Volume 85 — Arkansas Reports

Mahoney, Chancellor; The burden of proof was upon the appellee, and this burden he failed to discharge. The preponderance of the evidence is contrary to his contention that the contract was conditioned upon his wife’s signing the deed. 1.

Shaver, Chancellor; i. Under a prayer for general relief, the court may grant any relief that the facts stated and proved will warrant, although it may be inconsistent with the special relief prayed. 76 Ark. 551; 4-1 la. 435; 61 la. 180; 29 Wash. 643; 63 Neb. 410; Pomeroy on Rem. § u. The test of jurisdiction must be found in the allegations of the complaint, not in the answer or the evidence. 59 Ark. 86; 79 Ark. 172; 95 S. W. 804; 81 Ark. 296.

Appellant brought suit in replevin for a piano, alleging in its complaint that it had contracted to sell to the appellee a certain piano, under a written contract, on the installment plan, with retention of title. That there was a default in the payment at maturity of certain of the installments, whereupon the appellant was entitled to possession and damages for the retention of the instrument. The usual allegations in replevin were made.

Smith, Judge; statement by the court. The General Assembly of this State in 1905 passed an act ■entitled, “An act locating and establishing a regular station and requiring the building and construction of a depot, and the maintaining thereof, at Snow Crossing, in Columbia County, Arkansas, by the Louisiana & Arkansas Railroad Company, and requiring trains of cars, passenger and local freight on said railroad, to stop there and receive passengers and freight, and prescribing…

Chapline, Judge; Mrs. Ollie Lillie and' Charles Gray, a minor, by his next friend, John High, sued F. Gates in ejectment, and recovered judgment, from which defendant has appealed. 1. The answer set up a defense cognizable only in equity, and it was error to deny the motion to transfer to chancery court. 36 Ark. 236; 52 Ark. 414; 71 Ark. 487; Kirby’s Digest, § 5995- 2. Since the answer set up a complete defense in equity, the court erred in sustaining the demurrer..

V. Tompkins, Special Judge; 1. Under the statute appellant here was entitled to judgment in the circuit court for his costs, his recovery in that court being equal to or greater than the judgment recovered in the justice’s court. Kirby’s Digest, § §. 983, 984. 2. If there was any offer to confess judgment in the justice’s court, appellees here waived or abandoned the same by appealing to the circuit court.

Not only so, but the tender must be kept good, in money, and the burden of proof is on the one alleging the tender to show that he has kept it good. 30 Ark. 505; 38 Ark. 329; Hunt on Tender, § § 352, 513, 514. See, also, Id. § § 517 and 481. 1. This was a suit for specific performance of a contract, the defense to which was a denial of the obligation and of the right to enforce performance. The tender of the money was therefore unnecessary. 42 S. W. 86; 68 Ark. 521.

Winñeld, Judge; 1. The method of bookkeeping resorted to by the insured, as shown in the evidence, was not a compliance with the requirements of the policy. The object of this clause of the policy is to ascertain the quantity and value of the property destroyed, yet under the system adopted that was impossible. 53 Ark. 357; 65 Ark. 249; 48 S. E. 918. 2.

Grace, Judge; Defendant should have been permitted to introduce proof to show that plaintiff did not deliver lumber, according to the contract. The answer, liberally construed, would permit the introduction of such proof; if not sufficient, then the defendant should have been permitted to amend its answer. Kirby’s Digest, § § 6140, 6145, 6148; 58 Ark. 504; 64 Ark. 253; 29 Ark. 323; 53 Ark. 263; 59 Ark. 317.; 67 Ark. 142.

Hugh Basham, Judge; STATEMENT BY THE COURT. The appellee was indicted in the Conway Circuit Court for embezzlement.

Carter, Judge; statement by the court. Tom Burton was indicted at the August, 1906, term of the Clark Circuit Court, for murder in the second degree, committed in Clark County, Arkansas, on the 17th day of February, 1906, by unlawfully, wilfully and with malice aforethought killing and murdering L,. D. Crews by cutting and stabbing him' with a knife.

. Appeal from Clark Circuit Court; Jacob M. Carter, Judge; STATEMENT BY THE COURT.

‘Appeal' from Prairie Circuit Court; Eugene Lankford, Judge; Appellee’s remedy was to attach the cotton while in appellant’s possession; or, if he had sold it, appellee had a remedy in equity to subject the proceeds to his lien. 72 Ark. 132.

Under the facts developed in evidence the appellee wag clearly an assignee of the term, and not a sub-tenant. 67 Mass. 329; 9 Pick. 53; 129 111. 318; 104 111. 160; 166 111. 361; 123 Pa. St. 576; 2 Dana, 294; 67 Ind. 513; 120 Mich. 48; 52 Miss. 155; 50 Mo. 319. Possession alone is prima facie sufficient, and to escape liability as assignee the defendant must prove that he held as sub-tenant. 2 Wend. 517; 139 Pa. St. 344; 19 Neb. 540; 2 N. H. 387; 25 Mo. App. 359; 8 Id. 223.

Norman, Chancellor; To justify the reformation of a deed on the ground of mistake, the proof must be clear, convincing and decisive, not only as to the contract actually made, but also as to the mutuality of the mistake, and this proof must establish a preponderance of the evidence. 55 Am. Rep. 577; 71 Ark. 614; 75 Ark. 72.

Where a juror on his voir dire discloses that he has^ formed an opinion as to the guilt of the accused which it would require evidence to remove, he is incompetent to serve, notwithstanding he may say that he can give the defendant as fair and impartial a trial as if he never heard of the case. 56 Ark. 402; 72 Ark. 151; 45 Ark. 170; 69 Ark. 325; 19 Ark. 165; 72 Ark. 160; 20 Ark. 50; 30 Ark. 741; 45 Ark. 168; 66 Ark. 449; 22 Ark. 150.

