Volume 90 — Arkansas Reports

Hays, Judge; 1. The continuance should have been granted. Appellant’s motion clearly shows that it was not at fault. It was a case of “unavoidable casualty or misfortune preventing the party from appearing or defending,” within the. meaning of the law. Kirby’s Dig., § 4431; 59 Ark. 162; 18 Ela. 282; 60 Wis. 293; 67 la. 405; 5 Bush (Ky.) 81; 42 Minn, 243; 15 Ky. E. R. 52; 1 Cranch, C. C. 280; 18 Ky. L. R. 926; 51 Ga. 122; 3 Phila. 236; 15 Leg. Int.

Robertson, Chancellor ; 1. The board had power to order the sewer put in. Kirby’s Digest, § 5722. 2. There is no rule of law that makes the record the only evidence of the proceedings of a board of health. 65 Ark. 613; 93 S. W. 928; 105 Id. 270; 83 Mo. 123; 53 Am. .Rep. 565. It may be established by parol. 17 Cyc. 498; 11 N. E. 16; 51 Pac. 442; 28 Atl. 995; 27 Id. 856; 55 Pac. S2i 88 N. W. 614; 51 Pac. 505; 80 Fed. 366; 64 Ark. 599.

'Appeal from Woodruff Circuit Court; Hance N. Hutton, Judge; The obligation of the bond was that the officer should “well, truly and faithfully perform and discharge all of the duties of the said office,” etc. Sureties on official bonds are not discharged by every change in the law prescribing the duties of their principal.

Virgil Bourland, Chancellor; 1. The decree with reference to the custody of the child, shifting the custody between the father and mother, is not to the best interest of the child, and is clearly erroneous. 82 Ark. 461; 37 Ark. 30; 78 Ark. 193; 66 Ark. 601. 2. The testimony establishes the allegations of the complaint, and appellant should have been granted a divorce.

Fulkerson, Judge ; 1. The deceased was guilty of contributory negligence such as to bar a recovery. He failed to look and listen. 65 Ark. 235; 54 Id. 431; 56 Id. 439; 62 Id. 158; Elliott on Railroads, § 1166; 69 Ark. 134; 76 Id. 224. 2. It is not necessary to give the 5th instruction, and especially objectionable are the words “in determining the value of the life taken.” Kirby’s Digest, § 6290; 68 Ark. 1. 1.

Robertson, Chancellor; Where a deed omits terms or stipulations agreed upon or understood by the parties, or contains terms or stipulations contrary to their intention, equity will, on a proper showing of mistake or fraud, reform the instrument. 104 la. 423; 53 Kan. 550; 12 Ore. 363; 62 Wis. 316; 44 N. H. 440; 48 Mich. 5x0; 89 la. 686; 60 Conn. 170; 101 U. S. 577; 108 U. S. 132; 136 U. S. 387; 35 Minn. 42; 60 Ark. 306. 1.

Virgil Bourland,. Chancellor; Boles and others, citizens and taxpayers of Ft. Smith, brought suit against Kelley and others, to restrain 'them from collecting a paving tax from plaintiff. The object of the suit was to test the legality of an ordinance organizing the city of Ft. Smith into a paving district. Defendants recovered judgment, and plaintiffs have appealed. 1.

<p>1. Divorce — reasonable cause eor abandonment. — A reasonable cause which, within the divorce statutes, will justify one of the married parties in abandoning the other must he such conduct as could he the foundation of a judicial proceeding for divorce. (Page 43.)</p> <p>2. Appeal and error — conclusiveness oe chancellor’s binding. — A chancellor’s finding of facts will not be reversed for insufficiency of evidence unless there is a clear preponderance of evidence against it. (Page 43.)</p> <p>3. Divorce — desertion.—Proof that a wife voluntarily left her husband .against his will, that he requested her to return and she refused, and that since leaving him she has shown by her conduct a settled determination not to return to him, is sufficient to establish desertion on her part. (Page 43.)</p> <p>4. Same — allowance oe Attorney’s bees as suit money. — Where a wife makes defense to her husband’s cross bill asking for a divorce, it is usual to malee an allowance for her attorney’s fees as part of her suit money. (Page 44.)</p>

Bobertson. Chancellor; STATEMENT by the court. On the 22d day of December, 1886, W. H. Martin and wife conveyed 120 acres of land in Clay County to their son, Edgar C. Martin, by warranty deed, which was recorded on the 27th day of December, 1886. W. H. Martin continued in possession of the land and claimed to be the owner thereof after this deed to his son was executed.

Martineau, Chancellor; 1. Appellants were exercising a lawful right, in the manner prescribed by statute, and neither the receiver nor Gibbs had any right to complain. Kirby’s Digest, § § 848, 859; 82 Ark. 242, The receiver had no right to sue Gibbs. Plis liability is statutory. It belongs to the creditors, the depositors.

If the telegram had been delivered with due promptness, plaintiff could not have attended the funeral, and hence not damaged by the delay. 27 Am. & Eng. Enc. Law, 1075. No notice was given that the funeral would be postponed to await arrival. 87 Tex. 7; 27 S. W. 54. 2. The verdict is excessive. 76 S. W. 456; 67 Id. 159; 92 Tenn. 694; 84 Ark. 475. 1. If the message had been promptly delivered, appellee could have arrived in time for the funeral. 72 S. W. 200; 54 Id. 414. 2.

Campbell, Special Judge; STATEMENT BY THE COURT. On January 29, 1901, appellant sold appellee 680 acres of land in Woodruff County, Arkansas. Appellee entered upon the land and began to- cut the timber therefrom, whereupon S. C. Robinson, claiming to be the owner of 160 a-cr-es of the land, brought suit against appellee for the possession thereof and for damages in the sum of $600.

Carter, Judge; STATRMRNT BY THR COURT. The appellee sued appellant to recover damages for injuries received by him in falling through a seat in the passenger depot of appellant in the city of Texarkana, Arkansas. The seat had a defective bottom.

