deed to S. M. Turner, Jr., conveying to him the undivided one-fourth interest in certain land in Sebastian County, Arkansas, that S. D. Turner owned as an heir-at-law of S. M. Turner, Sr. In July, 1904, S. D. Turner brought this suit in equity against S. M. Turner, Jr., and others to correct and reform, the deed executed by him to S. M. Turner, Jr., alleging…

Chapline, Judge; O’Neal -and others sued Parker, and have appealed from, a judgment in the latter’s favor. The £aots appear in the opinion. The statute, Kirby’s Digest, § 5137, confers no authority upon the circuit clerk to issue a warrant for the seizure and condemnation of liquor. Appellant was entitled to have that section given in charge to the jury in order that they might not be led to believe that appellee’s acts under the warrant were regular and valid.

Appeal .from Pulaski Chancery Court, Jesse C. Hart, Chancellor ; 1. The interveners were not bound by the decision and final estimate of the chief engineer, as per stipulation in the principal contract, if such agreement was made with the principal contractors. No such verbal contract was .proved or made. If such a contract was made, Corrigan & Company waived the provision that the measurements and classifications of the chief engineer were final. 19 Fed.

Chapline, Judge; STATEMENT BY THE COURT. This is a suit by appellee against appellant on the following note: $100.00. Brinkeey, Ark., June 3d, 1902. . “On or before January first after date I promise to pay to •the order of P. E. Terry the sum of one hundred dollars, value received. [Signed] “John A. Westbay, “John Gazzoea.

T. Wooldridge, Special ¡Chancellor; 1. Appellee cannot avoid the written instrument on the ground that Greenblatt did not sign it. “Want of mutuality, arising from the failure of both parties to sign, cannot be successfully pleaded as a defense by the party who did sign.” 29 Am, & Eng. Enc. of G. 858. It was signed by the party sought to -be charged, and Greenblatt unquestionably assented to it by his acts. Id. 860.

Robertson, Chancellor; When the proceedings are against a certain person named as defendant, then, whether the service be actual or constructive, it .is notice to him only, and the decree affects only his interest in the land, and no one else is bound by -it. Waples, Proc. in Rem, § 628; 93 U. S. 274; 130 U. S. 493 5 77 Ark. 477. A quitclaim deed will not pass an after-acquired title. 13 Ark. 422; 59 Id. 299; 72 Id. 80; 76 Id. 417.

Robertson, Chancellor; STATEMENT BY THE COURT. H. P. Rodgers was the owner of two plantations situated on the St. Francis River, in Lee County, known as the “Soudan” and “Westwood” places. He sold the same to Henry Banks and Lem Banks. The Soudan Planting Company was a corporation formed by the Messrs. Banks for the purpose of receiving title to said lands and operating the plantations thereon.

<p>Tax saijj — sevErae tracts Eor lump sum. — Where the evidence shows that, though a town was not incorporated, it was a town in fact, and that the land within its limits was, for convenience, laid off into lots and blocks similar to the system prevailing in cities and incorporated towns, and was so assessed, a tax deed is void which shows on its face that two separate lots of land within such town were sold in mass for a lump sum.</p>

Grace, Judge, This case is to be distinguished, as to the constitutionality'of the .act in question, from the Gans case, 69 Ark. 232, sustaining the act authorizing the destruction of liquors shipped into a prohibited district to be sold .contrary to law.

Smith, Judge; STATEMENT BY THU COURT. Tapp, Leathers & Company sued the firm of Williams & Pratt in the Union 'Circuit Court on account for $573.20.

Humphries, Chancellor; Suit by Joshua Hayes, as administrator of the estate of J. W. Hayes, deceased, against Abner Hargus. Plaintiff recovered. and defendant appealed. x. It is shown by undisputed proof that appellant was in possession of the land claiming it as his own for 16 years. Further that appellant took possession in Hayes’s lifetime, before the latter went to the penitentiary, and the seven-year statute of limitations would bar recovery.

H. Humphreys, Chancellor; x. The name, Ver- Steeg Shoe Company, being manifestly an artificial name such as is common to corporations, imports that the plaintiff in the original suit is a corporation, and the defendant in that suit, appellee here, is estopped to deny it. 10 Cyc. 1345, et seq; Morawetz on Priv. Corp. (2 Ed.), § 474, et seq; 28 Ark. 261; 3 Enc. of Ev. 599; 58 Ark. 98; 47 Ark. 269. 2.

Norman, Special Judge; 1. Evidence of the possession of stolen goods is not admissible until it is proved by competent evidence that the goods were stolen. 91 Am. St. Rep. 21; 2 Bishop, Crim. Proc. § 739. 2. The sixth instruction is ambiguous.

