Volume 88 — Arkansas Reports

Francis Chancery Court; Bdzvard D. Robertson, Chancellor; STATEMENT BY THE COURT. John F. Frank was a resident of Memphis, Tenn., -and died there on October 6, 1904, leaving a will containing six paragraphs. The first paragraph provides for the payment of his /debts; the second is a devise of his residence to two of his daughters and one of his sons; the third provides a legacy of one thousand dollars for a grandson.

Evans, Judge; i¡ The question of inspection and what Korkille said and did with regard thereto was not an issue, and it was error to admit testimony and to instruct the jury on -that point; also to refuse the instructions asked by appellant touching that question. 90 S. W. 300. The court’s instruction clearly made the negligent inspection an issue and authorized the jury to base its verdict upon that ground of negligence.

Carter, Judge; STATEMENT BY THE COURT. Miss Gussie Fambro and Miss Florence Harkrider, two young ladies residing in Center, Texas, started to St. Louis.

Hays, Judge; STATEMENT BY THE COURT. David Rufus, a youth about sixteen years old, was in the employ of appellant as brakeman about its yards in the town of El Dorado, Arkansas. On the morning of his fatal injury, he was riding on the pilot of the engine. The engine and tender were going north on the side track, and young Rufus was going to make a coupling on the pilot. .He was standing on a board or step on the right hand side of the pilot.

This is an action by James Marcum against the Three States Dumber Company to recover damages for breaking his leg on January 17, 1907, while in the employ of the company. The defendant company was at the time operating a steam log skidder, used for dragging or skidding logs from the woods to the railroad.

Robertson, Chancellor; STATEMENT BY THE COURT. This case involves a controversy concerning the title to a large body of unsurveyed and unoccupied land containing 1,000 or 1,200 acres of land within the meandered lines of what is known as Walker’s Take according to the survey made in 1847 by the United States government.

If the evidence as to appellant’s alleged trespasses against the marriage vow was all true, it was condoned by the appellee’s voluntarily cohabitating with him, after she knew of the offenses, when she could find no other to please her better; and there is no proof of subsequent guilt on his part. 87 Ark. 175. 2. Five years having elapsed after she discovered the offenses before she brought suit, she is barred. 3.

Elijah Skaggs, Mrs. Margaret Irene Taylor, her brother, Mr. Todd and a Mr. Allen came to Fort Smith in May, 1908, from Dallas, (Texas, in and about which place these parties had resided for, a number of years. When they reached Fort Smith, they went to a hotel and had dinner together. After they came out of the hotel, the suggestion was made that they see the 'town, and she proposed going to the park.

Winfield, Judge; STATEMENT BY THE COURT. The Planters’ Gin & Oil Company was engaged in the manufacture and sale of cotton seed products at Baldwin, Mississippi. Its plant was a one-press mill. It was desired to increase its capacity to a two-press mill, and Mr. Justin Matthews was authorized by it to purchase in Tittle Rock, Arkansas, a cylinder, a head block, a pressing ram and heavy castings for a cotton seed oil plant.

Court; Bugene Bankford, Judge; 1. No assault of any kind was proved; no intent was shown, nor any “present ability” nor “unlawful attempt” to commit a crime of any kind proved. Kirby’s Digest, § 1583; 49 Ark. 179, 182; 77 Id. 39; 43 Tex. 576. Under our statute defining an assault as construed in 77 Ark. 37, the crime of assault with intent to rape is not established. Error is confessed.

Dodge, Special Chancellor; 1. There was a complete and adequate remedy at law, and in such case it was error for the chancery court to assume jurisdiction. 7 Ark. 520; 13 Ark. 630; 26 Ark. 649; 27 Ark. 97; 48 Ark. 331; 14 Ark. 50; id. 360; 18 Ark. 546; 16 Cyc. 45 and note 90; id. 46, 47 and notes. 2. It is shown by the complaint that another action was pending between the same parties for the same cause, wherefore the demurrer should have been sustained.

Winfield, Judge: It is undisputed that appellant signed the notes as surety merely. Of this fact parol evidence is admissible. 54 Ark. 97. Appellee admits knowledge of the fact that appellant signed as surety merely at the time he received the notes. No consideration is shown either to Tucker or to appellant, but, at most, appellant held the notes as collateral security for a debt which appellee alleges Tucker owed him.

Steel, Judge; STATEMENT BY THE COURT. In 1902 Old was the owner of a certain printing plant, and sold a half-interest in it to Turner for $400. Turner executed the following note: “Nashville, Arkansas, July 21, 1902. “On or before November 1st, 1903, I promise to pay to the order of W. J. Old the sum of four hundred dollars with interest from date until paid at the rate of ten -per cent, per annum.

Winfield, Judge; statement by the court. On the 30th of April, 1906, the German National Bank brought suit against Joseph Loeb and Helen Loeb for a balance upon two promissory notes. On November 5, 1906, the defendants filed an answer and counterclaim.

Hays, Judge; 1. When the indictment contains only one assignment, a failure to prove all the statement substantially as assigned is fatal. 48 S. W. 169; 9 Enc. of Ev. 775; 118 Ga. 330; 23 Neb. 436; 90 Mo. 530; 85 Ark. 195; 54 Id. 584. The variance was fatal. 2. A conviction for perjury cannot be sustained on the testimony of one witness; there must be corroborating facts and circumstances. 51 Ark. 140; 9 Enc. of Ev. 760 ; Greenl. on Ev. (15 Ed.) vol. 1, § 257; 90 S. W. 223.

