Volume 91 — Arkansas Reports

Hays, Judge; The ruling on the demurrer is the only question raised by the State’s appeal, as defendant did not appeal. Kirby’s Dig. § 1225; 44 Ark. 25. The description in the indictment is sufficient to put defendant on notice as to the offense charged, and enable him to plead former acquittal or conviction. 26 Ark. 332; 27 Id. 498; 34 Id. 159; 98 N. C. 773; 71 Id. 176.

Grace, Judge; The court below misapprehended the meaning of the word “charge,” as used in § 1562, Kirby’s Digest. The Legislature evidently meant to use the word in its ordinary sense, and not in its legal signification. 1 Bish. Cr. Law, pp. 408-9-10; Clark, Cr. Law, p. 113; Endlich, Int. Stat., § §1 258, 264; Lewis’ Sutherland on Stat. Int., § § 389, 390, 392, 394; 129 Cal. 364; 92 Id. 590; 64 Ky. (1 Bush) 176; 34 N. Y. Shppl. 228.

Evans, Judge; 1. The cause should have been transferred to equity, as the defense in the answer was purely equitable. 36 Ark. 229; 52 Ark. 411; 71 Id. 487; 44 Id. 458; 46 Id. 272; 44 Id. 496; 49 Id. 575; 74 Id. 280. 2. Instruction No. 1 should have been given. There was evidence of partnership. 80 Ark. 28. Lynn Butler, the partner, was a necessary party. 60 Ark. 560; 67 Id. 27; 30 Cyc. 561.

At-the town of Rector in Clay County, Arkansas, appellant has a main line track and a passing side track running parallel with the main line for nearly a mile and being about nine feet apart. The space between the tracks south of town had been used continuously by pedestrians since the railroad was built. Appellee about six o’clock in the afternoon was walking south along the footpath between appellant’s tracks.

Hudgins, Judge; statement by ti-ie court. Charles Burrus rented from C. C. Nowlin and D. S. Nowlin the “Toney farm” in Marion County for the year 1906. The Nowlins furnished him supplies, as he and they testify, “to enable him to make the crop” during the year 1906 according to an itemized account which amounted to the sum of $103.32.

Elliott, Chancellor; I. Since partition cannot be had until all accounts are adjusted, this action, and not a suit for partition, is the proper remedy. George on Partnership, 303; 82 Iiun (N. Y.) 238; Bates on Partnership,'§ 975; 95 U. S. 401. However, if the court found that an action to settle the partnership affairs was not a proper remedy, he should have caused the proceedings to be changed, rather than to dismiss the bill. Kirby’s Dig. §§ 5980, 5991. 2.

Robertson, Chancellor; 1. Time was of the essence of the contract, and the attempted extensions thereof were void. Sandels & Hill’s Dig., §§ 1215, 1218, 1219; 54 Cal. 54; Id. 570; 80 Cal. 5; 69 Cal. 454; 68 Cal. 428; 89 Cal. 316; 80 Mo. App. 574; 86 Mo. App. 349; 169 Mo. 376; 152 Mo. 585; 70 Mo. App. 535; 68 Mo. App. 352; 77 Mo. App. 616; 1 Y. & C. Ex. 401, 416; Pomeroy on Contracts, § 382; 81 Ark. 80. 2.

Carter, Judge; statement oe the court. On the 15th- day of October, 1906, the American Insurance Company, in consideration of the sum of eighteen dollars, insured B. B. Haynie for the term of 3 years against loss by fire, for $450, on a dwelling house in the town of Bodcaw in Nevada County, Arkansas; for $100 on his household and kitchen ■ furniture and $50 on an organ, contained in his said dwelling house.

Wallace, Chancellor; statement by the court. This was a suit by appellee against appellant (defendant below) and wife, and E. G. Collier, to foreclose a mortgage given by appellant and his wife to appellee on certain lands and also what was known as the Post-Dispatch printing plant.

Whether the state of facts complained of constitutes a public or private nuisance, there is conclusive evidence of special damage, and appellants are entitled to recover. 39 Ark. 403; 98 Mo. 523; 11 S. W. 990; 37 Cent. Dig. 1691, § 164, “Nuisances.” 2. The actions are not barred.

