Volume 86 — Arkansas Reports

Hart, Chancellor; STATEMENT BY THE COURT. Street Improvement District No. 120 was\organized for. the purpose of paving Main Street in the city of Little Rock, from Eighth to Twenty-fourth streets. No complaint is made against the organization or of any proceedings prior to the making of the assessment of benefits by the board of assessors.

<p>1. Accomplices — sufficiency of corroboration. — It was not error to instruct the jury in a criminal case that the accused could not be convicted on the uncorroborated testimony of accomplices, and that their testimony must be corroborated by other evidence, direct or circumstantial, tending to connect defendant with the commission of the offense charged, but that it was not necessary that the corroborating evidence should be sufficient of itself, without the testimony of such accomplices, to convict the accused. (Page 24.)</p> <p>2. Appeal — objection to evidence — sufficiency.—It was not error to refuse to exclude all of the testimony of a witness when part of it was admissible. (Page 25.)</p>

Haden Humphreys, Chancellor; Matthewson recovered judgment against Carney on a note, and the latter has appealed. The facts appear in the opinion. The contract is usurious and void. Art. 19, § 13, Const.; Kirby’s Digest, § § 5389, 5390-1; 34 Barb. (N. Y.), 157; 31 N. Y. 473; 44 Pa. St. 32; 26 Pa. St. 271; 26 Ga. 403; 29 S. W. 623.

Smith, Judge; 1. When two parties enter into a contract, neither party can rescind without the consent of the other except for fraud; and when one party has made an offer of purchase to another, that offer remains open for acceptance or rejection by the other until a demand for the withdrawal reaches the offeree. Tiedeman on Sales, § 40; Benjamin on Sales, § 64; 47 Ark. 519. 2.

Evans, Judge; 1. The prosecuting witness fails of corroboration on the propositions that appellant obtained carnal knowledge of her, and that he did so by virtue of a false or feigned express promise of marriage. 2. The 7th instruction was erroneous. The prosecutrix is sufficiently corroborated. 77 Ark. 572; 40 Ark. 485.

Hart, Chancellor; 1. Notwithstanding appellees’ coverture, they are barred by the two years’ statute. 2. The aggregate cost of eighty-five cents was not excessive, and the tax sale was valid. 72 Ark. 72; 72 Ark. 254-5. The item of 10 cents, clerk’s fee for transferring the name of the purchaser to the tax book, was a lawful charge, a part of the aggregate cost of the sale and required to be paid by the purchaser at the time.

Appeals from Miller Circuit Court; (1) Antonio B. Grace, Judge, on Exchange of Circuits; (2) Jacob M. Carter, Judge; reversed as to Texarkana Light & Traction Company; 1. While it is held that street railways are not an additional burden of servitude upon the streets, yet the theory upon which this adjudication is based is that they are not in fact obstructions, that, after being erected, the public use of the streets in the ordinary way of travel is not obstructed.

<p>1. Railroads — construction or stocicguards. — Under Kirby’s Digest, § 6644, making it the duty of railroad companies which have constructed or may construct a railroad through inclosed lands, “upon receiving ten days’ notice from the owner of such lands, to construct suitable and safe' stocicguards on either side of the said inclosure where said railroads enter said inclosure,” the fact' that plaintiff’s inclosure adjoins another inclosure through- which the railroad has been built, and that stockguards - have been constructed where the railroad enters the same, will not deprive him of the right to have stockyards on either side of his inclosure. (Page 50.)</p> <p>2. Same — sufficiency of inceosuee. — Kirby’s Digest,’'§ 6644, requiring railroad companies to construct stockguards where' their roads'enter inclosed lands, applies whenever a railroad enters land of , another inclosed by a fence calculated to keep o,ut stock of most kinds, whether it be a lawful fence or not. St. Louis & S. F. Rd. Co. y. Hale, 82 Ark. 175, followed. (Page 50-) ” ''</p>

<p>IyIbBR — mJpubmcation-—separatb action. — A separate action will not lie on a republication by the' same party of a libel where the republication was made prior to .the action on the original article.</p>

The appellee brought replevin against appellant, Satterwait, in justice’s court, for 'the possession of a certain stove, with the usual allegations. Judgment was rendered in favor of the appellee, and appellant appealed to the circuit court.

If the coal was purchased and used at all, it was by the city council under authority of the statute, and the city was liable for the debt. Kirby’s Digest, § § 5675, 5442, 5443; 67 Ark. 36; 56 Ark. 205; 80 Ark. 125. 1. The failure to deny the delivery amounts to an admission thereof. This implied admission becomes conclusive when taken in connection with the further allegation that the coal, if purchased at all, was purchased by the city of Wynne. 2.

<p>Parent and child — custody.—In a controversy between a husband and wife, living separately, over the custody of an infant a year and a half old, it is improper to remove the child temporarily from its mother’s custody when she is shown to be capable, both morally and financially, of properly caring for and nurturing it.</p>

Not only did the deceased assume the risks ordinarily incident to his employment, but also he must be held to have assumed the extra hazard to which he voluntarily subjected 'himself and the consequences of his own contributory negligence. 78 Ark. 213; 77 Ark. 376; 56 Ark. 206; 143 Mass. 107; 165 Mass. 171; 80 Minn. 1; 86 Me. 400; 91 Me. 268; 170 U. S. 57; 191 U. S. 64; 170 U. S. 665; '56 Ark. 206; 65 Minn. 337; 57 Ark. 461.

Virgil Bourland, Chancellor; statement by the court. On the 6th of February, 1908, James P. Barry filed an affidavit before John Danner, a justice of the peace of Upper Township, Sebastian County, alleging that Clint Thompson had, on the 5th of February, committed the crime of disturbing the peace. ,A warrant for his arrest was issued to the constable of the township, and he was arrested, and his trial 'set for February 7th.

Steel, Judge; statement by ti-ie court. The Dalhoff Construction Company, an independent contractor, was building a bridge over the Antoine River, in Pike County, for the Gurdon & Ft. Smith Railway Company. The Construction Company was doing the grading and .bridge work, and the Gurdon & Fort Smith Railway Company was doing the track-laying work, such as placing the ties on the dump and laying the steel on the ties.

Meeks, Judge; The Bank of Maynard is not liable. It is shown in evidence that its indorsement on the noté was without consideration to it,' and was made for the purpose of collection only. Parol evidence was admissible to show the character of the indorsements, why and 'for what purpose they were made. 2 Enc. of Evidence, 521, 537, 255; 27 Ark. 329; 15 Ark. 372; 29 Ark. 501; Joyce on 'Defenses to Com. Paper, § § 212, 255.

