Volume 89 — Arkansas Reports

Wallace, Chancellor; STATEMENT BY THE COURT. W. H. Marshall and H. S- Cline filed suit in the Yell Chancery Court against Fay Bridges, Louis Lorch, Max Kaufman and the State Life Insurance Company of Indianapolis, Indiana. They alleged that prior to the 18th of October, 1905, Louis Lorch was acting as agent of the State Life Insurance Company of Indianapolis, Indiana, with headquarters at the city of Dardanelle, for the purpose of doing a general life insurance business.

Fulkerson, Judge on Exchange of Circuits; statrmrnt by thr court.

H. Humphreys, Chancellor; There is nothing in the evidence to show that appellant knew of her rights, or had any information with reference to them until a few days before she proceeded to assert them. In view of the unfortunate situation of this appellant, to presume that she should have had such knowledge would be unreasonable and inequitable. The doctrine of- laches and estoppel does not apply here. 6 Am. Rep. 112; 62 Ark. 316; 102 U. S. 87; 10 Ark. 212; 43 Ark. 21. 1.

Hugh Basham, Judge; STATEMENT BY THE COURT. On the 23d day of May, 1906, Rankin Bros. & Winn, a firm composed -of J. A. Rankin, J. L. Rankin and M. D. Winn, brought suit in a justice of the peace court in Illinois Township in Pope County, Arkansas, alleging that the Rock Island Plow Company was1 indebted to them in the sum of $219^97 for goods sold to it.

<p>1. Offices — power of governor to fill vacancies. — Kirby’s Digest, § 7991, authorizing the Governor to fill a vacancy in office until a special election can be held under the provisions of the Constitution, is not in conflict with the Constitution. (Page 32.)</p> <p>2. Same — Where a circuit judge has died, there is a vacancy in the office entitling the Governor to fill it temporarily until a regular judge is elected, even though'the practicing attorneys in attendance upon the court have elected a special judge in accordance with section 21, article 7, of the Constitution. (Page 33.)</p>

Phillips, Special Judge; 1. Courts may permit amendments,and allow new issues to be made, but no amendment can be allowed to change the entire proceedings. 44 Ark. 376; 55 Id. 282; 61 Id. 252; Kirby’s Digest, § 6145; 75 Ark. 465. 2. The covenant for quiet enjoyment runs with the land in all rent contracts. Wood, Landlord and Tenant, § 365. 3.

Robertson, Chancellor; This court has held: “Color of title is defined to be that which in appearance is title, but which in reality is no title.” 47 Ark. 528; 67… Held: “Color of title is defined to be that which in appearance is title, but which in reality is no title.” 47 Ark. 528; 67 Ark. 188. It has also held that the contents of the will were not established. 73 Ark. 20. The question as to the contents of the alleged will is no clearer now than on the former appeal.

It would be unreasonable to grant a continuance on the grounds set out in this motion. 36 Ark. 328; 54 Ark. 244; 57 Ark. 167. It was plainly interposed for the purpose of delaying the trial, and ought not to be considered. 67 Ark. 290.

<p>Appeal from Fee Chancery Court; Edward D. Robertson, Chancellor;</p> <p>1. The complaint on its face is sufficient. An allegation that the mistake was a fraud on his rights was not necessary. Courts of equity will relieve against mistakes in proper cases, although no formal charge of fraud is made; but to determine what is or is not a proper case, a hearing of the facts must be had, as thevdo not appear on the face of the pleading. Victoria F. Rep. 154; 2 Greene (Iowa), 263. See, also, 76 Ark. 153.</p> <p>2. Acquiescence effects a ratification only when made with full knowledge of the facts. Where it is made without such knowledge, the ratifying party may rescind as soon as he comes to full knowledge of the facts, where the rescission works no injury to the other party. 19 Pick. (Mass.), 300; 2 Bibb (Ky.), 163; 4 Am. Dec. 689; 47 N. J. Fq. 51; 7 Ga. 278.</p> <p>3. If the facts' on the hearing entitle him to it, the appellant is not deprived of the relief sought by the fact that the contract was for the time an executed one. 87 N. Y. 327; 41 Am. Rep. 371; 3 Kenner, Fq. Cas. 286; 67 N. Y. 338.</p> <p>H. F. Roleson, for appellee.</p> <p>There is no allegation that the lot is worth more than $600, that it is grossly inadequate, nor in fact that this sum is not a fair and reasonable price for it. If he received all the arbitrators thought his lot was worth, that should settle the matter; and there is no allegation that he did not.</p> <p>There is no .showing here for equitable interference. It was simply a question of determining the value of t'he lot. The court might relieve if the mistake appeared on the face of the award, or some contemporaneous writing, or is voluntarily admitted by the arbitrators. 2 Johns. Ch. 339; 37 Mo. 450. But the party must show from the face of the award that but for the mistake the award would have been different. 116 N. Y. 19; 32 Ark. 438.</p>

Winfield, Judge; The fourth instruction, based upon the theory that appellant owed appellee the duty to stack the meal so as to-prevent it from falling upon him, is not justified by the testimony. The witnesses all say that the meal was stacked in the same manner that the mill had been stacking meal for thirty years; that it stood in that condition all the season, and that it only became dangerous after the hands began to tear it down, and then the danger was apparent to all.

Steel, Judge; No record of the proceedings of the board of equalization was' kept as required by law. These proceedings can not after-wards be bolstered up by oral testimony. 84 Ark. 347-349. It was not only erroneous to make the increase on the aggregate assessment, but the action of the board in this case was equivalent to an attempt by 'them to make an independent assessment of the capital stock of the company.