Chapline, Judge; x. Where an amendment introduces a new cause of action, the statute of limitations runs against it up to the time of filing. Therefore, when, on April 26, appellees filed a new complaint claiming the land, not as heirs of H. H. Moore, but solely as heirs of Julia Ann Moore, this action was barred. 17 Ark. 608; 14 Ark. 199; 23 Ark. 510; 59 Ark. 444; 158 U. S. 292; 95 Ted. 309; 6 Pet. 61; Id. 120; 5 C. C. A. 557; 14 C. C. A. 469.

<p>1. Statute op frauds — employment of real estate broker. — A contract for the employment of an agent to find a purchaser of land is not within the statute of frauds. (Page 204.)</p> <p>2. Real estate broker — compensation—time limit — Where, in a contract for the employment of a broker to sell a lease of land, it was stipulated that the sale should be made within a limited time,, the broker was. not entitled to his commission where he failed to procure a buyer within the time named. (Page 204.)</p> <p>3. Instructions — conflict.—The giving of conflicting instructions is misleading and prejudicial. (Page 203.)</p>

W. Smith, Judge; 1. The jury should have been instructed, as requested by appellant, that if the plaintiff purchased an interest in the goods or the proceeds thereof; and if his only right to the goods or a lien thereon was based on such purchase, he could not recover.

<p>Fencing district — small stock. — A fencing district, under Kirby’s Di-1 gest, § § 1379, 1380, may be established by the county court for the purpose of keeping out small stock, without complying with the law governing fencing districts generally.</p>

D. Shaver, Chancellor; 1. The court erred as- to competency of the deposition of Mrs. Smith. It was taken before the death of Guy Nelson, and he was present and cross-examined. It was competent in chancery, but not at law. Kirby’s Digest. § § 3157, 3161; 50 Ark. 159; 1 Gr. Ev. § 163, i; 11 Ark. 82; 3 Gr. Ev. § 251; 64 Eed. Rep. 266; 18 Id. 7 Pet. 252; 2 Vesey, Sr. 42; Gresley on Ev. 366-7; 1. Starkey on Ev. 264-5; ,1 Smith, Ch. Pr. 344; 1 Wharton on Ev. § 168.

Steel, Judge; Action by John Davis against Kansas City Southern Railway Company. This is the second appearance of this case here. Upon the first trial of it in the circuit court, a verdict was directed, and plaintiff appealed, and this court held that the plaintiff’s testimony, if true, made out a liability against the defendant, and that the case should be submitted to a jury under proper instructions. Davis v. Kansas City So. Ry. Co., 75 Ark. 165.

Smith, Judge; statement by the court. T-he appellee, as guardian of her minor son, Raymond Hudson, presented to the probate court of Union County her first and final settlement with her ward’s estate as follows: She charges herself: By % as shown by last settlement of estate.. $916.58 By cash............................... 25.00 She asks the following credits : To notes and accounts as shown by loss settlement of estate uncollectible..... $216.58 To store account see ledger…

The 'Court’s charge to the jury that they might convict if they found that appellant assented to an assault by Malone was erroneous. 65 Mo. 29; 81 111. 333; Saekett’s Inst, to Juries, 2 Ed. 656. Mere consent to the commission of a crime, if no aid is given nor encouragement rendered, does not constitute participation therein. Patterson, Inst. Crim. Causes, 183 ; 106 Mo. in; 134 Mo. 109; 2 Wharton, Crim. Eaw, § 211 d; 2 Am. & Eng. Enc. ofX. 2 Ed. 32; 14 S. W. ,685; 60 Am.

L,. Moose, Judge; The language used in the 'sheriff’s return should be construed in connection with the original order of the county court and the subsequent order made on July 27, 1904. 61 Ark. 265. Giving to the. sheriff’s return and the orders of the county court the ordinary and usual construction given to language, the word “entrance” used therein can not be construed otherwise than that the notices were posted at the court house doors.

Chapline, Judge; The court erred in excluding the chancery court record containing the record of the warning order in the overdue tax case, which shows that the lands involved in this action were not embraced in the warning order. The lands not being therein described, all subsequent proceedings as against them were void. 55 Ark. 30; 70 Ark. 207. Whether the land was described in the warning order or not is immaterial.

W. Meeks, Judge; 1. The order of the county court was void for want of jurisdiction, in that it shows that the petition was signed by ten citizens, whereas the statute requires that it be signed by ten freeholders; and the order also fails to show that five days’ notice in writing had been given to the owners of the land to be affected by the proposed road. Kirby’s Dig. § § 2993-2999. The order was therefore incompetent as evidence.

Steel, Judge; STATEMENT BY THE COURT. This was a suit by appellee against appellant on notes given by appellant to appellee, for the purchase price of certain ma- 1. It was error to instruct the jury, in the event they found for plaintiff, to add ten per cent, of the face of the notes as attorney’s fee. Such contracts are not enforceable here, even though the contract was made in Louisiana. 70 Ark. 494; 56 Ark. 45; 41 Ark. 243; 42 Ark. 167 2.