Appellee shipped over appellant’s line of railway from Blackton to Helena two bales of cotton weighing 1120 pounds, and worth 11J2 cents per pound. The cotton was consigned to Lee Pendergrass. The cotton was shipped on the 29th day of November, 1906.. The cotton was in good condition when received by the appellant. It was shipped under a limited liability contract entered into with appellee for a reduced consideration in the freight rate.

H. Humphreys, Chancellor; The act does not apply in this case. In construing it the court will consider the whole act, including the title, and will, if possible, give effect to every part and clause thereof. If any part appears obscure, it may be aided by another. Endlich ot> Interpretation of Statutes, § § 258-264-266; 23 Am. & Eng. Enc. of L. 306-11; 27 Ark. 419; 3 Ark. 285; 37 Ark. 491; 82 Ark. 302; 77 111. 610; 11 Ark. 44; 32 Ark. 463.

The motion for continuance was not verified, and it was 'error to require appellant to admit the testimony of Hill or submit to a continuance. Kirby’s Digest, § 6173. 2. The contract is severable, and the 6th instruction requested by appellant should have been given. 88 S. W. 842. 3. No warranty is implied where goods are sold by sample, except that they shall be equal in quality to the sample.

<p>1. Pleading) — demurrer—abandonment.—A plaintiff will be held to have abandoned its demurrer to defendant’s answer by failing to call for a ruling of the court thereon and by asking for a judgment on. ■the merits of the case. (Page 87.)</p> <p>2. Judgments — motion to set aside default — defense.—Though it was error to render judgment against the defendants in their absence, a motion to set aside such judgment was properly denied if no valid defense was alleged. (Page 87.)</p> <p>3. Pledge — remedies of holder. — Where the payee of a note holds other notes as collateral security for its payment, he may sue the- maker of the note without enforcing the collateral, or he may pursue both remedies at the same time, though there can be but one satisfaction of the demand. (Page 88.)</p> <p>4. Subrogation — collateral security. — Where plaintiff holds collateral security for the payment of its claim against defendants, the latter could not demand the right of subrogation to such security without having first pa-id the whole of plaintiff’s 'debt, nor compel plaintiff to' enforce the collection of such security. (Page 88.)</p>

Winfield, Judge; Where, at the time of the execution of a promissory note, the parties execute a written agreement specifying the manner of payment, the note and agreement are to be construed together as one instrument. 4 Am. & Eng. Enc. of L., 2d Ed., 144.

Hays, Judge; 1. If the notes were purchased for a merely nominal sum, appellees were not innocent purchasers. 1 Daniel, Neg. Instruments, § 777; 79 Ark. 152. 2. Appellants offered to prove that Harman, with whom the trade was made, told them at the time that the thing they were buying was a patented article, to introduce the contract on the faith of which they executed the notes, and also the title page of the book for the purpose of showing that it was a patented instrument.

The verdict is not supported by the evidence. 37 Ark. 164. 2. When there is a conflict in the testimony of witnesses who are alike unimpeached and have equal opportunities of obtaining information, etc., the testimony of the greater number ■will -prevail. 20 Ark. 600. 3. Plaintiff violated his contract and cannot recover. . 61 Ark. 61; 7 Id, 130; 38 Id. 178; 2 Id. 370; 38 Id. 102; 19 Id. 262 ; 65 Id. 320; 75 Id. 89. The court’s charge is without objection.

This action was brought by Herbert Young against the Ayer & Lord Tie Company for an amount alleged to be due him by defendant for building a skidway at a lumber mill. In October or November, 1906, one U. S. Pitney, who had charge of the defendant company’s business in the State of Arkansas, made an agreement with the plaintiff to build a skid-way at a sawmill on White River, and agreed to pay him therefor $15.

This suit was brought by T. M. Rambo against the Arkansas Midland Railroad Company to recover damages for injuries sustained by him while a passenger on defendant’s train and alleged to have been caused by the derailment of -the train. The railroad company denied negligence on its part, and pleaded contributory negligence on the part of the plaintiff.

Mahoney, Chancellor; 1. This case is settled by 84 Ark. 335. All defects were cured by the Acts of 1907, p. 354. In this case there'were no vested rights intervening. 2. In deeds which contain no dower clause, a mere signing by the wife is held sufficient. It is not necessary for her to join in the granting clause. 57 Ark. 247; 87 Ark. 371. 1. The deed was never executed nor acknowledged as required by law. Acts 1887, p. 90. It was not cured by Acts 19°7, p. 354- 2.

Court; Antonio B. Grace, Judge; 1. There is no case here for punitive damages. No ill feeling or malice is shown, no wanton, willful and gross negligence. 84 Ark. 241; 56 Ark. 609; 39 Ark. 393; 67 Ark. 388; 53 Ark. 10; 80 Ark. 262; 77 Ark. 114; 41 Ark. 297; 88 Ark. 200. If entitled to recover at all, appellee ought to recover compensatory damages only. 39 Ark. 387. 2.

Hutton, Judge; 1. The evidence does not sustain the verdict because (a) ■it wholly fails to connect appellant with the offense charged in the indictment, (b) The evidence does not tend to prove that the instrument of writing in evidence was the one upon which the alleged forged signatures were written, (c) No competent evidence to show that Turner obtained judgment against the Dixie Mutual Company et al. If there was no judgment, there could be no liability on the bond, and…

Conway, a city of the second class, has the following ordinance : “ORDINANCE NO. 165. “An ordinance entitled, ‘An. ordinance to regulate and license street peddling and street exhibitions, and to provide punishment for the violation of the regulations contained therein.’ “Be it ordained by the City Council of the City of Conway, Arkansas: “Section one.

<p>Appeal from Lonoke Circuit Court; Eugene Lankford, Judge;</p>

Deceased was not a passenger; his contract of carriage was completed. He was intoxicated, and the injury was attributable to his own negligence. 67 Ark. 53; 73 Id. 551; 46 Id. 523; 65 Id. 435. 2. Witnesses should have been put under the rule. Kirby’s Digest, § 3142. 3. The verdict is excessive. 65 Ark. 619. 1. The question of negligence was for the jury. 46 Ark. 423, 4371 37 Id. 526. 2. Carriers are required to maintain safe platforms for passengers.

