Volume 84 — Arkansas Reports

D. Robertson, Chancellor; STATEMENT BY THE COURT. In February, 1855, Jeptha Fowlkes and wife conveyed by warranty deed section 14, township 15 north, range 8 east, in Mississippi County, Arkansas, to Ashley B. Rozell. At the time of this conveyance the land belonged to the State. Afterwards in 1856 Fowlkes entered the land and paid the consideration therefor and received a certificate of entry from the State.

Winfield, Judge; - No foundation being laid for its intorduction, the letter of plaintiff’s attorney was erroneously admitted. But if it were properly admitted, and if it could be construed as a notice, it was as such insufficient. The statute only authorizes the giving of notice by the owner. Kirby’s Digest, § 6644. Being penal in its nature, the statute must be strictfy construed. 67 Ark. 357.

The motion to quash the indictment should have been sustained. Kirby’s Digest, § 2203; 67 Ark. 256. 2. The court’s refusal to grant a continuance was, under the circumstances in this case such an abuse of discretion as to warrant a reversal. 71 Ark. 180. 3. The testimony of the prosecuting witness as to an assault committed in the Greenwood District was improperly admitted. 73 Ark. 262; 67 Ark. 112. 4.

G. Mitchell, Judge; 1. Since Combs is attempting to hold appellant’s land without right or title, he should be ejected. Upon being ejected, can he take with him the ferry outfit as an innocent purchaser? If it is a part of the realty to which it was attached, he could not be an innocent purchaser, because he had full knowledge that the land belonged to the Lakes.

Mahoney, Chancellor; Land is burdened with its own surface water and watercourses, and the owner can not by artificial means gather the water upon his own property and throw it upon the property of his neighbor. 3 Farnham, Water and Water Rights. 2553; Id. 2619; Id. 2616, 2617; 66 Ark. 271.

Rowe, Judge; STATEMENT BY THE COURT. A A. McDonald, as guardian of the person and estate of Ella Hare, a person of unsound mind, instituted in the circuit court of Sebastian County on behalf of his said ward an action against Tillman Shaw to recover possession of certain • tracts or lots of real estate situated in the city of Ft. Smith alleged to be the property of said ward and wrongfully in the possession of said defendant.

Robertson, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellant against appellees in the Clay Chancery Court.

Hutton, Judge; STATEMENT BY THE COURT. This is an action instituted by W. L. Taylor .against the 'St. Louis, Iron Mountain & Southern Railway Company to recover damages alleged to have been sustained by the plaintiff on account of the willful and wrongful act of a servant of the defendant.

Mahoney, Chancellor; On the question of acquiring title by adverse possession against the city after the dedication to’ it, this case is controlled by 58 Ark. 142. See also^ 42 Ark. 118. One who is in the enjoyment of an easement can not plead the statute of limitations by adverse possession against another who holds under an easement not inconsistent with the right of the claimant. 54 Ark. 608. 58 Ark. 142, relied on by appellant, is not in point.

71 Ark. 178; 4 Ala. 643; 39 Am. Dec. 314. The facts agreed to are sufficient to constitute a breaking within the meaning of the statute. 63 Ala. 49; 1 C. & P. (star page), 300; 40 S. W. 245; 58 Pac. 968; 6 Cyc. 174.

Conway, Judge; The policy sued on is void because of false representations made in the application. The two, when forming one transaction, are read together as the entire contract. 49 Ark. 320; 75 Ark. 29. See also 58 Ark. 528; 72 Ark. 623. The application itself -showing plainly that no attempt 'had been made to answer, appellant by accepting the application will be held to have waived an answer. 52 Ark. 11; 53 Ark. 215; 65 Ark. 581, 590. See also 53 Ark. 494; 71 Ark. 298.

P. George, Special Judge; STATEMENT BY THE COURT. In November, 1900, A. H. Stewart, a resident of Ashley County, died leaving real and personal property in that county. He left surviving him his widow, Amanda Stewart, and his mother, Jane Stewart, a sister, Mrs. R. J. Risor, and certain nephews and nieces. In 1901 W. T. Cone was appointed administrator, and took charge of the estate 'of A. H. Stewart.

Steel, Judge; 1. Having alleged that the prosecuting witness “was of previous chaste character/’ it devolved upon the State to prove it. 1 Bishop, Crim. Proc.; 2 Ed. § § 127-8. This allegation can not be rejected as surplusage. Id. § § 482, 485-6. See also 9 Ark. 193; 10 Ark. 259; 22 Ark. 251; 30 Ark. 131; 36 Ark. 168; 62 Ark. 459; 66 Ark. 120; 17 S. W. 725; Roscoe’s Crim.

<p>Appeal from Franklin Circuit Court; Jeptha H. Evans, Judge;</p>

Bvans, Judge; 1. The court should have instructed a verdict for the defendant, because appellee Luther Burns’s own testimony fails to establish the acts complained of, is uncorroborated in this respect, and is, moreover, contradictory and contrary to physical facts; it does not prove any negligence on the part of appellant, and shows that he was at a place where he should not have been. 79 Ark. 608; 3 Am. St. Rep. 632; 34 la. 153; 15 S. W. 141. 2.

Rowe, Judge; 1. The conduct of appellee’s attorney in persistently propounding leading questions to the witnesses, in the face of appellant’s objections, and the remarks, attitude and manner of the trial judge toward appellant’s counsel when he objected to such questions and excepted to the rulings of the court thereon, were highly prejudicial to the appellant, indicating bias on the part of the court in favor of the plaintiff and against the defendant which necessarily…

Hutton, Judge; 1. The indictment should have been quashed. The statute clearly prohibits the resubmission of a criminal charge to the grand jury after they have once ignored the charge, except by specific direction of the court. This statute is mandatory. Kirby’s Digest, § 2213; 82 Pa, 405; 109 N. Y. 615 ; 15 N. E. 880. 2.

<p>Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;</p>

The finder of lost goods may lawfully take them into his possession, and, before he can be convicted of the larceny thereof, it must be shown that the intent to steal existed at the time of the finding. 63 Ind. 285; Desty’s Am. Crim. Raw, § 145. If there is any guilt here, it is of embezzlement, not larceny. The same evidence will not support an indictment for both the offense of larceny and embezzlement. 13 Ark. 168. 2.