The petition is analogous to an. election. 51 Ark. 159. Appellant could not appeal; he was''not a party in the county court. Hence certiorari was his only remedy. 61 Ark. 605. 2. The order of the county court was void because the petition did not contain a majority of the adult inhabitants. 56 Ark. 112; 70 Id. 449. 3. The statute is the operative force that prohibits; the court is only the agency that puts the statute in operation. 46 Ark. 383; 56 Id. 112; 135 U. S. 467.

A change of venue should have been granted, and it was error to rule that the four witnesses should make an additional affidavit and go on the stand to support it or not be heard. 83 Ark. 36; 162 Fed. 97; 85 Ark. 537; 86 Id. 358; 85 Id. 5x4; 76 Id. 278; 54 Id. 246; 36 Id. 28; 68 Id. 466. 2. The indictment should have been set aside because there was no evidence on which to base it. Kirby’s Digest, § § 2203, 2204, 2207, 2209.

Robertson, Chancellor; 1. In order to render one liable for false representations, it must be shown that he made such representations with actual knowledge of their falsity and with fraudulent intent. 14 Am. & Eng. Enc. of E. 86; 22 Ark. 454; 23 Ark. 289; 38 Ark. 334 ; 31 Ark. 170; 71 Ark. 305. Such representations must be relied upon, at least in part, by the purchaser. 8 Ark. 146; 47 Ark. 148; 26 Ark. 28; 11 Ark. 58; Benjamin on Sales, § 429. 2.

<p>Appeal from Pulaski Circuit Court, Second Division; James H. Stevenson, Judge;</p>

Fulkerson, Judge; The law relating to the establishment of drains and ditches, Kirby’s Dig. §§ 1414-1450, inclusive, is to be strictly construed. 64 Ark. 555. The order of the county court made on December 4, 1906, settled the matter of the location of the ditch, and subsequent changes in its location were without authority and void, and the circuit court acquired no jurisdiction on appeal. 77 Ark. 234; 44 Ark. 377.

Wells, Judge; statement by the court. Ed Goosby brought this suit in the Ashley Circuit Court against the Crossett Lumber Company to recover damages for personal injuries received by him on account of the alleged negligence of the employees of said Lumber Company, while operating a train on its line of road.

Appeal -from Pulaski Chancery Court; John R. Martineau, Chancellor; 1. By the common-law rule a charge for “readiness to serve” is reasonable and lawful. 60 N. Y. Suppl. 561; 34 Mo. App. 501. The act of 1905 (Acts of ’05, p. 700) does not forbid a charge for readiness to serve. It forbids a charge for meters and requires them to .base their charges for the commodity furnished, etc. Bxpressio unius est exclusio alterius.

Statutes of limitation must be pleaded -even before a justice of the peace. 25 S. W. 32; 3 Id. 3, 7. 2. It was an error to submit to the jury the wrong issue, and refuse the right one, viz, that plaintiff was to cultivate the land he cleared. 3. While no pleadings (written) were necessary, if a party-elected to plead in writing he is bound thereby, and it was error to permit plaintiff to testify about twelve days’ labor. 4.

Shaver, Chancellor; x. The sale of the land under the overdue tax act was a fraud on the part of the State. 75 Ark. 415; 44 Ark. 452; 49 Ark. 87. -There were no intervening -equities after the donation to the' date of the conveyance to Jones. 76 Ark. 450; Id. 55b 2. The court had no jurisdiction under the overdue tax act, and its decree is void. 70 Ark. 207; 82 Ark. 295. 1. The proceedings of the Little River court could only be reviewed on appeal.

5\ Maples, Judge; statement by the court. This is an action to recover damages for loss of a box of household goods shipped from Lawton, Oklahoma, to Gentry, Arkansas. The suit was brought before a justice of the peace in Benton County, Arkansas, and judgment was rendered in favor of the plaintiff. The case was duly appealed to the Benton Cir- ■ cuit Court.