Kirby’s Dig. c. 69, § 3600; 22 Cyc. p. 376, 380, 382. All seines are nets: the word seine is mere surplusage, and only one offense is charged. 68 Ark. 487; 20 D. R. A. 52.

Steel, Judge; STATEMENT BY THE COURT. Appellant was indicted and convicted of failing to work the public road in road district No. 6 in Polk County, Arkansas, was fined in the sum of five dollars, and appealed to this court.

W. Meeks, Judge; STATEMENT BY THE COURT. This is a prosecution, by indictment, for the alleged violation of an act approved April 23, 1903, which is as follows: “Section 1.

W. Meeks, Judge; STATEMENT BY THE COURT. This is a prosecution, by indictment, for the alleged violation of the act copied in the case of State v. St. Louis & S. F. Rd. Co. (1), ante p. 174.

M. Duiñe, Judge; STATEMENT BY TI-IE COURT. In November 1905 D. C. Harden moved with his family from Waco, Texas, to Hot Springs, Arkansas. When they arrived at Texarkana, they took passage from there to Hot Springs over the defendant’s railway.

Sain, Special Judge; George Vaughan and the Vaughan Abstract Company, a corporation, sued Edward M. Treakle, Bfir-t Johnson and H. C. Towson, partners under the firm name and style of the Southern Orchard Planting Association, to recover for certain abstracts of title prepared by plaintiffs at the instance of defendants, amounting to $162, and also for certain legal services rendered and expenses incurred, at defendants’ instance, in perfecting the •title to the lands…

Dufde, Judge; The affidavit charged an offense under § 1893 °f Kirby’s Digest. A dog is the subject of larceny. 41 Ark. 479; 63 Id. 643. Kirby’s Digest, § § 1821-5; 48 Ark. 56-59; 62 Ark. 365; 19 Id. 17. For interpretation of statutes as to malicious mischief referring to “animals,” etc., see 19 Am. & Eng. Enc. of Law (2 Ed.), p. 636 and cases cited, and note to 40 L. R. A. P- 503-

Hutton, Judge; I. Where a party, accused of a capital offense by an indictment returned on the second day of the term, has been unable to procure counsel until the third day of the term, and where unserved process is out to procure attendance of witnesses in his behalf, it is an abuse of discretion and prejudicial error to refuse a motion on the fifth day for continuance to a later day in the same term. 2.

Grace, Judge; 1. It was error to permit the written ¡statements of witnesses Johnson and Hamilton to be read to the jury, since they contained only the substance of their testimony before the magistrate, and not their testimony in its entirety. 66 Ark. 545; 68 Ark. 441. 2.

D. Robertson, Chancellor; The town council of appellant were without authority to appropriate the money to be paid to the appellee. Art. 12, § 5, Const. 1874. It is no defense that it is an executed contract. The town is not 'estopped to deny its invalidity by having received the benefit of the building of the road into the town under the ordinance, and it may recover the money paid. 58 Ark. 270; 52 Ark. 541.

Shaver, Chancellor; 1. As to the debt, no time having been agreed on by the parties, it became at once due. No demand was necessary to entitle the party to his right of action. 24 Ark. 230. The debt was barred, and the mortgage, treating the deed as a mortgage, was also barred. Kirby’s Digest, § 5399; 64 Ark. 305.

Conway, Judge; This was an action on a contract subsequent to, separate and distinct from, the original contract. If there was any failure on the part of appellant in the performance of the original contract, that failure affords no ground upon which to base a counterclaim in this action. 32 Ark. 284 ; 27 Ark. 489; 55 Ark. 312; Kirby’s Digest, § 6099; 40 Ark. 75; 22 Ark. 409.

Duffle, Judge ; These actions were improperly consolidated by the lower court. Neither § 6075 nor § 6083, Kirby’s Digest, authorizes the proceedings adopted in this case, and the idea that the act of May 11, 1905, authorizes the consolidation of divers actions against one defendant is not supported by -the act itself nor by the construction placed upon the identical provision by the Uni-, ted States Courts. Rev. Stat. U. S. § 921; 145 U. S. 293; 41 Red. 249.

G. Wallace, Chancellor; statement by the court. Appellees instituted proceedings in the Perry Chancery Court to confirm title under chapter 25 of Kirby’s Digest. The petition states that: “N. E. Crist is the daughter and only heir at law of Nannie E. Drinkwater, who departed this life intestate in said county, on or about the 23d day of April, 1905. That she has intermarried with J. A. Crist, one of yo-ur petitioners, with whom she now resides.

Conway, Judge; 1. Plaintiff was a licensee and not a trespasser, and defendant owed him a public or a quasi public duty. 20 Am. & Eng. R. Cases (N. S.), 372; 34 Id. (O. S.), 13; 19 Id. (N. S.), 236; 70 Tex. 530; 104 N. Y. 362; 11 Am. & Eng. R. Cases, 829 and notes. 2. After discovering plaintiff in a perilous position it was the duty of defendant’s employees to avoid injuring him, and if necessary to stop the train. 46 Ark. 573; 49 Id. 257; 50 Id. 4'77. 3.

