Volume 87 — Arkansas Reports

W. Meeks, Judge; No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity. Kirby’s Digest, § 4491. Where two men marry sisters, they become related to each other in the second degree of affinity. 11 L. R. A. 639. Where the wife of a juror and the wife of the propounder of a bill had the same .great grandfather, the juror was incompetent to sit. 72 Ga. 80.

W. Meeks, Judge: The court should have held juror Mack to be an incompetent juror. Kirby’s Dig., § 4491. The presumption is that an offered juror is incompetent until he is shown to be competent. When relationship is once shown to exist, the burden of showing that the' proposed juror is competent devolves upon the plaintiff, or the juror. 41 Tex. 573; 37 S. E., 626; 47 Me. 593; 64 Ind. 133. 12 Tex. A-pp. 163.

Robertson, Chancellor; This appeal involves an atack upon the constitutionality of an act of the General Assembly of 1907, entitled “An Act to provide for a topographical survey of and to authorize the drainage and levying of certain portions of the Western District of Clay County, Arkansas, by and under the supervision of a board of directors, to be vested with corporate powers and to be named ‘Western Clay Drainage District,’ and for other purposes”; approved May 23, 1907,…

H. Evans, Judge; The city of Hot Springs instituted a proceeding against L. D. Cooper, charging that he had committed the offense “of violating the saloon license ordinance by failing, neglecting or refusing to pay license as provided by ordinance.” He was convicted in the police court, and appealed to the circuit court, where he was convicted and fined $25.00, and he has appealed.

Lea, Judge; statement by the court. A. D. DuLaney was the representative of Little River County in the General Assembly of 1905.

Hart, Chancellor ; According to the testimony, the bank’s method of doing business and of handling-this cotton was such as to make it entirely responsible for any loss sustained under the bills of lading. The railway company having delivered the cotton to the compress with the assent and knowledge of the bank, it became a complete delivery, and the bank was thereafter responsible only as a warehouseman for the cotton.

J. Lea, Judge; No evidence of acts of an alleged conspirator should be admitted against a co-conspirator until a prima facie case is made out. 77 Ark. 444; 11 111. App. 188; 31 Gratt. 469. One conspirator can be held criminally liable for such acts only as could reasonably have been foreseen to occur in the execution ‘of the conspiracy agreed upon. 31 So. 280; 96 111. 73; 115 Ga. 584.

Hart, Chancellor; The common law rule is that “surface water is a common enemy, which any land owner may get rid of as best he can.” Gould on Waters, § 265; 13 Gray, 601; 10 Allen, 106; 100 Mass. 182; 44 Neb. 526; 48 Neb. 87. Mere surface water, which is supplied by rains or melting snow, flowing in a hollow or ravine on the land, is not a watercourse. 52 Wis. 526; 61 Id. 642; 9 Cush. 171; 30 Conn. 180; 22 Kan. 352; 53 Me. 200.

Wallace„ Chancellor; Wilful disregard or disobedience of public authority constitutes contempt. Bouv. Law Diet. Disrespect: wilful disregard of the authority of the court. Anderson, Law Diet. Contempt is disorderly or insolent language or behavior in the presence of the court. 3 Am. & Eng. Law, 1st Ed. p. 777. Petitioner 'had the right to-file the motion suggesting the disqualification of the chancellor in this particular instance.

B. Mears, Special Judge; Witnesses should have been permitted to testify as to the improvement from the drainage of the property, and the jury should have been instructed according to such evidence. 41 Ark. 430; 44 Id. 258; 51 Id. 324; 54 Id. 140. When the bill of exceptions fails to show that it contains all the instructions given below, this court will presume that the instructions given covered the law of the case. 46 Ark. 207; 74 Id. 88; 76 Id. 177.

Carter, Judge; Time was of the essence of the contract. Clark.on Contracts, § 251; 115 U. S. 188; 74 Ark. 41; 73 Id. 338. The words of the contract should be construed most strongly against the party who used them. ' 74 Ark. 41; 73 Id. 342. A clause in a contract directed to a particular matter controls over a clause general in its terms. 72 Ark. 633. A contract to do a thing “as soon as possible” means that it should be done with all expedition. 59 Hun, 512.

V. Bourland, Chancellor; The architect was not appellant’s agent to buy material. One is not bound by the acts of his agent beyond the apparent scope of his authority and without the line of employment. One dealing with an agent must inquire into the extent of his authority. Contractors, sub-contractors, laborers, etc., shall not have a lien for more than the original contract price. Kirby’s Digest, § 4975; 71 Ark. 35; 77 Id. 158. • Brizzolara & Pitzhugh, for Ft.

Robertson, Chancellor; STATEMENT BY THE COURT. This was an action in equity commenced on the 29th day of November, 1905, by M. R. Coffman and J. M. Gramling, administrators of the estate of M. C. Gramling, deceased, as plaintiffs ■against D. Mr Reaves and Mollie C. Reaves as defendants.

W. Meeks, Judge; Limitations are governed by the law of .the forum. 158 U. S. 285; 13 Pet. 312; 155 U. S. 618; 88 Fed. 610; 94 Id. 471; 162 U. S. 329; 147 U. S. 647; 153 Id. 671; 154 Id. 177; 89 Fed. 473; 96 Id. 397; 18 Ark. 384; 21 Id. 287. The common law has fixed its own doctrine that limitation prescribed by the lex fori, in respect to remedies, must prevail in cases of personal actions.

Evans, Judge; There was no evidence on which to find for appellant. 65 Ark. 581. An ordinary receipt may be overcome by evidence. 46 Ark. 219. Even the presumption of payment arising from the possession of a note may be overcome by evidence. 13 111. App. 537. Instructions should be founded on some evidence to support them. As to whether the premium had been paid was a question for the jury, and was submitted to it under proper instructions. 81 Ark. 89.