On April 1, 1908, the plaintiff, W. A. Wallace, delivered to the defendant, a common carrier of goods, a carload of cattle at Paragould, in the State of Arkansas, to be transported to and delivered at the National Stock Yards in East St. Louis, in the State of Illinois.

<p>1. Master and servant — duty in regard to appliances. — A master is only held to the exercise of ordinary care, proportionate to the danger to be incurred, in the selection of reasonably safe machinery and appliances, and in keeping them in proper condition, and is not an insurer of the safety of the appliances furnished, nor bound to supply any particular kind of machinery, nor to use any particular character of safeguard against danger. (Page 148.)</p> <p>2. Same — when negligence question for jury. — A mere error of judgment in selecting a more dangerous kind of machine than could have been provided, or in altering a machine so as to render it less safe, does not, as matter of law, render a master liable to his servant, but it is a question for a jury to say whether or not it constitutes negligence. (Page 149.)</p>

<p>Appeal from Craighead Circuit Court; Frank Smith, Judge;</p> <p>Instructions 1 and 2 should have been given. Appellant was an innocent purchaser. 54 Ark. 273.</p>

Wallace, Chancellor; If the words used in a will are susceptible of different constructions or meanings, they will be given that interpretation most favorable to the heirs by blood. 13 Pet. (U. S.) 166; 62 Conn. 393; 24 Ga. 372; no La. 259; 10 Barb. (N. Y.) 69; 136 N. Y. 227; 19 Ohio 328; 62 O. St. 411; 23 Pa. St. 296; 103 Wis. 497; 30 Am. & Eng. Enc. of L. (2 Ed.), 668.

Shaver, Chancellor; The statute allows defendants constructively summoned to appear within two years and make defense, and requires that the action be tried anew as to such defendants, as if there had been no judgment. Kirby’s Dig. § 6259. The granting of the new trial set aside all former proceedings, including the sale by the commissioner, and judgment should have been rendered for appellants on their cross-complaint for want of reply.

Martineau, Chancellor; I-. It appears by the amended complaint that Franklin Bros. Company was the creditor, and had gone into bankruptcy and that a trustee had been appointed. These are necessary parties. Kirby’s Dig. § § 6005-6-7; 37 Ark., 517; 34 Ark. 302; 32 Ark. 297; 28 Ark. 171; 27 Ark. 235; 3 Ark. 364. 2.

Wells, Judge; 1. There is postitive testimony that the goods were delivered to the carrier directed to the appellee at Rison, Ark., and none to the contrary. Delivery to the carrier is delivery to the consignee. 53 Ark. 196. 2.

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

Elliott, Chancellor; While, in the absence of fraud, unfairness or other wrongful act on the part of the purchaser or those conducting the sale, or occurrence of special circumstances affording ground for equitable relief, mere inadequacy of price will not justify an appellate court in interfering with the sale, yet, if such facts are established and the price is inadequate, it is justified in setting the sale aside. 65 Ark. 152. It is warranted in this case: 1.

Hugh Basham, Judge; It is well settled that in passing on a- question of this kind this court may resort to all sources of information available, and may search the journals of the House of Representatives and the Senate. 72 Ark. 565; 40 Ark. 200 and cases cited; 32 Ark. 496.

Evans, Judge; 1. The element of adverse or hostile holding is lacking in this case. The possession, to be adverse, must be hostile and not subservient to the rights of the true owner. 42 Ark. 118; 54 Ark. 608; 65 Ark. 422; 76 Ark. 405; 43 Ark. 469; Id. 504.

Hudgins, Judge; 1. Appellant, as a connecting carrier, is entitled to the benefit of all the valid stipulations and conditions contained in the contract of appellee with the St. Louis' & San Francisco Railroad Company. 39 Ark. 149; 50 Ark. 397. This contract provides for written notice within one day after delivery of stock at destination, a reasonable requirement. 63 Ark. 135; 82 Ark. 357. And the burden was on appellee to show that -he gave notice within the time. Id. 2..

Shaver; Chancellor; statement by the court. W. S. Morgan and W. H. Fagan instituted this action in •the chancery court of Clark County against Dougald McMillan and Wm.

<p>Appeal from Madison Circuit Court; Joseph S. Maples, Judge;</p>

H. Evans, Judge; STATEMENT BY THE COURT. This is an action by Henry Troll, public administrator in charge of the estate of Don C. Thatcher, deceased, of St. Louis, Missouri, upon a judgment which, it was alleged, one William C. Richardson, who was then public administrator of the city of St. Louis in the State of Missouri, and who as such administrator was in charge of the estate of said Don C. Thatcher, deceased, had recovered against the said P. J. McCarthy and Nellie…

<p>Appeal from Logan Circuit Court, Northen District; Jeptha H. Bvans, Judge;</p>

If the contract for rent was for more than one year and not in writing, it was void under the statute of frauds, and the jury should have been so instructed. The tenancy was at will. 36 Ark. 5x8. 2. When a tender has been refused, it must be followed up in order to make it good, and when pleaded the money must be brought into court. 30 Ark. 505; 38 Ark. 329. 1.

Carter, Judge; None of the employees who caused the trains to move were of the same grade with appellant, but were at the time of the action subject to his direct control. They were not fellow servants of appellant. Kirby’s Dig. § § 6658-6659; 65 Ark. 138; 67 Ark. 1; Id. 377; 70 Ark. 411. The doctrine of imputed negligence is applicable. The movement of the trains was not expected by appellant at the time, and he neither consented to nor acquiesced in the same. 75 Ark. 30. 1.

Shaver, Chancellor; STATEMENT BY THE COURT. This suit was begun in the circuit court, the appellee alleging in his complaint that he was the owner of the lot in controversy by virtue of a deed from the Commissioner of State Lands, executed June 22, 1907, and that the lands were forfeited for the non-payment of the taxes for the year 1904.