Winfield, Judge; STATEMENT BY THE COURT. This was a suit upon a certified copy of a judgment of a justice of the peace rendered in a replevin case for the recovery of Gertain personal property, or its value, in favor of B. G. Holt, and which was assigned to the appellee, A. M. Heisman.

This appeal involves three suits, consolidated and tried in the Mississippi Circuit Court for the Osceola District as one case, W. P. Hale v. Board of Directors St. Francis Devee District.

The appellant brought this suit against the appellee to recover five thousand dollars damages, alleged to have been sustained by what he terms a libelous publication in The Morriilton Democrat, a newspaper published by appellee. A demurrer was sustained to the complaint, and, appellant having elected to stand upon the pleadings, judgment was entered accordingly, and appeal taken.

Shaver, Chancellor; 1. The facts proved and admissions made by appellee bring this case within the rule laid down in 44 Ark. 429. And, if it be true that appellant is partly to blame for his conduct toward her, she need not be wholly blameless to be entitled to divorce. Id. 434; 68 Ark. 158; 76 Ark. 28; 77 Ark. 94. Indignities need not be attended by bodily harm.

Humphries, Chancellor; 1. Where land is purchased and paid for by property of the wife, and the deed taken in the name of the husband, the latter holds as trustee for the wife. 47 Ark. in. The evidence is conclusive that Mrs. Edwards claimed to own the land and remained in possession under such claim from the time she and her husband, Phillips, took possession in 1880.

Hart, Chancellor; 1. Under the Constitution the maximum salary allowed any officer in this State is $5,000. Const. (1874), art. 19, § 23. Under the first constitution of the State, the prosecuting attorney was ranked as a State officer. Art. 6, § 13, Const. 1836. In the matter of impeachment he was and is classed as a State officer. Art. 4, •§ 25, Const. 1861; Art. 4, § 24, Const. 1874. Likewise, in the matter of payment of salaries.

Robertson, Chancellor; ' 1. The chancery court had jurisdiction. 70 Ark. 191; 74 Ark. 104; 75 Ark. 52; 62 Ark. 223; 65 Ark. 437. 2. Appellant has a lien under the statute upon the land recovered in the Hysmith case. Kirby’s Digest, § 4458.

l, Chancellor; M. S. Cobb brought suit against W. T. Scoggin, alleging as follows: “Plaintiff states that on or about the 1st day of April, 1906,' the defendant, W. T. Scoggin, was duly appointed as prosecuting attorney for this district to fill the unexpired term of the late H. R. Morrison.

'Carter, Judge; 1. The court erred in the admission of testimony as to the rental value of the land. The effect of permitting appellee to introduce testimony to show what it cost to plant and cultivate the crop up to the time of its destruction, and then to recover for the rent of his land on testimony as to the rental value of the whole farm, was to magnify his damages, and set up a measure of damages contrary to the rule laid down by this court.

Carter, Judge; STATEMENT BY THE COURT. The plaintiff, Mattie E. Green, filed her complaint - in the Clark Circuit Court, alleging: That the defendant, St. Louis, Iron Mountain & Southern Railway Company, is a railroad corporation, operating a railroad, which passes through Witherspoon, in Hot Spring County, Arkansas; that plaintiff on the nth day of August, Í906, undertook to board its south-bound passenger train for Arkadelphia, before it had pulled up to the station, by…

The facts in no way tend to discredit the testimony of the fireman, and,a careful examination of all the testimony shows nothing inconsistent with his. It is uncontradicted that the engineer shut off the steam, applied the air brakes, sounded the whistle, and that the fireman rang the bell. Appellant is-not liable. 41 Ark. 161. 2.

Moose, Judge; STATEMENT BY THE COURT. Appellee sued appellant in the Johnson Circuit Court for a balance claimed of $795.21. The claim was for coal furnished. An itemized statement of the account is attached to the complaint as an exhibit, and among the credits was one- for- the rent of a core drill and diamonds to the amount- of $1,320. The defendant admitted furnishing the coal, but said it was full of slate and dirt and not worth the contract price.

Carter, Judge; There was sufficient evidence to sustain the verdict, and this court will not disturb it. 23 Ark. 131; 73 Ark. 337; 75 Ark. hi; 74 Ark. 479; 67 Ark. 399; 76 Ark. 115.

<p>Appeal from Union Circuit Court; George W. Hays, Judge;</p> <p>No specific exceptions to the instructions given were saved.</p>

Carter, Judge; 1. Except in blind tiger and gambling cases (Kirby’s Digest, § 6388), a deputy prosecuting attorney has no authority to present an information not under oath, so as to give jurisdiction to a justice of the peace. Kirby’s Digest, § 2506. 2. The circuit court acquired no jurisdiction on appeal.

Steel, Judge; 1. It is the rule, generally, that a statute should receive a reasonable construction, and with reference to penal statutes… Held: in affirming the Cleary case, 56 Ark. 124, that it is “not unlawful to keep open on Sunday telegraph offices and transmit messages over the same,” and that “such labor, not in discharge of household duties, as is a necessary incident to the accomplishment of a lawful purpose is not a violation of the statute.” The work done in this…

<p>Apeeae — affirmance OF judgment — INTEREST.—Where a judgment of a lower court was affirmed by this court, and judgment was rendered against appellant and the sureties on its supersedeas bond for that sum with interest from date of the judgment below, the interest which had - accumulated at the time of the judgment here was a •part of the-judgment-.and bears interest the same as the principal.</p>

Appéal from Phillips Circuit Court; Hance N. Hutton, Judge; statement by the court. The' indictment in this cause charges appellant with having committed the offense of receiving stolen property, with the knowledge that it was stolen.

Hart, Chancellor; The heirs of-Foster Terrell, deceased, some of whom were minors, sued R. E. L. Eagle, individually and as administrator of Foster Terrell, M. T. Cilley, L. W. Coy, as treasurer of Arkansas Loan and Trust Co., Frank Barton and T. B. Goldsby.