H. Evans, Judge; STATEMENT BY THE COURT. The subject-matter of this action is an allowance made by the county court of Garland County to M. J. Murphy for work and materials alleged to have been done and furnished by him for the plumbing and heating of the county jail. Appellee, as a citizen and taxpayer of Garland County, duly prosecuted an appeal from the order of allowance to the circuit court.

Fulkerson, Judge; STATEMENT BY THE COURT. On the 12th day of September, 1906, a policy of fire insurance was issued by the Commercial Fire Insurance Company in favor of J. D. Waldron. The property insured was a one-story frame house in the town of Portia, in Lawrence County, Arkansas ; it was destroyed by fire on the 28th day of October, 1906,. during the life of the policy. On November 6, 1906, Waldron assigned his policy to C. W. Carter.

H. Bvans, Judge; STATEMENT BY TI-IE COURT. Carter Richardson brought this suit in the Garland Circuit Court against Fred C. Ashford, and united in the same complaint an alleged cause of action for slander with one for malicious prosecution.

The matters set up in the first paragraph of t’he answer were wholly inadmissible and harmful. 80 Ark. 158; 74 Id. 256. 2. A person who knows the market value may state it, but it is incompetent to bolster a witness by his own side by asking him to give the reasons upon which he bases his opinion. The reasons may be asked on cross-examination by opposite side. 49 Ark. 381. 3.

Meeks, Judge; 1. It was a'manifest abuse of the discretion of the court to refuse a continuance. The evidence needed was a complete defense, and the only evidence obtainable to prove the facts relied on. 24 Ark. 402; 30 Id. 72; 49 Id. 449; 50 Id. 276; 71 Id. 180; Kirby’s Dig. § 3505; 50 Ark. 161. 2. The wife is incompetent to testify against the husband. 71 Ark. 192; 77 Id. 431; 17 L. R. A. 728. Bigamy is not such an offense as will permit the spouse to testify.

Head, Special Judge; STATEMENT BY THE COURT. Vaughan brought suit against the St. Louis & San Francisco Railroad Company, alleging that he had six cars of cattle which were delivered to it in good order for shipment on January 6, 1906, and that the company carelessly and negligently allowed the cattle to remain in the cars on the side track at Ash-down for an unreasonable length of time, without food and water, and without being removed from the cars for exercise and rest,…

B. Beloate, Special Judge; There is here only a reservation of the use of the land, containing no’ words of inheritance. The reservation terminated upon the death of John Darter. Where a conveyance is made in fee, a reservation of the use of the land also in fee would be void. 1 Johns. Ch. 338; Id. 362; 82 Ark. 209; 26 Ark. 131. The reservation in this case is in gross, and such a right is-personal merely, not assignable nor inheritable.

Prohibition to Crawford Chancery Court; J. Virgil Bourland, Chancellor; STATEMENT BY THE COURT. This is a petition for writ of prohibition against the chancery court of Crawford County and the Hon. J. V. Bourland, chancellor, seeking to prohibit the court and the chancellor from proceeding to- entertain jurisdiction of a suit therein pending wherein E. C. Dunbar is plaintiff and W. T. Dunbar is defendant.

<p>Appeal from Lafayette Circuit Court; Jacob M. Carter, Judge;</p>

Neither knowledge of pendency of the action against the covenantee, nor even the fact that the warrantor is called to testify as a witness in the case, is such notice to the warrantor as is contemplated by law; but, on the contrary, he must have notice from the covenantee requiring him to defend in the action, and this notice must be distinct and unequivocal, preferably in writing, although some courts have held verbal notice to be sufficient. 2 Black on Judg. § 569; 8 Am.

Hays, Judge; The sixth instruction is erroneous in that it places upon the appellant a degree of care which t’he law does not require in cases of trespassers; erroneous also in suggesting to the jury that appellee may have had the appearance of not seeing or hearing t’he train in time to avoid the injury, whereas there is no evidence whatever on which to base such suggestion or instruction.

H. Evans, Judge; 1. There is no statutory provision for 'taking the testimony of a witness in the unusual manner adopted in taking the appellant’s deposition in this case. While the statute permits the taking of a witness’ deposition on account, of infirmities, etc., that must be upon notice. It does not authorize the procedure followed here. 2. The court erred in refusing the fourth instruction requested by appellant.

Fulkerson, Judge; 1. The court erred in refusing to permit appellant to amend its answer so as to deny the employment of appellee by the company, and the authority of the conductor to employ him. 65 Ark. 422; 43 Ark. 451; 62 Ark. 262; 85 Ark. 217; 84 Ark. 37.

Steel, Judge; 1. “Baggage” does not include everything a traveler puts in his trunk. 65 Ark. 365. Ror “baggage,” see also 106 Mass. 146; 74 Ark. 125; L. R. 6 Q. B. 612; 12 Wall. 274. Such articles only as are ordinarily taken by travelers for their personal use and, convenience. 12 Wall. 274. What is baggage is for the jury under proper instructions. 30 N. Y. 594; 14 Am. Rep. 356; 35 Vt. 605; 74 Ark. 125; 122 Ill. App. 359. 2.

Elliott, Chancellor; 1. Fquity prohibits a purchase by parties in position of trust of confidence. 20 Ark. 381. A trustee can not sell to himself, or for his own benefit. 23 Id. 622; 41 Ark. 264. 2. The trustee had no authority to sell the property as acreage; only by lots. Pie can not sell at great sacrifice. The powers of a trustee are strictly construed ; no presumptions are indulged. 27 Ark. 122. 1.