H. Bvans, Judge; statement by the court. Judgment by default was rendered against appellant on the following complaint: “Comes Mrs. M. A. Claiborne, in 'her own behalf and as administratrix of the estate of D. W. Claiborne, deceased, and by leave of the court first had and obtained, in lieu of and as a substitute for her amended complaint herein, states: That she is the widow of D. W. Claiborne, who departed this life on the first day of January, 1905, and that she was duly…

Wallace, Chancellor; statement by the court. Proceedings were instituted in the Yell Chancery Court for the Danville District by J. W. Eldridge against the Flint Lumber Company to wind up its affairs on account of its insolvency, and W. J. Kelley was appointed receiver. Afterwards, on the 6th day of August,- 1906, appellant was allowed to intervene in the suit.

Virgil Bourland, Chancellor; 1. Appellants have the right to bring this suit. Art. 16, § 13, Constitution. Chancery has the power to inquire into municipal exactions and to enjoin their collection, and to inquire into and enjoin the enforcements of any kind of illegal burden imposed upon the citizen or his property. 34 Ark. 603; 39 Ark. 412; 33 Ark. 4411 46 Ark. 471; Kirby’s Dig. § 5485; 53 Ark. 205; 52 Ark. 541; 2 Dillon, Mun. Corp., § § 914, 915, 916; Tiedeman, Mun.

W. Meeks, Judge; statement by the court. Appellant sued appellees in justice’s court for breach of the following contract: “teacher’s contract. “State of Arkansas, County of Randolph. “This agreement between C. H. Meridith, Samuel Fluke and J. H. Hatfield, as directors of school district No. 70, in the county of Randolph and State of Arkansas, and Jake Griggs, a teacher who holds license of the third grade, and who agrees to teach a common school in said district, is as…

W. Meeks, Judge; STATEMENT BY THE COURT. This was an action brought by appellant to recover from appellee $189.75 as balance due him under a contract for labor.

Carter, Judge; statement by the court. On the 6th day of November, 1906, plaintiff, a colored woman about 22 years old, took passage on defendant’s local freight train at Gurdon to go to her home at Prescott. Beirne was a small station between these two places. The train stopped at Beirne, and plaintiff heard one of the train crew say to another that they would stop there about 30 minutes for the trainmen to get dinner.

Carter, Judge; .1. No judgment should have been ■ rendered by the circuit court on the bond because it was void. It was void because the guardian had a right to appeal without supersedeas, which was denied him, and the bond was obtained by duress. Kirby’s Digest, § § 1347-8-9, Const, art. 7, § 35. . 2. The. minor was not of age until eighteen. Kirby’s Digest, § 3756; 79 Ark. 199. 3. An exaction of a more onerous condition than the law requires renders a bond void. 142 Pa.

Fulkerson, Judge; statlmrnt by the; cqurt. • This is an action instituted by an infant, suing by next friend, against the railway company for damages for personal injuries received while she was a passenger on a local freight train which carried passengers regularly. She was a passenger en route from Newport, Arkansas, to Tuckerman, and received the alleged injuries complained of when she was about to debark from the train at her destination.

Wells, Judge; The burden was on the plaintiff to show that deceased wí s in good standing at the time of his death. 23 Mo. App. 268: 72 Ark. 47. 1. Provisos in a policy of insurance are stipulations added to the principal contract to avoid the promise of the insurer,, by way of defeasance or excuse; and in an action thereon it is incumbent on the insurer to allege them in defense and support them by evidence. 25 Cyc. 927; 4 D. R. A. (N. S.) 636, 638. 2.

Mahoney, .Chancellor; The plaintiff, having clearly acquiesced in the action .of appellant in building the tramway, has no rights' except for compensation for right of way, the value of the land taken only, and incidental damages. 74 Ark. 138.

In view of the conflict in the evidence as to appellee’s conduct at the time, whether or not he was boisterous and profane, it was competent, and material to appellant’s defense, to prove his conduct generally when in a drunken condition; and it was error to exclude such testimony. 56 Ark. 37. 2. The third instruction is erroneous in stating an amount which the jury may find. 58 Ark. 136. Also because the evidence does not support a finding for exemplary damages.

Evans, Judge; 1. The answer set up fraud, a mixed question of law and fact to be submitted to a jury. 8 Ark. 108; 24 Id. 222; 30 Id. 380; 21 Id. 364. 2. If there is any legal' 'evidence to sustain a particular theory, the court should properly instruct the jury as to such theory. 50 Ark. 545. 3. When there is any evidence to sustain the contention of a party, a verdict should not be directed.

Hart, Chancellor; Appellee is not bound by mention of the life insurance policy in the decree of divorce between her father and her step-mother. 18 Ark. 142; 3 Ark. 532; 23 Ark. 336; 25 Ark. 365; 20 Ark. 629; 34 Ark. 297; 35 Ark. 62; 39 Ark. 205; 35 Ark. 450; 75 Ark. 1; 71 Ark. 339.

Fulkerson, Judge; 1. The court erred in instructing the jury, amongst other things, that “when they did either of these it was their duty to pay him within seven days by money or check, which might be sent at his request to'the agent at some station.” Thereby the jury were led to believe that the penalty attached if appellee was not paid within seven days from the date 'of discharge, whereas, in order to be entitled to recover penalty, he must have been discharged, must have…

Smith with the injury so as 'to prevent a removal; and, this fact being alleged in the petition for removal, the court erred in denying the petition. 204 U. S. 430. There was no error in denying the petition for removal to the circuit court of the United State. 179 U. S. 139; 169 U. S. 931 íS1 U. S. 56; Id. 368; Moon on Removal of Causes, § § 141, 144 et seq.

Evans, Judge; statement by the court. This is an action of ejectment brought by the Crawford County Bank against U. S. Bolton and Belzora Bolton in the Crawford Circuit Court for the recovery of. forty acres of land, situate in Crawford County. The defendants answered, setting up among other defenses that the lands were held by the bank as trustee for them. The plaintiffs filed a demurrer to the answer of the defendants, but no action was ever taken on it by the court.

Steel, Judge; statement by the court. This is an issue of devisavit vel non from the circuit court of Howard County. The case has been here before, and is reported in 82 Ark. 432 (Sanger v. McDonald).

W. Meeks, Judge; The trastee in bankruptcy had the right to appeal. Kirby’s Digest, § 4666; 2 Cyc. 641. There is no sufficient showing by the trustee of a right of appeal to the circuit court. Kirby’s Digest, § 4665; 28 Ark. 479; 47 Ark. 412, 413.