Carter, Judge; 1. There is testimony that the deceased’s Christian name was “Mooney,” as alleged in the indictment, and other testimony that it was “Monte.” The State makes no contention that the two names are idem sonans, but that the doctrine o'f interchangeability of names applies. 68 Ark. 241. It is a question of identity; and where that is established, if the inaccuracy is not misleading, it will not be fatal. 14 Enc. PL & Pr. 287.

Mahoney, Chancellor; STATEMENT BY THE COURT. . The appellant filed the following motion in the Union Chancery Court: I “Comes Guy Murphy, receiver, and moves the court to amend the record of this court, as follows: “To show at page 540 of Chancery Record “F” that on January 24, 1905, the chancery court adjourned until January 30, 1905, instead of February 27, 1905, as now appears. “To show the date at the top of the page 541 of said record to be January 30, 1905, instead of…

V. Bourland, Chancellor; statement by the court. This is a controversy over a wagon and team of horses and $965 delivered by Johnston to Williams. Johnston recovered judgment, and Williams appealed. The substance of Williams’s evidence is: Since 1899 he has engaged in religious work, believing that he is the steward of the Lord, and has established various homes or colonies for those who accept his faith. He has established colonies in Colorado, Oregon and other States.

Grace, ' Judge; statement by the court. The appellants were indicted for larceny in the first count, and for receiving stolen property in the second count, and the jury returned the following verdict:/‘We, the jury, find the defendants in the first count not guilty. B. W. Benton, Foreman. We, the jury, find the defendants guilty in the second count as charged in the indictment, and assess their punishment at one year in the State penitentiary.

Carter, Judge; The court erred in excluding the testimony showing that deceased had threatened the life of appellant, and also, when it was offered in asking the State’s attorneys why they did not object, and then asking appellant’s attorney: “Don’t you know such evidence n>' improper in this -case?” Appellant was further prejudiced before the jury when the trial judge asked appellant’s attorney: “Do you pretend to say that when deceased was running from defendant as fast as…

Steel, Judge; It is shown that appellee was a sub-contractor, that he had no contract with appellant, that he looked to Fisk, and not to appellant, for his pay, and that he performed no labor in person upon the logs. He had no lien upon the product of the labor of his men. 71 Ark. 334; 2 Jones on Liens, 1629.

<p>Appeal from Sevier Circuit Court; James S. Steel, Judge;</p>

Fulkerson, Judge; The appellant was prejudiced on the trial of this case by counsel for the State asking the witness Blanchett, on cross-examination, if his, Blanchett’s father had been indicted for a felony in Lawrence County, and by the refusal of the court to rebuke counsel for asking such question when requested so to do.

Steel, Judge; statement by the court. The grand jury of Tittle River County indicted E. A. Mears for making false entries in the books of a banking corporation as follows: “The grand jury of Little River County, in the name and by the authority of the State of Arkansas, accuse the defendant, E. A. Mears, of the crime of making false entries, committed as follows, viz: The said defendant, in county and State aforesaid, on the 18th day of November, 1904, then and there being…

Norman, Special Chancellor; 1. Appellees’ claim that the land was in their possession for two consecutive years is not sustained by the proof. Cutting timber alone, even for two years continuously, would not be sufficient to constitute adverse possession in this State. 68 Ark. 551; 49 Ark. 266. And appointing an agent to look after land, who goes upon it only occasionally, falls short of the actual possession required by law. 64 Ark. 100. 2.

Appellant, a boy little over thirteen and a half years old, shot and killed a negro boy about the same age. They lived on adjoining farms. Appellant was convicted of murder in the second degree, his punishment was fixed at five years in the penitentiary, and he appeals. The killing was done sometime early in the morning, and the sheriff arrested appellant about one o’clock p. m. When the sheriff first arrested appellant, he denied doing the killing.

Blmore, Special Judge; 1. The statute does not admit of the construction that the failure to give a bill of lading was intended to constitute an offense. Acts 1899, pp. 88-9, § 10. This section deals with the question of rates and charges for transportation, and the issuing of a bill of lading is clearly a matter only incidental to the principal purposes intended by the statute. Penal statutes must be strictly construed, and in favor of the alleged delinquent.

Mandamus to Woodruff Chancery Court; John Fletcher, Special Chancellor; 1. Construction of the intent and meaning of the opinion of the Supreme Court is not a matter for the exercise of judicial discretion by the inferior court, and such a case is -a proper one for a mandamus by the Supreme Court to compel the inferior court to carry out the mandate. 51 L. R. A. 3; 148 U. S. 228; 160 U. S. 225; 12 Pet. (U. S.) 493; 14 Id. 51; 94 U. S. 498'; 97 S. W. 293. 2.

Wallace, Chancellor; STATEMENT BY THE COURT. This is an action in equity to establish the title of Nannie M. Pitts and her daughter, Gardie V. Stubbs, to an interest in 187 acres of land in Yell County, the legal title to which is in Mrs. V. E. Stubbs, the defendant in this action. The circumstances out of which the litigation arose are as follows: In 1882 one William Stubbs purchased from John Main, of Missouri, 303 acres of land in Yell County, Arkansas.

Hart, Chancellor; 1. On the application for the appointment of a master, there was evidence clearly showing a sharing of profits between appellee and the intervener. A sharing of profits in no fixed proportion, but upon a basis to be determined by the amount acquired in the conduct of the business, is a cogent evidence of a partnership. 74 Ark. 437; 63 Ark. 518.

Having pleaded to the indictment, without objection, .and the transcript failing to reveal the error complained of, this ■court will presume that a copy of the indictment was served, or ■that defendant waived it. 42 Ark. 94; 43 Id. 391. 2. The punishment is not excessive. The testimony shows .a shocking and atrocious murder, wholly without provocation.

73 Ark. 399- Sufficient proof was introduced to show that Milo Williams was without the jurisdiction of the court, and his whereabouts unknown. His testimony before the examining court was properly admitted.

Carter, Judge; 1. It was competent to show that the witness, Coleman, had been riding free on freight trains of the company, in order to show any bias he might have in favor of the defendant, and as affecting his credibility. 80 Ark. 587. 2. There is no proof that appellant heard any warning, if given; hence, in the absence of a showing that he had heard it, he is not chargeable with contributory, negligence. 31 Atl. 694; 36 Pac. 1018; 36 N. E. 443. 3.