H. Bvans, Judge; In Missouri, where appellant and O’Neill assumed this relation, common law marriages are valid. 66 Mo. 391; 63 Mo. 501; 103 Mo. 191; Id. 266; 81 Mo. 562; 112 S. W. 282. Valid also in this State. 28 Ark. 19; 82 Ark. 77. There is no presumption of law that relations which were illicit in their beginning continued so after the impediment to marriage was removed, but on the contrary all legal presumptions are in favor of marriage. 19 Am. & Eng.

Winfield, Judge; 1. It was error to submit the question of punitive damages to the jury. “The element of willfulness or conscious indifference to consequences, from which malice may be inferred, is lacking.” 53 Ark. 7; 78 Ark. 331; 87 Ark. 123; 80 Ark. 260. 2. As to Newson, there was no actual damage, as appears by the verdict. Where there is no actual damage sustained, punitive damages are not recoverable. 12 Am. & Eng. Enc. of L-(2 Ed.), 29; 13 Cyc. 109.

Fulkerson, Judge, on exchange; 1. The record here is not sufficient to show negligence on the part of appellant. Under the facts as developed in this case, to hold appellant to a measure of precaution that would have prevented such an accident would be to make it an absolute insurer against any injury or accident that might occur in the operation of its trains in or out of its yards. Such is not the law.

Hutton, Judge; STATEMENT BY THE COURT. On the 30th day of May, 1908, J. N. Rachels made the following affidavit before T. B. Rogers, mayor of the city of Searcy, Arkansas: “Affidavit for Search Warrant. “County of White, City of Searcy: “Comes J. N. Rachels, and on oath states that a firm doing business in the city of Searcy on Spring Street, by the name of Turner & Slaughter, are keeping alcoholic liquors in their place of business for sale and to be given away, under a…

The appellee sued appellant, alleging: “That on September 15, 1906, the plaintiff and the defendant entered into a contract for certain alterations and additions to be made to the building known as the Boston Store and the building adjoining said Boston Store on the. west side thereof, situated in the city of Bt.

Wells, Judge; 1. All the circumstances point to the fact that the train had not reached the station, and under the circumstances appellee could not reasonably conclude that it had done so. 70 Ark. 264; 75 Ark. 165. And appellant could not be held responsible where the appellee, as the facts and circumstances show, failed to use the ordinary sense of sight. 7 L. R. A. 323; 12 Am. & Eng. R. Cas. 165. 2.

<p>IuquorS' — sai,E in original packags. — Under Kirby’s Digest, § 5093, providing that manufacturers of alcohol, vinous, ardent, malt or fermented liquors can sell liquors in original packages containing not less than five gallons, without license, a distiller may draw five gallons of whisky from a barrel, place it in a keg, and when properly stamped sell it as an original package. State v. Southard, 60 Ark. 247, followed.</p>

Failing to stop, look and listen, plaintiff was guilty of such negligence as to bar a recovery. 54 Ark. 431; 56 Id. 457; 61 Id. 549; 62 Id. 157; 65 Id. 235; 3 App. Cases, 1155 ; 2 Wood on Railways (Minor’s Ed.) 1518; 78 Ark. 55, 355, 520; 81 Id. 325; 62 Id. 235. 2. Review the instructions and contend that under the authorities supra the court erred in its instructions to the jury. 1. The' cases cited by appellant are not applicable.

H. Evans, Judge; 1. A hatchet is not necessarily a deadly weapon. 16 S. W. 257- 2. The State must prove the assault with a deadly weapon with the intent to inflict bodily injury, etc. Kirby’s Digest, § 15§3- 3. The court allowed incompetent, improper and prejudicial testimony to go to the jury without -even rebuke. 4.

Fulkerson, Judge; One who assists another in procuring liquor, or acts as his messenger in procuring same, notwithstanding both money and liquor may pass through his hands, provided he has no interest in the liquor or price, and acted as agent of the buyer and not of the seller, is not guilty of selling, or being interested in the sale of liquor. 23 Cyc. 182; 37 Am. St. 406; 57 S. E. 371; 68 Ark. 468 ; 72 Id. 14; 51 Id. 550; 82 Id. 488.

Appeal- from Sebastian Circuit Court, Greenwood District; Daniel Hon, Judge; statement by the court. Johnson brought suit against the Mammoth Vein Coal Company for a personal injury received in its mine; and, after hearing the evidence adduced, the circuit judge directed a verdict to be returned in favor of the defendant. The sole question on this appeal is whether the plaintiff’s testimony presented such facts as would justify the case going to the jury.

13 Ark. 236; 22 Id. 354; 29 Id. 262. The evidence of both Freeman and Golden was competent to show the general malevolence of deceased, and explanatory and in support of the assault. 24 S. W. 413. We can see no error in this cause prejudicial to appellant. By the introduction of the evidence of Freeman and Goldman, counsel were endeavoring to malee his disposition and reputation known by speciñc acts. This is not allowable.

■Appeal from Phillips Circuit Court; Hance N. Hutton, Judge; 1. In construing the validity of municipal ordinances, a count will not consider the purpose the council had in view in its passage. 109 S. W. Rep. 526; 1 Dillon on Mun. Corp. (2 ■Ed.) 363. 2. Municipal corporations have authority to regulate hotels and make a reasonable charge for such regulation. Kirby’s Digest, § 5454; 41 Ark. 485; 53 Id. 342. 3.

Carter, Judge; No crime is- made out, even by the State’s own evidence, and appellant’s explanation of the presence of the beer in his stand and his purpose in having it there made out a case for the jury. The court’s instruction was, therefore, not only an invasion of the province of the jury, but amounted in effect to a denial of the right to trial by a jury. Art. 7, § 23, Const.; 1 Bishop, Crim.