Duffle, Judge; The relation of master and servant did not exist, and there could, therefore, he no recovery in this case. Kirby’s Digest, § 5856; 71 Ga. 301; 161 Mass. 391; 75 Ala. 606; 42 Ark. 542. The rule of respondeat superior does not apply unless the relation of master and servant exists. 50 111. App. 513. Appellant’s agents had entire control of the work done by the convicts and the manner in which it should be done, and it was liable. 42 Ark. 542; 72 Ark. 167.

H. Humphreys, Chancellor; x. The court was without jurisdiction to order the sale on the mere ex parte petition of the surviving partners. 26 Ark. 135; 26 Ark. 154; 54 Ark. 395. Parsons on Part. § 440; 48 Ark. 557; 36 Ark: 465.; 74 Pa. 391; 64 N. Y. 472; 48 L. R. A. 299; 2 Barb. Ch. 165; 15 Enc. PI. & Pr. 1077; Id. 1074.

Mortgages on crops unplanted are valid in this State. 32 Ark. 598; 52 Id. 439; 97 S. W. 440; 35 Ark. 304. 2. All crops raised--by McKenzie, -or -caused to be raised or grown,, or that may accrue to him as rent due by cotton, money or -otherwise were covered by -this mortgage, and parol evidence was admissible to identify the cotton. 5 Am. & Eng. Enc. 964; 51 Ark. 410; 52 Id. 371. The proof sufficiently shows that the cotton was covered by .the mortgage.

Comvay, Judge; 1. As to the Arkadelphia Lumber Company, there is nothing in the evidence to show any liability on its part. 2. The master is not an insurer of the safety of the servant, and negligence will not be presumed, but the burden of proof rests upon the party pleading it.

an innocent holder of the paper for value, and the same came to it in the regular course of business. If had no knowledge of Varnadore’s insolvency, or that the conveyance •to Place was not in good faith, and hence no reasonable cause to believe ■ that a preference was intended within the Bankrupt Act. The- evidence establishes that the bank was a beneficiary of the plan to protect the .home creditors, with knowledge of its intent and purpose.

Robertson, Chancellor; 1. If the complaint was designed to allege that the street fair was a public nuisance, injunction was not the remedy, and the court had no jurisdiction to grant it. 81 Ark. 117. 2. The demurrer should have been sustained because it does not appear that the plaintiffs were entitled to maintain the suit.

W. Meeks, Judge; Where evidence is erroneously admitted, it is presumed to have been prejudicial unless the contrary is shown, and the burden is on the party introducing it to show that no prejudice resulted. 4 Ark. 527; 69 Ark. 653; 77 Ark. 431.

House, Special Judge; Edwards sued Louisiana Woodall and others in ejectment, to recover a tract of land described as “the northwest fractional quarter of section thirty, township nine north, range nine east,” situated in Crittenden County. Defendants set up title in themselves by virtue of two years’ possession under a tax deed. There was an agreed statement of facts as follows: “1.

Mahoney, Chancellor; 1. It was error to hold that the contract bore no interest. When no interest is agreed upon, the rate is six per cent. Art. 19, § 13, Const. . 2.

<p>1. Pubeic ditch. — notice.—Under Kirby’s Digest, § § 1422, 1423, providing that notice ‘ of the time fixed for hearing the last report of the viewers appointed to establish a public ditch shall be given to each landowner affected by the proposed improvement, the giving of such notice is jurisdictional. (Page 347.)</p> <p>2. Same — curative act. — .The act of May 22, 1907, providing that all defects and irregularities occurring in the organization of certain drainage districts “are hereby cured and the assessments for the location and construction of said ditch are hereby ratified and confirmed,” was a valid legislative adoption of the assessments made in such districts, and cured the want of notice to landowners of the time fixed for hearing the last report of the viewers. (Page 347.)</p> <p>3. Appeae — passage oe curative act — costs.—Where an appellee secures the affirmance of the judgment appealed from by virtue of a curative act passed during the pendency of the appeal, the costs of the appeal will be adjudged against him. (Page 351.)</p>

Hays; Judge; 1. The town has the power to establish and regulate markets, and the power to regulate implies the power to dmpose a license fee for the purposes of such regulation. Kirby’s Digest, § 5438; McQuillin’s Mun. Orel. § § 407, 418 and notes; 41 Ark. 485; 64 Ark. 152. 2. The ordinance is not in conflict with the Old Soldier’s Act, Kirby’s Digest, § 6880, which applies to hawking and peddling.