Wells, Judge; 1. Appellee’s testimony, detailing the causes of her mental worry, the fear of death, the fact that she had a sister to die of consumption, the fear that she herself was going into consumption, etc., was clearly incompetent and prejudicial. “To recover damages on account of the unintentional negligence of another, it must appear that the injury was the natural and probable consequence thereof, and that it ought to have been foreseen in the light of attending…

Riddick, Judge; 1. The affidavit for warning order, made on some day prior to the filing of the complaint, is not in compliance with the statute, and does not warrant the issuing of a warning order. Sandels & Hill’s Digest, § 579. 2. The warning order was fatally defective as to Nealey Cannon, her name there appearing as Nellie; and the appointment of guardian ad. litem was likewise defective, her name appearing in that order as Nettie.

24 Ark. 561; 33 Ark. 824; 38 Ark. 243; 51 Ark. 43; 70 Ark. 246. If it be conceded that appellant by his foreclosure suit obtained such title as appellee herself had, yet the interest of the minor children could not be obtained in that way, and their interest and that of creditors at least, could be protected through the administratrix. The reason for granting the letters of administration cannot be questioned in this case. 46 Ark. 373.

Original petition for certiorari to Jefferson Chancery Court; John M. Elliott, Chancellor; 1. As there is no right of appeal from a judgment for contempt, this court will quash such judgments for error, as well as for excess, of power and for irregularities in proceedings. 22 Ark. 151; 73 Ark. 538, 366. 2. The judgments were void, there having been filed no affidavit or its equivalent. This is required in all cases of constructive contempt. 1 Tidd, Pr. 479; 4 Blackst.

D. Block, Special Chancellor; 1. Since on appeal chancery cases are tried de novo, the findings of a chancellor are persuasive merely, and, if, on review of the cause, it appears that his findings are .against a clear preponderance of the evidence, this court will reverse. 75 Ark. 72; 31 Ark. 85; 43 Ark. 307; 77 Ark. 305. 2.

A verdict should have been rendered for defendant, as the evidence shows the train stopped long enough for passengers to depart. There was no question for a jury. 54 Ark. 25; 55 Id. 428; 49 Id. 182; 81 Id. 579; 85 Id. 529; 24 A. & E. Ry. Cases, N. S.) 922 and notes; 33 Id. 520 and notes; 18 L. R. An. 599; 73 Ark. 548. 2.

<p>Appeal from Calhoun Chancery Court; Bmon 0. Mahoney, Chancellor;</p>

Evans, Judge; statement by the court. Harry Pell, a minor eighteen years of age, by his next friend, Frederick Pell, brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries alleged to have been received by being forcibly ejected from a moving freight train by a brakeman in the employ of the railroad company.

Lea, Judge; statement by the court. The Board of Public Affairs of the city of Tittle Rock let a contract for the paving of West Markham Street. The Arkansas Asphalt Company was the successful bidder, and entered into a contract to construct an asp'haltum pavement on the designated portion of West Markham Street, and to maintain the same in good order and condition for a period of ten years.

Hutton, Judge; STATEMENT BY THE COURT. The appellant alleged that he was a passenger on appellee’s train from Judsonia to Bald Knob; that the purpose of his trip was to visit a son, who resided about a fourth of a mile south of the depot at Bald Knob near the defendant’s railroad track; that when he arrived at Bald Knob and alighted he found the street leading south to his son’s house impassable, rendered so on account of the wilful negligence of the defendant company, and…

Wallace, Chancellor; Any statements made by the agent who made the sale contrary to the written contract would not be binding on the vendor. 76 Ark. 177. The maxim “caveat emptor” applies, and the defendants are liable for that part of the price remaining unpaid. 38 Ark. 351; 1 Id. 31; 6 Id. 513; 31 Id. 170. The purchaser is estopped from alleging that the vendor made misrepresentations. 125 U. S. 247; 135 Id. 609; 31 Ark. 170; 74 Id. 144.

This is the case as shown by appellant’s abstract: The complaint alleges that Nora Brown was the owner of the'property insured, in Osceola, Arkansas, on April 28, 1906, at which time the American Insurance Company issued her a policy on her dwelling for $700. That upon March 16, 1907, the property was destroyed by fire. That J. H. Dannehower, at the time the policy was issued, held a mortgage on the place for $400, and there was a loss clause made payable to him as mortgagee.

<p>Husband and wife — sufficiency of complaint against wife. — A complaint seeking to hold a woman liable on a note signed by her which shows that she is married, but fails to show that the note was executed with reference to her separate property, is insufficient to sustain a judgment by default against her.</p>

Steel, Judge; 1. There was no evidence as to the value of the horse in Toledo, and the court erred in refusing instructions asked as to measure of damages. 2. Contracts by telegraph are valid. The filing of the message of acceptance completes the contract. Crosswell on Electricity, § 681; Joyce on Electricity, § 881; 56 Wis. 100; 35 S. W. 189; 5 Atl. 632; 36 N. Y. 307; 79 Me. 492; 8 Fed. 337; 4 Dillon, 431.

The prima facie case of negligence made by proof of the killing was clearly overcome by the testimony of the engineer. 78 Ark. 234; 48 Id. 366. 2. The verdict should be set aside for insufficiency of the evidence. 67 Ark. 514; 80 Id. 514; no S. W. 595. I. The doctrine laid down in Ry. Co. v. Hendricks, 53 Ark. 203, governs this case. 2. The bell was not rung as required by law. 3. The testimony is ample to sustain the judgment. 58 Ark. 521-2; 80 Id. 273-4.