Court; Jacob M. Carter, Judge; STATEMENT BY THE COURT. Appellant was indicted for the crime of selling liquor without a license in Hempstead County, Arkansas, on the 19th day of October, 1907. Witness Lewis testified that he gave appellant an order for some whisky, gave him the money in the morning, and in the afternoon appellant handed him a quart of whisky, at the head of the stairs in the Opera House.

Winfíeld, Tudge; STATEMENT by the court. The grand jury of Perry County, Arkansas, at the August term, 1908, returned the following indictment against appellant : “The grand jury of Perry County, in the name and by the authority of the State of Arkansas, accuse Julius Zinn of the crime of soliciting orders for the sale of intoxicating liquors in prohibited territory, committed as follows, to-wit: The said Julius Zinn, in the county and State aforesaid, on the 25th day of…

Wells, Judge; STATEMENT BY THE COURT. Appellee sued appellant in a justice’s court, alleging that appellant was a corporation; that he was employed by it on May 28, 1907, and was to be paid $108 per month, and that he continued in its employ until June 11, following, a period of fifteen days, when he was discharged and refused further employment by the appellant.

Carter, Judge; STATEMENT BY THE COURT. This is an action for tort brought by W. H. Baty against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for an alleged wrongful expulsion from one of its passenger trains. W. H. Baty has resided in and near Nec'hes, Texas, for the past twelve years. His family consists of himself, wife and two children.

<p>1. Criminal law. — plea or guilty — entry op judgment at subsequent TERM.. — Upon a plea of guilty entered at one term of court, judgment may be entered at a subsequent term of the court. (Page 291.)</p> <p>2. Same — right To withdraw plea op guilty. — Where one accused of selling liquor illegally entered a plea of guilty in the circuit court under an agreement with the .prosecuting attorney that no fine should ever be assessed against him in the case unless he should again be convicted of violating the liquor laws of the State, and he was subsequently convicted of violating the liquor laws before a justice of the peace, and appealed therefrom to the circuit court, whereupon the prosecuting attorney asked that judgment be entered against him on his plea, it was not an abuse of the trial court’s discretion to refuse to permit him to withdraw his plea of guilty and substitute a plea of not guilty. (Page 291.)</p> <p>3. Same — time op rendition OP judgment. — Where one accused of selling liquor illegally entered a plea of guilty under agreement with the prosecuting attorney that no fine should be assessed against him unless he should again be convicted of violating the liquor laws, and he was convicted of such crime before a. justice of the peace and appealed to the circuit court, it was not error to render judgment on his plea of guilty without awaiting the final determination of his appeal. (Page 292.)</p>

Winfield,, Judge; 1. The rule requiring the master to furnish a safe place in which to work is not applicable where the insecurity complained of occurred in the progress of the work. 76 Ark. 69; 65 Fed. 48; 67 Fed. 507; in U. S. 313, 318; 58 Fed. 525; 12 C. C. A. 507. That rule is also not applicable in this case because the deceased was charged with the duty of preparing the place to work and of keeping it safe. 26 Cyc. 1183; Id. 113, 2. The first instruction is wrong.

Mahoney, Chancellor; No fraud is alleged or shown. A deed absolute on its face will not be construed as a mortgage, unless the evidence is clear and decisive that it was given and accepted as a mortgage. 19 Ark. 278; 31 Ark. 163; 40 Ark. 146; 75 Ark. 554.

Martineau, Chancellor; 1. The provisions of the decree sought to be modified are classed in law as alimony, and can not be anything else. It is not a debt; nor can it be reached by creditors, etc. 44 Iowa, 567; 129 N. Y. 566; 44 Wis/354; 184 Ill. 375; 45 Id. 167; 64 Vt. 302, 495; 99 S. W. 830; Kirby’s Digest, § 2682; 184 Ill. 375; 181 U. S. 183. 2. The power of a court of equity to alter or modify the terms of a decree relating to alimony is well settled.

Steel, Judge; An indictment was returned against Jack DeLoney in Little-River Circuit Court, as follows (omitting caption) : “The Grand Jury of Little River County, in the name and by the authority of the State of Arkansas, accuse the defendant, Jack DeLoney, of the crime of running a gambling house, committed, as follows, viz, the said defendant in county and State aforesaid, on the 1st day of January, 1908, then and there owning, using and controlling a certain building or…

Virgil Bourland, Chancellor; Appellant concedes that the south one-half of north-east one-fourth in controversy was forfeited to the State and by it in due form conveyed to appellee in 1888, and that he took and has held possession more than seven years under color of title. But the chancellor erred as to the west one-half of lot two.

Carter, Judge; There is no proof to sustain a conviction of aggravated assault. Kirby’s Digest, § 1587. The evidence clearly. shows an abandoned and malignant disposition on the part of the assailants, and is sufficient to sustain the verdict, under the statute. Kirby’s Digest, § 1587. It is immaterial whether Warren actually kicked Tardy or not; it is manifest that he aided, participated in and assented to the commission of the crime. 45 Ark. 361.

Mahoney, Chancellor; STATEMENT BY THE COURT. The complaint alleges that G. M. Hampton, the plaintiff, is a citizen and taxpayer of the city of Fordyce, which was organized into a special school district under the laws of the State of Arkansas providing for the organization of special school districts co-extensive with the territory of any incorporated city or town; that the Legislature, by an act approved April 26, 1905, authorized said special school district to borrow…

Labor is a “valuable thing,” and afforded a sufficient consideration to support the promise of defendant to give ferriage to the parties who performed labor on the boat. Kirby’s Digest, § 3582; 9 Cyc. 308, 311; Bishop on Contracts, § 38. The questions in this case are settled in 44 Ark. 184. The fourth instruction is correct. Id.; 19 Cyc. 501.