Conway, Judge; statement by the court. This is a suit brought in the Nevada Circuit Court by W. T. Wallace, as next friend of his-.minor son, S. L. Wallace, for personal injuries received while alighting from defendant’s train, and also a suit brought by W. T. Wallace in his own behalf for damages for loss of his son’s time. The two suits were' consolidated and tried together.

Conway, Judge; STATEMENT BY THE COURT. In July, 1902, W. J. Old being the owner of certain machinery and property used in printing, to-wit: one Chandler & Price jobber, one Chandler & Price paper cutter, three double-type stands and one cabinet, filled with job and display type, and two hundred and fifty pounds of body type, he sold the same to PI. A. Turner for the sum of four hundred dollars.

P. Lamb, Special Judge; On August 10, 1904, Mrs. Lizzie Crigger sued the Chickasawba Railroad Company, alleging that she conveyed to it a strip of land 100 feet wide through a certain -quarter section of land; that defendant, in consideration -of said conveyance, agreed to erect a depot building thereon; that said depot was to be erected on or before March 1, 1904, and the usual business of defendant was to be transacted there; that it is stipulated that the value of the…

<p>1. Trial — going to trial after continuance. — Tt was error for the court to proceed with the hearing of a case in the absence of the defendant and without notice to him or his solicitor, after an order of continuance, to the next term had been entered. (Page 369.)</p> <p>2. Appeal — notice—presumption.—Where the transcript does not show that notice was given to a party that his case would be tried after it had been continued for the term, and there is no recital of notice in the decree, it will not be presumed on appeal that due notice was given. (Page 369.)</p>

Hawkins, Chancellor; To constitute an easement or servitude, the proof must show the establishment either by writing or by prescription. 19 Ark. 23. If by prescription, the use and engagement must be open, notorious, adverse, uninterrupted and continuous for the full time. 19 Ark. 23; 47 Id. 66; 49 Id. 503; 22 Am. & Eng. Enc. Law. (2 Ed.), pp. 1192-3. It is not adverse if used also by the owner of the fee. 96 Tenn. 378; 36 S. W. 1040; 47 Ark. 66; See also 22 Am. & Eng. Enc.

Mrs. Malinda Moody was struck by the caboose of a backing train on the Jonesboro, Lake City & Eastern Railroad. She was thrown to the ground, and the tram passed over her right leg so that it had to be amputated above the knee. She brought an action against the railroad company and recovered judgment for $12,000.

Smith; Judge; i. The circuit court had no jurisdiction if the justice had none. 77 Ark. 234; 44 Id. 377. The justice had no jurisdiction because the amount in controversy was over $300. Kirby’s Digest, § § 4562, 4565, 4650. There was only one suit. The amount claimed determines the jurisdiction. 66 Ark. 346; 18 Minn. 216; 24 Cyc. 461; 48 W. Va. 389; 20 Id. 464; 101 N. C. 184; 94 Id. 43; lb. 72. '2.

Conway. Judge; Appellant’s testimony is uncontradicted that he purchased the land from appellee January 4, 1896, built a dwelling and moved thereon within two months thereafter, and has continuously held the land as his own property until bringing of this suit. Pie has acquired title by more than seven years’ adverse possession, and the signing of a lease agreement after the title had thus matured would not defeat that title.

Hart, Chancellor; Under the agreed statement of facts there was no adverse possession by appellee. There can be no constructive adverse possession of land without actual possession of some part of it; and again, where different parties own two adjoining tracts of land, and a third party comes into possession of the land of one under a deed purporting to convey the land of both, his actual possession of the one tract is not constructive possession of the other. 73 Ark. 344.

N Maples, Judge; 1. The testimony of the prosecuting witness herself, if it be conceded to be true, shows that appellant made no effort to have intercourse with her, and that, upon her objecting to his advances, he voluntarily desisted and left the closet.

' Shaver, Chancellor; 1. Taking into consideration the sale of the land for $201, an inadequate price, the assignment of the certificate of purchase to Geo.

Duffie, Judge; statement by the court. In January, 1905, Howard Dunham of Texarkana, Arkansas, entered into a writen contract with the W. H. Williams Cooperage Company of Poplar Bluff, Missouri, by which Dunham agreed to sell the Cooperage Company white oak heading at the prices named in the contract.

Mahony, Chancellor; STATEMENT BY THE COURT. ■ This suit was brought by the Arkadelphia Lumber Company against John W. Mann in the Dallas Circuit Court to replevy a lot of staves.