Hutton, Judge; The fifth instruction is erroneous. Where a policy forbids the creating of incumbrances on the property insured, giving a mortgage thereon renders the policy void. 62 Ark. 348; 151 U. S. 452. There can be no existing insurance without such insurance is valid and in full force, and capable of being legally enforced or collected in case of the destruction of the property insured. 129 111. 599; 13 Am. & Eng. Enc. of Daw, 305; 33 la. 3257 65 Me. 368; 34 Am.

Maples, Judge; 1. The property was exempt under the laws of Arkansas,. and no question was raised as to the form, time and manner of schedule. Art. 9, Const. 1874; Kirby’s Digest, § § 3904, 3906, There was at least an implied contract to pay all costs adjudged against plaintiff, which created a debt by contract. 58 Iowa, 281; 84 Id. 602; 3 Blackst. Com. 160.

Robertson, Chancellor; 1. The deed from Wilcockson to appellant is absolute in its terms. Under the allegations of the cross-complaint and under the proof, if there is a trust, it is an express trust, and void under the statute. Kirby’s Digest, § 3666. Oral testimony cannot be heard to engraft an express trust upon a deed absolute in terms. 57 Ark. 632. See also 1 Perry on Trusts, § § 81,, 82; Reed On Stat. Frauds, § 831. 2.

Evans, Judge; 1. Where a complaint alleges in one count a breach of contract to provide protection for a passenger, and in another count charges false imprisonment, there is a misjoinder, and a motion to strike out one of the causes of action .should be sustained. Kirby’s Digest, § § 6079-6081; 69 Ark. 209; 80 Ark. 167. A misjoinder renders the entire declaration bad. 23 Ark. 63 7- 2..

Wood, Judge; 1. It is error to exhibit a bastard child to the jury on the trial. 16 111. App. 299; 19 Ind. 152; 24 Neb. 33; 23 Utah, 541; 64 Wise. 84. Also to show that the child resembles person charged to be its father, or to show color of its hair and eyes, etc., 4 Allen (Miss.), 435; 43 Md. 144; 16 Me. 38; 29 Hun (N. Y.), 47. The resemblance of an infant is too indistinct and uncertain. 80 Me. 454; 81 Minn. 501; 40 S. W. Rep. 589; 48 Iowa, 43; 64 Wise. 84; 112 Id. 416. 2.

Robertson, Chancellor; 1. The bill as drawn, seeking in one respect to vacate the former decree on account of the manner in which its entry was obtained and the violation of the agreement upon which the cause was heard, and in other respects being a bill of review proper .to bring into the record the fact of the reversal of the Federal court decree, is permissible under the practice,in this State. 36 Ark. 532.

Winfield, judge; 1. No one can take advantage of his own wrong. It was Gordy’s misrepresentations and fraud that placed Daniel in the position of liability as a member of the firm, x Ark. 497-9; 2 Id., 73-80; 4 Id., 173-4; 35 Id., 483; 17 Id., 71; 50 Cal., 498; Bigelow on Fraud, 201; Bates on Part., § 514; 33 Penn. St. (9 Casey), 358. 2.

Carter, judge; The paragraphs stricken out stated a good defense. The allegations in paragraph 4, particularly, stated a case for the jury under proper instructions. 44 Ark. 444. With reference to the paragraph which states the inducements leading to the signing of the notes, the fact that they state that they were given for rent would not preclude appellant from showing that they were given for purchase money. 51 Ark. 218; 45 Ark. 447.

Hutton, Judge; 1. No proof of loss was made within the time prescribed by the policy. This is fatal to a recovery. 65 Ark. 240; 72 Ark. 484. 2. Slayton was only a soliciting agent, and could not bind or estop the company by his acts.

D. Robertson, Chancellor; 1. Not only does a purchaser from an insolvent debtor in discharge of an antecedent debt, stand in a more favored position than a purchaser for a present consideration, but the fraudulent intent of the grantor with reference to other creditors will not affect the title of the purchaser, unless he participated in the fraud. 20 Cyc. 472; 49 Ark. 22; 60 Ark. 433; 6r Ark. 455; 81 N. W. 63.

<p>Prohibition and mandamus to Yell Chancery Court; Jeremiah G. Wallace, chancellor;</p>

statement by thl court. Appellees seek to recover of appellant penalty for overcharge in passenger fare by appellant between the stations of Ashdown in Arkansas and Texarkana, Texas, on appellant’s road.

Elliott, Chancellor; 1. The land in controversy was the homestead of appellant and her husband. At his death she became the owner for life, and no one could disturb her title or take possession, if she objected, except in the way pointed out by the Constitution. Art. 9, § § 6 and 3, Const. 1874. As to the right of appellee to foreclose the mortgage, the widow is a third person. 136 U. S. 379; 2 Ha. 125; 28 Ore. 74; 53 Ark. 259. 2.

Hutton, Judge; 1. The court erred in its instructions as to exemplary damages, nor was this error corrected when his attention was called to it. 70 Ark. 136; 50 Id. 10. 2. Deceased was guilty of contributory negligence,- and can not recover. 70 Fed. 24, 28, etc.; Labatt,- Master & Servant, § § 365» 365a- 3. There should not have been any recovery for more than nominal damages.

Chancery Court; James D. Shaver, Chancellor; 1. There is no evidence to support the finding that there was an ordinance, requiring property owners within 300 feet of a sewer to connect, and that defendants connected. The amounts paid weré voluntary contributions for their own private benefit. But the ordinance is in conflict with Kirby’s Digest, § 5726, and void. 2. The burden of proof is on appellees. 68 Ark. 376. 3.

/ Rowena Ferrell, as administratrix of the estate of her deceased husband, Lou M. Ferrell, brought this action against the St. Louis & San Francisco Railroad Company for damages for the alleged negligent killing of said Ferrell by a train of the appellant company, and recovered a verdict of $4,000 for the benefit of his widow and children. Judgment was rendered thereon, and the defendant company has appealed. The case is refreshingly free from conflicting evidence.

Humphries, Chancellor; STATEMENT by the court. This is an appeal from a decree of the Fulton Chancery Court, dismissing for want of equity the complaint of J. T. Neff filed against B. F. Elder, J. E. Ford and H. H. Simon.