Haden Humphreys, Chancellor; 1. The sale of the lands under the judgment was never approved and confirmed. The report of sale does not describe any lands, nor show that plaintiffs ever had any notice of the proceedings, and without notice could be no confirmation, and without confirmation there could be no sale. 69 Ark. 539. An order of confirmation of a sale is a final judgment. 73 Ark. no. Judgments and orders without notice are void. Kirby’s Digest, § 4424- 2.

Mahoney, Chancellor; 1. In the absence of fraud or imposition, .it requires clear and decisive testimony to prove that a deed absolute in form was intended as a mortgage, and a conveyance absolute in form is not converted into a mortgage by a contemporaneous agreement for a re-sale and purchase. 75 Ark. 551. 2. The tender was insufficient under the proof, for it is shown by uncontradicted testimon)'- that the actual amount due was $872, instead of $725. 1.

Hudgins, Judge; The statute under which this action is prosecuted is highly penal, and should therefore be strictly construed. Kirby’s Digest, § § 6681 to 6684 incl.; 40 Ark. 97; 1 Conn. 502; 38 Ark. 519; 43 Ark. 413; 53 Ark. 336; 56 Ark. 45~47: 59 Ark- 344- Statutes in pari materia are to be construed together as one statute, each a part of the other. 40 Ark. 452; 4 Ark. 410. Section 2941, Kirby’s Digest, therefore should be read and construed with these sections.

Winfield, Judge; statement, by the court. H. K. Cochran brought an action against the Chetopa Mill & Elevator Company, before a justice of the peace of Pulaski County, to recover damages amounting to $32, which he claimed to have sustained by reason of defendant’s failure to deliver to him 400 sacks of corn chops which he had purchased from it.

<p>1. Appeal and error — bill oe exceptions — amendment.—Where a bill of exceptions shows that the trial court gave oral instructions, but fails .to show any request that they be reduced to writing or any exceptions to the instructions, the bill cannot be amended by motion for new trial, or affidavits attached thereto, stating that a request for written instructions was made or that the oral instructions were excepted to. (Page 351.)</p> <p>2. Same — bill oe exceptions — affidavit oe bystanders. — It is only when the circuit judge refuses to certify a bill of exceptions'as presented to him by a party that the latter is permitted to present his contention through the affidavits of bystanders. (Page 352.)</p> <p>3. Same — how matters brought into record. — Alleged errors of the trial court in refusing instructions asked by appellant and in permitting improper arguments to be made by appellee’s counsel, will not be considered on appeal if they are not shown by the bill of exceptions, even though they are set out in the motion for new trial. (Page 352.)</p>

Martineau, Chancellor; 1. If the penal provisions of the ordinances are to be tested, Dreyfus is not a proper party to the action; the city or its proper officials being the parties in interest. As to the penal provisions, Boone has a complete and adequate remedy at law, and chancery would have no jurisdiction. 2.

Martmeau, Chancellor; STATEMENT BY THE COURT. William Metz brought suit in equity against Herman Kahn, alleging,that on the 6th of October, 1899, he conveyed to Kahn a tract of land in Pulaski County as security for $600 loaned by Kahn to him; that on December 27, 1889, he conveyed to Kahn lots 4, 5 and 6 of block 6, in the city of Argenta, as security for $450 loaned plaintiff by defendant; that on the blank date he conveyed to defendant a tract of land in Lonoke County.

Virgil Bourland, Chancellor; 1. Under the evidence, it was error to give judgment in favor of Marshall for any amount; but if his contention is correct, then he would be entitled only to one-half of the commission of $10,000.00 (the amount named in the contract) after the firm expenses in negotiating and finally concluding the sale were deducted. 2.

H. Humphreys, Chancellor; One who signs a contract must stand by the words of -that contract. If he will not read what he signs, he alone is responsible for his omission.- 32 Ark. 327; 70 Ark. 515; 71 Ark. 188; 91 U. S. 50; 35 Ark. 559. Not only so, but he must show that he was guilty of no laches in signing before he can be relieved from this contract. 56 N. Y. 137; 66 Me. 109.

Hudgins, Judge; The fees sought to be retained by the clerk in this case are authorized under an act of Congress, but he is not required by law to perform these services, as is specified in the act of the Legislature fixing his fees. On the contrary, while he may, under the act of Congress, perform the services, yet he may lawfully decline it, and is not required to do so.

<p>1. Certiorari — parties.—One who was not a party to a habeas corpus proceeding before a chancellor is not entitled to apply for a writ of certiorari to review the chancellor’s finding. (Page 390.)</p> <p>2. PIabeas corpus — parties.—Upon habeas corpus to procure petitioner’s release from imprisonment for contempt of court, the only parties entitled to be heard are the applicant for the writ and the officer having him in custody, unless it be the State. (Page ,391.)</p>

<p>1. Appeal and error — when complete. — When an appeal is granted, and an authenticated copy of the record is filed in the appellate court, the suit is thereby removed, though no summons was issued. (Page 392.)</p> <p>2. Same — dismissal eor want op summons. — Where a transcript on appeal was lodged in the Supreme Court three days before expiration of one year from rendition of the judgment appealed from,- and a summons was immediately issued but was never served, and six months later an alias summons was issued and served, in the absence of explanation why the summons was not served earlier, the appeal will be dismissed. (Page 392.)</p>

Kirby’s Digest, § 5144; 102 S. W. 7. The internal revenue license was properly admitted in evidence, there being no evidence that it -had ever been cancelled, the same to go to the jury for what it was worth.