H. Evans, Judge; STATEMENT BY THE COURT. On the 10th day of October, 1905, J. M. Cates, the plaintiff, purchased from the ticket agent of the defendant St. Louis, Iron Mountain & Southern Railway Company a first-class passenger ticket, entitling him to passage from Coffeyville, Kansas, to Hot Springs, Arkansas. On the same day he took passage on one of said defendant’s passenger trains at Coffeyville for Hot Springs,' and was conveyed to Benton, Arkansas.

Wallace, Chancellor; Moore’s contract to make certain repairs and improvements and surrender the place at the time agreed upon “in a first-class tenantable condition and in a good state of repair” entered into and formed a part of the consideration for the payment of the $280 for the land appellant was to receive.

Hudgins, Judge; Action instituted by Ella A. Case against Doniphan Lumber Company, to recover damages for cutting and removing growing timber from plaintiff’s land. The complaint alleges willful trespass by defendant, and claims treble damages under the statute. Defendant in its answer denied that the trespass had been wilfully committed, and denied plaintiff’s alleged title -to or possession of the lands in question.

N Maples, Judge; 1. Appellee is not entitled to recover because of failure to comply with the terms of the policy requiring him to keep a set of books and an itemized inventory which would clearly show a complete record of the business transacted with reference to the property insured, including all purchases, sales and shipments, both for cash and. credit. 53 Ark. 358; 58 Ark. 565; 1 May on Ins. § § 1, 5, 6, 7; 61 Ark. 207; 62 Ark. 43. 2.

Humphries, Chancellor ; 1. The acts of cruelty complained of by appellee, only one of which — the chastisement for being out with persons of ill-repute — is in any manner corroborated, were condoned by her by voluntarily submitting to intercourse with appellant. 2.

Hudgins, Judge; STATEMENT BY THE COURT. Appellant sued appellee at law to recover possession of the northeast quarter of section 34, township 9 north, range 9 west, in Cleburne County, Arkansas. Appellant deraigned title from the State through a deed from the Commissioner of State Lands to one J. W. Lewellen, and from Lewellen to him.

Evans, Judge; statement by the court. These actions were brought by the appellees to recover damages for injuries alleged to have been received by them at the hands of the appellant by reason of a powder explosion in one of its mines at Denning, Arkansas, known as Mine No. 2.

Wells, Judge; STATEMENT BY THE COURT. •The appellant sued the appellee, alleging in his complaint: “That on or about the 15th day of January, 1907, the said defendant, the St. Louis, Iron Mountain & Southern Railway Company, by its employees operating and running a locomotive engine or train of cars over its railroad track through Montrose, a station of said line of its railroad, then and there ran or backed said locomotive, engine or train of cars against and over one Bred…

Read, Special Chancellor; STATEMENT BY THE COURT. This suit was brought by appellees in the Benton Chancery Court against appellants to restrain them from obstructing a certain street in the city of Siloam Springs by “erecting, maintaining and continuing to maintain an alleged eight-foot cement sidewalk in the center of the street.

Bourland, Chancellor; Appellee not having been mentioned in the will, he takes, under the statute, as though no will had been made. Yet the will is not thereby rendered .invalid, but must be carried into effect in all other respects in accordance with the wishes of the testatrix, and appellee .must recover.his share by way of contribution from the legatees named in the will. Kirby’s Dig., § 8020; 23 Ark. 569; 31 Ark. 145.; 70 Ark. 483. 1. The will as to appellee is a nullity.

Mahoney, Chancellor; It is not contended that a planing mill is a nuisance per se, but, when a lawful business conducted in a residential part of a town or city is attended with such noise, or occasions smoke and soot to such an extent, as to cause material discomfort, distress or injury to ordinary and normal persons living in the vicinity, it becomes a nuisance, and may be enjoined as such.

The court should have given a peremptory instruction in favor of appellant. The burden of proving negligence on the part of appellant was on the appellee. 79 Ark. 440. The happening of the accident does not warrant the finding of negligence. iox S. W. 738. The falling of the rock is of itself no evidence of the master’s negligence. 82 Pac. 387. 2. Appellee is shown to be an experienced miner.

Hart, Chancellor; STATEMENT BY THE COURT. Gus. M. Gans and Sol Gans owned the land in controversy, which was business property on Second Street in the city of Little Rock, having a frontage of 70 feet and running back 75 feet, containing a two-story building numbered 207, 209 and 211 West Second Street.

Winfield, Judge; STATEMENT by the court. This is an action of attachment instituted against appellee on July 25, 1905, in a justice of the peace court. Defendant was alleged to have left the State; therefore a warning order was issued, and proof of publication filed with the justice. A personal judgment was, on the 25th day of September, 1905, rendered against defendant by the justice of the peace.

■ Appeals from Jackson Chancery Court: George T. Humphries, Chancellor; STATEMENT BY THE COURT. Separate appeals were taken in these cases, but they have been abstracted and briefed and considered together. No. 135 is for the recovery by the heirs at law of Adam Bach of lot 3, block 30, Davis’ Addition to the city of Newport, which had been sold to Geo. K. Stephens as hereinafter explained.

<p>Appeal from Cross Chancery Court; Bdward D‘. Robertson, Chancellor ;</p>

<p>Judgments — transfer—filing.—Kirby’s Digest, § 4457, providing for the filing of a written transfer of a judgment or cause of action in the court wherein the judgment has been rendered or his cause of action is pending, does not contemplate that the instrument of transfer should be filed in the Supreme Court.</p>

Winfield, Judge; This is a contest over the validity of a will executed by Dr C. M. Taylor, who died April 15, 1905, leaving a widow, Julia P. Taylor, two children of the marriage with her, and a married daughter by a former marriage, Mrs. Maude J. McClintock. Soon after his death his widow and the Union Trust Company presented to the probate court a document purporting to be his last will, executed by him on March 2, 1904, and naming them as executors and trustees.