The act provides for an appeal from the particular questions therein set forth, but does not provide for an appeal from the allowance of attorney’s fees. Kirby’s Dig. § 1428. Only those matters enumerated as appealable in the statute may be appealed. “Bxpressio unitus est exclusió alterius” applies. 45 Ark. 524; 20 Ark. 410; 38 Ark. 205; 34 Ark. 663; 1 Ark. 201; 62 Ark. 595; 99 U. S. 582; 25 L. Ed. 331. ■2.

Appellee assumed the risk. This is no case of youthful inexperience, but of a mature man engaged in a work which required no experience nor instruction, who had the fullest opportunity to observe, by the exercise of his senses, the runways upon which he worked. An employee is bound to take notice of obvious defects. 82 Ark. 11; 60 Ark. 438; 65 Ark. 98*; 77 Ark. 367-; 60 L. R. A. 589; 10 L. R. A. 513. He was guilty of contributory negligence as shown by .the evidence. 2.

H. Evans, Judge; The judgment should be affirmed: 1. Because the bill of exceptions does not purport to set out all the evidence introduced at the trial. 81 Ark. 238; 75 Ark. 76; 80 Ark. 79; 74 Ark. 553. 2. Because appellant has failed to comply with rule nine.

Steel, Judge; The first instruction announces a rule of law not applicable to the facts of the case, is a charge upon the weight of the evidence, and is inconsistent with other instructions given. At common law, and in most of the States, the rule is that surface water is a common enemy against, which an owner may defend his premises, even by dike or embankment, without liability to his neighbor. 165 U. S. 601, (41 L. Ed. 843) ; 39 Ark. 463; 35 Ark. 622; 30 Am. & Eng.

Robertson, Chancellor; statrmrnt by thr court. The appellants, Plummer & Davis, O. C. Sutton, M. Lesser, Twen-Cen Granite Company and Hays & Sturdivant filed their suits in the Lee Chancery Court, alleging that the defendants, C. A. Alstead and G. B. Thomason, were indebted to them in various sums on account of material furnished to the defendants as contractors engaged in the erection of a school building for the defendant, Special School District No. 1 of Marianna; that…

Elliott, Chancellor; The decree below was reversed in this case (82 Ark. 294), and the cause remanded with directions to enter a decree in accordance with the opinion. The chancellor did not conform to the decree and opinion on the former appeal. It should have found for the heirs of the Hannas for lots 7 and 8 and for Mason for lot 6. But he gave no relief except as to Uankford. A lower court must conform.to the mandate of the superior court. 60 Ark. 50. 1.

Carter, Judge; 1. When a thing which has caused an injury is shown to have been under the management or control of the defendant, and the accident is such as in the ordinary course does not happen if proper care is used, the accident itself affords reasonable evidence, if unexplained, that it arose from want of .proper care. Shearman & Redfield, Neg. § § 59, 60; Thompson, Neg. § § 15, 77° > 21 Am. & Eng. Enc. of E. 2d Ed. 512.

H. Evans, Judge; 1. The garnishments served after the judgments were rendered had the effect of an involuntary assignment of said debt, or so much as was necessary to pay the judgments. 6 Ark. 391 ; 76 Ark. 344. 2. Subdivision “c” of § 67, Bankrupt Act, does not apply to garnishments or other liens when the proceedings out of which they grow were commenced more than four months prior to the filing of the petition in bankruptcy. 3.

Lea, Judge; Whether a contract is void because opposed to public policy is a question of law for the court. Green-hood on Public Policy, p. 123. Courts are slow to- declare a contract to be against public policy. 40 Ark. 261; 6 F. & B. 47; 4 H. of L. Cas. 1. Public policy requires that men have the utmost liberty of contract. 57 N. W. 844. Contracts exempting from loss by fire are not against public policy. 62 Fed..904.

Humphries, Chancellor; The chancery court has no jurisdiction to set aside the allowance of a claim by the probate court except for fraud in procuring it. Black on Judg. 321; 68 Ark. 492; 73 Id. 444; 39 Id. 256; 75 Id. 426. A court of equity will not interfere unless justice imperatively demands it, and until it clearly appears that it would be contrary to equity and good conscience to allow the judgment to be enforced. 51 Ark. 341; 48 Id. 535.

Insurance — warranty as to use oe liquors. — In a policy of life insurance executed in 1889, the assured made a warranty that he used intoxicating liquors occasionally but not daily, and upon… Held: that the warranty referred to. the use of liquors at the time the policy was originally issued. Appeal from Lee 'Circuit Court; Hance N. Hutton, Judge; The defendant was entitled to' a peremptory instruction. 35 Ark. 147; 57 Id. 461.

Carter, Judge; The statute authorizing the recovery of damages for mental anguish contemplates only suffering in mind over real ills, sorrows and griefs of life and such suffering as would reasonably flow from the failure to deliver the message. 83 Ark. 476. There was nothing in the message to put the company on notice that a failure to deliver it would cause the damages of which appellee complains. 53 Ark. 434; 78 Ark. 545; 79 Ark. 33.

Carter, Judge; STATEMENT BY THE COURT. Appellant brought suit against appellee before a justice of the peace of Miller County for $300, alleged to be due appellant on contract for rent of a sawmill, and caused attachment to be is’ sued therein. He recovered judgment in the justice’s court, and appellee appealed to the circuit court.

Steel, Judge; ■ statement by the court. This is an action for personal injuries. The complaint alleges that the plaintiff is a minor ten years of age, and that the defendant is an Arkansas corporation. That on June 16, 1908, the plaintiff, with his older brother, had gone to the depot of the defendant company at Nashville, Ark., to meet some friends who were expected to arrive Qn the noon train of defendant.

Carter, Judge; Services intended at the time to be gratuitous can not after-wards be used to raise an implied contract to pay for them. 33 Ark. 215. When one grants railroad terminal facilities without any intention of charging therefor, he cannot afterwards change his mind and charge for same. ■ 68 Ark. 146. When services are rendered gratuitously, a subsequent promise to pay for them is not binding. 67 la. 591.