S. Maples, Judge; STATEMENT BY TRIE COURT. This action was commenced in the Madison Circuit Court by David N. Keck against the Hobart-Dee Tie Company to .recover damages for personal injuries sustained by him while unloading ties in said company’s yard. The defandant interposed a general demurrer to the complaint, and also answered, denying all the material allegations thereof.

Hayne on New Trials, 182-3, and cases cited; 28 N. W. 79; 26 S. W. 60; 106 Ga. 108; 11 Pet. 226; 8 Phila. 342; 86 Va. 835; 10 Fa. 97; 56 Ga. 406; 36 la. 166. x. The jury are the sole judges of the weight and credibility of the evidence, and their verdict will not be disturbed unless there is a total want of evidence to support it. 15 Ark. 403 ; 23 Ark. 61; X4 Ark. 20. 2.

O. Mahoney,' Chancellor; STATEMENT BY TI-IE COURT. Jesse M. Grubbs was indebted to appellee in a sum greater than one thousand dollars. Held: in favor of his brother, R. E. L. Farmer, to secure an alleged indebtedness of P. B. Farmer to him in the sum of $1,285. The mortgage of P. B. Farmer to R. E. D. Farmer is made an exhibit, and shows' that it was executed November 2, 1904, and the alleged indebtedness it was given to secure was due January 1, 1905.

The grand jury of Columbia County at its August term, 1906, returned the following indictment (omitting caption) : Appeal from Columbia Circuit Court; George W. Hays, Judge; statement by the court. “The Grand Jury of Columbia County, in the name and by the authority of the State of Arkansas, on oath accuse the defendant, Louisiana & Arkansas Railway Company, of the crime of failing to signal at road crossing, committed as follows, to-wit: The said defendant, on the 27th day…

D. Block, Special Chancellor; STATEMENT BY THE COURT. This was a proceeding brought by Henrietta Berger to confirm the tax sale of 290.36 acres in a square in the northeast corner of section 9, township 13 north, range 2 east, Craighead County.

Fulkerson, Judge, on exchange of circuits; When a case is brought at law on a complicated, disputed account, it should be transferred to equity. The difficulty of properly adjusting accounts is what confers jurisdiction upon courts of equity, without regard to their singleness or mutuality. 48 Ark. 426; 8 Ark. 57; 31 Ark. 345; 51 Ark. 198.

By comparison of the differences between the proposed ' lease and the preliminary letters, it is clear that the letters do not constitute a contract, and that the parties did not assent to all the terms of the contract. 78 Ark. 588; 7 Am. & Eng. Enc. of E. 140-141, and cases cited; 134 Mass. 127; 156 Mass. 273; 14 Allen 242; 6 H. E. Cas. 263; 75 N. C. 404; 44 N. Y. 85; 19 N. Y. 111; 59 Wis. 316; 81 Mo. 481; 40 So. 723; 46 Vt. 478. 2.

All the heirs should have been made parties. Kirby’s Digest, § 6011; 41 Ark. 88; 49 Id. 100. 2. It was error to admit the testimony of C. F. Plant, and the error was not cured by the ruling of the court. 8 Ark. 204; 13 Id. 496; lb. 125; 45 Id. 81; 57 Id. 81; 82 Id. 553. 3.

Humphries, Chanccellor; 1. Subrogation is the substitution of one person in the place of another and to succeed to his rights. -Sheldon on Subrogation, § 1. There was no subrogation in this case. Ih. (2 Ed.) § 116; 34 Ark. 113; 2 Lead Cas. in Eq., p. 162. Appellee was a mere volunteer. 25 Ark. 129; 39 Id. S31 i 5° dd. 108. 2. The outstanding judgment was a lien on the land prior to any rights of appellee. Kirby’s Digest, § 4438; 13 Ark. 74; 50 Id. 108. 1.

To be effectual, a waiver must not only be made intentionally, but with knowledge of the circumstances'. There was here no agreement, either verbal or written, to waive the stipulation in the contract. If waived at all, it was by the conduct of the agent Wise; but nothing in the record indicates either that he knew of the stipulation or that he intended to waive it. 105 U. S. 359; 9 Am. St. Rep. 571; 116 Fed. 381; 82 Fed. 406; 65 Ark. 240; 87 Ark. 326. 2.

Robertson, Chancellor; Appeal properly lies from the order of the chancery court setting the judgment aside. Kirby’s Digest, § 1188. The only way a final judgment may be set aside in this State is by a strict compliance with sections 4431, 4432, 4433, 4434, 4435, Kirby’s Digest; 52 Ark. 316. Such orders are appealable. 22 N. E. 930; 12 O. St. 136; 46 N. W. 201; 20 How. Pr. 439; 38 Pac. 710; 19 Md. 234.

Wood, Chancellor; Appellant’s judgment lien was superior to that of appellee. There„was no hiatus as to the lien on the land in Chicot County. Kirby’s Digest, § § 4438-9, 444-8-9; 45 Ark. 304. The revived judgment must be filed in another county than that in which it is rendered before the original three years expire. Kirby’s Digest, § § 763, 4438, 4439.

Humphries, Chancellor; 1. There is not the least intimation of any insufficiency in the value for which the land sold — no allegations of fraudulent combination to suppress bidders'. Nor is there any evidence of any irregularities except clerical, and such are not sufficient to attack a decree collaterally. 49 Ark. 416. 2.

Winfield, Judge; STATEMENT by the court. The Legislature of 1905 laid off certain parts of Pulaski, Lonoke and Jefferson counties, in the State of Arkansas, into a levee district, for the purpose of erecting and maintaining a levee therein.