<p>1. • Replevin — intervention.—The general rule that in replevin the title and right to possession of the property must be determined by the status at the commencement of the action does not prohibit an administrator, appointed after commencement of the action, from intervening in an action of replevin by the widow of an interstate against the heirs to recover chattels claimed by the widow as part of her distributive share. (Page 418.)</p> <p>2. Administration — possession of personal estate. — An administrator is entitled to possession of the personal property of his intestate as against the widow and heirs. (Page 419.)</p> <p>3. Administration — conclusiveness of appointment. — The action of the- probate court in appointing an administrator is conclusive of the necessity, for administration, and can not be collaterally attacked. (Page 419.) ' . . . ’</p> <p>4. Same — widow’s rights. — The rights of a widow in her husband’s personal property can be worked out only through the administration of his estate. (Page 419.)</p>

S. Maples, Judge; 1. That an execution was issued instead of an order of. sale can not be taken advantage of in a collateral proceeding. 2. The requirement that a bond be given is for the benefit of the defendant in the attachment suit. Third parties can not avail themselves of the failure to execute the bond and set aside the sale in a collateral proceeding. 3.

Hutton, Judge; Appellant bought the note before maturity, without notice, and was an innocent holder for value, and cannot be defeated by proof of contemporaneous agreements. 61 Ark. 81; 65 Id. 204.

<p>Appeal from Clay Chancery Court; Edward D. Robertson, Chancellor;</p>

Hutton, Judge; 1. The verdict of the jury had no evidence to support it. The court properly instructed the jury, but they totally disregarded the evidence. 97 S. W. 56; 98 Id. 709; 76 Ark. 372. A delivery to the carrier was delivered to the consignee. 2.

Rowe, Judge; 1. The court erred in refusing instructions 2 and 3 for defendant. If there is any evidence to sustain a particular theory of a case, the court should properly instruct the jury as to such theory. 50 Ark. 502. 2. A peremptory instruction should have been given for defendant, as the evidence shows plaintiff violated the rules of the company, no Mo. 387; 80 Red. 592; 55 C. C. A. 129; Bailey on Pers. Inj.'§ 3396; Beach, Cont. Negl. § 373; 95 U. S. 439; 122 Id, 195.

<p>Appeal from Pulaski Circuit Court; Edward W. Winfield,, Judge;</p> <p>1. , Under the law, appellant was entitled to the privileges of the public free schools. Art. 14 § 1. He could only be excluded, by the exercise of a reasonable rule or regulation growing out of an emergency or necessity prescribed by competent authority. No statute in express terms gives to a city power to pass an ordinance for compulsory vaccination of school children; hence, in the absence of the epidemic or an emergency, neither the city council nor the board of health has the right to prescribe or enforce such rules. Kirby’s Dig. § § 539, 540, 543, 5525. 'See also 167 111. 67; 39 U. R. A. 152.</p> <p>2. The Legislature itself could not make the certificate conclusive evidence of the fact as to whether or not appellant had been vaccinated, and, such being the case, a board created by the Legislature could not make it conclusive. 32 Ark. 131; 33 Ark. 820; 3 Enc. of Ev. 292.</p> <p>3. If the opinion of many eminent physicians and authors are of any weight, then vaccination as a preventive of small pox is not only unnecessary, but is a menace to health and human life. Herbert Spencer, Soc. Stat. 367; Dr. Swinburne Clymer in “Suggestions,” 200-1-2. “Vaccine virus is a poison, does not neutralize small pox, but only paralyzes the expansive powers of a good constitution.” Dr. John Epps, director of London Jennerian Institute. “Vaccination is not only an illusion, but a curse to humanity,” Dr. Stowell, public vaccinator, London.</p> <p>1. Until the petitioner shows that he has a clear legal right to the subject-matter of his petition, and that he has no other adequate remedy, he is not entitled to the writ of mandamus. 26 Ark. 488. The certificate was required, not as .conclusive evidence that the applicant had been successfully vaccinated, but merely the evidence on which he would be admitted, and appellant cannot complain of that.</p> <p>Petitioner was not entitled to the writ unless the appellees were in default in refusing, when called upon, to perform a plain and specific public duty. 43 Ark. 66; 47 Ark. 85.</p> <p>2. (a) Appellant refused to comply with a general regulation for .the benefit of all who enter the public schools, which imposed no unreasonable burden upon him.</p> <p>(b) It is in proof that small pox was in the city at the time these proceedings were instituted, and that it has existed in the city to a greater or less extent since 1898. It was the plain duty of the authorities to take all reasonable precautions to secure pupils against danger. The burden was upon appellant to show facts to justify a non-compliance with the regulation. 49 L. R. A. 588; 25 L. R. A. 154.</p> <p>(c) The School Board- has the right to adopt reasonable regulations for the benefit of the pupils and general public. 62 Mo. App. 8; 49 S. E. 47; Kirby’s Dig. § 7685; 105 N. W. 686.</p> <p>(d) The city council had the power to pass the ordinance under which the School Board acted. Kirby’s Dig. § 5461; Id. § 5525; 58 L. R. A. 80; 25 L. R. A. 154.</p> <p>(e) The board .of health had power to adopt the order under which the school board acted. Cases cited above.</p>

Chapline, Judge; STATEMENT BY TI-IE COURT. Mrs. Price brought suit for personal injuries against the appellant railroad, and these facts were developed on behalf of the plaintiff: She was a passenger on appellant’s train going to Ward station. The train stopped at its usual place, and after the station was called she left the coach and attempted to alight.