S. Maples, Judge; Criminal and penal statutes must be strictly construed.' 6 Ark. 131; 13 Id. 405; 43 Id. 413; 59 Id. 341; 53 Id. 334; 56 Id. 45. A statutory authority must be strictly pursued. 28 Ark. 359; 31 Id. 494. A -penal statute should be strictly construed against defendant, but liberally in his favor. 40 Ark. 97. Municipal corporations must confine their legislation within the scope of the powers conferred upon them by their charters. 27 Ark. 467.

Carter, Judge; STATEMENT- BY THE COURT. J. W. Hudson brought suit before a justice of the peace in Clark County against W. H. Meadows upon an account for $12.50 for labor and work done for defendant. The defendant denied that he was indebted in any sum, and further pleaded the statute of frauds. The plaintiff recovered judgment, and the defendant appealed to the circuit court. There, on a trial anew before a jury, a verdict was returned in favor of the plaintiff.

The findings of the court do not show the value of the property, Kirby’s Digest, § 6867; Ter. Dig. 458; Laws of Ark., 1835, p. 458; Rev. Stat. of Ark. pp. 659-667, § § 39-45; Kirby’s Digest, § 6868. The word “may” means “shall” or “must.” 5 Ark. 85; 77 Fed. 374-5; 23 C. C. A. 196. This failure to find value is reversible error. 43 Ark. 540; 44 Id. 212. 2. The judgment must be in the alternative, xo Ark. 511; 37 Id. 548; 44 Id. 2x2. See also 14 Id. 426; 29 Id. 270, 372. 3.

B. McDonough, Special Judge; Although it is a general rule that the refusal to grant a new trial upon the ground that the verdict is contrary to the law and the evidence will not be reviewed, it is otherwise where there is no evidence to sustain it. 14 Ark. 202. It is not necessary that a contract with an agent to sell land should be in writing. It does not come within the statute of frauds. 83 Ark. 202.

<p>Appeal from Lawrence Circuit Court; W. B. Beloate, Special Judge;</p>

Evans, Judge; 1. The State court had no jurisdiction. The interstate commerce law, as amended by the Hepburn act, takes absolute control of all interstate transportation. See Hepburn act, § § 1, 2, 3, 5> 6, 7, 8, 9, 10, 13, 14-16, 20.

<p>1. Actions — entry oe appearance. — The filing of an answer or a demurrer in a cause by a party thereto has the effect of entering his appearance therein. (Page 320.)</p> <p>2. Appear and error — sufficiency of abstract. — Appellant cannot complain in this court of the action of the trial court in taxing the costs ■against him if his abstract is not sufficient to show whether the action of that court in that respect was erroneous. (Page 320.)</p>

Steel, Judge; 1. Appellee, claiming to be a purchaser at an execution sale, even if she were actually innocent of any adverse claim to the property, -is nevertheless bound by the rule caveat emptor. 10 Ark. 211; 22 Ark. 572; 30 Ark. 249; 31 Ark. 252; 33 Ark. 621; 34 Ark. 85; 81 Ark. 279; 3 Paige, Ch. 421; 117 Ind. 206; 3 Md. Ch. 488; 42 Fed. 237; 43 Miss. 340; 83 Va. 331; 54 Neb. 712.

A verdict should have been directed for defendants, there being no legal evidence to prove actionable negligence. 57 Ark. 468; 145 U. S. 593; 144 Id. 408. 2. The mere happening of the accident and injury is^ not sufficient to shift the burden from plaintiff. The burden is on the plaintiff. 46 Ark. 555; m Tenn. 472;.44 Ark. 527; 51 Id. 479; 79 Id. 81; 57 Id. 479; 148 Fed. 369; 132 Id. 593; 179 U. 5. 658; 166 Id. 617; 83 Iowa 105; Mo. 268; 90 Cal. 497; 46 Oh.

Steel, Judge; Temporary removal, as applied to leaving a homestead, means a removal for a fixed and temporary purpose, or for a temporary reason. 62 N. W. 426; 89 Wis. 558; 90 Wis. 362. A vacant office is an office without an incumbent, and an old office is vacated by death, resignation or removal. 18 S. W. 784; 108 Mo. 153; 48 Ark. 82.

Rvans, Judge; 1. The alleged lien is fatally defective for want of a particular description of the property sought to be charged. The description is no description at all — too indefinite. 2. Kirby’s Dig., § 4976, was not complied with. 3. The claim was not properly verified. 4. The lien was waived by taking notes. 1. A note is only a promise to pay, not a payment. 63 Ark. 367. 2. The description is sufficient. 3.

S. Maples, Judge; The statute under which appellant is indicted is void because in conflict with the act of Congress of June 29, 1906. The act attempts to regulate interstate commerce, and is void. The indictment charges more than one offense; the demurrer should, 'therefore, have been sustained. 45 Ark. 62. But, even if the act is valid', the indictment is insufficient, because it fails to negative the exceptions in the act.

Robertson, Chancellor; STATEMENT BY THE COURT. In 1885 H. H. Sitterding, Sr., died, owning and occupying a certain lot in the town of Paragould, Greene County, Arkansas. He left a widow and two minor sons, George and Herman. The widow intermarried with one Thomas, and soon afterwards moved to Oklahoma, taking her son George with her. Herman was sent'to live with relatives in Indiana.

No legal inquest can be held unless the coroner or justice acting as such swears and impanels the jury in the presence of the dead body, and coroner, and jury together view it; and where the requirements of the statute are not complied with, the county is not liable for the expense of holding the inquest. Kirby’s Dig., §,§ 794, 795, 796, 797; 9 Cyc. 988. 2.

5. Maples, Judge; In an action for fraud or deceit the plaintiff must show that defendant made material representations that were false; that they were made with intent that they should be acted upon by plaintiff; that he acted upon them; and that he was damaged thereby. 71 Ark. 305 ; 30 Ark. 334. Absence of either of the above elements is fatal to recovery. 55 N. Y. 400; 112 N. Y. 454; 20 N. E. 376.