Robertson, .Chancellor; 1. There had been no actual public use of the road for seven years. 47 Ark. 66, 431. 2. While public nuisances may be enjoined, the person must show some special injury peculiar to himself aside from and independent of the general injury to the public. I High on Inj. (3 Ed.), § 762; Wood on Nuisances (2 Ed.), § 645; 3 L. R. A. (N. S.) p. 733; 22 Tex. Civ. App. 578. 1.

This suit was brought against the railway company to recover for loss of -cotton by fire after -it had been delivered for shipment. The answer of the railway company denies that the cotton was delivered to it, or that it agreed to transport.it. There was a verdict and judgment in favor of the plaintiffs for $2,411, and interest from June 20, 1905, at 6 per -cent, until paid. Judgment was accordingly entered, and the cause is here on appeal.

Martmeau, Chancellor; 1. The property is the sole and absolute property of D. D. Colegrove. The evidence is not “full, clear and convincing” enough to establish a resulting trust. Bispham, Eq. § § 83, 84. ■ 2. Marriage is a valuable consideration, and the wife is regarded as a purchaser of all property which accrues to her by virtue of her marital rights. 74 Ind. 560; 32 U. S. 348; 98 Ind. 429. See, 50 Ark. 42; 62 Id. 26. 3.

Hutton, Judge; Plaintiff is not entitled ,to recover for 'humiliation or mental • suffering, there being no personal injury. 64 Ark. 538; 84 Id. 42; 44 Id. 439; 46 Id. 485; 74 'Id. 358; 73 Id. 112; 1 H. & N. 408; 24 Am. Rep. 376; 52 Fed. 264; 52 S. E. 305; 76 Ark. 348. The Taylor case (84 Ark. 42) does not settle this. There was a recoverable element of damage in this' case which entitled plaintiff to recover for mental suffering and humiliation. 5 A. & E. Enc.

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

H. Humphreys, Chancellor; 1. The deed and mortgage were escrows, of no effect and conveyed nothing. The mortgagee of a grantee in escrow takes no title. 30 Ark. 61; 7 L. R. A. (N. S.) 714. 2. The record of a deed not in the chain of title is not notice to subsequent purchasers. 76 Ark. 525. 3. Actual notice of a mortgage not recorded does not renrender a subsequent purchaser liable for the payment, nor can the lands be held for the debt. 40 Ark. 536; 33 id. 203. 1.

Winfield, Judge; 1. The two writings were complementary to each other, and are unambiguous. They limit the authority to sell to thirty days and prescribe the terms of sale. There was no evidence to support a verdict for a commission of 2 x/z per cent., or what was a reasonable compensation. 2. The case should have been taken from the jury.

Robertson, Chancellor; Plaintiff’s execution lien was not supplanted by the insolvency proceedings under ch. 84, Kirby’s Digest. There was no intervention by the receiver. Ib. § 4055; 11 Am. & Eng. Enc. E. (2 Ed.) 669; 16 Id. 705; 38 Atl. 502.

Wells, Judge, on exchange of circuits; STATEMENT BY THE COURT. The appellant was convicted of the crime of an assault with intent to kill one Carter. The evidence on the part of the State tended to show that about the 1st of May, 1907, a .man by the name of Carter reported'to the deputy constable that the appellant had tried to kill him (Carter) with an ax. Whereupon the deputy constable went to Carter’s house and found the appellant in Carter’s house walking the floor.

Fulkerson, Judge; STATEMENT BY THE COURT. This action was brought by J. J. Caldwell against the St. Louis, Iron Mountain & Southern Railway 'Company to recover damages to a stock of drugs while in the hands of the railway company for carriage from Newark, Arkansas-, to Park, Texas.

The abstract of appellant sets up the following: “The complaint charges that the defendant is a domestic corporation, operating a street railway. That on October 23, 1907, plaintiff took passage and became a passenger on defendant’s car in Fort Smith. That all the seats were full, and plaintiff was compelled to .ride on the .running board, or long step of the car.

Winñeld, judge; 1. The answers to questions as to diseases, etc., had were not strictly and literally true, and there was a breach of the warranty. 58 Ark. 540; 62 D. R. A. 774; 72 Ark. 623; 84 Id. 59; 25 Cyc. 811; 82 Ark. 402; 20 Fed. 482; 3 Joyce on Ins. § 1970; May on Ins. § 156. 2. The answers were not true as to abstaining from intoxicating liquors, and the policy is void. 74 Ark. 1, 295; 122 W. S. 501; 86 S. W. 522. 3.

Winñeld, judge; The lien of the State for unpaid taxes can not be displaced by anything short of payment. 2 Dembitz on Land Titles, § 180. A tax or assessment imposed by lawful authority is an incumbrance upon land until satisfied. 1 Warvelle on Vendors, p. 318, § 14. The plaintiff is entitled under the covenants of warranty to a marketable title. 63 Ark. 548; 66 Id. 433.

Winfield, judge; statement by the court. Appellee, executrix of estate of E. Urquhart, deceased, sued appellant on the following promissory note: “$6250.00 Little Rock, October, 31, 1903. “Nine months after date I promise to pay to the order of E. Urquhart sixty-two hundred and fifty dollars at the Citizens’ Investment & Security Company’s office at Little Rock, 'Ark., value received, with interest.

<p>Appeal from Desha Chancery Court; Zachariah T. Wood, Chancellor;</p>

Elliott, Chancellor; 1. Appellant’s demurrer should have been sustained. As agains-t a third party, the trustee is the proper person to bring the action. 21 Barb. (N. Y.) 565; 22 Enc. PI. & Pr. 158; 60 Ala. 435; 50 la. 515; 66 Ark. 400; Id. 550; 75 Ark. 288. 2. Appellee’s evidence is not sufficient to show that appellant received an amount in excess of what was due him for rent and advancements made, which was a prior li-en under the statute. The burden was on appellee.