Wallace, Chancellor; 1. The question of trust relation is not involved here. An administrator is a trustee, but his sureties -are not; and if they were trustees, that relation would cease at their death. 33 Ark. 662; 45 Ark. 303; 23 Ark. 604; 39 Ark. 577. At the death of Cole and Parks, liabilities of the administrator for which they were responsible became claims against their, estates, and anything that would bar other claims would bar them. 45 Ark. 495; 39 Ped. 373.

Francis Circuit Court; Hance N. Hutton, Judge; The decision of this court on former appeal is' the law of this case, and the case was then reversed, on the grounds, first, that appellee had made payments to Humphreys without estimates ha'ving been made by an architect or superintendent, and • second, that he had paid $4,908.59, whereas, under the terms of the contract, $3,750.00 was the maximum amount he was authorized to pay — the building being only three-fourths completed.

H. Humphreys,. Chancellor; 1. The execution was a valid and binding lien on Hayes’s interest in the land . from the time it went into' the hands of the sheriff. Kirby’s Digest § 3227. The statutes, provide the time and place of sale of land under execution, and that the sale must be advertised by posting notices, etc., but they do not designate what the notice shall contain, nor that they shall contain an accurate description of the property.

Grace, Judge; As between the appellant and appellee, there was no mutuality of contract, since the identity of persons had not been disclosed to anyone except to McRae, who, as appears by his own testimony, had no authority to bind the appellee. 13 Cyc. 598; 16 Am. & Eng. Enc. of L.' (2 Ed.), 849; Ostrander on Fire Ins. 17.

Winfíeld,Judge; STATEMENT BY THE COURT. April 29, 1901, the General Assembly passed an “act to provide for the completion of the State Capitol building, and for other purposes.” Section 13 contained the following: “That for the purpose of raising funds to carry out the provisions of this act, the sum of one million ($1,000,000) dollars, or so much thereof as may be necessary, be and the same is hereby appropriated for the purpose of completing the new State Capitol building,…

Hutton, Judge; statement by the court. The grand jury of Lee County indicted Henry Ward for the crime of murder in the first degree. He went to trial under a plea of not guilty, and was convicted of murder in the second degree, and his punishment assessed at 21 years in.the penitentiary. The following testimony was adduced at the trial: Tsaac Hicks: “I was at home on the day that George Fields was killed by Henry Ward in front of my house.

Smith, Judge; STATEMENT BY THE COURT. This suit was brought in Union Circuit Court by the Citizens’ Bank on a note executed February 4, 1903, payable to the Citizens’ Bank, for $2,000, with interest at ten (10) per cent, from date until paid. Said note was signed El Dorado Improvement Company, by E. H. Smith, Secretary. There had been a payment made on said note which reduced it to something over $1,500.

Wells, Judge; statement by thje court. Appellant was indicted for the crime of Sabbath breaking, committed by cleaning out the boilers at Arkansas Lumber Company’s mill plant.

The verdict is so clearly against the weight of evidence as to shock a sense of justice; and, since this court has uniformly held that it is its duty to see that there is no miscarriage of justice, this verdict should be set aside. 34 - Ark. 632 and cases cited; 70 Ark. 386; 14 Enc. PI. & Pr. 776 et seq. 2. The court should have granted a new trial because of newly discovered evidence.

Hudgins, Judge; 1. It is not sufficient to charge that the appellant committed perjury by testifying that he had paid to one E. B. McGuire, administrator, etc., the sum of $445. He might in good faith have paid E. B. McGuire the money, and still under the indictment be convicted, unless he paid him as administrator. 54 Ark. 584; 51 Ark. 138; 24 Ark. 591. The indictment is further defective in failing to charge that he wilfully swore falsely. 2 S. W. 137. 2.

Winfield, Judge; STATEMENT BY THE COURT. The facts as found and the judgment as rendered by the trial court are as follows: “That, upon the calling of said cause for trial on the 25th day of April, 1907, the plaintiff did not appear for a prosecution of his suit because of illness, and that he submitted to the court a certificate from a physician stating that he was ill and unable to attend said court; that the defendant resided in the county of Randolph, and appeared for…

D. Snow was indicted for forgery. The indictment contained two_ counts, the first of which alleged that on the 29th day of January, 1906, he did “unlawfully, wilfully, knowingly and feloniously and fraudulently make, forge and counterfeit a certain paper writing purporting to be a deed from W. F. Snow and C. C. Snow, and the acknowledgment thereof, to the said N. D. Snow, conveying certain land in Lonoke County, 'Arkansas, which was then owned by Will W. McCrary, Jr.,” and…

Winñeld, Judge; 1. The theory upon which the court sustained the demurrer, i. e. that at the time the trespass was committed, appellant was not the legal owner, and not in actual possession of the land, was erroneous.

Carter, Judge; STATEMENT BY THE COURT. Appellant sued appellees, Battle and Waddle, upon six notes for $26 each and for $65, a balance of an amount agreed to be paid in cash, all being a part of the consideration for a certain soda water apparatus and appurtenances sold by appellant to appellee.

Smith, Judge; STATEMENT BY THE COURT. The appellee, in his complaint, omitting formal parts, alleged that: “In the years 1897, 1898 and 1899 he entered into written contracts with the Wrought Iron Range Company, a copy of which contracts is filed herewith marked ‘Exhibit A,’ and the same are made a part of this complaint; that he worked under these said contracts during the years 1897, 1898 and 1899, and performed his part of said contracts faithfully; .that for his service…

'Appeal from Logan Circuit Court; Jeptha H. Evans, Judge; 1. The complaint does not state a good cause of action, nor support the judgment. There is no allegation that creditors have been paid; no order of distribution can be made until judicial finding that the debts are paid. The order of the probate court settles nothing except the amount of liability. 47 Ark. 222.