Carter, Judge; 1. Railroad companies should not permit mail bags to be thrown from their trains at a place and in a manner calculated to injure people rightfully on its premises. 136 Mass. 552; 49 Am. Rep. 40; 56 Minn. 345; 45 Am. St. R. 469; 97 N. Y. 494; 49 Am. R. 540. It was erroneous and prejudicial to’ submit a question to the jury upon which there is no evidence. 63 Ark. 177; 70 Ark. 441; 74 Ark. 19; 78 Ark. 177; 80 Ark. 260; 115 5. W. 381.

Wells, Judge; STATEMENT BY THE COURT. The appellant appeals from a judgment of conviction of the crime of burglary on the following indictment, omitting caption: “The said'John McCarthy, in the county and State aforesaid, on the 10th day of July, 1908, during the night time of said day, a certain house then and there situated, and being owned by Jackson & Gregory, a firm composed of C. A. Jackson and Ernest Gregory, as a storehouse, feloniously, wilfully and maliciously did…

Evans, Judge; statement by thr court. J. A. Goins, appellee, was employed as a machinist’s helper by appellant in its round house at Van Burén. An engine had been placed over a pit in one of the stalls in the round house, and the boilers of the engines were washed over these pits in the stalls.

Evans, Judge; 1. It was error to sustain the lien on separate buildings on different lots for separate work, when the lien filed shows a running account and a balance due, and was a lien on all the buildings. 63 Ark. 369. 2. It was error to permit the verdict to stand when it is clearly shown that plaintiff failed to comply with his contract in furnishing satisfactory heating plant. 1. Case of 63 Ark. 369, has no application — the facts are different. 2.

Carter, Judge; 1. The presumption of law is in favor of the jurisdiction of the Supreme Court of Ohio in making the decree of assessment against the policy holders of the insurance company and in appointing the trustee for its creditors. 28 U. S. 207; 5 McLean (U. S. Cir.), 167; 18 111. 133; 119 Ind. 103; iS La. Ann. 682; 60 Md. 11; 62 Md. 198; 92 Mass. 488; 100 Mass. 411; 36 Minn. 177. 2.

Bvans, Judge; 1. Following the American rule, the matters which go to prove the opposite party’s prima facie case, as made up by his witnesses, may properly be gone into -on cross examination. 7 Nev. 385; 9 So. Dak. 301; 133 Cal. 285; Reece v. Bell, 138 Cal. And it was proper to permit a full cross examination regarding the subject-matter of the examination in chief in the light of all its bearings. 74 Vt. 331; 73 Conn. 743; 115 la. 48; 92 Md. 483; 26 Ind. App. 307; 53 Atl.

In cases of injuries to servants happening in the course of their employment, negligence of the master is not inferred from the mere happening of the accident which caused the injury. It must be proved, the burden being on the party alleging it.

Apeal from Clay Circuit Court, Eastern District; Frank Smith, Judge; 1. A failure to give notice to the property owner of a raise in his assessment by the board of equalization, or a failure to-receive such notice, does not affect the validity of the assessment. Kirby’s Digest, § § 6992, 6998. 2. Section 7180, Kirby’s Digest, has no reference to applications for relief from action of -the equalization board. This relief is. provided for in § 6998.

Martineau, Chancellor; 1. The deed to Dismukes & Eorsythe was void. There was no seal attached. Hence it was not the deed of the corporation, x Devi, on Deeds, p. 317, § § 335, 336; 1 Warvelle on Vendors, p. 483, § 2, and note 1, p. 482. 2. Seals have not been dispensed with in Arkansas in cases of corporations. 1 Warvelle on Vendors, 494, § 2. To bind a corporation by deed, the instrument must be sealed.

Wallace, Chancellor; The fact that the mortgagor executes a conveyance without exacting a covenant from the grantee to pay the mortgage is strong evidence that it was not intended by the parties that the grantee should be thus bound. 4 Sandf. 516; 29 Barb. 532. A witness should relate the conversation and permit the court or jury to determine what was meant to be conveyed. 62 Ark. 510; 66 Id. 494; 85 Id. 64.

Wood, Chancellor; 1. The legal status of the parties and the property involved was fixed when this suit was brought, September 13, 1898. 57 Ark. 231; 40 Am. St. Rep. (Ky.) 184. The lis pendens statute of March 7, 1903, Kirby’s Digest, § 5149, .has no application to the questions involved in this suit; and the pendency of the suit precluded the acquirement of title, under the seven year statute of 1899, by payment of taxes after the suit was brought. 2. No laches is shown.

The venue is not proved. The brother’s testimony was hearsay merely and incompetent. 8 Ark. 406; Id. 455; 6 Wall. (U. S.) 396. 2. No crime was committed unless the prosecuting witness was under 16 years of age. Kirby’s Dig. § 2008. Of this there is 110 sufficient proof. 3. The verdict should have been set aside.

Wells, Judge;, 1. Jus disponendi was reserved in the consignor who had the legal right to transfer the bill of lading. There was never a delivery, either actual or symbolic, to appellees, and they never acquired title. Kirby’s Dig. § 529; 6 Cy-c. 424; 82 Tex.' 195; 4. Am. & Eng. Enc. of U. 2d Ed. 546; 50 Ark. 20; 56 Ark. 98; 64 Ark. 244. 2.

Haden Humphreys, Chancellor; A misrepresentation, in order to avoid a contract, must relate to some matter of inducement to the making of the contract, even where the purchaser relies on the superior knowledge of the seller. 19 Ark. 522; 27 Ark. 244; 30 Ark. 362; 26 Ark. 28. A settlement with a cestui que trust, fairly made, will relieve the trustee from liability upon an accounting or any breach of trust of which he may have been guilty. 146 Mass. 344; 13 Am. St. 711.

Winfield, Judge; Special damages cannot be recovered for delay in a shipment of freight, unless notice of the circumstances from which they may result is given to the carrier at the time of shipment. 48 Ark. 508; 54 Ark. 24; 72 Ark. 287; 74 Ark. 358; 75 Ark. 469; 77 Ark. 150; 113 S. W. 352.

Humphries, Chancellor; Sec. 416, Kirby’s Digest, requires the defendant to controvert the grounds for attachment under oath. This not having been ■done, the attachment should have been sustained. Kirby’s Dig., § 414. The testimony shows that defendant obtained the money from plaintiff by questionable methods; that he was a bird of passage — an adventurer without any fixed place of abode. The sheriff’s returns on the writs were conclusive. 11 Ark. 368; 40 Ark. 141-.