Grace, Judge; Having charged the corrupt use of “silver and paper money,” it devolved upon the State to prove the corrupt use of one or the other. 68 Ark. 583; 60 Ark. 141; 58 Ark. 2-12; .71 Ark. 415; 62 Ark. 538.

Instruction 4 given on the court’s own motion was erroneous and misleading. It had a tendency to cause the jury to return a verdict for a higher grade of homicide. It induced them to surrender their conviction as to- the innocence of defendant and consent to conviction under the belief his punishment would be light. 2. It is not the law. Acts 1905. § 6, p. 518.

Mahoney, Chancellor; STATEMENT BY THE COURT. On January 2, 1903, Hunter M. Meriwether and his two brothers, John W. and Gilmer Meriwether, sold and conveyed to J. C. Haw and J. B. Bunn certain lands in Chicot County, Arkansas, for the sum and price of $19,200, which was not paid, but was evidenced by five promissory notes executed by Law and Bunn to said grantors. To secure the payment of these notes, Law and Bunn executed to the Meriwethers a mortgage on said lands.

1. As disclosed by the record, there was no service on some of the minor defendants, and no one was authorized to enter their appearance. The court ought not to have proceeded until all parties were served. 80 Ark. 351; Ky. Civ. Code § 55, notes; H. Myers, Ky. Code, 295. ■ 2.

Head, Special Judge; 1. By the terms of the contract, no recovery can be had for the damages complained of, and the court erred in refusing the peremptory instruction for defendant, because: (1). No negligehce was proved. (2). The contract expressly released the company from liability on account of delay in shipping and in receiving after tender. 28 N. F. 208. The court should have determined the issue without a jury. 63 Ark. 331; 28 N. F. 208; 41 111. 73; 16 So.

Robertson, Chancellor; 1. Statutes of limitation must be specially pleaded, and the case brought within them by proof. 19 Ark. 16; Wood on Tim. § 7. Defendant’s case as to the 80-acre tract rests solely upon his own testimony; and since that testimony was taken at the first submission in the absence of appellant’s counsel, it was improperly admitted at the second hearing, and the plea of limitation must fail. 2.

'Appeal from Saline Chancery Court; Alphonso Curl, Chancellor The legal title being in appellant,, and the evidence conflicting as to whether or not she or her husband paid for the two lots, with the preponderance in her favor, it was error to divide the property between them. The case is controlled by 76 Ark. 389. The wife may hold as trustee for the husband, and the presumption of a gift or advancement to the wife may be rebutted by proof.

Plaintiff being the addressee, no contractual relations existed between him and the appellant. His right to recover is therefore based on tort, and none is shown. 2. If the burden was upon appellant to show where the negligence occurred, then it was abuse of discretion to deny its application for a continuance. 21 Ark. 460; 60 Ark. 564. 3. It was error to allow the witness Woodard to testify as to conversations had with the sending operator after the message had been sent.

' Saline Circuit Court; W. H. Evans, Judge; Claims not verified until after motion to dismiss appeal was overruled. No affidavit and prayer for appeal as provided by § 1487, Kirby’s Digest. No bond given, lb. § 1488. The circuit court acquired no jurisdiction. It was coram non judice. The fee bill was claimed under § 3818, Kirby’s Digest, which requires it to be sworn to. No motion to strike was made, and too late to complain now. The affidavit is not jurisdictional.

Hays, Judge; It was alleged that the pistol was not such as is used in either the army or navy; it was necessary both to allege and prove it. The burden is on the State. 102 S. W. 703. Confesses error. 19 Ark. 143; 83 Ark. 26.

Successive actions will lie, and plaintiff, was not barred by three years limitation. 52 Ark. 240; 56 Id. 612; 85 S. W. 654; 102 Id. 585; 59 Fed. 9. Cases cited are not applicable. This case falls within 62 Ark. 360. See also 52 Id. 240. Plaintiff was barred.

This is an action of ejectment, brought by Mary C. Lanzer, Elizabeth Stovall and John J. Ledbetter against Kate Butt to recover possession of the S. W. qr. sec. 22, T. 15, R. 12 E., in Mississippi County, Arkansas. Plaintiffs Mary C. Lanzer and Elizabeth Stovall claim title through their mother, Mary C. Garrison. Ledbetter deraigns title to an undivided one-half (1-2) interest from Mrs. Lanzer and Stovall by deeds.

Evans, Judge; 1. The county court was without jurisdiction to issue an injunction. 2. Respondent could only obtain a private road through the property in the manner laid down by the statute, and in strict compliance therewith. Kirby’s Digest, § 3010; 15 Ark. 43 J 13 Ark. 355. The right to a- restraining order or injunction is a separate and distinct right, and the grounds therefor named in the statute. Kirby’s Digest, § 3965.

Acts Cong. 1898, § 63, subd. 1, and § 57, subd. x; 26 Ark. 231, overruling 6 Ark. 241; 10 Ala. 589; 7 How. 117; 88 N. W. 351. The contingent claim of a surety is not provable, and the debt was not discharged. 121 Fed. 699. The transcript fails to state that the evidence was all the evidence adduced. 17 Ark. 327. The bill of exceptions shows conclusively that it did not. 44 Ark. 74; 42 Id. 29.

Carter, Judge; Proof of ownership is always material — none here. 58 Ark. 38; 67 Id. 154. Corpus delicti not proved, and the so-called confession was extra-judicial, and there was no proof outside the confession. There must be corroboration. 1 Gr. Ev. § 217; Kirby’s Digest, § 2385; 43 Ark. 367; 73 .Id. 411; 9 Bush, 149; 77 Ark. 126. There was sufficient evidence to establish corpus delicti.

H. Rvans, Judge; It is the duty of the county clerk, and not of the board, to keep the journal of its proceedings. Kirby’s Digest, § 7005. His error in failing to keep the journal accurately was a misprision only, which could not invalidate the action of the board. If the board believed that the whole assessment was too low, it could properly make a uniform increase of the assessment.

Hart, Chan cellor; 1. Appellees not entitled to reformation because: (1), They signed without reading, when no fraud was practiced to prevent it, and are bound by it. 71 Ark. 185. (2) There was no mutual mistake of the parties, if any mistake existed. 71 Ark. 614. The contracts put them on notice that they took the risk, for it is so expressly provided. The misrepresentations of the agent were clearly an afterthought, and their letters disprove their defense. 2.