P. Atkins, Special Judge; Leder Bros, a firm doing business at Ulm, Arkansas, sued the St. Louis. Southwestern Railway Company for failure to furnish cars to ship hay in November, 1903. Defendant in answer alleged that it was unable to furnish cars as rapidly as requested on account of an unforeseen amount of freight being presented for shipment during the above months, and also denied that plaintiffs were damaged by its failure to furnish cars.

The action of plaintiff was in tort for the non-delivery of a telegram. There is no allegation of joint negligence in the complaint, and plaintiff seeks to recover against one defendant only, without stating which. There was a misjoinder of parties defendant, and the motion to strike out the name of one defendant should have been sustained. 79 Ark. 453; 77 Ark. 535; 51 Ark. 260; Kirby’s Dig. § 6082; Bliss on Code PI. § 83. 2.

Wells, Judge; statement by the court. McS'awyer Stell brought suit for personal injuries against appellant railroad company. Appellee’s statement of how the injury occurred is as follows: He was at Collins, a station on appellant’s road, where he had been doing some dental work. He carried his two grips over to the depot, and set them down close to where he thought the train would stop.' While waiting for the train to arrive, he stood there talking to some acquaintances.

Winfield, Judge; STATEMENT BY THE COURT. This action was commenced before a justice of the peace for Pulaski County against Arch Reddick and the Little Rock Brick Works, in July, 1905, upon the following paper, which was filed as 'the plaintiff’s cause of action: “Little Rock, Ark., Feb. 17, 1905. “Arch Reddick, “In account with Hoyt Merc. Co., “June 28 — ’05. To Mdse. $13-15- “Little Rock, 'Ark., Feb. 21, 1905. “Mr. Geo.

Meeks, Judge; A livery stable keeper is not an insurer of the property placed in his charge, but is held only to that degree of care for its safety which á person of' ordinary prudence would exercise under the circumstances if it were his own. 72 Ark. 572. He is 110't liable for injury to the property unless that injury results from his own negligence. There is no proof of negligence here.

Lea, Judge; 1. Where a specific instruction clearly applying the law to ;i the facts in the case is refused, even though the law in a general way is covered by other instructions, such refusal is error. 52 Ark. 45; 50 Ark. 545; 69 Ark. 134; 76 Ark. 227; 77 Ark. 128.; Id. 201. 2. The common-law rule with reference' to classification of employees will control in 'this case.

<p>Appeal from Clay Circuit Court, Western District; Prank Smith, Judge;</p> <p>STATEMENT BY THE COURT. '</p> <p>This is a suit on a policy of fire insurance. The policy was for $1,000 on a certain barn and its contents. The premium was paid when the policy was issued. The policy contained this provision :</p> <p>“If the buildings be on land which now is or shall become incumbered by mortgage or otherwise, or shall become any other or less than a perfect legal and equitable title and ownership, free from all liens whatéver, ******* this policy shall be absolutely null and void.”</p> <p>The defense was that the plaintiff, without the knowledge or consent of the defendant, after the policy was -issued and the premium was paid, mortgaged the property insured to the amount of $800. The 'fire occurred March 10, 1906. Suit was begun on the policy July 26, 1906.</p> <p>The appellee concedes that there was a forfeiture of the policy by reason of an incumbrance of the property insured after the issuance of the policy and payment of the premium, but contends that appellant waived the forfeiture by retaining the premium, and not offering to return same until after the suit was brought. Appellant in its answer tendered the premium to appellee] and set up that it had no knowledge of the forfeiture until some time after the loss occurred, and contends that its failure to return or to offer to return premium paid does not preclude its defense of forfeiture on account of the breach of the conditions of the policy alleged and conceded by appellee.</p> <p>A judgment was entered against appellant in the sum of $900, from which this appeal was duly prosecuted.</p> <p>' Where the premium on a fire policy was paid by insured on delivery of policy, the insurer’s failure co return such premium before action brought does not amount to a waiver or estoppel of the right to forfeit the policy for non-compliance by the insured with the positive terms of the policy. 28 Cent. Dig. Insurance, § § 1041-1055; 146 Fed. 695-6; 92 Id. 503-8; 95 Id. 358-362; 37 C. C. A. 96; 16 Am. & Eng. Ene. L. (2 Ed.) 939, and cases cited.</p> <p>A failure to return a premium paid, or the unearned portion thereof, by an insurer after discovery of the right to forfeit the policy operates as a waiver of the forfeiture. 19 Cyc. 798; 45 N. W. 708; 56 L. R. A. 233; 33 So. 504; Id. 506; 106 N. W. 1004; 54 Cal. 427; 46 Atl. 777; 49 Id. 155; 64 Pac. 814.</p>

Kirby’s Digest, § § 5021, 5028. Even without a statutory enactment, instruction No. 1 requested by appellant should have (been given. 30 Ark. 186; 33 Ark. 751; 35 Ark. no; 38 Ark. 102; 9 Cyc. 501; 20 Am. & Eng. Ene. of L. 24; 26 Cyc. 1041. Under the contract one half of the wages was not to be paid until the first of July, and in any event the suit should not have been instituted before that date. Hence instruction No. 2 requested ought to have been given.

Hudgins, Judge; STATEMENT BY THE COURT. This is' a suit by appellees to recover damages of appellant for an alleged negligent failure on the part of appellant to furnish appellees cars for the shipment of certain cattle and sheep which appellees tendered to appellant for shipment at the latter’s station called Zinc.

Charley Simpson, a boy sixteen years and eleven months of age, was riding on the platform of the back coach of appellant’s passenger train from ITot Springs, Arkansas, to Little Rock. Held: in the absence of proof of mental incapacity,-to have had the same discretion with reference to his personal safety, as if he had attained his majority. 32 Am. Rep. 413; 26 N. E. 916; 39 N. W. 402; 37 L. R. A. 639; 57 Ark. 461. 2.

Appellee, R. S. Cotton, sued appellant, the. Chicago, Rock Island & Pacific Railway Company, for the loss of eleven and the injury of twenty-three head of cattle, occurring, as he alleges, in transit from Ola, Arkansas, to National Stock Yards, Illinois, in December, 1906.