The courts have power at any time to amend the record, so as to speak the truth. 40 Ark. 231; 75 Ark. 12; 68 C. C. A. 577- 2. Having found that the record of the decree did not truly reflect the action of the court, it erred in denying the petition on the ground that the judgment and mandate of this court precluded it from considering the questions arising on its finding. By an appeal the trial court does not lose jurisdiction of its records.

Hudgins, Judge; ■ 1. Having acquired by deed its right-of-way through the land, including the express provision therein of the right to change the watercourses, appellant was not liable to the appellees, the evidence disclosing nothing more than the damage resulting from that change. 47 Ark. 334.

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. The plaintiff, Julius Musolf, and 'defendant, Edward Somers, on November 1, 1899, entered into a written contract whereby the latter leased his farm in Benton County to the former for a term of five years, and employed him to manage and cultivate the farm during said term. The contract seems to be in the nature of both a lease of the lands and a contract for hire of the services of Musolf and his family.

S. Bakin, Special Judge; Appellant’s objection to the court’s refusal to give instructions is too general. Likewise as to the instructions given by the court, the statement that “plaintiff excepted to all of said instructions” is too general, and can not avail here. 38 Ark. 528; 39 Ark. 337; 54 Ark. 16; 59 Ark. 312; Id. 370; 60 Ark. 250; 75 Ark. 181; 76 Ark. 41; 78 Ark. 7; 79 Ark. 338;' 80 Ark. 528; 84 Ark. 73; 84 Ark. 95.

Stating the case most strongly in favor of the appellee, the verdict is manifestly excessive, so much so as to indicate undue passion, prejudice or sympathy for him. 2.

Virgil Bourland, Chancellor; These two suits were brought by the Sisters of Mercy of the Female Academy of Fort Smith, Arkansas, against the Board of Improvement of Paving District No. 5 of Fort Smith, and against the Board of Improvement of Sewer District No. 2 of Fort Smith. The facts are stated in the opinion. The terms “tax” and “taxation” do not include assessments for local improvements. Hamilton on Special Assessments, § § 21-39; 21 Ark. 40; 65 Ark. 498.

Hays, Judge; i.- The court erred in treating the inventory of October 16th as a substantial compliance with the terms, conditions and warranties of the contract. It was no compliance at all with the plain letter and spirit of the contract. The promises to keep certain books, inventories, invoices, etc., were by the terms of the application and policy made warranties. 102 S. W. 195.

Fulkerson, Judge, on exchange; statement by the court. Appellant, W. F. Teague, was indicted for the crime of forgery and of uttering a forged instrument. The jury returned a verdict of guilty °on the second count, and fixed his punishment at a term of two years.

Winfield, Judge; 1. Verdict is not supported by the evidence. The contract was that Mahoney should not enter into said business in competition with Roberts. This means only the same business, for if construed to mean all business, the contract would be void as in restraint of trade. Beach on Monopolies and Ind. Trusts § 37; 71 S. W. Rep. 691, 695; 97 Mo. App. 64. 2. In suits for conspiracy the wife is wholly relieved from liability.

Hart, Chancellor; The original order of injunction having been properly made, it was valid and binding until annulled or revoked. No appeal was.ever taken, nor any motion to dissolve the injunction ever interposed. Appellee was a party to the proceeding, and can not attack it collaterally, nor question its validity except upon the ground that it was void. 9 S. C. 606; 35 Kan. 616; 12 N. E. 136; High on Injunctions, § § 847, 848. 1.

Winfield, Judge: It was error to allow appellee to state the circumstances of the transaction with Arnold. It had no bearing on the case, and was prejudicial. Self-serving utterances and. verbal conversation with another in the absence of the party are not admissible. 72 Ark. 409; 76 Id. 481; 74 Id. 437; 19 Id. 590. The utterances of strangers to a party do not bind him: 50 Ark. 397; 76 Id. 435- 1.

Hudgins, Judge; 1. The suit for wages and for the penalty are separate and distinct causes of action. 78 Ark. 208; 70 Id. 226. If complaint contains more than one cause of action, they should be stated in separate paragraphs and numbered. Kirby’s Digest, § 6092. Had the court required plaintiff to state his two causes of action in separate paragraphs, one would have been for a debt oí $100, the exclusive jurisdiction of which is vested in justices of the peace.

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. Appellees brought this action in the Benton Chancery Court to cancel two deeds, one executed by their father to their mothei, and the other executed by their mother to their sister, to a part of the lands embraced in the first deed. The first deed is asked to be cancelled because their father executed it with intent to defraud 'his creditors, and because it was not delivered to their mother.

Smith, Judge; The Columbia County Bank brought suit against J. W. and S. M. Emerson upon a note in the following language, to wit: “Magnolia, Arkansas, April the 27th, 1904. “$147.00. “November the 10th, 1904, after date, for value received,we promise to pay to the order of J. C. Karner one hundred and forty-seven and no-ioo dollars, at Magnolia, Arkansas, with interest at 10 per cent, per annum from maturity until paid.

Carter, Judge; It is conceded that the evidence is sufficient to convict appellant of murder in the second degree, but it is not sufficient to sustain the conviction of murder in the first degree. 82 Ark. 97! 37 Ark. 239; 83 Ark. 268. Malice is shown, and a spirit of revenge harbored by appellant against deceased for sometime previous to the assault'. That it was premeditated is shown by appellant’s own testimony, and the club used was a deadly weapon.

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

'It is error to instruct the jury on an issue where there is no evidence to support it. 79 Ark. 225; 77 Ark. 109; 69 Ark. 380. And, where an instruction is given submitting in general terms a certain issue along with others, it is error to refuse an instruction definitely and separately submitting it to the jury. 82 Ark. 503; 69 Ark. 134; 76 Ark. 227; 80 Ark. 438. 2.

C. Hart, Chancellor; 1. The evidence is ample to show that Jackson knew the nature of the transaction, and was fully capable of executing the deed and contract. The fact that he was physically weak and not bright mentally does not show that he was incapable of executing the contract. 66 Ark. 623; 70 Ark. 166. 2., It is shown that the instruments were executed at the instance of Jackson himself, and that no fraud or undue influence was practiced by appellant.

224; 68 Ark. 462. Where a river is the dividing line between two States or counties, a cutoff, even where the river makes a new channel, will not 'have the effect of giving the land to the State or county on whose side it is thrown by reason of the cut off. 196 U. S. 23, 49 E. Ed. 372; 143 U. S. 359, 36 E. Ed. 186; 6 E. R. A. (U. S.) 162.