Virgil Bourland, Chancellor; statement by the court. Held: “That the moneys which came to appellee’s hands in 1867 became his absolutely by virtue of his marital lights, under the law then existing; that as to the money arising from the sale of lands a formal gift was not requisite; that when a wife permitted her husband to mingle her money with his and use it along from time to time through…

Duffle, Judge; 1. Under the finding of facts, the occupancy of the property by the appellant1 and his family was sufficient to impress the homestead character upon it. 69 Ark. 596; 22 S. W. 1033; Waples, Homestead & Ex. 187; Thompson, Homestead & Ex. § 260; 29. Ark. 280; 14 S. W. 296; 78 Ark. 481. 2.

<p>1. Eminent domain — right oe railroad to appeal. — Kirby’s Digest, § 2954, providing that where damages from a railroad company’s right-of-way has been assessed it shall be the duty of such railroad company to deposit or pay the amount assessed within thirty days after such assessment, does not prohibit the railroad company from appealing from the assessment, nor require that payment of the assessment be made until the cause has been finally determined where an appeal has been taken. (Page 365.)</p> <p>2. Sajití — right to supersedeas. — Where a railroad company brought condemnation proceedings, and appealed from a judgment fixing the assessment of damages to the property, and executed a supersedeas bond, the bond will not be quashed because, after the judgment was rendered, the railroad company unlawfully took possession of the property without paying the assessment. (Page 366.)</p>

Court erred in refusing instruction No. 3 asked by defendant. When the holder of a note fails to make due demand of payment, if the indorser afterward agreed to pay or remain liable, due demand and notice is waived, and the indorser is liable. Story on Prom. Notes, cited in 13 Ark. 401; 26 Id. 156. It is not necessary that an express promise should be made in totidum verbis.

V. Tompkins, Special Judge; 1. The receipt is only prima facie evidence, and may be explained or contradicted. 5 Ark. 61; 43 Id. 232; 46 Id. 217; 58 Id. 181; 69 Id. 287; 82 Ark. 492. 2. The prima facie case made by the receipt was overcome by the evidence, leaving the verdict unsupported. 67 Ark. 514; 53 Ark. 96; 66 Id. 248; 66 Id. 439. 3.

There is no testimony that Waller acted for appellant in making the contract except his own statement to Zimmerman. Agency can not be established by the declaration of the alleged agent. 31 Ark. 212; 33 Ark. 251; 33 Ark. 316; 44 Ark. 213; 68 Ark. 225. 2. There could be no ratification by the appellant of the acts of Waller-unless it had knowledge of those acts. 64 Ark. 220; 76 Ark. 567.

<p>Appeal — right oe counsel to withdraw brief. — After a litigant’s brief has been filed, his counsel will not be permitted, on the day set for submission of the cause, td withdraw the brief upon the ground that the litigant refuses to reimburse counsel for the expense of printing the same.</p>

Fulkerson, Judge; James Dupree sued the St. Louis, Iron Mountain & Southern Railway Company, alleging that he was employed by defendant to inspect its cars, and that while he was making an inspection under a car defendant’s employees kicked several cars violently against this car, causing the same to pass over plaintiff’s right arm and leg, so that plaintiff lost his right arm and suffered the partial loss of his right leg.

Carter, Judge; STATEMENT BY THE COURT. M. M. Henderson, as next friend of John Henderson, a minor, sued the Arkadelphia Lumber Company for damages on account of personal injuries sustained by him while in the employ of said Lumber Company.

The act, if valid, suspends the operation of the general' law in reference to the city of Russellville, and leaves it without power to establish other improvement districts of the whole or any part of the territory. It is in violation of art. 12, § 3, Const. The Legislature has no power, to control the affairs of cities and towns except through general laws. 36 Ark. 166.

Grace, Judge; Action by J. G‘. Morton and Carrie Morton against Lacy Brothers & Kimball to recover $2,000 for rent of land due upon written contract. The plaintiffs recovered judgment for $878.35, and appealed therefrom to this court.

C. Going, Special Judge; statement by the court. Appellee alleged that on or about the 1st of August, 1905, appellant agreed to sell to appellee 40,000 feet of number 2 common pine flooring, 4 inches wide, well seasoned] to be paid for as delivered at $13 per thousand; that the flooring was to be delivered at shed in rear of Barnes’ building as needed. Appellee alleged breach of the contract, to his damage in the sum of $280, for which he prayed judgment.

<p>Appeal — incumbency oe oepice— supersedeas. — As it is contrary to public policy that the incumbency of a public office should be changed by the decision of an intermediate court so long as an appeal to the Supreme Court is being prosecuted in good faith, where the incumbent of a public office appeals from a judgment of the circuit court ousting him therefrom and tenders a supersedeas bond, the Supreme Court will grant a supersedeas staying the execution of the judgment until the hearing of the case or the further orders of the court.</p>

H. Evans, Judge; 1. This was a flag station, and under the circumstances of this case the appellant was under no obligation to keep a comfortably' heated waiting room for passengers. Compare Kirby’s Digest, § 6634, with Ky. Stat. § 784. 102 Ky. 300; 2 Hutchinson on Car., § 920; 9 So. 349; 30 S. W. 1122; 46 S. E. 7J- 2.

H. Evans, Special Judge; The complaint alleged that the appellant was a corporation owning the railroad in question, and, this allegation being material, the burden was on the plaintiff to prove it by a preponderance of the evidence. The statute provides that the penalty shall be paid by the corporation owning the road, and, being a penal statute, must be strictly construed. Kirby’s Digest, § 6595; 43 Ark. 415; 38 Ark. 519; 40 Ark. 97; 67 Ark. 357.

<p>1. Constitutional law — when question raised. — A statute will not be declared unconstitutional if there is any other ground upon which a decision may rest. (Page 414.)</p> <p>2. Landlord and tenant — enticing away another’s renter. — Hiring a tenant to do two or three days’ work is not within the prohibition of the Acts of 1905, p. 726, providing that one who interferes with, entices away or knowingly employs another’s renter before the expiration of his contract shall be liable to the other for advances made to the renter and for all damages sustained by reason thereof. (Page 414.)</p> <p>3. Same — sufficiency of evidence. — Evidence that defendant hired plaintiff’s tenant after he had left plaintiff, and that defendant subsequently promised to pay plaintiff the advances which had been made to the tenant, does not prove that defendant interfered with or enticed away the tenant or employed him knowing that he was plaintiff’s renter. (Page 413.)</p>

Shaver, Chancellor; 1. Appellee’s defense is based upon a breach of warranty in the deed, — an independent claim, sounding in damages. It could only be sustained by presenting it, properly verified, to the administrator before commencement of suit. Kirby’s Digest, § § no, 113, 114, 119 and note; 66 Ark. 327; 48 Ark. 304. 2.