Meeks, Judge; STATEMENT BY THE COURT. The complaint, omitting, caption, is as follows: “Said J. H. Douglass, for cause of action against said defendants, James W. Campbell, J. C. Miller, Wesley Pressley, C. E. Pringle, E. Dalton, A. Z. Schnabaum and Ben.

Mahoney, Chancellor; 1. Where a deed is void for a patent ambiguity, parol evidence is not admissible to “piece out” a description. The,thing granted must be described with sufficient certainty to ascertain its identity. 3 Ark. 18, 57; 30 Ark. 657; Id. 640; 42 Ark. 350; 41 Ark. 49s; 60 Ark. 487.

R. Bard was not an expert, and should not have been required or permitted to testify as such. 23 Ark. 215; 24 Id. 25; 55 Id. 593; 36 Id. 117; 66 Id. 490. Before he should have been permitted to testify as an expert, it should have been made to appear that the facts upon which he based his opinion could not have been sufficiently described to the jury. 56 Ark. 612. Proof without allegation is as bad as allegation without proof. 2 Ark. 512; 69 Id. 363; 41 Id. 394.

60 Ark. 415. If it be apparent that a team has become frightened at the sound of the signals, and is endangering the safety of an individual, the engineer should change, suspend or stop the sound of the signals, as the circumstances seem reasonably to require, until the danger is averted. 60 Ark. 415; 77 Id. 177; 56 Id. 387.

Fulkerson, Judge on Exchange of Circuits; A railway company is not liable for fire caused by sparks from its engine, unless such engine is negligently operated. 33 Ark. 816; 59 Id. 105; 76 Id. 132; 77 Id. 434.; 78 Id. 234; 81 Id. 368. A railway company is not required to prevent altogether the escape of sparks from its engine. It is only required to use reasonable care by using approved appliances for that purpose. 39 Am. & Eng. R. Cas.

The only agency alleged in the complaint was that of Hudson & Fowler. It was therefore erroneous to admit evidence of the alleged .agency of Loss Moore — no amendment of the complaint having been made, and no foundation laid for proof of any other agency. 70 Ark. 319. The burden of proof that Moore had authority to bind appellant was upon the appellee. 3 111.'App. 626'; 5 111. App. 257; 58 111. App. 570. 2.

Robertson, Chancellor; 1. The real estate of a minor cannot be sold except for the purposes designated by, and under the authority of, the statutes ; and in this State the statutes authorize such sale only for the purpose of education and maintenance of the minor, or for reinvestment of the proceeds-for his benefit. 2 Am. & Eng. Enc. of L., 57 and notes; Kirby’s Dig. § § 3794, 3801. 2.

Steel, judge; statement by the court. Appellee and appellant entered into a contract whereby the latter, who was a real estate broker, should have the exclusive sale, for the former, of a -certain tract of land on certain terms.

H. Humphreys, chancellor; R. S. Morris, on November 23, 1903, filed an ex parte petition to quiet ihis title to lots 1, 2 and 3, block 23, Beauchamp’s Addition to Siloarii Springs, Arkansas, claiming title by virtue of a deed executed to him by the State Rand Commissioner, and also by virtue of adverse possession and payment of taxes for the past consecutive ten years.

Wood, chancellor; x. Appellee can recover, if at all, only on the strength of his -own title, and not upon the weakness of his adversary’s. 37 Ark. 643; 74 Ark. 202; 74 Ark. 383; 77 Ark. 338; 82 Ark. 294. 2. If the conveyance from the State to the Memphis Land & Timber Company be treated as a redemption .certificate, appellee has still failed to make out his -case.

McCaleb, Special Judge; 1. It was error to permit appellee to amend his complaint on July 15, 1907, so as to allege two causes of action which had not been previously alleged. They were barred by limitation. Where a new cause of action is brought into complaint, the period of' limitation is from the date of such amendment. 41 Fed. 750; 139 111. 504; 51 Am.

Mwrtineau, Chancellor; If there is such knowledge as makes it inequitable for the purchaser to retain an advantage acquired by him, the court will deal as summarily wtih that inequitable position of the party as in case of actual fraud. 52 Conn. 483; 44 N. Y. 525. The prayer for general relief was broad enough to have enabled the court to direct a decree in conformity with the evidence. 72 la. 677; 77 N. Y. 226.

S. Maples, Judge; Ground of suspicion of fraud is not enough, it must be proved. 9 Ark. 485; 11 Id. 378; 17 Id. 146; 68 Me. 200; 72 Id. 415; 67 Pa. 459; 40 Ark. 417. The law requires each contracting party to be vigilant and exercise a due degree of caution. 7 Ark. 165. While in equity it is sufficient to show facts from which fraud may be presumed, yet at law fraud must be proved and expressly found. 33 Ark. 425.

; Brice B. Hudgins, Judge; 1. The verdict is not sustained by the evidence, and is contrary to the physical facts. In view of the condition of the switch stand, switch points, frogs, etc., after the wreck, the verdict is so palpably erroneous as to shock the sense of justice. 70 Ark. 385. 2. If there was a defect in the engine, and .if the flanges were too short, it was such a defect as the deceased knew or by the exercise of ordinary care could have known of.

Steel, judge; STATEMENT BY THE COURT. On April 13, 1907, S. C. Cowling as guardian of Bettie Jcnes, an insane person, filed petition in the probate court-of Howard County, alleging that prior to the.year 1903, J. J. Nelson had been her guardian for about ten years, and as such guardian had the exclusive control and charge of all her property; that during the year 1903 he was discharged from said guardianship, and has since died.