Grace, Judge; STATEMENT by the court. This action was brought by the Bluff City Lumber Company against George W. Ritchie to recover money claimed to have been advanced by it to him. The facts adduced by appellant are as follows: Prior to February 24, 1903, appellant was in the employ of appellee as a sales manager at a salary of $175.00 per month, and in addition had been loaned several thousand dollars by appellee without interest.

Hudgins. Judge; Notwithstanding the verdict is smaller than the amount claimed, improper items of damage were included therein. No foundation was laid for a measure of damages, and the court erred in fixing the same in its instruction. For correct rule see 74 Ark. 358.

Carter, Judge; 1. Appellee’s own contributory negligence should bar recovery. She had notice that the appellant moved cars in switching in the yards without regard to the rights of passers. It is negligence for a person to go upon a railroad track without exercising the senses both to see and hear approaching trains. -6i Ark. 558; 65 Ark. 239; 79 Ark. 137; 76 Ark. 224; 78 Ark. 60; 69 Ark. 139. e 2.

The transitas is not ended until the goods have come into the vendee’s actual possession, or into that of his authorized agent. 43 Ark. 172. Appellant’s right to rescind the sale could be exercised as well because of Seay’s death as because of insolvency. 3 L,. R. A. 647; 3 Pac. 396; 19 N. W. 410. 2.

<p>Railroad — stock killing — negligence.—A verdict in favor of a railroad company, in a suit for the killing of a horse, will not be set aside, although the headlight on the train which killed the horse was defective, where the evidence shows that the horse suddenly ran in front of the train, so .near as to make it impossible to avoid the killing.</p>

Meeks, Judge; R. M'. Jackson sued Jones & Wilson upon a note executed by them to W. E. Smith and by him assigned to plaintiff. Separate answers were filed by the defendants. They were substantially the same. That of defendant Jones is abstracted by his counsel as follows: 1.

71 Ark. 273; Kirby’s Digest, § 5056; 75 Ark.'395; Id. 514; 97 S. W. 447; 76 Ark. 25. The deeds to appellee, and its de.éds' reserving, the timber, were all executed and on record before appellants had title to any of the lands. This was notice to appellants by which they were bound.

W. Winfield, Judge; 1. It is only by implication that the words “churches used as such” can include any land at all. Similar words have been held to include a reasonably sufficient' territory around the church “for convenient ingress and egress, light, air, or proper and decent ornament.” .147 Mass. 396. Yet it is also true that to be exempt the property must be actually, exclusively and directly used for religious purposes. 25 Am. & Eng. Enc. of Law, 163, 164.

Carter, Judge; STATEMENT BY TPIE COURT. This is a suit to recover the statutory penalty of $500 under section 7946 of 'Kirby’s Digest for alleged wilful refusal of the defendant telegraph company to send a message tendered for transmission by the plaintiff, W. B. Billard. The message alleged to have been tendered and refused was as follows: “Stamps, Ark., December 24, 1906, 5:4o p. m. ■ “Superintendent Cotton Belt Railway, “Pine Bluff, Arkansas. “Nc fire in depot.

V. Bourland, Chancellor; statement by the court. This was a suit by the Eureka Stone Company against the First Christian Church of Fort Smith, Arkansas, to fix a lien upon the property of the church for materials furnished the corn-tractor, E. D. Heilman, and used by him in the construction of the church building under the contract between him and the trustees of the church, made on the 4th day of March, 1903.

Hutton, Judge; statement by the court. The appellee took from appellant a quitclaim deed in which appellant, for the consideration of $1,440.66, “granted, remised and quitclaimed” unto appellee “all the right, title and interest of appellant to certain lands in Lee County.” The deed was executed on the 15th day of June, 1899.

Virgil Bourland, Chancellor; statement by the .court. J. A. McConnell conveyed to his wife, R. S. McConnell, all the real estate he possessed except that which he claimed as his homestead. At the time of the conveyance he'owed individual and partnership debts amounting in the aggregate to nearly one thousand dollars. He had just begun to erect a brick hotel, and he contracted debts in the construction of that to the amount of $3,000.

Martineau, Chancellor; E. D. Glover brought suit against Road Improvement District No. 1 of Pulaski County, against Charles E. Heckler, E. Kanis and Adam C. Penzel as directors of said -district, against the collector' of taxes of Pulaski County, and against the Hydraulic Sand & Stone Company, alleging that certain landowners of Pulaski County filed their petition in the county court of said county under the act approved March 4, 1907, praying for the formation of a road…

Meeks, Judge; 1. The breaking and entering a railway car with intent to commit a felony is not burglary. Compare Gantt’s Digest, § § 1346, 1347, 1348, 1349 and 1350 with'Kirby’s Digest, § § 1603 (being § 1346, supra, as amended in 1875), 1604, 1605, 1606 and 1607. Railway car is mentioned only in the declarative part of the statute, as amended above, and does not appear in the penal clauses of the act.

Carter, judge; 1. The safety appliance act applies in this case. U. S. Stat. at L- 531, act Cong. March 2, 1893, § § 2, 6, 8. Deceased did not assume the risk in going between the cars to make the coupling, and in doing so he was not guilty of negligence. 116 'Fed. 867 et seq.; 205 U. S. 1 et seq.; 96 Fed. 298; 138 Ala. 487. 2.

Wells, Judge; 1, The burden was on defendants and they were 'entitled to open and conclude. Kirby’s Digest, § § 3107, 6196; 82 Ark. 331; 32 Id. 593; 29 Id. 153; 59 Id. 140, 143; 61 Id. 627. 2. It was error to refuse to require plaintiff to produce the original books of account and to admit the duplicate accounts. No foundation was laid for the admission of secondary evidence. 1. The demand for the original books was unreasonable.

Virgil Bourland, Chancellor; STATEMENT BY THE COURT. This is a suit brought by appellees as the heirs at law of Thomas P. Whittaker, Sr., deceased, against appellant in the Sebastian Chancery Court to cancel and set aside a deed executed by Thomas Whittaker, Sr., and wife to appellant, Thomas Whittaker, Jr. The grounds upon which the relief is based are duress and undue influence.

Hart, Chancellor, on exchange of circuits; 1. Under the provisions of Acts 1901, p. 153, owners of land have one year from the date of the sale only, and not from the confirmation of such sale. 74 Ark. 302; 65 Id. 521-2; 24 Cyc. 36; 67 Ark. 566; 66 Id. 490; 55 Id. 37. The word “sale” is a technical word, and means a completed sale, i. e., the date of the confirmation. 73 Ark. 344; 84 S. W. 703; 77 Ark. 242; 91 S. W. 303; 61 Ark. 80; 69 Id. 539.