V. Bourland, Chancellor; The original act creating the fencing district is in violation of the Constitution, art. 12, § 2. 59 Ark. 513. The boundaries of a corporation cannot be enlarged or reduced by special act. 36 Ark. 166. If the original act was unconstitutional, subsequent legislation would likewise he void. The act is also void in seeking to take private property for public use without compensation therefor.

Court; Alphonsto Curl, Chancellor; In attempting to enforce an ordinhnce to cancel the license of physicians issued to them by the State, the city of Hot Springs goes entirely beyond its powers. A license may be can-celled only by the - authority that issued it. 21 Am. & Eng. Enc. of L. 826, note 3. The right to continue in business cannot arbitrarily be taken away. 19 U. S. 114; 198 U. S. 45.

The complaint was brought against the St. Louis & San Francisco Railroad Company and the Chicago, Rock Island & Pacific Railway Company as defendants, and alleged that the defendants were each railroad corporations authorized to do business in the State of Arkansas, and in the Fort Smith District of Sebastian County. That each of said defendants had agents in said county upon whom legal process might be served.

His own negligence precludes a recovery. 60 Ark. 582; 1 Tabatt, M. & S. 139; Id. 840; 83 Ark. 567. Appellee had a right to expect that the back signal would be given before the cage was lowered. It was a negligent act on the part of the pit-boss, Finley, to lower the cage in the absence of the engineer without first giving this signal. 65 Ark. 138. The question of contributory negligence was one for the jury. 78 Ark. 100; 67 Ark. 277; 80 Ark. 79; 6 L,. R. A. (N. S.) 554.

Humphries, Chancellor; Plaintiff’s motion on its face shows that a previous writ ■ of possession had been served and defendant ejected from the land. If he entered thereafter, it was either as a trespasser or adverse claimant, and in either event plaintiff’s remedy was ejectment. The donation deed is “conclusive evidence of a good and valid title” in him to the lands in controversy. Kirby’s Digest, § 4820; 15 Ark. 331. 1.

, Appeal from Mississippi Chancery Court; Edward. D. Robertson, Chancellor; ■The only question is as to when the final decree was rendered. Appellant contends that, inasmuch as the decree declaring the lien left something still to be done before it could be effectuated, that decree was not final, but interlocutory merely, and that the decree confirming the commissioner’s report', and approving the sale is the final decree.

Carter, Judge; 1. The court erred in permitting the complaint to be amended so as to state a cause of action accruing after t'he commencement of the suit. 1 Cyc. 744; 14 Ark. 427; 24 Ala. 130; 60 Am. Dec. 453; 1 Am. Cent. Dig. col. 1493, § 735. 2. The heirs cannot sue.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT BY THE COURT. On the 9th day of September, 1904, Mary Lee Dennis and R. J. Rhodes filed a complaint in the chancery court of St. Francis County against John Young, alleging that they were the owners in common of certain lands particularly described in the complaint, situate in St. Francis County.

Hudgins, Judge; statement by the court. This suit was brought before a justice of the peace by the appellees against the appellant, by filing the' following complaint : “The plaintiffs for cause of complaint state that the defend-' ant is a corporation organized under ¡ the laws of the State of Arkansas,' and doing business as a common carrier, and as such undertook and agreed to transport from Harrison, Arkansas, to St. Louis, Missouri, two carloads of cattle, two of sheep,…

Meeks, Judge-; STATEMENT .BY THE COURT. Plaintiff instituted this action in the circuit court of Izard County to recover damages alleged to have been sustained by her on account of appellant’s negligent failure to transmit and deliver a telegram sent by her from Memphis, Tenn., to May-field, Ky.

Hudgins, judge; STATEMENT BY THE COURT. Appellees presented to the probate court of Marion County for allowance the following note, towit: “58, 62-100 • January the xst, 1898. “One day after date we promise to pay to the order of T. M. Rea & Son or Bair fifty-eight and 62-100 dollars, for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of ten per cent, per annum until paid.” “Payable at .........................…

'Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor; STATEMENT BY THE COURT. On June 11, 1894, May S. Vance executed seven promissory notes, aggregating $3,850, to W. R. Pearson, and, in order to secure the same, executed a deed of trust upon 32 feet off of the west side of lot one, block twenty-three, Old Town of Pine Bluff, together with the furniture in said house, to Lev. Fowler, as trustee for said Pearson.

Judgment by default was unwarranted. Kirby’s Digest, § § 6120, 3151, 6137; 60 Ark. 399. Appellees by their answer had presented issues, first, as to partial payments and second, as to appellant being a member of a trust, and therefore not being entitled to maintain the action; and the burden was on appellees to prove both these issues. Failing therein, appellant would be entitled to judgment. 7 Ark. 475; J'2 Ark. 44; 67 Ark. 169; 64 Ark. 446.

Carter, Judge; 1. The act requiring all trains to stop at Arkadelphia is in conflict with the Interstate Commerce Act, and is therefore void. Art. 1, § 8, Const. U. S.; art. 6, § xi, Id.; 63 L. R. A. 213; 34 L. R. A. 105; 163 U. S. 166; 203 U. S. 335; Id. 209. 2. Where a railroad has provided reasonable and adequate facilities for the accommodation of a particular locality, it cannot be required to stop its fast through trains at that point. 20 Railroad Rep. 745.

Winfield, Judge; STATEMENT BY THE COURT. Appellee sued appellant on a contract which provided: “That the said party of the first part has this day bargained to sell unto said party of the second part, and unto her heirs and assigns, the following described real estate, situated within the county of Pulaski, State of Arkansas, to-wit: lot three (3), block ten (10), in the town of Argenta, for the price and sum of three thousand five hundred dollars ($3,500), of which the said…

S. Maples, Judge; 1. An unexpected and unprecedented demand for cars is a good defense to an action for failure to furnish them. This is alleged in the 4th paragraph of the answer, and its truth' is admitted by the demurrer. It was error to sustain the demurrer to that paragraph. 77 Ark. 337. 2. It was also error to sustain the demurrer to the 9th paragraph.