.Robertson, Chancellor; STATEMENT BY THE COURT. On the sixth of November, 1905, A. H. Chatfield, trustee, brought this suit, in .the Cross Chancery Court, against the Iowa & Arkansas Land Company to cjuiet title to certain- lands, all of 'which are wild and uninclosed.

Virgil Bour-Icmdj ¡Chancellor; STATEMENT BY THE COURT. On the first day of April, 1890, appellant, D. S. Kenney and his wife, Abbie D. Kenney, executed to the Topeka Investment & Doan Company their promissory note due and payable^ five years after date to said company for'the sum of $700, together with interest thereon at the rate of eight per cent, per annum until paid, interest payable semi-annually on the first days of October and April each year thereafter according to…

Stith v. State, 13 Ark. 680, is conclusive of this case. The laws against gámbling “shall be so construed as to have effect, and to -include all such games and devices as are not specially named, and in all cases when construction is necessary, it shall be in favor of the prohibition and against the offender.” Kirby’s Dig. § 1745. The table described might have been used for many purposes, but was in fact being used for the playing of poker.

Hays, Judge; statement 'by the court. In the spring of 1903, a partnership was formed between H. W. Baskin and J. H. Garrison, under the firm name of H. W. Baskin & Company, for the purpose of dealing in cattle, cotton seed and fertilizers. Baskin was to look after the trading end of the partnership, and Garrison was to furnish the money necessary to run it.

Phillips, Special Judge; 1. There is no proof that the hogs were stolen, nor that they were Harris’s hogs — just a suspicion that they might have been stolen. A suspicion is not enough to sustain a conviction. 85 Ark. 360. Nor did Harris say that these were his hogs, nor that they were stolen. 2. An alibi was clearly shown. The verdict is inconsistent with the evidence — the result of passion or prejudice. 51 Ark. 467; 56 Id. 314; 46 Id. 149. 3.

Grace, Judge; STATEMENT BY THE COURT. The appellant, John A. Gauger & Company, of Chicago, is a general sash and door dealer and distributor; and the appellee, the Sawyer & Austin Cumber Company, of Pine Bluff, Arkansas, is a manufacturer of lumber, sash and doors. Appellant wrote to appellee, asking for prices on doors and sash.

Hutton, Judge; STATEMENT BY THE COURT, Burke & Joseph, a contracting firm, filed suit in the White Circuit Court against D. P. Cullen, U. B. McCurdy and the Cullen-MoCurdy Construction Company, alleging that the defendants were indebted to them in the sum of $11,000, and filed an affidavit for attachment, on the ground that the defendants were nonresidents of the State and had removed a material part of their property out of the State, not leaving enough to satisfy the…

Carter,. Judge; 1. Evidence of threats were not admissible, as defendant was the sole aggressor, by his own testimony. 29 Ark. 248; 79 Id. 594; 72 Id. 427; 76 Id. 495; 55 Id. 604; 55 Id. 593. 2. There was no testimony upon which to base -an instruction as to murder in the second degree. 21 Ark. 69; 23 Id. 730; 29 Id. 17; 52 Id. 120; 77 7d.- 234. 3. The judgment should be affirmed, there being no error on the record as a whole. 10 Ark. 9.

<p>1. Executions — title or innocent purchaser — unrecorded deed. — A bona fide purchaser at execution sale takes title as against the holder of an unrecorded deed. (Page 450.)</p> <p>2. Appeal and ERROR — abstract—exploring transcript. — Where appellant neglects to set out in his abstract such matters as are relied upon to secure a reversal, the court will not explore the record to discover errors of the trial court, except for the purpose of settling conflicting statements of counsel as to what the record contains. (Page 450.)</p>

It was no part of the res gestae. 67 Ark. 594, 604; 56 Id. 326. The statement detailed by Arrington were clearly part of the res gestae. 66 Ark. 494. A reversal is never ordered for the erroneous admission of incompetent testimony which is but cumulative and corroborative of competent testimony properly admitted. 77 Ark. 74; 76 Id. 276; 74 Id. 417; 68 Id. 607; 58 Id. 125; lb. 446; 56 Id. 37; 32 Id. 337; 22 Id. 79; 15 Id. 372.

The acts of negligence charged in the complaint are, the failure to give the statutory signals of the trains approach, and running the train at an excessively high rate of speed over the highway and through the town. (1) Failure to give the signals required by statute, under Kirby’s Digest, § 6595, was actionable negligence. 76 Ark. 227; 80 Ark. 19; 69 Ark. 134; 53 Ark. 201; 78 Ark. 251.

Hudgins,. Judge; STATEMENT BY THE COURT. Reed was a section hand, in the employ of the St. Louis, Iron Mountain & Southern Railway Company on its White River branch, near Yellville, in Marion County. Several of the section crew were returning from work on a hand-car furnished by the railroad company, and Reed and three of his companions were pumping when the lever bar, or upright iron supporting the handle, broke, and he was thrown from the car and injured.