H. Uvans, Judge; Buchanan instituted a contest for the office of sheriff of Garland County against Williams, alleging that contestant was duly elected, and that various frauds were committed* in the election, whereby contestee secured a certificate of election and was commissioned.

Robertson, Chancellor; 1. The suit having been brought in the name of corporations, which had no interest in the subject-matter of the suit, the complaint could not be amended by the substitution of other parties. 34 Ark. 141; 41 Id. 167; 46 Id. 253; 47 Id. 548. A corporation and its directors and stockholders are different entities. 4 Ark. 304.

Robertson, Chancellor; 1. D. A. Smith signed the amended application and is chargeable, as a matter of law, with knowledge of the contents of the policy, whether he read it or not. 105 S. W. 881; 91 U. S. 50; 71 S. W. 946; 87 Fed. 66. 2. There was a complete ratification by Smith. He received the policy; it was his duty to accept or reject within a reasonable time; having failed to speak, he thereby signified his ’election to accept. 99 S. W. 71.

There is no evidence whatever, either that t'he contract was within the charter powers of appellant, or that its execution was authorized. Corporations have only such powers as are expressly conferred by charter, or necessarily implied therefrom.

Wells, Judge; 1. The act of negligence charged was not the proximate cause of the injury, and there can be no recovery. 76 Ark. 436. 2. Cooper and Crouch were fellow sercants. Besides, the deceased assumed the risk. 58 Ark. 125; 41 Id. 542; 41 Id. 382. 3. Deceased was guilty of contributory negligence. Negligence is a question of law and fact. 41 Ark. 542; 76 Id. 520. 4. He was not- a passenger. 83 Ark. 22; 78 Id. 505; 76 Id. 106; 65 Id. 65. 1.

<p>Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>In 1902 Pine Bluff Lodge No. 149, Benevolent and Protective Order of Elks of the United States of America, and its trustees, E. C. Bridges, William, D. Jones, Ben J. Altheimer, J. B. Trulock, E. C. Howell, and W. D. Hearn, were the owners of a parcel of land in the old town of Pine Bluff, Arkansas, and on May the 8th, that year, said Elks Lodge let a contract to W. Fleet Jones to build for it on said land a brick building to be called the Elks Home and Opera House. The contract price was $23,895.</p> <p>Jones gave a bond to the Elks Lodge for the faithful performance of his contract with the United States Fidelity & Guaranty Company as surety thereon, and he also gave a bond of indemnity to the United States Fidelity & Guaranty Company with J. W. Sanders, L. L. (Campbell and others as sureties thereon to hold said Guaranty Company harmless as surety on the Elks Lodge bond. Jones then made a sub-contract with Weaver & Mitchell to furnish the material and do the .brick work on the building, and Weaver & Mitchell made a contract with the Pine Bluff Brick Company to purchase from it all the common brick needed in the erection of the building. Weaver & Mitchell also made a contract with W. H. Westbrook, composing the firm of the Westbrook Grain & Commission Company, to furnish them lime, cement and other material for the building. The contractor, Jones, made contracts with J. W. Sanders, L. L. Campbell, MoGaughy Hardware Company, Dilley Foundry, W. H. Westbrook, and Marsh & Riley to furnish him material for the building.</p> <p>Under his contract Jones was to be paid eighty-five per cent, of the value of material and work put into the building from time to time as the work progressed, on the estimates of the superintendent. The Elks Lodge made payments to him from time to time on this basis. Under the contract the building was to be completed on or before October the 20th, 1902. It was not completed at that date, but the work was progressing and nearing completion, and Jones and the sub-contractors continued to work on the building till November 1, 1902, and on that day the superintendent gave Jones an estimate showing him to be entitled under the contract to a payment of $365.15. The Elks Lodge refused to pay the estimate to Jones, and on November 4th, Jones notified the building committee of the Elks Lodge that, because of the refusal to pay the amount due him on the' estimate, his labor had become disorganized, and he would be unable to complete the contract. After this notice was received, the building committee of the Elks Lodge took charge of the building, used such of the material as Jones had on hand as suited them, and completed the building, not strictly according to the plans and specifications under which Jones was working, but making a few changes. They employed a new superintendent, bought other material, employed labor and finished the building, paying for all material and labor purchased and used by them after that date, but refusing to pay anything whatever on the balances due those companies and persons who had furnished material to Jones and his sub-contractors for use in 'the building. Balances were due each material man and company above mentioned, and they gave their several notices that they would file liens upon the property, and pursuant to the notices they filed their accounts, duly verified and describing the property, within ninety days after the material had been furnished, and each of them brought suit against the' Elks Lodge and its trustees to enforce their respective liens against the property. These suits' were all brought within three months after the liens were filed, and later they were all consolidated into the one case at bar.</p> <p>The remaining facts are sufficiently stated in the opinion.</p> <p>There was a decree in favor of the plaintiffs, and defendant has appealed.</p> <p>1. Under the recent decisions of this court (77 Ark. 156 and Central Lumber Co. v. Braddock, 84 Ark. 560), and the interpretation of our statute (71 Ark. 35), plaintiffs are not entitled to recover anything.</p> <p>2. The Brick Company failed to preserve its lien. '51 Ark. 316. Its lien not filed in ninety days. 20 Am. & Eng. Enc. Law, 361-402; 27 Cyc. 144.</p> <p>3. Sanders and Campbell waived their right to claim liens by signing the bond to protect the lodge against loss, etc. 79 Pac. 485; ■ Boisot on Mech. Liens, § 753; Phillips on Mech. Liens, § 43a. Sanders is also estopped by his other conduct as treasurer and member of the building committee. 160 U. S-430; Jones on Liens, § 1293; 71 Iowa, 347; 1 E. D. Smith (N. Y.), 625; Boisot on Mech. Liens, § 718. Silence is acquiescence, and works an estoppel. Cases supra; Herman on Estoppel, § 1061. '</p> <p>4. The contract price should be distributed among laborers and sub-contractors when insufficient to pay all. 77 Ark. 156; Boisot on Mech. Liens, § 228, 231; 77 Ark. 160.</p> <p>5. Where the bond provides for completion of building and delivery free from liens and not for payment of claims of sub-contractors, the latter have no rights under it. 20 Am. & Eng. Enc. Law, 493 ; 5 Wash. 496; 27 Cyc. 315.</p> <p>6. All claims and setoffs should be deducted from the original contract price in arriving at the amount to be distributed to the lien-holders. Phillips on Mech. Liens (3 Ed.), § 292, 114, 115; 27 Cyc. 333; Jones on Liens, § 1599; 65 N. Y. 292. Sub-contractors must take notice of all the terms of the original contract, and be governed thereby. Phillips, Mech. Liens, 62; Boisot, Mech. Liens, § 228; 27 Cyc. 93.</p> <p>1. The testimony clearly shows that the Pine Bluff Brick Company filed its account and affidavit within ninety days after the last item of 7000 bricks were delivered on October 24th, while Jones was still at work.</p> <p>2. Sanders and Campbell did not waive their rights because of indemnifying the surety company. 20 Am. & Eng. Enc. of Law (2 Ed.), 490. The lien is created by the statute. Kirby’s Digest, § 4970. Even if they had made a direct contract with appellant, conditioned for the compliance by Jones, the contractor, with the terms of the contract, the rule of estoppel invoked would not be a proper defense, but the defense would be in the nature of counterclaim or set-off. 56 Mo. 487; 28 Mo. App. 540; 38 Pac. (Cal.), 639.</p> <p>3. Sanders is not estopped because he was treasurer of the building committee and paid the drafts drawn on him in favor of the contractor. Estoppel in pais is based on fraud or culpable negligence, and no fraud, concealment, misrepresentation or carelessness is either alleged or proved. 53 Ark. 200; 36 Ark. 114; Bigelow on Estoppel (4 Ed.), 552 Bispham’s Principles of Eq. 408-9; 56 Ark. 380; 82 Wis. 338; 67 111. 463; 28 Ky. L. Rep. 203; 27 Cyc. 276; 1 Am. & Eng. Enc. of Law (2 Ed.), 1070, 1074, 1081.</p> <p>4. It was proper to deduct the amount collected by appellants from t'he-Guaranty Company from the amount they had to pay out to complete the building. The Guaranty Company only did what Jones agreed to do, and what it had been paid by him to do in the event of his failure.</p> <p>The contract price, less the amount paid by the owner independent of the contract to complete the building, is the sum the material man can look to for payment. 77 Ark. 160; 105 S. W. (Ark.), 583; Kirby’s Digest, § 4975. Hence the claim that the $4,000 liquidated damages for failure to complete the building within the specified time should be deducted from the contract price in fixing the pro rata, is untenable. The law is liberally construed in favor of the material man. 30 Ark. 568; 49 Ark. 478.</p> <p>5. Appellees should have had decrees against the property for the full amount of their balances, because none of the contract price was retained by appellant until the completion of the building. Kirby’s Digest, § 4975, proviso. That proviso is imperative, and, being a statute, is part of the contract. And appellants can not complain if they have made a contract prejudicial to their own interest, in case sub-contractors are left unpaid. 15 C. 'C. A. 281.</p> <p>6. If it be held that only eighty-one per cent, of the claims is recoverable, then the chancellor erred in deducting the amounts paid to appellees by Jones from the amounts so found due; r5 C. C. A. 273; 68 Fed. 90; 8 C. C. A. 159; 3 Pomeroy’s Eq. Jur. 1414; Story, Eq. Jur. 564b.</p>