The burden was on the plaintiff to show that the injury occurred within one year next before the commencement of suit.' 70 Ark. 598. 2. This case falls within and is controlled by the rule announced in Railway v. Ferguson, 57 Ark. 16. The construction of a wire fence on appellant’s right of way near a public crossing, and the existence of a pond of water near it, do not enter into this case as elements of neglect, nor tend to show negligence on appellant’s part.

Evans, Judge; STATEMENT by the court. The appellee by this suit seeks to recover of appellant for damages alleged to have accrued to appellee by reason of injury to two carloads of cattle caused through the negligence of appellant in transporting same from Magazine, Arkansas, to St. Louis, Missouri, under contract with appellee. The complaint specifically sets forth the alleged negligence in transporting the cattle from Magazine, Arkansas, to Ft.

H. Evans, Judge; STATEMENT OE EACTS. The facts are as follows: Appellee, W. B. Merchant, brought suit in the Garland Circuit Court against D. L. and Johnnie A. Gebhart upon a foreign judgment which he had obtained against them in the State of Texas. Merchant caused an attachment to issue at the time of instituting suit on said judgment, which was levied on certain real estate as the property of said D. L. and Johnnie A. Gebhart.

Shaver, Chancellor; STATEMENT BY THE COURT. This bill was filed by W. G. E.- Key and J. A. McMenis aganist T. M. East, Jr., on the 10th day August, 1905. The parties had been equal partners in running a saw mill under a verbal contract made about the first of January, 1904, and the partnership continued until the first of June, 1904. No period! of duration was fixed in the contract of partnership.

Winfield, Judge; STATEMENT BY THE COURT. The firm of Adams & Boyle, insurance agents, were employed by the appellant, a foreign corporation, to establish and conduct for appellant the business of fire insurance in this State. Under the contract appellees were general agents, with all the powers, duties, and the obligations of such. Appellees were to pajr all expenses incident to the business except legal expenses in resisting losses.

Moore, Special Judge; STATEMENT BY THE COURT. Mrs. Stevens, then of Grayson County, Texas, on the 24th of December, 1905, was at El Dorado, and there purchased a ticket over the line of the appellant railroad company to Smith’s Crossing. Her mother lived about three-quarters 1 of a mile therefrom, and her brother was to meet her there, and he sent his conveyance there for her.

Virgil Bourland, Chancellor; STATEMENT BY THE COURT. Enterprising citizens of Ft. Smith were anxious to secure a wagon factory at their town. It had come to their notice that the plant of the South Bend Wagon Company, a corporation of Mishawaka, Indiana, was for sale. Accordingly correspondence was opened by the Commercial Club of Ft.

Winfield, Judge; 1. A stranger to a telegram cannot recover for special damages suffered because the telegram was not promptly delivered, in the absence of notice to the defendant that sudi stranger had an interest in the telegram, and notice of the facts that would give rise to the special damages. 26 S. W. 783; 9 Tex. App. 607; 27 S. W. 51; 29 S. W. 406; 13 S. W. 70; 20 S. W. 945; 57 Fed. 471 ;'io7 ICy. 518; 51 Mo. App. 375. 2.

V. Tompkins, Special Judge; 1. A married man can not contract with a broker to sell his homestead unless his wife joins in the contract. Kirby’s Digest, § 3901; 60 Ark. 269. Appellee will be held to have contracted with reference to the law existing at the time of the contract. 95 S. W. 481; 73 Ark. 470; 75 Ark. 435; 76 Ark. 410; 80 Ark. 108; 177 U. S. 28; 83 ü.

W. Leslie, Special Judge; 1. If the indictment is to stand at all, it must be under § 3600, Kirby’s Digest; yet appellant was tried and convicted under § 3602, Id, This could not properiy be done. 58 N. H. 348. 2. The latter statute, § 3602, is in violation of the Constitution forbidding monopolies, and the granting of special privileges or immunities to certain persons or classes not extended to all. (Art. 2, § §18 and 19, Const.) 1.

27 Ark. 469; 76 N. C. 231, 22 Am. Rep. 675; 27 Am. & Eng. Enc. Law, 323 and note. An appellant can always dismiss his appeal before final judgment with or without a reason.

Circuit Court; S. W. Leslie, Special Judge; statement by the court. The appellant was indicted in the Garland Circuit Court for practicing medicine without first having procured a certificate and license as prescribed by the statutes. John Montgomery testified for the State: “I went up and got some medicine from defendant, paid him, and he gave me a receipt. I was requested by the Medical Board to go there to get evidence, to see whether or not he was practicing medicine.

S'. Maples, Judge; The verdict is not supported by the evidence. It is not sufficient to prove that something was done alongside the road which might obstruct the road or probably would cause an obstruction. The court erred in refusing to instruct the jury that before they could convict they must find, etc., that the defendant had, etc., obstructed the road by the means alleged in the information.

Fulkerson, Judge; x. The gravamen of the offense consists in a dealer soliciting orders in prohibition territory. The allegation that the defendant unlawfully solicited and received an order from Mc-Spadden, to-wit: three quarts of whisky,'sufficiently charges the crime under the statute.

Circuit Court; J. Hugh Basham, Judge; The jury should have been instructed to acquit if the sale was made bona fide and in quantities not less than five gallons, although the entire quantity was not removed at the time. of sale. Kirby’s Digest, § § 7795, 5100. Error was committed in refusing to instruct the jury that the question was as to the bona ñdes of the transaction. This should have been submitted to the jury.

Steel, Judge; 1. Having alleged that appellants were not husband and wife, the burden was on the State to prove that allegation. Not having done so, the court should have granted appellant’s request for a peremptory instruction. 19 Ark. 143. 2. The proof falls far short of establishing a case of illegal cohabitation. Sexual intercourse between persons not married does not constitute the crime.