All the facts and circumstances show a ratification by the appellee of the delivery. Hutchinson on Carriers, § § 183, 678; 29 S. E. 816; 160 111. 401; 58 N. H. 521. 1. Where a bill of lading directs delivery to the vendor’s order, or his assigns, the carrier is notified that it must not deliver to the consignee without the bill properly indorsed by the consignor. If it delivers otherwise, it will be liable.

Carter, Judge; The truthfulness of appellee’s answer in his application was made a warranty, and must be strictly true. It is shown by two witnesses that his application for insurance in other com'panies had been refused. The policy is void by reason of his false answers. 58 Ark. 528; 82 Ark. 400. The testimony of Spraggins and Bridewell is not sufficient to show that appellee had been refused insurance in the property in question in other companies.

Wood, Chancellor; STATEMENT BY TI-IE COURT. On July 29, 1907, appellant filed his bill in equity asking that a certain mortgage given by him to appellees, O. B. Crittenden & Company, lessees of the Sunny Side Store, on March 25, 1905, for $1400, be cancelled, setting up that the same had been by him paid to said appellees, and that the same was a cloud upon his title to the land described in said mortgage, and further prayed that he have judgment against appellees for $1113…

Hays, Judge; STATEMENT by the court. At the September term, 1907, of the Union Circuit Court, Mrs. Mattie C. Wade brought this suit against Garrison-Alphin Hardware Company, a -corporation, J. H. Garrison, Mrs. A. U. Alphin et al., on the following promissory note: “$x,ooo.oo.

<p>1. Judgments — taking default while motion undisposed of. — Though it is generally irregular to enter a judgment by default while a motion made by defendant remains pending and undisposed of, yet where the motion appears on its face to be frivolous, or where the determination of the motion could not affect the .right of the plaintiff to proceed with the cause, it would not be reversible error to enter a judgment by default. (Page 360.)</p> <p>2. Same — pendency of frivolous motion. — It was not reversible error to enter judgment by default for want of answer, notwithstanding defendant had filed a motion to require plaintiff to file copies of the notes sued on as exhibits to the complaint, if copies thereof were . attached to the complaint at the time it was filed and so remained. (Page 360.)</p> <p>3. Same — motion to set aside — meritorious defense. — It was reversible error to deny a motion to set aside a judgment by default, filed within four days after its entry, which alleged that 'defendant had made payments upon the notes sued upon and that credit therefor had not been given in the judgment. (Page 360.)</p>

Hutton, Judge; STATEMENT BY THE COURT. The foundation of the present action is a contract which was exhibited with the -complaint and reads as follows: “J. R. Jarratt to Moss Tie Company. “Know all men by -these presents, that I, J. R. Jarratt, of the county of Fee and State of Arkansas, for and in consideration of the sum of forty-five hundred dollars cash in hand paid, the receipt of which is hereby acknowledged, have this day sold and by these presents do bargain, sell…

Steel, Judge; 1. An option to purchase is a continuing offer by the vendor to sell. Its acceptance by the vendee completes the contract. 146 Fed. 8; 8 Am. & Eng. Cases 660; 21 Am. & Eng. Ene. L., (2nd Ed.), 929 and cases cited, note 1; Id. 926-929. 2. It was error for the court on its own motion to give a peremptory instruction in favor of the plaintiff, since there was evidence tending to support the defense set up by the defendant.

S. Maples, Judge; STATEMENT BY THE COURT. The plaintiff, Lula Lewis, resides in the city of Fayetteville, Arkansas, and brought this suit in the circuit court of Washington County against the defendant, Western Union Telegraph Company, to recover damages for the alleged negligent failure to deliver a telegram sent to her from Abbott, Arkansas, informing her of the serious illness of her brother.

There was no right to recover under the bond sued on until the terms and conditions thereof had been broken by the Insurance Company. ■ Sandels & Hill’s Digest, § 4133.

Steel, Judge; STATEMENT by The court. The Hill-Forrester Lumber Company, a corporation engaged in the lumber business in this State, entered into a contract with one J. R. Neal for the purchase of certain lumber at a certain price, the output of two sawmills owned by Neal, during the year 1907.

The grand jury at the October term, 1907, of the Conway Circuit Court, accused Arthur Delong of the crime of felony.

H. Evans, Judge; STATEMENT BY THE COURT. The defendant was convicted in the Garland Circuit Court of the crime of carnal abuse.

Will be buried this evening unless we hear from you.” The words, “unless we hear from you,” were not in the message delivered to appellant.

Hays, Judge; 1. The evidence offered by appellant to show what the rate was under the contract entered into was only explanatory of the contract, in nowise conflicted with it nor tended to vary or change its terms. The evidence was competent, and its exclusion was prejudicial. 62 Ark. 330; 53 Ark. 4; 81 Ark. 374; 83 Ark. 163; 63 Ark. 475. 2.

Lea, Judge; A contract of agency may be revoked at any time before sale unless coupled with interest or given for a valuable consideration. Proposed compensation by way of percentage on the amount of proceeds derived from the sale constitutes no such interest, neither will expenditures made by the agent in the effort to make the sale come within the rule of agency coupled with interest. 1 Warvelle on Vendors, § § 218, 219; 1 Am. & Eng.

By the terms of the policy the application is expressly made a part of the contract. Therein the item of $500 on grain and hay is set out. It is a valid policy for $1,300 insurance, and there is no failure, of consideration for the note. The contract was complete when the policy was accepted. 66 Ark. 621; 13 Ark. 462; 61 Ark. 1. This court holds the application to be a part of the contract. 67 Ark. 584; 74 Ark. 1; 72 Ark. 620. 2.