Hart, Chancellor ; STATEMENT BY THE COURT. On November 1, 1904, the Batesville & Winerva Telephone Company sued the White River Railway Company for injuries sustained to its telephone lines by the negligent acts of the railroad company in the construction of said railway during the years 1901 and 1902. Judgment was rendered in favor of the telephone company for $550 and costs.

Hays, Judge; 1. There was the statutory denial of Latta’s allegation of ownership, and the court should have overruled the demurrer. Kirby’s Digest, § 6098; 73 Ark. 344; 32 Id. 428. 2. If the money was won at craps, the title was in Robinson, and he had the right to possession. 47 Ark. 378; Kirby’s -Digest, ■§ 3690; 3 Am. & E. Law, p. 762; 47 ivlo. App. 574. 3.

H. Evans, Judge; 1. The burden was on appellee to show that Raines was alive when struck. The engineer’s evidence and the circumstantial evidence of an experiment or demonstration were inadmissible and prejudicial. Where a trespasser is on the track, the inquiry is, not what the trainmen might have done, but what they did. 69 Ark. 382; 76 Id. 10; 77 Id. 401; 82 Id. 522 ; lb. 267; 83 Id. 300. 2.

Meeks, Judge: statement by the court. G. W. Berry was the owner of an undivided two-thirds interest in a tract of land through which the White River Railway Company desired a right-of-way. On the 14th day of September, 1901, Berry and wife executed a deed conveying a right-of-way across said land to said company.

Grace, Judge; STATEMENT BY THE COURT. In April, 1907, the place of business of L. & E. Wertheimer, a corporation organized under the laws of the State of Arkansas, was burglarized and whisky and cigars to the value of $13.70 taken. ■ Bose Owen' was charged with the offense, and was indicted for burglary and grand larceny, charged in separate counts. He was tried and convicted in both counts. The case is here on appeal. 1. A continuance should have been granted.

St^l, Judge; statement by the court. Appellee bought a saddle for $12 at a sale under the following execution: “County of Pope, Township of White. “The State of Arkansas to any constable of Polk County: You are hereby commanded that of the goods and chattels of E. T. Bigham you cause to be made the sum of nine dollars ($9) which W. W. Cranford late before me, a justice of the peace for said county, recovered against him for his costs in a replevin suit, and also costs in a…

Carter, Judge; 1. The announcement of a station.is not an invitation to passengers to alight. 76 Ga. 333; 88-Ala. 538; 92 Id. 237; 97 Id. 332; 15 Lea. (Tenn.) 254. The stopping of the train after station was called was not the proximate cause of the injury. 68 Pac. 1037. No recovery can be had where the passenger is at fault. 39 S. E. 427; 113 Ga. 1021; 139 Eed. 543. 2.

•Carter, Judge; STATEMENT BY THE COURT. This is a suit brought by Henry Pemberton to recover for personal injuries caused by reason of the negligence of the Texarkana Telephone Company in failing to repair certain dangerous wires within a reasonable time, as Pemberton was led to believe would be done.

Steel, Judge; 1. The letter mentions mental worry, but there is no claim for damages on that account. This case is controlled by Telegraph Company v. Moxley, 80 Ark. 554. The items of cash expended were properly disallowed. 53 Ark. 434. 2.

Smith, Judge; There is no evidence on which to base the first instruction given at request of appellee, and the court erred in giving it. 70 Ark. 441; 74 Ark. 19. 1. There was evidence on which to base the first instruction, and it was correct. 56 Ark. 300. 2. The claim of damages is too remote and uncertain. 58 Ark. 29.