Robertson, Chancellor; STATEMENT BY THE COURT. In May, 1905, Naomi Lamb, formerly Naomi Smith, instituted this action, claiming dower and homestead in the lands described in the complaint. She alleges that she is the widow of I. H. Smith, deceased, who departed this life in June, 1903, and that said lands comprised his homestead at the time of his death.

Humphries, Chancellor; STATEMENT BY THE COURT. This suit was originally brought in the Independence Circuit Court by appellee. against appellants to recover on a fidelity bond written .by the United Scates Fidelity & Guaranty Company, hereinafter called “Guaranty Company,” agreeing to indemnify the Bank of Batesville against loss by reason of' any act of fraud or dishonesty amounting to larceny or embezzlement on the part of its employee, Matt. R. Smith.

If appellant had any interest in the property, it had the right to redeem. “Almost any right, whether in law or equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the lands, amounts to such an ownership as will entitle the party holding it to redeem the lands from tax sales.” 39 Ark. 580; 42 A,rk. 215 ; 74 Ark. 572; Kirby’s Digest, § 7098. See, also,- 74 Ark. 39. 2.

Winfield, Judge; statement by the court. This is an action of replevin brought before a justice of the peace in Pulaski County to recover the possession of two mules and a wagon, claimed by Doyle & Booth, a partnership consisting of D. M. Doyle and C. F. Booth, under a mortgage executed by them by J. G. Parmer. Judgment was rendered in favor of Doyle & Booth in the justice’s-court, and Parmer appealed to the circuit court. There the verdict of the jury was in favor of Parmer.

Elliott, Chancellor; 1. Even if Mary Ann Robertson really signed the deed by mark (which we deny), her mental and physical condition was such as to prevent her from intelligently comprehending and fully understanding what she was doing. 70 Ark. 166. 2. The evidence does not support the finding as to the deed from Winstead of an estate in entirety. 3. By putting the title in his wife instead of his own name he is estopped. 73 Ark. 289; 36 Id. 586. 1.

<p>Appeal — sufficiency of abstract. — As the presumption on appeal is in favor of the correctness of the rulings of the trial court, a judgment appealed from will be affirmed where appellant fails to set out enough of the evidence to show whether the rulings complained ■ of were correct or not, as it is not the duty of this court to explore the transcript for matters omitted from appellant’s abstract.</p>

Robertson, -Chancellor; It is conceded that the deed would be invalid under the Acts 1887, Kirby’s Digest, § 3901, unless cured by subsequent acc of the Legislature.

Winfield, Judge; STATEMENT BY THE COURT. Appellee sued one M. F. Bain in a justice’s court on account for $114.24. Afterwards, on motion of appellee, appellants, Mississippi Vallej'- Construction Company and Zeb Ward, were made parties defendant. On the trial day in the justice’s court, the cause was dismissed as to Bain, and judgment by default was taken against appellants. They appealed to the circuit court.

<p>Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge;</p> <p>statement by the court.</p> <p>There was presented to appellee as treasurer of St. Francis County on August 17, 1906, the following warrant:</p> <p>“District School Fund, District No. 16.</p> <p>Aug. 16th, 1906. “No. 12.</p> <p>“Treasurer of St. Francis County, Arkansas:</p> <p>“Pay to A. B. Ferrell or order the sum of seventy no-ioo dollars for vaccination of school children out of the fund.</p> <p>$70. “Jno. W. Hall,</p> <p>“W. Sweet,</p> <p>“Directors.”</p> <p>The treasurer made on it the following indorsement:</p> <p>“Presented August 17th, 1906, not paid for want of funds for the purpose for which this warrant was issued.</p> <p>“F. Laughinghouse,</p> <p>“County Treasurer.”</p> <p>After this appellant obtained judgment before a justice of the peace on the warrant. In March, 1907, appellant petitioned the circuit court for a writ of mandamus to coiiapel the appellee to pay the judgment. He set forth in his petition that the warrant was issued to him by the directors of the district in payment for his services in vaccinating the school children of the district who were unable to employ a physician for that purpose; that the school board had made the order requiring the children to be vaccinated under the advice and at the request of the board of health of the town of Widener in said county in which the school was located; that smallpox was prevalent in that community, and the order to vaccinate was made by the board of directors because it was considered by them dangerous to run the school without requiring the children to be vaccinated, etc., and that they employed the appellee to perform the services. Appellant alleged that he had obtained judgment on the warrant, and asked that appellee be compelled to pay the judgment, together with interest, costs, etc.</p> <p>The appellee demurred to the petition. The court rendered judgment sustaining the demurrer and dismissing the petition, and this appeal was taken.</p> <p>Mandamus was the proper remedy. 14 Enc. PL & Pr. 261. The county treasurer’s duty was to pay the warrant when presented, unless he had been notified that it was drawn for an illegal purpose. Kirby’s Digest, § 7627; 38 Ark. 158. If the school' board has the power to make an order requiring the children to be vaccinated, they have the power to use the school funds to pay for vaccinating those who are unable to pay for it themselves. 83 Ark. 431.</p> <p>The statute clearly contemplates that the treasurer will look to the consideration for which the warrant was drawn, and if he has no funds in his hands “for that purpose” he should refuse payment. Kirby’s Digest, § § 7627, 7628; 37 So. 1005. He has discretion under certain circumstances to refuse payment, even though the warrant is fair on its face. 71 Ark. 372. If appellant was entitled to mandamus at all, it was on the warrant; and if there had been funds in the treasury for the purpose of paying for the vaccination of school children, he would have been entitled to the writ. 38 Ark. 150.</p>

Steel, Judge;. STATEMENT by the court. Turner rented forty acres of land in Sevier County from the Southern Orchard Planting Company for the year 1905. The company furnished him supplies and a team. In 1906 he owed a balance to the company, and rented another forty-acre tract from it, and was to cultivate an orchard thereon, for which he was to receive $50, and to raise a crop of cotton and corn. The company continued to supply him.

That Chickasawba is a regular station on appellee’s line of road is established by the evidence. By reason of the fact that its line crosses another railroad at this point, the statute makes it a regular station. Kirby’s Digest, § 6771; 84 Ark. 406; 13 Cyc. 1041; 9 Am. & Eng. Enc. of L. 366; 32 N. E. 817; 21 N. E 7- . 2. If there was evidence legally sufficient to sustain a verdict, it was the court’s duty to submit it to the jury. 57 Ark. 461.