<p>Appeae and error — presumption where evidence is not brought up.— Where a proceeding to vacate a judgment after term was dismissed for want of prosecution, and a motion to set aside this dismissal was made, which, after hearing evidence, was overruled,, the. presumption on appeal will be that the motion was properly overruled if the evidence heard by the trial court is not brought up in the transcript.</p>

Hart, Chancellor; 1. To constitute curcesy, there must be a lawful marriage, seizin in fact or in law, in the wife, birth of issue and death of wife. All the facts are clearly proved. 47 Ark. 175; 21 Id. 601; 15 Id. 585; 63 Id. 254; 64 Id. 356; Tiedeman on Real Property, pp. 106-7; 2 Minor’s Inst. 121; 8 Cyc. 510; Wash, on Real Prop., PP- 174-5; 49 Nans. 49;-55 Iowa 256; 3 Oh. St. 377; 1 Pet. (U. S.) 507.

H. Evans, Judge; 1. When an insurance company and a policy holder agree upon a settlement of a fire loss at a definite sum to be paid on a day named, and the company under said settlement is ready to pay the sum, but is prevented by garnishment proceedings, it is only liable for the sum agreed upon, and no more. It is the duty of the garnishee to hold the funds. 3 Ark. 509; 6 Id. 391; 19 Id. 249; 40 Id. 531.

Robertson, Chancellor; 1. The execution, acknowledgment and filing of the McDonald plat, and the subsequent sale by him of lots with reference thereto, constitute an irrevocable dedication to public use of all streets and alleys therein described. 109 S. W. (Ark.), 541 ■; 80 Ark. 489; 77 Ark. 221 ; Id. 177; Id. 570.

<p>Partnership — liabieity.—As each partner is liable individually for all of the debts of a firm, a payment by one of two partners of one-half of the partnership note will not absolve him from liability for the remainder of the debt.</p>

Hudgins, Judge; statement by the court. Viola May Noel, an infant twenty months of age, was struck by a locomotive upon defendant’s railroad, and this action was brought to recover damages for her injury. In September 1907, W. W. Noel, his wife, Polly Ann Noel, with the infant, Viola May, in her arms, and their fifteen-year old son, Johnnie, were walking across a trestle upon defendant’s line of railway near Bergman in Boone County, Arkansas.

This suit was begun by appellant against appellee in a justice’s court for a balance alleged to be due on lumber which appellant had sold appellee. The amount claimed was $100. Appellee denied orally that it was indebted to appellant in any sum, but claimed that appellant was indebted to it on account of a breach of the contract made between appellant and appellee in regard to sale of lumber, in the sum of $175.

H. Evans, Judge; There is no sufficient showing here for recovery on the ground of mental anguish. Appellee was deprived of no privilege by reason of the delay, and a speedier transportation of the remains, and burial, would have made no material difference in her emotions. The claim that she was shocked when she saw that the telegram was dated a day prior to its receipt by her is too intangible for remuneration in money.

<p>1. Appeal and error — instructions—necessity oe exceptions. — Errors of the court in giving or refusing instructions are waived where no exceptions to the court’s action in reference thereto were saved. (Page 506.)</p> <p>2. Same — when exceptions saved. — Exceptions to the action of the trial court in giving or refusing instructions must be saved during the trial and brought upon the record in hill of exceptions, and cannot be saved by merely assigning them as grounds of a motion for new trial. (Page 506.)</p>

Hays, Judge; Mrs. Belle was not the sole and unconditional owner in fee simple, but had sold it. The policy was void. 72 Ark. 47; 77 Id. 57; 62 Id. 348; 63 Id. 187; 67 Id. 584; 82 Id. 400. 2. There was no waiver by the company. The agent knew nothing of the policies until after the fire. Besides he was the attorney, of the plaintiff. 3 Cooley’s Briefs on Insurance, 2774; 26 So. 655; 66 la. 466; 122 N. Y. 578; 24 Oh. St. 67. 3.

Carter, Judge; STATEMENT BY THE COURT. Appellant was a milliner in the city of Texarkana, Arkansas. The store she occupied was eighty feet long, twenty-five feet wide, and sixteen feet from floor to ceiling. Appellee was a corporation engaged in the manufacture, distribution and sale of gas in Texarkana. Appellant employed appellee to install two arc lamps in her store. These depended from the ceiling.

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

Steel, Judge; A -conviction in the circuit court for gaming is a bar to a subsequent prosecution in the same court for gaming with a minor growing out of, based upon and embraced in the identical act upon which conviction for gaming was had. Kirby’s Digest, § 2514.

Carter, Judge; statement by the court. T-his is an action for personal injuries by Ratcliffe against the Louisiana & Arkansas Railway Company. Upon the trial the plaintiff gave in substance the following evidence: He was in a wagon with his son, a lad of sixteen, and two men, and they were driving on a public road which crossed the tracks of the appellant railroad company in the town of Stamps. The- tracks crossing the public road were the main track and two switch tracks.

On the 6th day of August, T907, condemnation proceedings were instituted by the Kansas City Southern Railway Company against Catherine K. Boles and others for the assessment of damages for the right of way of its railroad across lots one to twelve fractional in block 533, Reserve Addition to the city of Fort Smith, Arkansas, belonging to said defendants.

<p>Tender — costs.—Where, in a suit to redeem land from a tax sale, the parties agree of record as to the amount due in case plaintiff is entitled to redeem, which amount is paid into court by the plaintiff, and the court holds that he is entitled to redeem, he does not incur liability for costs on appeal because the trial court erred in directing payment of a less sum on redemption than was tendered.</p>

2. Same — deed oe state land commissioner as evidence. — A deed of the Commissioner of State Lands, conveying lands forfeited for taxes, authenticated by his official seal, is prima facie evidence of.title, although it has not been recorded. (Page 547.) Appeal from Clark Chancery Court; James D. Shaver, Chancellor; The alleged “duplicate deed” to Willis S. Smith, Jr., was improperly admitted.