Carter, Judge; 1. The indictment is bad for duplicity. The value of each separate parcel of cotton should have been alleged. 2. The corpus delicti was not proved, i Hagg. Cons. Rep. 105. 3. No confession of guilt was shown. 53 Iowa, 69; 71 Conn. 293; 41 Atl. 820; 30 Tex. App. 498; 61 S. W. 16; 40 Ala. 54; 54 Id. 28. 4. Unexplained posession of property recently stolen is not sufficient to warrant a conviction. 83 Ark. 192.

The deputy prosecuting attorney of Faulkner County filed information against the St. Louis, Iron Mountain & Southern Railway Company, charging it with violation of the statute requiring it to keep its waiting room supplied with wholesome drinking water. The railway company demurred to the information. This was overruled by the court, and the railway company filed a plea to the information as follows: “Comes the defendant, and for its plea to the information herein says: “1.

. Appeal from Poinsett Chancery Court; Rdward D. Robertson, Chancellor; W. A. Beasley and Eli Dixon sued W. B. Gravette individually and as treasurer of Poinsett County, and the Canal Construction'Company, an Illinois corporation, and J. A. Bradsher, sheriff of Poinsett, County, alleging Compeaint. “That petitioner, W. A. Beasley, is the owner of the following lands, situate in the county of Poinsett and State of Arkansas, to-wit: the southeast quarter of southeast quarter…

Sanders was indicted by the grand jury' of the Fort Smith District of Sebastian' County for exhibiting a gambling device, contrary to section 1732 of Kirby’s Digest.

<p>1. Venue — change of — credibility of affiants. — Under Kirby’s Digest, § 2318, requiring that a petition for change of venue in a criminal case be supported by the affidavits of two credible persons, it was not error to deny a petition which was supported by affiants who swore recklessly that the minds of the inhabitants of the county were so prejudiced against defendant that he could not get a fair trial, when in fact their knowledge was limited to a few people in a small hamlet. (Page 358.)</p> <p>2. Same — denial of second petition. — Where a petition for change of venue was filed, and was refused because the supporting affidavits were not made by credible' persons, it was not error to deny without investigation a second petition filed on the same day where defendant made no showing of surprise over, or explanation of, the failure of the former affiants to sustain their affidavits. (Page 358.)</p>

Hugh'Basham, Judge; - 1. Nowhere in the court’s instructions was the defendant given the benefiNof a reasonable doubt as to his guilt. Kirby’s Dig. § 2386-7; 38 Ark. 304; 36 Id. 127; 20 Id. 166. 2. Defendant .was never arraigned, nor did he ever waive arraignment ñor pleaded. 39 Ark. 180; 34 Id. 275. 3.

Hugh Basham, Judge; 1. The council had only such powers as were given the municipality by statute, and nowhere does the State law delegate the authority sought to be exercised. 45 Ark. 336; 49 Id. 165; 31 Id. 462; Act 1907, p. 290. 2. The court erred in its definition of drunkenness or intoxication, and the remarks of the prosecuting attorney were prejudicial. 94 Ala. 441 ;■ 93 Ga. 196; 11 Cush. (Mass.) 479; 130 111. 234; 10 A. & E. Ene.

<p>Appeal from Hempstead 'Circuit Court; Jacob M. Carter, Judge;</p> <p>The vote on the question in 1902 was final and conclusive, and ‘exhausted the authority to vote further on the question, unless plainly provided for in the act. 83 Ark. 443. ‘</p> <p>There is nothing in the act to negative the right to vote again. Cooley, Principles of Const. Law, p. 22-3 (Students’ Series); 11 Cyc. 528; 99 U. S. 214, 218; 24 Conn. 174; 8 N. W. 591; 6 Id. 621. •</p>

Robertson, Chancellor; STATEMENT BY THE COURT. This is an appeal from a decree of the chancery court of Crittenden County which involves, so far as concerns the disposal of the case here, separate controversies between the plaintiffs below and the various defendants, though there are some questions in common to be disposed of. Josiah E. Earle resided in Crittendon County, and owned a large body of lands situated there.

Appellant, W. V. Turner, was and had been, for several years prior to the institution of the present suit, the owner of a four hundred acre tract of land east of Greenway, in Clay County, of which 125 acres were cleared and cultivated in 1905. Quick Creek runs through his farm from west to east, making many meanderings therein.

Francis Circuit Court; Hance N. Hutton, Judge; The court’s declarations of law are erroneous. If the deposit of the money was in effect the giving of a retaining bond with W. A. Fondren as surety, which is not admitted, still J. W. Fondren would not thereby be cut off from the right to controvert the existence of grounds of attachment. Kirby’s Digest, § 372. And in no event could judgment be rendered against W. A. Fondren, the surety on the bond, in this action. 36 Ark. 91.

Winfield, Judge; STATEMENT BY THE COURT. This appeal involves two cases, but only one will be stated, as there is no material difference between them. The Prosecuting Attorney of the Sixth Judicial Circuit filed complaint against the defendant, Chicago, Rock Island & Pacific Railway Company, a foreign corporation alleging a violation of act No. 116 of 1907, which is as follows: “Sec. 1.

Francis Circuit Court; Hance N. Hutton, Judge; 1. The information is not sufficient to charge any affirmative act on the part of the appellant to entice or. induce the boy to leave his employer, and is therefore not in compliance with the statute. 2. If it be held that the information comes within the terms of the statute, then it is in conflict with the Constitution. Art. 2, § 21, Const. As to the validity of such legislation, see 63 Cent. Law Journal 43 and cases cited.

<p>Appeal from Sebastian Circuit Court; Daniel Hon, Judge;</p>

Hutton, Judge; Nowhere in the evidence is it shown that there was any ordinance making it unlawful to carry a pistol as a weapon. Courts do not take judicial cognizance of city ordinances. 68 Ark. 483; 80 Id. 264. Police courts have concurrent jurisdiction with justices of the peace over misdemeanors committed in the city limits. Const, art. 7, § 43; Kirby’s Digest, §< § 5634-5; 68 Ark. 244.

Robertson, Judge; The facts do not justify a decree of reformation in this case. 37 Mo. 364; 55 Mo. 500; 37 Ind. 138; 66 Ind. 488; 67 Ind. 164; 68 Am. Dec. 596; 85 Ark. 62. The court was authorized to decree a reformation under the facts in this case. 28 Ark. 372.

Hart, Chancellor.; 1. There is no evidence to show that Mary Austin knew the effect of having her husband’s name joined in the deed, but on the contrary the facts and circumstances go to show that she did not understand its purport and effect. A trust will result, though the title is taken in the name of the grantee with the consent of the person paying the consideration. 15 Am.- & Eng. Enc. of E. (2 Ed.), 1135 and cases cited; 85 Fed. 896. 2.