65 Ark. 82; 71 Ark. 415. It is not error to refuse to give an instruction when the ground has already been covered by proper instructions. 72 Ark. 384; 74 Ark. 33. If the evidence with the corroboration is sufficient to satisfy the jury beyond a reasonable doubt that the defendant is guilty, they are justified in so finding. 64 Ark. 251.

Lea, Judge; In order to justify a verdict for exemplary damages for negligence, there must be the element of witfulness or- conscious indifference to consequences from which malice may be inferred. 53 Ark. 7; 84 Ark. 249; 42 Ark. 328; 78 Ark. 331; 77 Ark. 109.. There must be some actual damage upon which to base a suit for exemplary damages. 55 Pac. 277; 48 Pac. 919; 24 N. E. 1029; 70 111. 496; 37 N. W. 116; 2 Suth. on Dam., p. 1129.

Winfield, Judge; A person who furnishes material to repair a building under •a contract with the owner or proprietor thereof is entitled to a lien for his money. Kirby’s Digest, § 4970. The entire land, to the extent of the interest, right or title of the owner so contracting, is subject to the lien. Id. § 4971.

Evans, Judge; statement by the court. On the 17th day of September, 1907, appellee was injured while working for appellant at its stave mill in Crawford County, Arkansas. At the time of his injury appellee had been working at the mill about two weeks. He was an illiterate young man, about nineteen years of age, and had never worked around machinery like that before. He was around another ’stave mill two or three weeks, but worked out in the woods.

Wells, Judge; statement by the court. Sarah J. Raines brought suit in the Drew Circuit Court against the St. Louis, Iron Mountain & Southern Railway Company to recover damages in the sum of $1,500 for physical injuries received by her while alighting from defendant’s passenger train at the station of Morrell in the State of Arkansas.

’Appeal from Hot Spring Circuit Court; William H. Evans, Judge; statement by the court. This was a suit by Tom M. Miles, as administrator of the estate of Mary Ellen Miles, to recover for damages alleged to be due the estate on account of the alleged negligent killing of Mary Ellen Miles by the appellee.

Evans, Judge; No pecuniary loss was shown, nor any physical injury. Mental anguish cannot be made the basis of an action for damages independent of any physical injury. 67 Ark. 130; 84 Id. 47. The case of Ry. Co. v. Hook, 83 Ark., does not apply to this case. Discomfort is not sufficient to tack on or hitch mental suffering. 89 Ark. 187.

Robertson, Chancellor; 1. The complaint states a cause of action under Kirby’s Dig. § 5789. Cardwell and Bray were commissioners to make partition, and the purchase and sale were void. Ib. § § 577^-9> 5780-1-2-3 and 4. 2. As commissioners, their relations were inconsistent with being purchasers. 112 S. W. 373-381. Their duties created a trust. Kirby’s Dig. § 5781. 3. Sound policy forbids one who has a duty to perform with reference to a sale to become a purchaser.

Wind eld, Judge; statement by the court. This suit was brought by G. W. Clark against St. Louis, Iron Mountain & Southern Railway Compány to recover damages for an alleged failure to furnish cars to haul away certain excavation material as it had agreed to do.

The presumption is that it has not been paid, and the burden of proving payment would rest on the maker. 4 Am. & Eng. Enc. of L. 77; 65 Ga. 221; 49 Ark. 508; 42 Ark. 22. The holder of a bill ,or note is presumed to be a holder for value, and the consideration is also presumed. The burden is upon the defendant to prove want of consideration, -as also the want of bona tides in the holding, x Am. & Eng.

Steel, Judge; 1. The evidence of Mann was not admissible. Bastardy is a civil action, and his deposition could have been taken. Kirby’s Dig. § 3157. His previous testimony .could have been used, if the accused was then present. 58 Ark. 370. The same rules of evidence apply as in other civil cases. 2 Enc. of Ev. p. 242; 115 Ind. 421; 17 N. E. 909; 81 Minn. 501. Before secondary evidence can be used, the superior or primary must be out of reach without fault. 2 Enc.

Where the verdict is contrary both to the evidence and the instruction of the court, it will be set aside on appeal. 44 Ark. 259; 49 Ark. 381. 2. The appeal from the justice of the peace court as to Stephens should have been dismissed, because he prayed no appeal, did not know of the suit, and could not, under the facts, have authorized any one to pray an appeal for him. Kirby’s Dig. § 4660; 70 Ark. 349. 1.

Haden Humphreys, Chancellor; The statute, Kirby’s Dig., § 2709, is intended to make provision for the -yvidow, -and not the children, where the estate is a new acquisition. The statute excludes grandchildren, the word “children” meaning the immediate offspring. 25 S. C. 358; 8 Words & Phrases, Jud. Def. 1115; 56 Ala. 260; 13 R. I. 149; 8 -So. 392; 68 Miss. 141; 39 Cal. 529; 53 Am. St. Rep. 453; 103 Mass. 287; 65 Ark. 321; 64 Tex. no; 3 Am. & Eng. Enc. of E., 1st Ed. 231.

Lea, Judge; 1. In the face of positive proof, which'amounts almost to mathematical demonstration, the jury were not justified in disregarding the evidence. 40 Ark. 168. There was no evidence to' support the verdict. 34 Ark. 632. 2. Plaintiff could not refuse to accept the goods and then sue for their value. Hutchinson on Carriers, Vol. 2, (3 Ed.) § 651 (328) ; 3 IF. § 1365, (770 d.) ; 44 Ark. 439. 3.