'Appeal from Crawford Circuit Court; leptha H. Evans, Judge; The negligence of the master may be assumed when known to exist, as well as the ordinary hazards of the service. 86 Ark. 508. If the servant realizes the danger, and still elects to expose himself to it, then, although he acts with the greatest care, he may, if injured, be held to have assumed the risk. 77 Ark. 367.

H. Evans, Judge; 1. By the terms of the application and the policy sued on the answers to the questions in the application were made warranties ; and it is expressly stipulated in the policy that it should become void if the insured at the time had, or should thereafter procure, any other insurance, whether valid or not, on the property covered in whole or in part by this policy.

Steel, Judge; There is no evidence that the staves were not according to contract. The court erred in assuming that they did not come up to the contract. 14 Ark. 530; 36 Id. 641; 37 Id. 580; 54 Id. 336; 56 Id. 457; 61 Id. 549; 70 Id. 441; 74 Id. 19; Id. 468; 75 Id. 232; 76 Id. 348; 77 Id. 109. Where one of two innocent parties must suffer by reason of an injury, it should be he who is first at fault. 95 Ga. 69.

Steel, Judge; statement by trie court. The appellee sued appellants, J. T. Boland and W. H. Robinson, alleging: “That Era Stanley is and at all the times hereinafter mentioned was the wife of this plaintiff.

from the lands, and also the right to ship them from the State; and the act of the Legislature prohibiting the shipment of fish from the State was, as to him, unconstitutional and void.

<p>1. Trial — opening statement. — In a prosecution for murder it was reversible error for the attorney for the State in his opening statement to say: “This is not the first time the defendant has taken human life;” such statement being foreign to the .issues and calculated to prejudice the jury against defendant. (Page 580.)</p> <p>2. Evidence — RES gestae. — A statement by the deceased, made a few minutes after receiving the blow from which he died, as to the circumstances of his killing, was not admissible as part of res gestae. (Page 58i.)</p> <p>3. Same — dying declarations — Whether declarations were made under a sense of impending death is a preliminary question of fact for the trial judge, and his finding that they were so made will not be overturned where there is evidence to support it. (Page 582.)</p> <p>4. Homicide — modification of judgment. — Where, on appeal from a conviction, of murder in the second degree, error is established, but the defendant’s testimony shows that he is guilty of voluntary manslaughter, the judgment will be affirmed for voluntary manslaughter unless the Attorney General elects to have the cause remanded for a new trial. (Page 583.)</p>

M. Stuckey, Special Judge; While it is within the discretion of the court as to whether a continuance is granted, it is error to abuse that discretion. 60 Ark. 564; 71 Id. 180. When plaintiff is permitted to amend his complaint showing an entirely different date, defendant, on proper motion, should be granted a continuance on ground of surprise. 71 Ark. 197; 67 Id. 143. A party stealing a ride on a train commits a misdemeanor. Acts 1905, c. 191.

H. Evans, Judge; The limitation act as to foreign judgments and decrees is five years. 23 Cyc. 1564; Wood on Limitations, § 30 n. 3; xo Ark. 597; 5 Id. 510. The plaintiff can not recover of the defendant alone. The plaintiff in an action on a judgment must recover against all of the defendants or none. Freeman on Judgments, § 439.

<p>Appeal from Crittenden Chancery Court; W. J. Ramb, Special Chancellor;</p>

<p>Appeal from Clay iCircuit Court; Frank Smith, Judge;</p> <p>The promise was nothing more than a collateral undertaking. 12 Ark. 174; 70 Id. 79; 3 Bl. Com. (Lewis Ed.), 1x51, note 35; 104 N. W. 1046; 139 N. C. 533.</p>

A carrier is not liable in damages for failure to ship promptly goods tendered to it for shipment, where there is an unavoidable shortage of cars resulting from an unforeseen and unexpected accumulation of business along its line. 70 Ark. 357; Id. 59; 61 Ark. 560; 43 L. R. A. 225 and notes.. 2. In 'this1 case the cotton was damaged when received. 3.

The city of Stuttgart brought suit in the circuit court of Arkansas County against R. B. Gregg, the material parts of the complaint being as follows: That Stuttgart is a city of the second class; that on the 7th of December, 1903, its city council duly passed an ordinance to provide for the construction of sidewalks within said city.

Steel, Judge; The court erred in refusing to instruct the jury that they must be satisfied of defendant’s guilt “to a moral certainty.” 69 Ark. 538. The argument of the prosecuting attorney was prejudicial. 58 Ark. 481. The -offensive argument was calculated to strike deep, and neither rebuke nor retraction could destroy its evil effect. 70 Ark. 305; 76 N. W. 462.

Martineau, Chancellor; STATEMENT BY THE COURT. On the 1st day of February, 1904, L,. B. Beach entered into a written contract with Willis Guinn, a negro, to convey to him the real estate involved in this controversy. The consideration named in the contract was $550. The contract re-cities that $25 of it were paid in cash, and that notes bearing the same date as the instrument were executed for the deferred payments.

Elliott, Chancellor; Equity is without jurisdiction of a suit for partition of lands held adversely by another. 27 Ark. 77; Id. 159; 40 Ark. 155; 47 Ark. 23S; 70 Ark. 432; 71 Ark. 544; 74 Ark. 484; 75 Ark. 6; 72 Ark. 256; Kirby’s Digest, § 6518. Having acquired jurisdiction of an action on any equitable ground, a court of chancery will retain jurisdiction to settle all matters in controversy, i Ark. 31; 1 Qrawford’s Digest, cols. 638-640; 3 Id. 348; 11 Ark. 349; 31 Ark. 345.