Meeks, Judge; 1. It was error to permit the State, over the objection of the defendant, to read a part of his motion for continuance to the jury. If introduced either for the purpose of showing that defendant had committed the crime o'f perjury in making oath to the motion, or for the purpose of impeaching the testimony given by him on the trial, it was clearly inadmissible. 45 Ark. 165; 38 Ark. 221; Kirby’s Dig. § § 6173, 6120.

B. Shafer, Special Judge; Appellees were not aggrieved, within the meaning of the statute, and could not appeal. Kirby’s Digest, § 1487. “He who voluntarily sets on foot a proceeding for the enforcement of a salutary police regulation in any community should not be permitted to capriciously undo his work.” 70 Ark. 178; 51 Ark. 164; 77 Ark. 122; 75 Ark. 157. The right of appeal is to be ¿xercised by the losing party. 73 Ark. 369.

Meeks, Judge; statement by the court. On the 14th day of October, 1905, the appellee commenced this action by filing before a justice of the peace an affidavit and bond for attachment against Wm. K. Noble. An affidavit for a warning order against the defendant was duly filed, an attachment was issued and. duly served by taking one carload of hoops. On the 19th day of October, 1905, the Convoy Hoop Company filed its bond and interplea claiming the property attached.

Louis Southwestern Railway Company to recover the statutory penalty .for failure to furnish cars to shippers. The complaint alleges that the Railroad Commission adopted the following order: “Office of Railroad Commission of Arkansas.

Winfield, Judge; In an action for damages for personal injuries, where the complaint alleges two concurrent causes of the injury, one of which, if proved, would not entitle the plaintiff to recover, it is error to so instruct the jury as to leave it open to them to find that one or the other of the alleged acts or omissions is negligence. 58 Ark. 324; 25 Ark. 490.

Searcy Circuit Court; Brice B. Hudgins, Judge; STATEMENT BY THE COURT. This suit was brought by Benjamin Bratton, Jr., as administrator of the estate of Benj. Bratton, Sr., to recover of appellant damages for the alleged negligent killing of Benj. Bratton, Sr., in operating its passenger train.

A. Buckner, Special Judge; 1. The special chancellor erred in rejecting all proof of what the former chancellor had done, except the notes found on the judge’s docket. In this State, whether or not a nunc pro tunc judgment should be entered is a question of fact, and must be proved by the best evidence obtainable, “not only by the judge’s notes, but also by other satisfactory evidence.” 40 'Ark. 227; 17 Ark. 100; 75 Ark. 17. 2.

The policy was inoperative, so long as the premium notes remained unpaid after maturity. A local agent has no power to waive suspension of a policy of insurance by reason of non-payment of notes given for the premium; and the fact of payment by the insured after the fire does not have a retroactive effect; it only revives the policy from the date of payment. 74 Ark. 507; 75 Ark. 29. 2. There was no proof of loss.

Hays, Judge; The facts show that these store orders were never issued in payment of wages, and were never charged against the earnings of the employe when earnings were due. The statute claimed to have been violated, being penal, should be strictly construed. .

Hutton, Judge; 1. The State depends for conviction upon the testimony of Alonzo Sledge, and his testimony is discredited by his own admissions, by several witnesses and by every circumstance in the case. The verdict is not supported by the evidence. 2. At most, there could only have been a conviction for manslaughter, hence there should have been no suggestion of a shifting of the burden. Sec. 1765, Kirby’s Dig., ought not to have been read to the jury.

<p>Appeal from Lawrence Circuit Court; Frederick D. Fulkerson, Judge;</p>

Robertson, Chancellor; The deed to Hill should be cancelled for fraud, duress and undue influence; also for undue influence and abuse of confidence by one occupying a confidential relation. 1.

Wood, Judge; E. M. Godwin, as widow of Allen Godwin, joined with his children in suing the appellant to remove a cloud upon their title. They recovered judgment, from which defendant has appealed. The facts sufficiently appear in the opinion. 1. Appellees are barred by laches.

M. Carter, Judge; 1. In the light of the testimony showing that appellant was a quiet, peaceable, and law-abiding citizen; that the deceased was a quarrelsome, turbulent and dangerous man; that the latter had threatened appellant; and that at the time of the shooting the appellant was in every way seeking to avoid the difficulty and only shot the deceased when the latter laid hold on him with the evident purpose of killing him or doing him great bodily harm, the verdict is…

Hutton, Judge; The act of May 1, 1905 (Acts 1905, p. 560), does not apply to Phillips County, hence the statute, Kirby’s Digest, § 6387-6390, inclusive, controls. Under these statutes, appellee is not entitled to recover unless he shows that the defendants for whose conviction he claims fees (1) pleaded not guilty, (2) demanded a trial, and (3) secured the service of an attorney to represent them.

Hudgins, Judge; 1. The so-called answers filed by the appellant were nothing more than the statutory pleas of nonjoinder and misjoinder of parties, and were, by the express terms of the statute, demurrers. Kirby’s Digest, § 6093, subdiv. 4. The character of a pleading is to be determined by its allegations, not from its name. 54 Ark. 468; 58 Ark. 136. The judgment of the court was, therefore, a default judgment. 2.

Winfield, Judge; statement by the court. Appellee was injured while in the employ of appellant at its -chair factory. The injury occurred while he was operating a machine called a “joiner and rip-saw.” The complaint alleged that the machinery was defective, and that that fact was the cause of the injury. A judgment of $1,500 was recovered, and an appeal has been taken to this court. The assignments of error sufficiently appear in the opinion.