S. Steel, Judge; statement by ti-ie court. The complaint alleged that the appellant operated a railroad through the land of plaintiff described as follows: S. E. Ya N. E. Ya sec. 2, Tp. 10 S., R. 32 west, except ten acres cut off west side thereof, also as follows: Beginning at the S. E. corner of N. W. Y N. W. J4 sec. 1, Tp. 10 S., R. 32 west, thence west 15 chains and 50 links, thence north 6 chains and 50 links, thence east 15 chains -and 50 links, thence south 6 chains…

Grace, Judge; The act of 1907, amendatory of Kirby’s Dig. § 6774, authorizing double damages and attorney’s fees, is unconstitutional and void -in denying to railroads the equal protection of the law by prohibiting them from litigating claims for stock killed regardless of the merit of the controversy; in taking their property without due process of law by holding them to the arbitrary payment of claims; in doubling the damages and adding attorneys’ fees by an unjust,…

Bvans, Judge; Negligence' of the master, whether committed directly or through a fellow servant, may be assumed. 77 Ark. 367; 79 Id. .53; 86 Id. 507. Only when the facts are undisputed should the -court declare as a matter of law that the risk was assumed. 79 Ark. 53; 205 U. S. 1. The permit to ride the engine given by ’phone was not sufficient; it should have been in writing. 75 Ark. 579; 81 Id. 369.

Robertson, Chancellor; The proceeding by which the clerk undertook to transfer the title of the heirs without notice and without calling into action the power of the court was not due process of law. 3 Desty on Taxation, 749; 70 N. Y. 229. A party cannot add to his own possession that of the one who preceded him, when he did not enter into such possession under such predecessor. 37 Cal. 394; Wood on Rim. (2d Ed.) p. 693.

Carter, Judge; STATEMENT BY THE COURT. John Holman was a locomotive engineer in the employ of appellant. On the 12th day of January, 1908, he was on an engine that was pulling a freight train on appellant’s railroad from El Dorado and Camden to Gurdon. About a half or three-quarters of a mile south of Gurdon a switch connected a side track with the main line. Holman’s engine ran into this switch, which was open.

Hays, Judge, •on exchange of circuits; 1. The indictment charges two separate offenses, under § § 1609 and 1610 of Kirby’s Digest. Id. § 2231; 83 Ark. 26; ■6o Id. 13, dissenting opinion, Wood, J. The demurrer should have been sustained. Kirby’s Dig., § 2286. 2. The State must prove beyond a reasonable doubt that the pistol was not such as is- used in the army or navy. 83 Ark. 26; 84 Id. 332; 54 Id. 336; 49 Id. 534; 36 Id. 242; 77 Id. 139. 1.

Bvcms>. Judge; Unless prevented by statute, a railway company may lawfully give one person or company the exclusive right to occupy a certain position or stand at its depot with his hacks and vehicles for the purpose of soliciting business.

Nor does it allege that the affidavit on oath was such as the law authorizes. Kirby’s Dig. § § 4666, 1968; 54 Ark. 586; 24 Id. 595. It does not state that the affidavit was in writing. 2 Bish. Cr. Pr. § 912; 3 Wheeler, Cr. Cas. 180; 2 Wharton, Prec. 590-1. Nor does it allege that the affidavit for appeal was filed within thirty days. 2. Descriptive matter in an indictment must be proved. 1 Bish. Cr. Prac. § 488. 3.

This appeal is from a conviction for selling whisky within ten miles of Hendrix College. The evidence on behalf of -the State tended to show that appellant sold whisky within ten miles of Hendrix College as charged.

On September 25, 1907, appellant sold appellee an air compressor under a contract containing this provision: “The said party of the first part guaranties and warrants that the said air compressor aforesaid shall and will at a working depth of not exceeding sixty feet below the surface throw 2,000 gallons of water per minute, and at a working depth of not exceeding sixty-five feet below the surface throw 1,800 gallons of water per minute, and at a working depth of seventy…

The refusal of a continuance was reversible error. Where a motion for continuance complies with every requirement of the law, and the evidence is material, and due diligence is shown, it is an abuse of discretion to refuse a continuance. 4 Enc. PL & Pr. 845-6-7; 71 Ark. 180; 60 Id. 576; 42 Id. 274; 67 Id. 142; 60 Id. 564- 2. It was also error in allowing the State to challenge the juror McNew after he had twice been accepted by the parties, without good cause shown.

Hudgins, Judge; 1. The court erred in setting aside the verdict of the jury. No person shall be twice put in jeopardy. Const., art. 11, § 8. Nor can a judgment of acquittal of an offense the punishment of which is imprisonment be reversed. Nor can a court set aside a verdict of acquittal when the punishment may be imprisonment. 15 Ark. 261; 20 Id. 160; 28 Id. 113; 36 Id. 84; 38 Id. 550; 42 Id. 270; 47 Id. 568; Kirby’s Digest, § 5112. 2.

Martineau, Chancellor; In the absence of special authority, an attorney cannot bind his client by a compromise of a suit, even though such compromise has been consummated by consent judgment. Weeks on Attorneys at Law, 2d Ed. 471, 474; 3 Am. & Eng. Enc. of L., 2d Ed. 358; 32 Ark. 74; 7 Cranch, 426; 32 Ark. 346; 16 Am. Dec. 506; 55 Mo. 405; 159 Mass. 221. See also 69 Ala. 547; Weeks ' on Attorneys at Law, 2d Ed. 453; 43 N. J. Eq. 45 ; 141 N. Y. 302; 10 Phila. 118.

Steel, Judge; 1. There is no such offense as “running a gambling house.’’ If the indictment charges any offense, it charges two distinct and separate offenses. Kirby’s Dig., § § 1732-5; 35 Ark. 62. 2. The venue was not proved. 8 Ark. 400; 13 Id. 105; 56 Id. 226; 58 Id. 390. 3. The remarks of the prosecuting attorney were prejudicial. The fact that defendant did not testify raised no presumption against him. Kirby’s Dig., § 3088. 1.

Smith, Judge; The mortgage was execrited, the sale made and the decree rendered while the act of March 18, was in force. Acts 1887, p. 90. But since then the act of April 13, 1893, was passed, declaring all deeds, mortgages, etc., valid. The mortgage is good, and the decree below erroneous. The law in force at the time the court passes on a question is the law that governs. 58 Ark. 117. 1. The deed in this case was invalid to every extent and as to all persons. 57 Ark. 242.