Winfield, Judge; Where a debt has been assigned, and the debtor has notice of the assignment, he must pay to the assignee; and if he pays to the original creditor, it is at his peril. 4 Cyc. p. 90; xo Ark. 429; 91 N. Y. Supp. 520; 120 App. Div. 247; 74 N. E. 1126. There is no element of agency in this case — no delegation of authority. Mechem on Agency, § 342; Dttnlap’s Paley on Agency, 274; 2 Sand.

Duiñe, Judge; When appellee accepted the amount tendered to him in full satisfaction of the account and signed a receipt therefor, he is bound by that act, notwithstanding he may have expressed dissatisfaction and threatened to bring suit.

Original petition for mandamus; H. S. Powell filed a petition for mandamus in this court against Hon. George W. Hays, judge of the thirteenth judicial district, alleging “that the plaintiff is the duly elected, qualified and acting prosecuting attorney within and for the thirteenth district of the State of Arkansas, and the defendant is the duly elected, qualified and acting circuit judge of said district.

Hutton, Judge; statement by the court. Shenep, a policeman in Helena, sent this telegram to his daughter-in-law, Mrs. Mattie Shenep, at Bigbee, Miss.: “I will be there tonight. Be ready to come back on next train. James Shenep.” He paid for the transmission of the telegram to Amory, and also for transmission from Amory to Bigbee, which was to be by telephone. The appellant negligently failed to deliver the message until ten' o’clock the following, day.

DufHe, Judge; Action by B. C. Fitzhugh against the Chicago, Rock Island & Pacific’ Railway 'Company to recover penalty for failure to construct a stock guard where the railroad passes through enclosed land of the plaintiff. The plaintiff recovered judgment, and the defendants appealed. * 1.

Cypert, Special Judge; The court erred in. its charge to the jury. A tender does not release the lien. 30 Ark. 505; .38 Id. 329. The plea of tender is available only when the -money is paid into court.

L. Floyd, Special Chancellor; The funds deposited were trust funds and a special deposit. 5 Ark. 267; 36 Fed. 239; 137 U. S. 411; 52 Fed. 59; 104 U. S. 54, 77; I37 Id. 41U 133 Id. 696. 1. The deposit was not a special deposit, but a general deposit, and appellant was not entitled to a preference. 3 Am. 6 Fng. Enc. of Taw, 823-4; 5 Ark. 297; 88 Wis. 367; 52 Fed. 59. 2.

Mitchell, Judge; 1. The testimony does not show that appellant was in fault in the construction of its roadbed. All damages necessarily the result of the proper construction of the road were included in the right of way. The company is not liable unless the construction was negligently done. 44 Ark. 258; lb. 360; 47 Id. 330; 47 Id. 340. 2.

A-ppeal from Clay Circuit Court; T. H. Caraway, Special Judge; .

Wallace, Chancellor; STATEMENT BY THE COURT. Nancy C. Chisholm died intestate in the State of Louisiana September 19, 1896. She left J. A. Chisholm, T. J. Chisholm, Miss Elmina Chisholm, and Mrs. M. J. Martin, her children and only heirs at law. Mrs. Nancy C. Chisholm had sold a tract of land in Faulkner County to Joseph A. Crye for a consideration of $200, evidenced by four purchase money notes of $50, due November 1, 1896, 1897, 1898, 1899, respectively.

S. Maples, Judge; statement by the court. Van Burén was in Memphis with three race horses and some household and kitchen furniture, which he desired to ship over the appellant’s road to Rogers, Arkansas. In the forenoon he applied for a car for said purpose, and inquired as to the rate, and was informed that it would be $50 (or, as he once put it, “near $50”).

Elliott, Chancellor; STATEMENT BY THE COURT. On the 16th day of November, 1897, Kate Jenkins obtained a judgment in a justice’s court in Boone County, Iowa, against W. F. Bowman in the sum of $165.78 with interest and costs, including attorney’s fees. On the 2d of December, 1897, she assigned this judgment to W. H. Crooks, and Crooks on that date filed a transcript thereof in the district court of Boone County, Iowa.

Bvans, Judge; statement by The court. Appellee sued appellant in justice’s court, alleging in his complaint that appellant, acting for itself and associated with others, elected appellee their cotton weigher for the town of Booneville, Arkansas; that appellee was required to begin work whenever cotton was brought or sent to town for sale in the fall of 1905, and was to continue as such weigher until May 1, 1906; that appellant agreed to pay appellee 20 cents per bale to…

Maples, Judge; 1. On appeal from a justice of the peace, when the defendant appears by attorney, and announces ready for trial, he is entitled to have a 'trial de novo, and under such circumstances it is error'for the court to have the defendant called and, on failure of defendant to appear in person, to pronounce judgment against him as by default. Kirby’s Digest, § § 4684, 4599; 44 Ark. 379. 2.