Carter, Judge; 1. It was error to exclude the testimony of Regan, Hinton and Carrington. Brooks being dead, appellant was entitled to have every circumstance going to sustain his contention, however slight, to go to the jury for what it was worth under proper instructions. 2. The item of $225 was due more than three years before Brooks died, and is barred by the statute of limitations. 1.

Shaver, Judge; 1. On appeal to this court the trial of a chancery case is de novo. 73 Ark. 187; 75 Ark. 72; 76 Ark. 153; 105 U. S. 265. Such being the case, when the former appeal was taken, 'that procedure necessarily took the cause entirely out of and beyond the control of the lower court, and brought the same entirely into this court for trial as though it had never been tried, and it has never been remanded for any purpose.

. Appeal from Yell Circuit Court; I. Hugh Basham, Judge; 1. The court erred in dismissing the appeals on motion of the prosecuting attorney. Acts 1900, p. 375, § 2; 41 Ark. 194; 40 Id. 448. 2. It is the duty of the court to correct errors in entering á judgment, even after the expiration of the term. 33 Ark. 218.

Hugh Bashcrn, Judge; 1. The remarks of the prosecuting attorney in his opening statement were improper and prejudicial. 2. The prosecuting witness was certainly impeached. Kirby’s Digest, § § 3138, 2382. 3. Instruction (C) alone was given, and the jury were not told to consider it with the others.

Hart, Chancellor; 1. Inadequacy of consideration, when amounting only to hardship, furnishes no ground of equitable relief; and when there is no fraud, courts will not relieve from the consequences of contracts voluntarily and understanding^ entered into. 24 Pa. St. 360; 21 Graft. (Va.), 75; 104 Mass. 420; 35 Tex. 225; 17 Mo. 237; 41 N. Y. 329; 5 Pet. (U. S.) 263; 17 Va. 9; 69 111. 394; 21 Ala. 371; 4 Ind. 66.

Hugh Basham, Judge; STATEMENT BY THE COURT. The deceased, E. L. Allen, was brakeman on a freight train on appellant’s road. On the 9th day of October, 1906, at Plummerville in Conway County, while engaged in switching, the engine and one car of the freight train were backed over and upon said Allen, crushing, cutting and lacerating his right leg from the upper part of thé thigh down to the knee.

Appeal’ from Benton Chancery Court; T. Haden Humphreys, Chancellor; On the mere unverified allegations, and unsupported by proof making out a prima facie case, the court was unauthorized to pay such large sums of money. 30 Ark. 76; 63 Id. 128; 28 'Id. 94; 37 S. W. 1022. It is only necessary to make out a prima facie case by affirmative proof. Allowances are made without consideration of the merits if the suit is in good faith. 2 Am. & Eng. Enc. of L. too; 1 Enc.

Winfield, Judge; STATEMENT BY. THE COURT. Appellant, N. P. Willis, filed his complaint in the chancery-court of Pulaski County against appellee, H. B. Bell, to obtain the custody of his child, Mary Francis Laura Willis, who is alleged to be wrongfully in the custody of appellee. The chancellor issued a writ of habeas corpus requiring the production of the child, which writ 'was duly served, and appellee produced the child in response thereto.

Hugh Basham, Judge; 1. A new trial will be granted where the verdict is so clear- ' ly against the weight of evidence as to shock the sense of justice of a reasonable person. 70 Ark. 385; 65 Id. 278; 34 Id. 632; 10 Id. 492. 2. Where the testimony inadvertently or erroneously given affects the verdict, a new trial should be granted. 6 Hill (N. Y.) 505; 8 Ga. 136; 54 Id. 635; 54 Me. 256; 7 M-o. 546; 82 Iowa, 397.

The court had no jurisdiction! “Matters of damage to personal property” means all injuries one may sustain in respect to his ownership of personal estate. Const, art. 7, § 40; Kirbyjs Digest,'§ 4552; 41 Ark. 478; lb. 210-14; 40 Id. 78; 47 Id. 58-61; 48 Id. 293; 55 Id. 281, 44 Ark. 377; 40 Id. 556; 43 Id. 107. 2. Statutes conferring jurisdiction are strictly construed. 66 'Ark. 79; 7 Id. 305; 18 Am. & Eng. Enc. Law (2 Ed.), 17; 24 Cyc. 440.

Winñeld, Judge; Action in replevin by Mattie P. Mitchell against Smith & Poe, and Cas Harper, constable, to recover possession of a lot of catcle seized under execution against R. L. Mitchell, plaintiff’s husband. Verdict and judgment in favor of defendants, and plaintiff appealed. 1. The jury were prejudiced by the testimony as to the acts of the husband, and rumors in the country as to the ownership of the cattle, etc., all of which were incompetent and objected to.

Virgil Bourland, Chancellor; 1. The decree can only be sustained upon the theory that the mere removal of the large machinery from No. 2 slope authorized cancellation of the lease. _ This cannot be sustained. When the coal reached this slope and from a practical miner’s standpoint became unworkable, then appellant had the right to sink an opening at such place as its judgment dictated for the purpose of removing the remaining coal, in the meantime paying minimum royalty. 2.

Bvans, Judge; The opinion delivered on the former appeal settles this controversy. 81 Ark. 41. The judgment appealed from is clearly erroneous. 63 Ark. 141; 79 Ark. 185; 60 Ark. 50; 56 Ark. 170; 55 Ark. 609. The only question sent down to the lower court was, did the agreement as to the judgment remain in force between the parties up to the time of its rendition, and, incidentally, what amount of judgment was agreed upon?

Carter, Judge; 1. Deceased assumed the risk as one of the hazards of the employment in which he was engaged; he had used the switch for a year, and knew of the conditions. The court should have given the peremptory instruction to find for defendant. 82 Ark. 14; 37 Minn. 326; 33 N. W. 908; 5 Am. St. 851; 108 Wis. 530; 53 S. R. A. 657; 35 W. Va. 500; 55 Ark. 483; 18 S. W. 933; 138 Ind. 290; 37 N. E. 721; 43 Am.

Evans, Judge, statement by the court. Information was filed in Crawford County against the appellant railroad company, charging it with a misdemeanor in having violated the act of May 1, 1905, entitled “An act to provide for the protection of mechanics, laborers and other persons employed in the construction and repair of railway equipment, and providing a punishment for the violation thereof.” The act reads as follows: “Section 1.

Fulkerson, Judge on Exchange of Circuits; The evidence is no't sufficient to sustain the verdict. The question as to whether or not appellant had executed the mortgage was asked on cross-examination, and was at the time objected to because the legality of the mortgage was not questioned, and it was immaterial.