H. Evans, Judge; statement by the court. This was a prosecution had in the police court at the city of Hot Springs, based upon the following ordinance: “Be it ordained by the City Council of the City of Hot Springs: “Section 1.

<p>1. Mechanics’ lien — -abandonment by contractor. — In a suit to enforce a lien for materials furnished for the erection of a building, where the contractor abandoned the contract during the progress of the work, it was not competent far the defendant to prove that he paid out more than the contract price for labor and materials used in finishing the building if he fails to prove that such expenditures were made in completing the building according to the contract. (Page 410.)</p> <p>2. Same — legality of payments to contractor. — Kirby’s Digest, § 4975, providing “that the owner, employer, or builder shall pay no money to the contractor until all laborers and mechanics employed on the same and all material furnished shall have been paid for work done and materials furnished,” intended to prohibit payments to the contractor for his own use, and not payments for labor and materials for which the right to a lien has accrued. (Page 411.)</p> <p>3. Same-rejection oe testimony — harmless error. — In an action to enforce a mechanic’s lien, defendant was not prejudiced by the rejection of testimony that a certain amount paid by him directly to the contractor was used by the contractor in paying for labor and material if the only effect such evidence could have had would have been to reduce the balance on the contract price to a sum which would still have been sufficient to satisfy plaintiff’s lien. (Page 411.)</p> <p>4. Same — EEEect oe stipulating against liens. — A stipulation in a building contract between the owner and contractor that no liens for labor oir materials should be filed against the building is not. binding upon a sub-contractor or' material furnisher unless he has actual notice thereof. (Page 412.)</p>

<p>Motion for continuance — sufficiency of supporting affidavit. — Under Kirby’s Digest, § 6173, providing that a motion for continuance shall be supported by an affidavit showing “what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence,” where one accused of slandering a certain female by saying that he had had sexual intercourse with her filed a motion for continuance on account of the absence of a certain witness, a supporting affidavit which alleged that such absent witness, if present would testify that he knew that the accused had had sexual intercourse with the prosecutrix contains a mere statement of the effect of the testimony of such witness, and is insufficient.</p>

Norman, Chancellor; When this case was reversed on a former appeal, the order of this court was to ascertain the damages sustained by plaintiffs in cutting the timber on the land involved since the 4th June, 1901. 82 Ark. 1. An appeal in chancery is a trial de novo. 13 Ark. 344. 'And this has been followed to the present time. See Crawford’s Dig. 150; 2 Id. 70.

Carter, Judge; The plea of appellee raised only the question whether or not the act was a reasonable exercise of the State’s police power. That was a question for the court, and it erred in submitting the question to the jury by its instructions 2 and 3. La. & Ark. Ry. Co. v. State, 85 Ark. 12. The law does not require the performance of an act which it is physically impossible of performance within the time fixed. Appellee endeavored in good faith to comply with the act.

F. Maples, Judge; statement by the court. This is a suit to collect an attorney’s fee; and, in his complaint, appellee sets forth as his. cause of action an alleged contract which is as follows: “Whereas, in a suit pending in the Benton Circuit Court at the March term, 1905, and wherein Jennie Sparks is plaintiff and J. E. Bratt is defendant, the plaintiff recovered judgment against the defendant in the principal sum of $3,000, and interest thereon since the 25th day of…

Wallace, Chancellor; STATEMENT BY THE COURT. On September 3, 1906, appellee, Ella N. Holloway, filed her bill for divorce against appellant, Milton Holloway, in the Conway Chancery Court. The complaint alleges cruel treat.ment, and the custody of the children is asked for.

F. Roberts was convicted upon an indictment charging him with the crime of obtaining money under false pretenses. He appeals from the judgment of the court overruling his motion in arrest of judgment and motion for new trial.

Winfield, Judge; Alez M. Baker sued William G. Whipple, Mary S. Whipple and Durand Whipple, alleging that she rented a store from defendants and put in a stock of millinery, worth $2,000; that during her temporary absence Durand Whipple took possession of her store and offered her stock for sale, and permitted it to be injured, whereby it was damaged in the sum of $2,500.

A practical location of the premises intended pursuant to the agreement is, in many cases, sufficient to give the requisite definiteness to a contract otherwise defective, and it will as a rule be held sufficient if the property intended to be conveyed can be identified by evidence properly admissible. 25 Am. & Eng. Enc. of L. (2 Ed.) 36 and authorities cited; Id. 37. The maxim id cerium est quod cerium reddi potest is applicable in actions for specific performance.

Hays, Judge; The action instituted, and the judgment rendered by the justice of the peace, was rendered against a different corporation from this appellant. If, by oversight of an attorney, an appeal was prayed from that judgment to the circuit court in the name of this appellant, that did not justify the latter court -in holding that it had made itself a party to the action, in the absence of any proceedings instituted against it. Kirby’s Digest, § 4565.

Shaver, Chancellor; 1. The deed from appellee to appellant is supported by a valuable consideration, and conveys a 'complete estate of inheritance. Kirby’s Digest^ § 733. It- is to Hendrix College in trust for the Methodist Episcopal Church, South, in Arkansas, for the purpose therein named.

Winfield, Judge; statement by the court. Plaintiff, A. S. Fowler, entered into a written contract with R. P. Powell, one of the defendants, whereby he employed the latter to act as his agent in soliciting and procuring applications for life insurance in the Massachusetts Mutual Life Insurance Company, of which plaintiff was general agent in Arkansas.

S. Maplesr Judge; 1. The plaintiff, it is undisputed, was familiar with the door and its construction.

3. The contention that the act may be justified on the ground that it applies only to persons traveling on railroads, and that it tends to secure the comfort of other passengers, is untenable. It is an invasion of the right of freedom of speech. Cooley’s Const. Lim. (6 Ed.), 510-518. 4. The act deprives the citizen of the equal protection of the law. 118 U. S. 368; 165 U. S. 150; 174 U. S. 96; 13 Fed. 733; 24 Am.