Steel, judge; 1. The mere refusal to submit to arrest does not of itself constitute an offense, and the court should have so instructed the jury. 37 Wis. 196. 2. It was the officer’s duty to exhibit his warrant for making the arrest, and upon his refusal to do so, appellant had the right to refuse to submit to arrest, and even to resist it. Kirby’s Digest, §■ 2184.

Steel, Judge; 1. ' Motion for continuance properly refused. It was a matter of discretion with the trial court, which this court will not interfere with except in a case of injustice. 2 Ark. 33; 8 Id. 119; 13 Id. 720; 19 Id. 92; 22 Id. 164; 24 Id. 599; 26 Id. 323; 34 Id. 720; 41 Id. 153; 54 Id. 243; 57 Id. 165; 61 Id. 88; 82 Ark. 105. 2.

<p>1. - Contracts — rescission.—While solemn contracts between men should never be disturbed on slight grounds, yet whenever a person, through age, decrepitude, affliction or disease, becomes imbecile and incapable of managing his own affairs, an unreasonable or improvident disposition of his property will be set aside in a court of chancery. (Page 492.)</p> <p>2. Fraud — evidence.—■A finding that defendant fraudulently procured from plaintiff a certain deed to land will be sustained by evidence that defendant paid therefor $666 2-3 when the land was worth from $4,000 to $8,000, that defendant was plaintiff’s confidential friend, and that defendant’s mental capacities were so impaired by drink that he was incapable of managing his business. (Page 493.)</p>

0. Mahoney, Chancellor. The supersedeas issued by the clerk should be quashed. A decree for a perpetual injunction can not 'be superseded. Kirby’s Digest, § § 1216, 1222, 1218; 73 Ark. 67, 70; 77 Id. 580; 2 Cyc. 913-14; 10 Wall. 273; 109 U. S. 150.

5 Ark. 52; lb. 321; 12 Id. 218; 6 Id. 480; 8 Id. 500; 59 Id. 165; 7 Id. 372; 63 Id. 65; 22 Enc. PI. & Pr. 552, 527. The complaint alleges the killing of a black mare; the proof perhaps shows plaintiff lost a bay or an iron gray filly. The variance is fatal.

DuMe, Judge; STATEMENT BY THE COURT. This is an appeal from a judgment of the circuit court of Garland County, which held that the hospital buildings and grounds upon which it is - situate, in the city of Hot Springs, come within the exemption of the Constitution, and are not subject to taxation. Among the exemptions from taxation' contained in the Constitution are: “Buildings and grounds and materials used exclusively for public charity.” Const. 1874, art. 16, § 5.

Wood, Judge; 1. Appellant was notified of his brother’s condition in time to have reached his bedside while he was still conscious. The telegram in suit would have conveyed no additional information. His own negligence bars recovery. 140 Fed. 316; 80 Tex. 420; 88 Tex. 230; 67 S. W. 849; 93 Tex. 114; 33 S. W. 728; 3 S. W. 496; 36 So. 188; Joyce on Electricity, § 972; Gray on Com. by Tel. § 100. 2.

H. Basham, Judge reversed. Kirby’s Digest § 6776, applies only to injuries from running trains. This was settled in 70 Ark. 481. The action was not barred. 14 L. R. A. 841.

Elliott, Chancellor; The beneficiary acquired no vested interest in the certificate, 1. The contract must be construed according to the laws of the State of Illinois, of which State the appellant, the member and the beneficiary named in the certificate were residents at the time the contract was entered into.

Carter, Judge; This is an action by School District No. 16 oí Clark County, and Ben Bussell, the treasurer of said county, to recover from defendant, George W.. Clarke, the sum of $90, with interest, which amount was paid to defendant by Bussell, while treasurer of the county, upon six school warrants of $15 each, issued to defendant while the director of said district.

Mahoney, Chancellor; STATEMENT BY THE COURT. On October 23, 1893, A. J. Dennis, a debtor of appellee, Ball-Warren Commission Company, was the owner of the real estate in controversy situated in the town of Magnolia, Arkansas, and on that day conveyed it to J. M. Dennis, who on November 19, 1894, by mortgage deed conveyed it to appellant, H. A. Longino, to secure the payment of a debt of one thousand dollars.

Robertson, Chancellor; In collateral attacks upon judgments, etc., ordinarily evidence aliunde can not be introduced to overthrow them; but - where there is fraud or mistake, it is admissible, as under § 4424, Kirby’s 'Digest, the decree is absolutely void. 77 Ark, 383; 77 Id. 504; 49 Id. 411; 33 Id.'778; 50 Id. 459; 71 Id. 565. There was no notice and no service. 63 Ark. 323;. 79 Id. 289.

Wells, Judge; This was an action instituted in the county court of Ashley County to remove .Barton Smith from the office of county examiner. A petition was filed in the county court alleging Smith’s incompetency, and upon testimony introduced the court removed him. He appealed to the circuit court, which held that the county court had no jurisdiction to remove a county examiner and dismissed- the proceedings. The county judge has appealed to this court. 1.

C. Going, prosecuting attorney of the Second Judicial District, filed a complaint against Walter Higginbotham, alleging that, under the provisions of an act of the General Assembly, which became a law without the approval of the Governor on February 15, 1893, there was created and established the St. Francis Levee District, embracing .all of the counties of Mississippi and Crittenden and parts of the counties of Craighead, Poinsett, Cross, St. Francis, Lee and Phillips; that…

Hart, Judge; S. D. Lucas brought suit against T. A. Futrall, alleging that on the 5th day of June, 1907, at its regular monthly meeting, the Board of Trustees of the State Charitable Institutions of the State of Arkansas elected plaintiff Superintendent, of the Arkansas School for the Blind for a term of two years, commencing the first day of October, 1907; that plaintiff gave the bond required by law; that on the last mentioned date, to-wit, October 1, 1907, the President…

Smith, Judge; Emerson was arrested for violating an ordinance of the town of McNeil, was convicted before the mayor, and in the circuit court on appeal, and has prosecuted this appeal. The facts sufficiently appear'in the opinion of the court. The ordinance was as follows: • ORDINANCE NO. 23.