Francis Circuit Court; Hemee N. Hutton, Judge; 1. No one was ever authorized by ordinance to make this contract on behalf of the city, and it is not bound. Kirby’s Digest, § 5473; 40 Ark. 105; 61 Ark. 597. 2. Appellees having failed to make good the guaranty that the machinery would perform certain work would not be entitled to recover. 1. - Municipal corporations can contract through their duly authorized agents.

Hart, Chancellor; 1. The contract involved in this case is valid, under repeated decisions of this court. 48 Ark. 413; 54 Ark. 16; 61 Ark. 266; 75 Ark. 410; 78 Ark. 574; 51 Ark. 218; 134.U. S. 68. Under the terms of the contract, the vendee, Luckett, when he defaulted in the payment of either of the purchase notes, elected to become the tenant of the vendor. 18 Am. & Eng. Enc. of L. 168; 20 Fla. 467; 66 Miss. 1x8. 2.

Francis Circuit Court;. Hance N. Hutton, Judge; 1. Under appellee’s own testimony, the court should have given a peremptory instruction for the defendants. The accident cannot be accounted for by anything defective or unusual about the machinery, nor traced to any breach of duty on the part of appellants.

P. W. Fort was on the 21st day of October, 1907, tried and fined by T. H. Jackson, mayor of the city of Brinkley, for the unlawful sale of intoxicating liquors, known as Fort’s Tonic, and in addition to the fine imposed upon the appellant his license to practice medicine in the State of Arkansas was revoked.

Steel, Judge; 1. Where there is any evidence tending to establish an issue, it is error to take the case from the jury. 63 Ark. 94. 2. When proof is made without objection of the untruth of an allegation in the complaint not specifically denied in the answer, the answer will be treated as amended to conform to such proof. 65 Ark. 422; 76 id. 468. 3.

Rea, Judge; 1. The statute in question, Kirby’s Dig. § § 1175-1178, inclusive, must be strictly complied with. 48 Ark. 238; 51 Ark. 34; 61 Ark. 259; 65 Ark. 142; 65 Ark. 353. The fact of having posted the notices required by § 1176 can be proved by the record only, and not by parol. 51 Ark. 34.

This is a suit by appellee against appellant for a penalty under sections 6611 and 6620 of Kirby’s Digest.

Shaver, Chancellor ; STATEMENT BY THE COURT. Buford owned a sawmill, with some timber and lumber on its yards, situated at Mills Ferry, Little River County, and in October, 1906, sold it to W. D. Strong for $2,000, $500 cash and the balance represented by 15 notes of $100 each. He executed to Strong a bill of sale, and reserved a lien on the property to secure the payment of the purchase money. This lien was not recorded.

Wallace, Chancellor; statement by the court. The complaint (omitting formal parts) sets up substantially that one Chaudoin was, during the year 1906, in the employ of appellant as its agent, and, as such, that he received money belonging to appellant which he falsely and fraudulently deposited in the Faulkner County Bank in his own name with the intent to defraud appellant; that afterwards the bank (for certain reasons set forth in the complaint) refused to pay over the…

¡,S. Maples, Judge; STATEMENT BY TI-IL COURT. '■The appellant brought suit before a justice of the peace in Benton County against appellee and alleged that (defendant) “was indebted to him in the sum of $38 for one cow killed by one of its east-bound mixed trains, on April 16, 1907, about 2 o’clock p. m. That said company was indebted as a penalty in the sum of $38, and a further sum of a reasonable attorney’s fee to be _. taxed by the court.” Plaintiff asked judgment for…

Hudgins, Judge; statsmsnt by the court. The appellants were the children‘and heirs at law of Mark M. Harris. Benjamin Harris was the youngest of these, and he reached his majority on the nth day of April, 1904. Mark M., the ancestor, died in March, 1883,'iseized of ascertain tract of land in Marion County, Arkansas, which he occupied as his homestead.

N Maples, Judge; Appellants became parties to the proceedings upon filing the remonstrance, even if they were not made parties by the prior notice and the proceedings against their lands as set out in the county court’s judgment.

Lea, Judge; I. The evidence is too vague, indefinite and uncertain to support the verdict. 2. The contract had been fully discharged, before the death of appellee’s intestate, by the payment of $527 in cash and assignment of the lease for 1903 and 1904. 3.

The bond is good at common law. 38 Ark. 72. It is given for a valid consideration, and its condition was broken when the court refused to hold the judgment void, and appellees failed to pay the judgment. In this case it is immaterial whether the judgment is void or not; but it contains all the elements of a valid judgment, and is not void.

Carter, Judge; statement by ti-ie court. G. W. Henrie, who was’ employed by the Kansas City Southern Railway Company as conductor on'a work train, was killed on November 6, 1905, while attemptin'g to couple cars in his train at Horatio, Arkansas, and his widow, Ollie M. Henrie, and his three infant children instituted this action in the circuit court of Miller County to recover damages alleged to havé been sustained on account of his death.

T. Sanders, Judge; Smith was indicted for selling liquor in Lee County without license. Waiving a jury, he was tried by the court and convicted, and has appealed. The evidence showed that defendant took orders for whisky from witnesses Roane and Wamble in Lee County, and that he delivered the whisky to the witness in each instance upon their paying him $3 for the whisky and 30 cents express charges.

Evans, Judge; The argument of counsel was improper and prejudicial, for which the judgment should be reversed. 61 Ark. 143; 65 id. 481; 80 id. 161.

Winfield, Judge; 1, A foreign corporation duly admitted to the State prior to the passage of the Wingo Act, the corporate rights of which have not been terminated in any legal manner, is not amenable to the fee provisions of section 3 of that act.

Evans, Judge; 1. There is no evidence tending to prove that want of instruction as to how to alight from a moving train was the proximate cause of the injury; no instruction was necessary, and the law does not require that it be given.