5*: Maples, Judge; 1. The statute is void, because, a. It deprives appellant of its property without due process of law, contrary to art. 2, § 8, Const; Ark. 1874. 39 Ark. 167; 21 Ark. 431; 42 Ark. 529; 51 Ark. 330; 68 Ark. 600-604; 33 Ark. 816; 49 Ark. 190; 68 Ark. 333; 164 U. S. 403. b. It takes from appellant a valuable privilege which it has bought and paid for, thereby depriving it of its property “without the judgment of its peers or the law of the land,” contrary to…

Carter, Judge; Instruction numbered one, given at plaintiff’s request, is erroneous in that it ignores the doctrine of assumed risk on the part of the employee.

William Bowman was indicted by the grand jury of the Ft. Smith District of Sebastian County, Arkansas, at the December term, 1908, of the circuit court, for the crime of rape committed as follows, towit: “The -said defendant in the county and district aforesaid, and in that part of the county and district aforesaid, described by act of Congress of the United States, approved February 10, 1905, and by the acts of the General Assembly of the S'tate of Arkansas, approved…

Appellee, who was plaintiff below, instituted this suit against appellants, A. M. Winer and Ike Levine, who were defendants below, upon five promissory notes which had been executed by them to the order of the Archillion Plantation Company. Within ten days after the execution of these notes, they were duly indorsed by the payee thereof and then transferred to the Mississippi County Bank, and by the latter transferred to the appellee.

Robertson. Chancellor; 1. The possession of Mary E. Hale, prior to March 3, 1898, the date of her deed, “-under'a verbal agreement of sale,” extended only to her inclosure, which was “about an acre of the land.” Therefore the seven-year statute of limitations was not running. 30 Ark. 656; 33 Ark. 154. 2. Possession under a verbal agreement of sale does not constitute color of title. 47 Ark. 531; 84 S. W. 228; 67 Ark. 188.

Hutton, Judge; 1. The sheriff, in keeping the jail and feeding prisoners, does an official act. The Constitution, in creating the office of sheriff, did not define his duties; hence it is within the power' of the Legislature to enact laws defining his duties. In performing the duties thus defined, he acts in his official capacity. Art. 7, § 46, Const. 1874; 27 Ark. 176; Kirby’s Dig. § § 4399, 4400; 137 Mass. 191; 12 Fla. 652; 94 S. W. 328; 39 Mo. App. 161; 71 111.

Hays, Judge; statement by the court. .Made Vaughan, by his next friend, W. H. Vaughan, brought this action against the Freeman-Smith Lumber Company and O. S. McDaniel, one of its employees, to recover damages for an assault and battery alleged to have been committed upon him by McDaniel on the 27th day of August, 1906. The Freeman-Smith Lumber Company in its answer denied 'liability.

Winfield; Judge; Action by R. PI. Oliver & Son and another against the Chicago, Rock Island & Pacific Railway Company. A demurrer to the complaint was sustained, and plaintiffs R. H. Oliver & Son have appealed.

Carter, Judge; Delivery and acceptance were necessary to the validity of the bond. Stearns of Sur., § 141. And the burden of showing this was on the plaintiff. 100 N. W. 138; 14 Cal. 421; 21 Id. 585; 151 Mass. 460. Written statements made by a corporation in an application to a bonding company for a bond guarantying the honesty of employees are in the nature of warranties, and their falsity will defeat a recovery on the bond. 19 Gyc. 523; 81 N. E. 330.

<p>Appeal from Perry Circuit Court; Robert J. L,ea, Judge;</p>

This is an appeal by the Western Union Telegraph Company from a verdict and_ judgment against it in favor of Berta Gillis for damages resulting from an alleged negligent failure to. deliver a message.

Hays, Judge; An officer cannot arbitrarily -demand an indemnifying bond and refuse to levy an execution or sell after levy, if it is not given. He cannot act solely on his own will or caprice, but must have some reasonable cause for failure to levy or sell. 25 Am. & Eng. Enc. of L. 2d Ed., 691; Id. 391; 23 Ala. 626; 3 Port. ‘ (Ala.) 385; 13 La. Ann. 437.

'Appeal from Lafayette Circuit Court; Jacob M. Carter, Judge; If it be conceded that appellee was negligent, still appellant, in failing to exercise ordinary care to avoid injuring her after discovering her peril, is liable. 62 Ark. 164; 61 Ark. 340; 74 Ark. 407; Id. 478.

Martineau, Chancellor; The welfare of the child, is of paramount importance in cases of this kind. While at common law the father is usually preferred, his right is primary and not absolute, and the mother will be given preference where her custody appears most beneficial to the child. 78 Ark. 193; 28 Cyc. 1590.

H. Evans, Judge; 1. It is clearly shown that Flowers purchased the property for a homestead, intending to use and .occupy it as such, and worked two years in the effort to put the land in condition to utilize it for that purpose, spending all the means at his command. The homestead laws are liberally construed.

Martineau, Chancellor; 1. On the overruling of the demurrer, it was error to render judgment for damages without impaneling a jury and taking proof as to the amount of the damages, if any, sustained. 8 Ark. 345; Kirby’s Dig. § 6240; 9 Ark. 364; 2 Ark. 390; 6 Ark. 497; xo Ark. 258; 29 Ark. 372; 13 Cyc. 220-1; 39 Ark. 491. 2. The chancery court was without jurisdiction.

Martineau, Chancellor; 1. The act is not objectionable on the ground that it conflicts with art. 7, § 28, Const. This court has held that the term “taxes” as here used meant general taxes, and the term internal improvements and local concerns referred to those for general county purposes, and not for local purposes. 21 Ark. 40; 48 Ark. 370; 59 Ark. 513; 64 Ark. 562. A similar construction of the word “roads” relieves the act of any objection as to its constitutionality.