Humphries, Chancellor; 1. In dismissing appellant’s complaint for want of proof to support its allegations, the court’s decree is' contrary to the clear preponderance of the testimony; and likewise the decree in her favor on the cross complaint is not supported by the weight of the evidence. 2. The father was entitled to the care and custody of the child. Kirby’s Digest, § 3757; Tiffany’s Persons & Dom. Rel., 249 et seq.; 37 Ark. 27.

'Appeal from Polk Circuit Court; James S. Steel, Judge; 1. The court erred in its instruction as to the measure of damages. The instruction offered by appellant was correct. Jones on Telegraph & Telephone Companies, § 546, p. 522; 89 Ga. 484; 90 Ga. 254; 10 U. R. A. 515; 27 Am. & Eng. Enc. of Raw (2 Ed.), 1066. 2.

Winfield. Judge; x. This is a case where the practically undisputed testimony of the appellee with reference to the accident would justify the court in declaring as a matter of law that he was guilty of contributory negligence. The fifth instruction requested by appellant should have been given. 61 Ark. 549; 63 Ark. 426; 76 Ark. 136; Id. 224; Thompson on Negligence, § § 369-428-432; 77 Pac. 397; 54 N. E. 259; 65 Ark. 235. 2.

This action was commenced on October 20, 1903, and it was alleged that the plaintiff’s intestate was killed April 28, 1902, while in the service of the defendant as a section hand, by reason of a derailment of a handcar. It is alleged that the handcar was defective and unfit for use.

Robertson, Chancellor; The title acquired by Porter at the tax’ sale did not inure to his grantees. 69 S. W. 57; 36 Id. 68; 26 Kan. 664. The title acquired by Porter inured to his grantor. Kirby’s Digest, § § 734, 710a.

Circuit Court; Frederick D. Fulkerson, Judge; x. The indictment charged no crime. 37 Ark. 54-5; 42 Id. 131; 1 Moody, 224; 2 Fost. & Fin. 567; 2 Russell, Crimes (Int. Ed.) 521-2; 58 Ark. 43. 2. There is no evidence to support the verdict. No representations whatever _ were made to the bank. He obtained no money, only credit. There is no proof of the kind of money received, either gold, silver or paper. 71 Ark. 418; 62 Id. 538; 60 Id. 141; 37 Id. 54; 42 Id. 131.

The plaintiff, J. L. Harmon, instituted this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries caused by alleged negligence of the company’s servants. He was employed by the defendant as a section-hand at Hamlin, Arkansas. On the day the injury occurred plaintiff’s gang of workmen, of which one DeShea was foreman, was ordered to board a work-train at Hamlin for the purpose of doing work on the track outside of that section.

W. Leslie, Special Judge; 1. The ordinance is void, under section 5454, Kirby’s Digest, as an exercise of the police power, because the fee is unreasonable, and its main purpose is revenue. 56 Ark. 370, 374; 43 Id. 82; 34 Id. 603; 52 Id. 23; lb. 301; 70 Id. 221; 83 Id. 351. 2. It is invalid as an exercise of the taxing power, under section 5649, Kirby’s Digest. 70 Ark. 549; 118 Ga. 58; 27 Ark. 468; 180 Mass. 180; 180 Mo. 309. 1.

H. Evans, Judge; STATEMENT BY THE COURT. Dave Kinslow was indicted for the crime of murder, committed by killing one Kent. He petitioned for a change of venue on the ground that the minds of the inhabitants of Garland County were so prejudiced against him that he could not .obtain a fair and impartial trial therein.

Blliott, Chancellor; 1. The burden of proof was on the appellee. 58 Ark. 151; 77 Ark. 177. 2. All rights of any citizen, or of town, city or' public inure to the benefit of appellants, and the intervener, Downs, is a proper party to the suit. 13 Cyc. 457, 458; Id. 453; 80 Ark. 489; 77 Ark. 177; 6 N. E. 669; 92 S. W. 21; 45 N. E. 238; 45 S. W. 128. 3.

Cypert, Special Judge; The testimony shows that appellant was a passenger, that as he alighted from the train at Beebe he discovered the loss of his book and papers, and got permission of a brakeman to return to them, which he immediately did, and came out of the car as soon as he could get them, and that just as he went to alight the train started, causing him to fall.

Bvcms, Judge; Because of appellee’s patent contributory negligence in failing to use his sense of sight, he being deaf, and in thoughtlessly and recklessly remaining on the track, and of the total want of proof of negligence on the part of appellant, the court should have given a peremptory instruction for the appellant. 95 U. S. 697; 74 Ark. 379; 82 Ark. 522; Id. 267; 46 Ark. 513.

<p>Fourteenth amendment — racial discrimination — evidence.—A motion to quash an indictment against a negro and a challenge to a petit jury, upon the ground that members of defendant’s race were excluded from the grand and petit juries on account of their race, color and previous condition of servitude, were properly overruled where, although the motion and challenge were supported by defendant’s affidavit, no competent evidence to support their allegations was introduced.</p>