Wells, Judge; STATEMENT BY THE COURT. This is a suit by Wm. T. Hardie against the St. Louis, Iron Mountain & Southern Railway Company. The substance of the complaint is as follows: That the defendant company constructed an additional line of railway in Chicot County, in 1903, over certain lands of plaintiff (giving course and direction of said line) for a distance of three and one-fourth miles, more or less.

Wells, Judge; STATEMENT BY THE COURT. The board of equalization of Dallas County, Arkansas, at its regular session, held in Princeton on the second Monday in September, 1907, and subsequent days, raised the assessment of the personal property of appellee by adding to it the amount of one hundred and five thousand dollars, on account of “money invested in bonds, stock, joint stock companies, or otherwise,” which he was required to list for taxes for the year 1907.

Robertson, Chancellor; 1. Where a duplicate certificate of purchase is surrendered, and by mistake or inadvertence a patent is issued to the widow, she will be held a trustee for the heirs. 44 Ark. 452; 49 id. 87; 55 id. 286. 2. A purchaser is affected with notice of all facts appearing in the recitals contained in all instruments in his chain of title. 23 A. & E. Enc. Law (2 Ed.) 508; 50 Ark. 322; 22 Am.

Elliott, Chancellor; 1. This is an adversary suit against one not in possession The complaint alleges all necessary facts to give a court of equity jurisdiction. Kirby’s Digest, ■§ § 650-656 and 7x04; 32 Ark. 131; 35 id, 505; 46 id. 96; 59 id. 115; 84 id. 1. Payment of taxes not necessary to maintain suit. Kirby’s Digest, § 656. 2. Independent of any and all statutes, petitioner was entitled to quiet his title.

Meeks, Judge; 1. The paper title is in P. H. Jeffery, the appellant, and the vérdict of the jury is not sustained by the evidence. No title is shown in the mother of appellees, and the proof does not show seven years open, notorious, adverse possession, nor that their ancestor died in actual possession. 15 Cyc. L. & P. 36-39 and notes; 43 Ark. 320. No superior title is shown. 15 Cyc. L. & P. 40, 41, notes. 2.

Hayes, Judge; STATEMENT BY THE COURT. This action was brought by W. M. Harrod against the Stout-Greer Lumber Company to recover damages for injuries sustained by him while in its employ by reason of its alleged negligence. The plaintiff was injured on the 13th day of July, 1906, and at that time was 31 years old. The particular duties which he was performing when he was injured were those of tying, sizing and removing laths from a lath machine.

Hutton, Judge; 1. This case calls for a construction of sec. 3, Kirby’s Digest. Held: 33 Ark. 824, that the word “estate,” mentioned in sec. 3, Mansfield’s Digest, signified the entire estate, real and personal of the deceased; but thereafter the present act was passed, repealing the former act (70 Ark. 25) and limiting the allowance of $300 to the widow out of the personal estate only. Id. 2.

This suit was by appellant against appellee for commissions alleged to be due appellant by appellee for services in selling certain real estate. Held: when the commission is conditioned on payment of the price, it is the duty of the broker to furnish a customer able and willing to comply with the proposed terms of sale, before he is entitled to commission.

The accident complained of happened prior to the passage of the act of March 8, 1907, abolishing the fellow servant rule. Appellant is not liable, .because the only negligence shown, if any, was that of a fellow servant. Acts 1907, pp. 162-3. 2. Appellee assumed the risk -of injur}* that might result from the breaking of bolts. 57 Ark. 503, 506; 54 Ark. 289; Id. 389; 56 Ark. 206; 48 Ark. 333; 57 Ark. 76; 58 Ark. 324; 41. Ark. 542; 76 Ark. 69; 68 Ark. 316; 77 Ark. 367. 3.

S. Maples, Judge; It is reversible error for a trial judge to permit counsel in argument before the jury to comment upon evidence which has been excluded.

<p>Certiorari — jurisdiction—Where an application to the circuit court for a writ of certiorari to quash proceedings of an inferior court alleged to be void was denied by that court, the remedy to procure a review of its action in the Supreme Court is an appeal, and not certiorari.</p>

Afterwards the contract was reduced to writing by authority of the board of directors. The fact that appellant was president of the company did not prevent him from dealing with the company.' It was no fraud on the company. 3 Thompson on Corp. § 4061. See, also, 59 Ark. 575, 587. 1. No bill of exceptions was signed in this case, and for that reason it should be affirmed, or the appeal dismissed. 2.

The tickets held by appellees did not entitle them to passage on appellant’s train at this time. They had used them previously on different dates to pass through appellant’s gate at the depot, thereby obtaining the right to enter and ride upon its train. On each prior occasion the journey had been abandoned. These tickets were contracts for continuous passage.

x, requested by appellant, prepared in haste and under the surprise of a defense not indicated in the answer, is subject to criticism, but it was sufficient to call the court’s attention to the correct theory of the case and issues to be submitted to the jury, and the court should have given a correct instruction to the jury upon that theory and'issue. 71 Ark. 475, and cases cited.

Bvans, Judge; 1. There was no duty incumbent upon the railway company to prepare a safe crossing for a traction engine. The crossing was safe for ordinary vehicles, and the company is only required to provide against such things as ordinarily exist or may reasonably be expected to occur. 61 Ark. 141, 149; 16 L. R. A. 228; 112 Pa. 185; 80 Hun, (N. Y.) 409; 40 N. E. 141; 68 Me. 152; 4 Atl. 164. 2.

H. Humphreys, Chancellor; 1. The contract was not usurious.- When the highest rate of interest is contracted for, the interest which will accrue during the period of the loan can be divided up to suit the convenience of the parties, and separate obligations given for all or any part of it. 54 Ark. 566; 54 Id. 40. 2. The usury must exist in the inception of the contract; it cannot be made usurious by subsequent acts. 25 Ark. 258; 29 Am. & Eng. Enc. of Law, 460. 3.

Evans, Judge; STATEMENT BY THE COURT. Walter Lavendusky, a lad about nine years old, was walking by the side of appellant’s railroad track in its yards at the town of Denning, Arkansas. While Lavendusky was thus walking, the yardmaster of appellant threw from one of its freight cars as it passed along the track a large lump of coal, which struck the lad upon 'his head, severely injuring him.