'Appeal from Craighead Circuit Court; Frank Smith, Judge; 1. The court erred in refusing the instruction requested by appellant as to the measure of damages.

H. Bvans, Judge; statement by the court. George M. Ramsey brought this action against the Aluminum Company of North America to recover damages for physical injuries alleged to have been received by him, while in the employment of said company, an account of the negligence of one of his fellow servants. The defendant company answered, setting up contributory negligence on the part of the plaintiff as a defense to the action.

Lea,' Judge; 1. The appellant’s plea of res judicata should have been sustained because the cause of action set up in the present case is identical with that set up in the former case. Phillips on Code • Pleading, § 30; 94 U. S. 351, 352. A plaintiff cannot maintain separate causes of action for breach of an entire and indivisible contract by merely claiming damages for a different period of time. 63 'Ark. 259; 51 Yt. 38; 16 N. Y. 548; 15 Johns (N. Y.) 432; 62 Plow. Pr.

<p>Injunction — use or photograph or accused. — On a preliminary hearing the court will not restrain officers charged with the enforcement of the criminal laws from developing photographs of persons accused of crime for the purpose of identifying them.</p>

H. Evans, Judge; Appellant was an interested party, and had a right to appeal. 64 Ark. 349. He had no notice, and could not be made a party to the record. Appellant was not a party to the record, and could not appeal. 28 Ark. 479; 47 Id. 411; 30 Id. 578; 52 Id. 99; -26 Id. 461.

Carter„ Judge; STATEMENT BY THE COURT. T'he appellee, A. V. Walker, as administrator of the estate of J. R. Jones, sued appellant, alleging in substance as follows: That in the year 1902 the defendant company owned and operated and now owns and operates a line of railway on and through the plaintiff’s farm. That the Terre Rouge Creek, a stream called Dry Creek, and a slough run through said farm.

This is a suit by appellee to replevy a certain bull from appellant, who held the same as keeper of the pound in the city of Ft. Smith. The bull was found running at large within the stock limits as designated by an ordinance of the city of Ft. Smith. The proof showed that the animal was legally impounded.

The question asked Reynolds was improper. 51 Ark. 140; 35 S. W. 284;. 3 A. & E. Enc. Law, 111. 2. No error in court's charges, and the verdict is amply sustained by the evidence.

Where a new levee is constructed on a different route, a new right of way 'must be obtained. 80 Ark. 80. Here the location is the same. The deed gave the board a right of way and earth necessary to build the levee. 29 N. E. 974- 2. The verdict is excessive. Only one and one-fourth acres were taken. 1. The deed does not define the width of the right of way. The statute makes no provision as to how wide it shall be.

Winfield, Judge; 1. It was defendant’s duty to exercise all the care and skill which prudent persons under similar circumstances would exercise to prevent the car from running at a dangerous rate of speed. Failure to exercise such care was negligence. 74 S. W. 705-6. 2. The court erred in giving instructions 1 and 4 requested by defendant.

0. Mahoney, Chancellor; 1. The burden was on plaintiff to show title in himself. He has failed. There was no evidence of possession. 64 Ark. 100. 2. Appellee was a purchaser by parol, paid the price, entered into possession, made valuable improvements and held adverse possession for thirty years. This gave him title. 21 Ark. 137; 42 Id. 246; 71 Id. 364; 35 E. R. A. 835. 3.

- This was a suit instituted by the appellee, who was plaintiff below, against appellant, in which he alleged that the defendant had negligently erected and strung its telephone wires across a street and -over certain vacant lots in the city of Fort Smith in such a manner as to endanger persons thereon; that the wires had become detached from their fastenings by reason of having been negligently strung and maintained, and that the plaintiff -had come in contact therewith;…

Winñeld, Judge; This is purely an Arkansas contract. The order was given upon examination of a sample of the corn shown by appellee’s broker to- appellant in Little Rock. True, the corn was priced f. o. b. cars Ladoga, Indiana, but that -did not make it an Indiana contract. The place of performance was at Searcy, Arkansas, where the corn was to be examined. There is no question.in this case of damage occurring to the corn while in transit.

Virgil Bourlmd, Chancellor; Taking the will as a whole and construing the same in the light of attendant conditions and circumstances, as is the rule, it seems clear that the testator intended that his lands, and whatever of the balance of his estate might be left at the death of his wife and son, should be used in erecting a house of worship and a lodge. 73 Ark. 60; Id. 422; 22 Ark. 567; 38 Ark. 439; 51 Ark. 61; 52 Ark. 113; 83 Ark. 554; Gardner on Wills, 473; 91.

Fulkerson, 'Judge; .1. The only issue is whether the act of April 13, 1907, enlarges or changes the boundaries of the district created by act of March 11, 1891. -One section of an act can be amended so as to leave the remainder of the act in force without repeating and re-enacting every other section. Lewis’ Sutherland, Stat. Const. § 231; 69 Ark. 376; 65 Id. 529; 71 Id. 556; 35 Id. 56, 60; 94 S. W. 610. 2.

Fulkerson, Judge; 1. The writ of certiorari is in the sound discretion of the court, and will not be granted when right of appeal exists or when not in aid of justice. 69 Ark. 518; 52 Id. 213; 44 Id. 509; 113 Am. St. Rep. 432. It is not a writ of right. 6 Cyc. 748-9. 2. Appellee had her remedy by appeal. Certiorari does not lie to correct mere errors that may be corrected by appeal. 39 Ark. 347; 39 Id. 399; 43 Id. 33; 25 Id. 476, 518; 37 Id. 318; 23 Id. no. 3.