Meeks, Judge; Mrs. S. L. Wyse brought an -action against W. H. Waddle and J. L. Johnson for conversion of timber upon certain land alleged to belong to her. Held: under similar statutes, that to entitle one to the benefit of the statute payments need not be made annually, but two or more payments could be made ait the same time. 1 Wall. 637; 5° S'. W. 137.

Norman, Special Chancellor; The contract in this case has already been construed by this court, and under the facts established there can be no doubt of appellant’s right to the land. 76 Ark. 578; 78 Ark. 333; Id. 574.

Roive, Judge; statement by ti-ie court. Appellee filed before a justice of the peace of Sebastian County an affidavit in which he states that the defendant, Hoye Coal Company, is a corporation organized under the laws of the State of Arkansas, and is justly indebted to him in the sum of $49.50 for labor performed by him for defendant in digging coal and performing other work in and about its mine, near Hartford, Sebastian County, Arkansas.

<p>Appeal from Lee Chancery Court; Bdward D. Robertson, Chancellor;</p> <p>Action for divorce instituted by Lucy Chappell against her husband, W. A. Chappell. The court rendered a decree dismissing the plaintiff’s complaint for want of equity, from which she appealed.</p>

Appellee alleged that he was the owner and in possession of the northwest quarter of the southwest quarter of section twenty (20), township eight (8) north, range seven (7) east, containing 40 acres. He alleged title as follows: 1. Swamp land grant under act of September 20, .1850. 2. Entry by B. C. Crump. 3. Forfeitures to the State in 1877 for nonpayment of the taxes of 1873, 1874, 1875 and 1876. 4.

J. Lea, Judge; The court erred in striking out appellant’s plea of res judicata.

C. Pinnix, Special Judge; 1. Plaintiff was only required to prove by a preponderance of the evidence the contract sued on and a breach thereof; and when the defendants admitted the breach, the burden shifted to them to justify it. 102 S. W. 393. 2. An instruction which, in effect, tells the jury that if the plaintiff first violated the contract it can not recover is erroneous.

Mahoney, Chancellor; STATEMENT BY THE COURT. Appellees filed in the circuit court of Lafayette County a petition for partition of certain lands, making appellants parties defendant, and setting up that appellees and appellants owned the lands sought to be partitioned as tenants in common, they being the children and heirs of James T. Lester, deceased.

Smith, Judge; STATEMENT BY THE COURT. Guy Murphy, as receiver of the El Dorado Lumber & Planing Mill Company, brought an action against the Arkansas Southern Railroad Company to recover the value of two cars of yellow pine lumber which had been delivered to the defendant at Junction -City, Arkansas, for transportation to St. Louis, Missouri, and Waldron, Michigan, and had been destroyed by fire.

Rowe„ Judge; statement by the court. The plaintiff, Charles Bubliss, an employee of the defendant, was injured while at work in the mine of defendant. Bu-bliss was an experienced miner, over fifty years old, and had worked .in mines for nearly forty years. At the time of his injury he was at work “driving an entry or passage way in the mine.” He had worked at this entry for several months, and had driven it some fifty yards or more into the mine.

Hutton, Judge; statement by the court. Appellee’s mother, Margaret Johnson, was insured with appellant company for $210, provided that at the time of her death all dues and assessments due the company were paid. The complaint of appellee alleged that Mrs. Johnson died on March 18, 1906; that all dues and assessments were fully paid; that appellant had paid $28.50, and refused to pay the balance. Judgment was asked for $181.50.

Bvans, Judge; Walter Hook, a minor, by his next friend,- sued the St. Louis, Iron Mountain & Southern Railway Company, alleging that on the 27th of December, 1905, he entered defendant’s depot at Cabin Creek, Arkansas, for the purpose of talcing a passenger train from Cabin Creek to Coal Hill, Arkansas; that he was compelled to remain in said depot for about two hours; that defendant’s waiting room was cold, damp and unsanitary, and that defendant contracted a severe cold,…

Evans, Judge; STATEMENT BY THE COURT. The St. Louis, Iron Mountain and Southern Railway Company owned and operated a. railway, which was engaged in interstate commerce, and extended from the city of Van Burén, in this State, through the Indian Territory, to the city of Coffey-ville, in the State of Kansas. The town of Sallisaw, in the Indian Territory, is on its line of railway. George W. Taylor was employed by it as a brakeman on one of its freight trains.

Lea, Judge; F. L. Wisdom and George C. Abel presented a claim against the estate of A. M. Harrison, deceased, of which T. T. Cotnam is administrator, for $2,000 on account of surgical attention to the deceased, who was killed by being thrown from a street car. The probate court allowed the account in the sum of $400, and the administrator appealed to the circuit court.