Campbell, Special Judge; statement by the court. This is a suit in replevin brought by appellee against appellants for certain cross ties. The appellee claimed to be the owner of the ties by virtue of his alleged ownership of the lands from which the ties were cut.

HtJton, judge; statement by the court. This suit grew out of the following contract: “This agreement made this 7th day of August, 1905, between G. T. Blackwood, party of the first part, and C. F. Leibke, party of the second part, witnesseth: “First party hereby grants, bargáins and sells to second party all the merchantable ash timber standing on first party’s land in State and county aforesaid in consideration of the sum of three dollars and fifty cents ($3.50) per thousand…

Hays, Judge; 1. If t'he evidence given by Karner in regard to the consideration of the notes was not competent, he not having'the original contract, still the evidence offered to be “introduced by the witness Mullins was competent. The plaintiff, by introducing this character of evidence, waived any objections to error which it 'had thus invited. 75 Ark. 257; 67 Ark. 47; 69 Ark. 140; 66 Ark* 588.

W. Meeks, Judge; 1. The shipments in question were interstate, and the interstate rate applied, and not the Arkansas tariffs. 187 U. S. 617; 202 U. S. 543; 196 U. S. 194; 201 U. S. 321; 95 S. W. 453. 2. Appellant would have violated the interstate commerce act if it had accepted or agreed to accept the Arkansas rate on the shipments. 95 S. W. 453; 28 U. S. 428; 200 U. S. 361; 158 U. S. 98; 26 U. S. 628.

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

Hwt, Chancellor; In order to defeat the collection of the purchase money in this case, three things must concur: 'i. Fraud must have caused an injury, i. e. the price must have been grossly inadequate. 2. The fraud must have been material to the contract, and must have been the inducement to the contract. 3. The injured party must have relied on.the fraudulent statements, and had a right to rely solely upon them in full belief of their truth. 47 Ark. 148; 71 Id. 91.

Evans, 'Judge; The court erred in giving and refusing instructions. No one of the crew knew of the presence of appellee in the caboose at the time of the impact. He was pfobably standing up at the time, thus contributing to his injury. 71 Ark. 590; 83 Id. 22; 87 Ark. 109; 83 Ark. 25. Appellee was a passenger, and the company owed him the highest degree of care for his safety, and is responsible for the slightest negligence. 40 Ark. 298; 51 Id. 459.

H. Evans, Judge; As this is a suit for a penalty under the act of 1905, p. 538, and the seven days allowed by law had not expired, there could De no recovery. 82 Ark. 378. The instructions of the court are correct. 82 Ark. 378. Fielding was of age, and responsible for costs. 66 Ark. 418. A clear case was made under the provisions of the act.

H. Evans, Judge; STATEMENT BY THE COURT. This was an action brought by John 'A. Horton, by his next friend, S. A. Horton, against the Pittsburg Reduction Company and C. C. Brazil to recover damages for an injury sustained by him caused by the explosion of a dynamite cap in his left hand. The Pittsburg Reduction Company was engaged in mining-bauxite at the town of Bauxite in Saline County, Arkansas.

Carter, Judge; STATEMENT BY THE COURT. Francis Briggs, a colored woman, brought this suit against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for injury sustained by her in alighting from the company’s train. The facts as stated by plaintiff are as follows : On the 5th day of January, 1906, she was a passenger on defendant’s train, going from Hope, Arkansas, to Emmett, Arkansas. The train arrived at Emmett at 10 o’clock in the night time.

Carter, Judge; 1. The risk of injury was assumed by appellee. The evidence is undisputed that the sawyer cannot always judge where to hit the log with' the “nigger,” and under the proof this was a risk which could not be provided against. Such accidents as •.this are always likely to happen, as appears by the evidence; and, if the company was liable for the acts of the sawyer, there was no evidence of negligence to submit to the jury.

Ma-honey, Chancellor; STATEMENT BY THE COURT. Appellant bought of appellee a tract of land in Columbia County, Arkansas.

Carter, Judge; STATEMENT BY THE COURT. The appellee, a commercial traveler, was a passenger on appellant’s train between Little Rock and Texarkana. He was riding in a sleeper. About ten o’clock in the morning, after he had made an effort to hang his hat on a hook, he was standing on both feet in the aisle of the car.

Shaver,■ Chancellor ; 1. The mere fact that the deed from Eubanks to Parker, (if executed), was not on record, and that Parker was not found, did not-authorize the admission of secondary evidence as to its contents. 2. Eubanks not being found in the county, a notice was posted on the lot, and a summons published in a paper as required by 'statute. Even if Parker was the owner of the lot, this is good service.

Humphries, Chancellor; STATEMENT BY Tl-IE COURT. On the 24th day of December, 1903, A. E. Robinson brought this action in the Baxter Chancery Court against the S-t. Louis, I-ron Mountain & Southern Railway Company to enforce his lien for labor performed upon the railroad of said company. The White River Railway Company commenced the construction of a railroad that extended through Baxter County, Arkansas.

Carter, Judge; STATEMENT BY THE COURT. Hambright was a brakeman on a freight train, 'in the employ of the appellant railroad company, and on August 10, 1906, was knocked from his train by a defective water-spout at- Austin and seriously injured. He was taken to his home in Memphis, Tenn., where he was under the care of competent physicians of his own selection. Later, he went to the hospital of the railroad company in St. Louis, Mo., where he arrived on the 27th of September.

89 S. W. 680. While it is true that this” court in Sherman V. King, 71 Ark. 248, held that where the boundary line was indefinite and unascertained, the parol agreement was binding, yet the record shows that there had been a dispute. This question has not been directly passéd on in this State, but wherever directly raised the weight of authority is that a pre-existing dispute is essential. 4 Pac. 515; 120 Mich. 149; 59 Wis. 285; 43 Am.

This was clearly a case for the jury. The testimony of the engineer is unreasonable and contradicted by the physical facts and other evidence. Courts and jurors are not required to accept as true the testimony of a witness, even though it is not contradicted by other witnesses, if it be contrary to reason and human experience. 79 Ark. 608; 106 S. W. (Ark.) 948; 74 Ark. 483. 2.