'Appeal from Garland Circuit Court; W. H. Evans, Judge; At the time of the passage of the act under which appellants were prosecuted, the President of the Senate had become the Governor of the State because of the illness of the Governor, and thereafter continued to perform the duties of a senator and president of the senate.

Mahoney, Chancellor; On former appeal, the cause was reversed and remanded with directions to dismiss the complaint. Appellants were before the court then. The dismissal carried all' parties out of court. The appeal should, be dismissed for failure of appellants to obtain and prosecute a cross appeal when the case was before this court on former appeal. 104 S. W. 550.

Fulkerson, Judge; 1. Appellee is not entitled to recover herein. 69 Ark. 67; Mechem on Agency, § § 760, 766. The fact that appellee took the note in his own name did not change the fact that the dealings were between appellants and the Insurance Company. The principal (Insurance Company), being the real party in interest, was the proper party to sue. 44 Ark. 564; 76 Ark. 558; Mechem on Agency, § 769.

Winfield, Judge; 1. The knowledge of the Eaucette Brothers will not be imputed to the appellant, their interests being at variance with those of the principal. Mechem on Agency, §. 723; 68 N. W. (Mich.) .215; 47 Pac. (Kan.) 511; 14 N. Y. 91; 25 Pac. (Wash.) 331; 72 Miss. 46; 17 So. 83; Id. 282; 19 Eed. 14; 4 Berryman’s Ins. Dig. 1283. See also 87 Eed. 29; 89 Fed. 619; éo Am. Rep. 736; 80 111. App. 288; 85 Mo.

Carter, Judge; 1. The remark of the court made during the examination of the witness Conway was prejudicial to the appellant Telephone Company. The ordinance does not require the telephone company to put its wires at any given distance above the trolley wire, but that the electric light wires - shall not run nearer than five feet to the telephone wires.

Winfield, Judge; 1. In the absence of constitutional or legislative restrictions, the power of appointment of an officer carries with it the power of removal, where no definite term of office is fixed. 39 Ark. 211; 13 Pet. 230; 167 U. S. 324; 103 U. S. 232; 189 U. S. 311, 315; 81 Pac. 847; 73 Pac. 496; Throop, Pub. Off. § 304; 26 Mo. App. 673; 88 Mo. 144; 20 Wend. 595; 92 N. Y. 191; 3 S. & R, 145; 54 Pa. St. 233; 6 Coldw. 486; 7 Cal. 97; 25 La. Ann. 119; 71 Conn. 112. 2.

<p>1. Appear — effect of prosecuting second appear. — Where an appeal, with supersedeas, was obtained in the' circuit court, but the appeal was not perfected by filing an authenticated copy of the record in the office of the clerk of the Supreme' Court within ninety days as required by Kirby’s Digest, § 1194, 'the appellant could dismiss the appeal and take another appeal within the year prescribed by the statute (Id. § 1199) ; and, while the better practice is to dismiss the first appeal before taking the second, the effect of procuring the s'econd appeal is a voluntary dismissal of the first. . (Page 562.)</p> <p>2. Same — effect of dismissar upon supersedeas. — Where an appeal with supersedeas was taken, and dismissed, and a second appeal prosecuted, the supersedeas ceased to supersede the judgment. (Page 562.)</p>

<p>Appeal — costs—liability op next EriEnd. — One who prosecutes an action at law as next friend of an infant plaintiff becomes liable for the costs of the appeal, under Kirby’s Digest, § 6022, if a judgment in favor of such infant is reversed on appeal.</p>

<p>APPEAL' — advancement oe cause on account oe public interest. — A suit to test the' constitutionality of the road improvement act of March 4, 1907, will not be advanced as involving the public interest if there is no showing that any person has an interest in the settlement of the questions involved therein, except those affected by the particular district involved, which is a small local district.</p>

Meeks, judge; STATEMENT BY THE COURT. Marvin Black and Frank E. Adair were convicted before a justice of the peace in Randolph County upon information filed by the deputy prosecuting attorney charging them with maintaining a place for selling and giving away liquor without license, contrary to section 5140, Kirby’s Digest, and fined $200 each Upon appeal to the circuit court the following facts were established ; That the defendants conducted a cold storage business in a…

This was a suit by Graham & Bordley as -contractors to obtain judgment and enforce a lien for erecting a dwelling house for H. C. Harris and his wife, Lillie R. Harris. The contract price of the house was $2755, and was to have been built by Sample & Hoaglan, whose performance of the contract was guarantied by Graham & Bordley; and, Sample & Hoaglan failing to proceed with the work, it was assumed by Graham & Bordley.

Hart, Chancellor; STATEMENT BY THE COURT. “The appellee, H. Thomas, claims title to the land in controversy under a donation deed executed by J. F. Ritchie, Commissioner of State Lands, on the 10th day of March, 1898 — the statute of limitation of two ’years’ actual possession and the statute of limitation of seven years.

Winñeld, Judge; The meaning of the term “capital stock” varies according to the context in which it is employed. Stock in the hands of a stockhplder means his interest in the corporation, whether paid for or not; but the stock of a corporation itself is a term synonymous with capital. It means the assets which the company possesses, the amount that has been paid in by the stockholders, which constitutes the capital on which the company does business. 1 Sandf.

Francis Circuit Court; Hance N. Hutton, Judge; An experienced brakeman who enters the service of a railroad company using unblocked frogs, and a part of whose duties is to switch -cars, and has an opportunity to observe the condition of the switches, assumes the risk from the use of the unblocked frogs. 82 Ark. 11; 48 Id. 333.

Robertson, Chancellor; statement by the court. The present suit, filed on the nth day of August, 1902, by appellants, the husband and children of the late Fannie C. Jackson, against appellees, was brought to set aside a decree of the circuit court sitting in chancery purporting to have been rendered at the January term, 1897, of the court, but alleged to have been rendered and entered of record in vacation in July, 1897, and to redeem certain lands ordered sold by said…

M. Spradfing the value of the land options taken by defendant. The ground of objection is not shown, the writing was never accepted by either party as the whole contract, and parol eyidence is admissible to show what the contract actually was. 55 Ark. 115; 27 Id. 512. It was admissible to show the real consideration of which the land options were part. 75 Ark. 94. This is not an action between the parties to that contract.

Wallace, Chancellor; 1. The motion to strike out the amendment to the complaint should have been sustained. Except by consent of parties, pleadings cannot be amended by introduction of new parties or causes of action. 98 N. C. 509; 30 W. Va. 774; 20 Pac. 45; 16 S. W. 124; 13 S. W. 922; 58 N. W. 693; 17 S. E. 1036.