<p>Actions — consolidation—practice.—Where several causes pending before the same court involve the same questions, the court was authorized to consolidate them, and to permit a single motion for new trial and bill of exceptions to be filed; but, if separate judgments were entered, separate appeals may be taken.</p>

<p>Appeal from Garland Chancery Court; Alphonso Curl, Chancellor;</p>

<p>Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor ;</p> <p>reversed.</p> <p>Appellant should have been decreed a lien for the material furnished .on all the property in which it was used. Kirby’s Digest, § § 4970-4994; 77 Ark. 35; 63 Ark. 367; 15 Am. & Eng. Enc. Law (1 Ed.), 73, note 3;. 58 TVrk- 7- It is not necessary, in order to establish the lien, to show that the materials furnished was used in any particular house, or even that they were used in the construction of any of the buildings, provided they were furnished under the contract. 76 Md. 337; 25 Md. 297.</p>

The only question to be determined by this appeal is whether the court, in a criminal case, where a part of the penalty is or may be imprisonment, can instruct the jury to return a verdict of guilty. The evidence was undisputed, and, if true, showed that appellant had practiced medicine without license.

Robertson, Chancellor; STATEMENT BY THE COURT. The complaint in this case alleges that the lands involved in this suit were purchased by appellee at a void tax sale. Appellants ask that the tax deed issued to defendant be cancelled as a cloud upon their title. The facts sufficiently appear in the -opinion. 1.

Hutton, Judge; STATEMENT BY THE COURT. Bud Reeves was indicted for murder in the first degree for the alleged killing of one Edmond Bratton. The trial was commenced on the 24th day of August, 1907, nine jurors having been accepted, when, at the noon hour, a recess was taken. Defendant, at the time, requested that the jurors selected be kept together under charge of an officer, but his request was denied by the court, and exceptions were saved.

Evans, Judge, on exchange of circuits; STATEMENT BY THE COURT. Suit was brought by appellee against appellant in the Scott Circuit Court to recover damages for misrepresentations made by an agent of appellant in the sale of a saw mill to appellee. A summons was duly issued, and made, returnable at the next term of the court.

Appeals from Desha Chancery Court; James C. Norman, Chancellor; I. Equity has jurisdiction to inquire into the contracts of persons alleged to be insane, but, upon finding that the deceased was not insane, the chancellor had no jurisdiction to go further than to dismiss the bill. • 2. Testimony of the alleged expert was improperly admitted. It was irrelevant because inquiry' as to reasonablé fees was not permissible. 33 Ark.. 547.

Robertson, Chancellor; STATEMENT BY THE COURT. Appellants, • father and son, brought this action, September 6, 1905, against appellee, J. H. Campbell, and wife, for the partition of two hundred acres of land in Clay County. Appellee answered with a cross-bill for the confirmation of a prior parol partition between him and his sister, Nannie, in her lifetime, • she having been the wife of one of the appellants, the mother of the other.

Norman, Chancellor; STATEMENT BY THE COURT. This is a contest in which the three contestants claim the ownership of the northwest quarter of northwest quarter of section twenty-three (23), township seventeen (17)' south, range seven (7) west. Appellant, Files, claims under a purchase from the State, November' 17, 1875.

Fulkerson, Judge; statement by the court. Appellee instituted this action before a justice of the peace by filing his affidavit that Charles Hunter was indebted to him in the sum of $67.70 for some walnut logs sold by appellee to Hunter, and that the purchase money therefor was due and unpaid, and a-slcing judgment for said sum, and that it be declared a lien on the said logs, and at the same time gave a bond to procure the issuance of the order .of seizure.

<p>Appeal from Howard Chancery Court; James D. Shaver, Chancellor;</p>

<p>Appeal — clerk's certificate to transcript — surplusage.—The clerk of the chancery court is not authorized to certify that a transcript contains all the papers filed in the action named, except certain testimony which is not on file in his office; but so much of his certificate as relates to the testimony not on file will be treated as surplusage.</p>

Wells, Judge; STATEMENT BY THE COURT. This is a suit brought by C. M. Matthews agninst E. P. Remley to obtain possession of the office of collector of Chicot County.

M. Elliott, Judge; STATEMENT BY THE COURT. This is a suit by appellee to restrain appellant from removing timber from a tract of land in Monroe County, described in the complaint. Appellant and appellee claim from a common source of title.

The demurrer should have been sustained. Absence is necessary to constitute one an accessory before the fact. 41 Ark. 173; Kirby’s Digest, § 1560; 1 Wharton, Am. Crim. Law, § 134; 21 Ark. 212. Whatever is necessary to constitute the crime must be alleged. 37 Ark. 274; Kirby’s Digest, § 2227; 41 Ark. 173; 58 Ark. 390; 77 Ark. 321. The evidence of corroboration was entirely insufficient. Corroboration is not sufficient which merely shows that the offense was committed.

BlUott, Chancellor; 1. There is no estoppel as against an infant, and neither a married woman nor an infant is estopped by mere silence. 61 Ark. 61; 62 Ark. 319; 30 Ark. 385; 40 Ark. 26. But the plaintiff, appellee here, is estopped by reason of her failure to take steps to protect her rights as widow for ten years. 2.

Elliott, Chancellor; I. W. F. Stevens, by virtue of possession for more than two years under a valid tax deed, had acquired a perfect title to the 60-acre tract before Hoard executed the quitclaim to Steven’s wife. Kirby’s Dig. § 5061; 59 Ark. 460; 60 Ark. 499; Id. 163; 57 Ark. 523; 58 Ark. 151; 53 Ark. 418; 71 Ark. 117; Id. 390; 75 Ark. 514; 80 Ark. 82; 80 Ark. 435; 80 Ark. 181; 78 Ark. 99; 34 Ark. 541. See, also, 79 Ark. 194; Id. 364; 80 Ark. 575; 83 Ark. 534. 2.

Fulkerson, Judge; STATEMENT BY THE COURT. This suit was instituted by one G. W. Hurley against the appellee to recover damages in the sum of $20,000, the alleged value of the services and companionship of Hurley’s wife, who, it was alleged, “was killed through the carelessness and negligence of appellee’s servants”, and “by the wrongful act, neglect or default of appellee.” While the suit was pending, Hurley died, and it was sought to revive the cause in the name of…

Steel, Judge; It was error in the court peremptorily to instruct the jury to return a verdict of guilty. There was evidence upon which they might or not have found the defendant guilty, and the appellant was entitled to have their verdict uninfluenced by the charge of the court. Appellant’s own testimony amounts to a confession of guilt. There is no prejudicial error. ■