<p>1. Continuance — irrelevant evidence. — It was not error in a murder case to deny a continuance on account of the absence of a witness who would testify as to a fight between defendant and deceased several months before the killing, if the fight is not shown to have had any connection with the fatal rencounter. (Page 537.)</p> <p>2. Venue — supporting affidavits — issue.—Kirby’s Digest, § 2318, providing that a change of venue in a criminal case may be granted upon the application of the defendant supported by the affidavits of two credible persons, does not contemplate that the truth or falsity of the affidavits shall be inquired into, though the credibility of the affiants may be investigated. (Page 537.)</p> <p>3. Juror — bias—competency.—¡Where, in the trial of a negro for murder of a white man, a white juror, on his voir dire, testified that the fact that defendant is a colored man charged with the killing of a white man might influence him in the decision of the cause, but that he thought that he could return a verdict according to the law and evidence, regardless of defendant’s’ color or of the fact that he killed a white man, it was not error to hold the juror competent. (Page 538.)</p> <p>4. Instruction — when harmless. — Appellant can not complain of an instruction that was more favorable to him than he was entitled to ask. (Page 540.)</p> <p>5. Hearsay evidence — when not prejudicial. — Where, in a murder case, there was testimony that the killing had some connection with a dispute over deceased’s right to -remove his crop, the error of permitting the State to prove that deceased on the morning of the killing asked a deputy sheriff and a justice of the peace whether he had a right to remove his crop was not prejudicial. (Page 541.)</p> <p>6. Witness — impeachment—rebuttal.—Where defendant, on cross-examination, sought to discredit a State’s witness by showing that he was biased against defendant, it was not error to permit the State, on -redirect examination, to show that the witness had been told by some one that he had better not testify against defendant. (Page 542.)</p> <p>7. Appear — harmless error. — Testimony that some one with whom defendant was not shown to be connected told a certain witness that he had better not testify against defendant was so remote and indefinite that its admission could not have prejudiced defendant. (Page 542.)</p>

Hart, Chancellor; It is not contended that a .livery stable is a nuisance per se; but “in action for injuries resulting from a livery stable as a nuisance, it is sufficient to establish the. injury, either from offensive smells, noise, or the unwarrantable collection of flies; and it is no defense that the stable is well and properly built, etc. If, in point of fact, injury results to others that is clearly traceable to the stables as the promoting cause, it is a nuisance.”…

Robertson, Chancellor; STATEMENT by the court. The complaint alleges that A. W. Tobin died in 1898, leaving his widow together with the three plaintiffs and two older children; that he owned the land involved in the suit; that on the 27th day of May, 1899, plaintiffs, Charley Tobin and Mary Hayes, conveyed their interest in said land to defendant, Spann, for $132 per share that at the January term, 1900, the probate court of said county made an order authorizing and…

Hudgins, Judge; 1. The amendment should have been stricken out, or, if permitted to stand, appellant should have been granted a continuance. The suit, as brought, evidently was intended to cover the first clause of § 6681, Kirby’s Digest, and on this issue there would have been a failure of proof which would entitle the defendant to a verdict. The amendment substantially changed the nature of the case.

Carter, Judge; statement by the court. Appellee sued appellant for personal services under a verbal contract of employment, alleged to have been for the term of one year. He was discharged, and brought this suit for $400 for two months’ services. Appellant answered: Paragraph 1 admitted the employment, but alleged that it was for no definite time.

Meeks, Judge; STATEMENT BY THE COURT. This is an áction to recover upon a fire insurance policy, dated November 1, 1905, in the sum of $1,500, issued to the plaintiff on his stock of ’ merchandise, store furniture and fixtures, valued at $2,500. The defendant set up as a defense a violation of the iron-safe clause of the policy.

On ¡the 16th day of June; 1907, appellant presented his petition for writ of habeas corpus to the chancellor of the Garland Chancery Court, therein alleging substantially the following facts: That appellant was at that date, and had been, engaged in the hotel business in the city of Hot Springs for five years prior thereto, and had paid the required license to engage in said business.

Wallace, Chancellor; 1. When James G. Hibben in 1854 paid the State for this land, the title was still in the general government, and it was still unconfirmed and unpatented at the time of his death. He acquired only a mere right to receive the State’s patent upon complying with the law after the State acquired title. The legal •title never passed from the State until December 27, 1905. 27 Ark. 200. 2. No right of action accrued until duplicate certificate was issued.

H. Evans, Judge; 1. The law does not require, in order to escape the presumption arising from an injury, that a railroad company should show that it had used the utmost diligence, nor make it liable where an injury occurred by reason of the slightest omission in regard to the appliances of transportation, mode of management of its trains or the safety of its road bed.

Grace, Judge; Appellee’s own 'testimony fails to make out a case of mental incapacity at the time of executing the release sufficient to overthrow it. On the contrary, it clearly appears that he signed it intelligently with full opportunity to read it, accepted the payment, acted thereon, remembered it afterwards and practically ratified it in his letter of February third.

Winfield, Judge; 1. The jury’s verdict on the facts will not be disturbed where there is evidence to support it, even though the evidence is conflicting. 3 Cyc. 348-351 and authorities cited. 2. Appellant cannot take advantage of self-invited error, nor be permitted to try his case in the lower court on one theory and upon a different theory in this court. 3 Cyc. 342, 343. 3.

H. Bvans, Judge; STATEMENT BY THE COURT. The appellee was a “switchman and brakeman” in the employ of appellant. It was his duty, under the direction of a foreman, to turn switches, cut off cars, and to look after the placing of cars. In approaching a “bunch of cars,” it was appellee’s duty to give a slow signal. On the night he received his injuries appellee was riding on a train consisting of an engine and nineteen or twenty cars.

Appeal ■ from Washington Circuit Court;/. N Maples, Judge; x. If appellant gave his consent to the removal of any of the crop before the payment of rent (which is denied), it was without consideration, was a mere license, and was revocable at will. Appellee admits that appellant ordered him not to remove any more corn until the rent was paid, and that thereafter he did remove corn without paying rent, and was doing so when the attachment was levied.

Moose, Judge; 1. The affidavit required by statute must be made before a claim can legally be allowed against a county. Kirby’s Digest, § 1453- 2. A county is not liable for costs in case of conviction of a defendant until execution shall have been issued and returned not satisfied for want of property to satisfy same, unless the trial court certifies that the costs can not in his opinion be made out of the property of the defendant. Kirby’s Digest, § 2471. 3.