Wells, Judge; Before an employee is exempted from the risk incident to a dangerous work on the ground that it was undertaken under the- immediate command of his superior, or fro-m contributory negligence under the circumstances in attempting such work, it is necessary (1) that the danger be latent, or exist in consequence of some altered condition of the service caused by the negligence of the master; and (2) the circumstances must be such that the command may be regarded as…

All the items are barred except the last item, as the materials were furnished under separate orders, in pursuance of a general agreement to sell such material as might be needed, and not under a single continuing contract. Phillips on Mech. Liens, § 325; 33 Mo. 31; 79 Ala. 156. 2. The defendant’s requests 5 and 6 should have been given, as the suit was not commenced within one year. 1.

Meeks, Judge; 1. The judgment iwas void for want of service of summons or appearance by him; also because there was no guardian ad litem for the minor. Kirby’s Digest, § 6023-4; 40 Ark. 56. There must be a valid judgment on which to base garnishment. 32 Ark. 423; 70 Ark. 127; Drake on Att., 460, 711. A void judgment is no judgment. Freeman on Judgm. (3d Ed.), §117; 1 Black on Judgm., § 70. A judgment without notice is void.

Wood, Chancellor; 1. A failure to keep separate records as required by statute is not fatal to the tax sale. Kirby’s Digest, § § 7092, 7107; 61 Ark. 39; 70 Ark. 328; 61 Ark. 414; 72 Ark. 375; 76 Ark. 450; 49 Ark. 275. The provisions are not mandatory. The clerk kept the record required by law. 2. The provisions of § 7092, Kirby’s Digest, are mandatory. 61 Ark. 414; 70 Ark. 328; 61 Ark. 36; etc. 3. No such record was kept. 4.

A minor may lawfully receive and enjoy his own wages if his parent sees fit to permit him to make his own contracts, and to appropriate the wages to his own use. Whether or not the parent has manumitted the child may be shown by facts and circumstances from which arises the necessary inference. Rodgers on Dom. Rel., § 485; 53 Ark. 499; 33 Ark. 435; 21 Ark. 387.

Hudgins, Judge; STATEMENT BY THE COURT. This is the second appeal in this case. The case on the first appeal is reported in 84 Ark. 21 (Lake v. Combs), where the issues and facts are fully stated.

Virgil Bourland, Chancellor; 1. Time was of the essence of the contract. A waivei of forfeiture by Friar is not established by the evidence, and is contradicted by the conduct of the parties. Payment .at the time specified was a condition precedent to the right to purchase, which right terminated on failure to make such payment. 76 Ark. 579; 54 Ark. 16; 57 L. R. A. 176; 17 N. E. 60; 21 S. W. 970; 45 S. W. 275; 17 N. E. 61; 14 Tex. 373; 113 S. W. 800. 2.

Elliott, Chancellor; 1. Porter, by virtue of his position as director and controlling stockholder, was a trustee, and could not speculate upon the corporation’s property, or purchase at sheriff’s sale, except as trustee. 38 Ark. 17, 26, 30; 10 Cyc. 815, 787, 791, 799; 35 Ark. 314; 75 Id. 188; 33 Id. 587. 2. The notice required by section 4923, Kirby’s Digest, was not given, and -the sale is subject to redemption. 3. The property was in fact redeemed in time.

Humphries, Chancellor; 1. Contracts for the sale of lands or any interest in or concerning are void under the statute of frauds. Kirby’s Digest, § 3654, clause 4; Browne on Stat. Frauds, § § 385-7; 21 Ark. 533; 16 Id. 364; 76 Id. 237; 45 Id. 17; 70 Id. 351, etc. 2. The contract was not to be performed within a year, and was void. Ih. § 3654, clause 6; 46 Ark. 80; 1 McArthur (D. C.) 485; 47 Am. Dec. 320;. 1 Hilton (N. Y.) 305. 3.

Hudgins, Judge; When one declares for a breach of special contract, it is incumbent on him to prove substantially the material allegations of the declaration. 21 Ark. 301; 11 Id. 733; 2 Id. 397; 41 Id. 399; 76 Id. 333. Exhibit A should have been stricken out. It is void for uncertainty of parties and subject-matter. 5 A. & E. Enc. Law (1 Ed.) 432-9; 9 lb. (2 Ed.) 132, (2); 2 Parsons, Cont. (2 Ed.) 515; 60 Ark. 489; 22 Id. 64; 41 Id. 501; 7 A. & E. Enc. Law (2 ed.) 289.

<p>Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;</p> <p>Where two written instruments,' constituting one transaction, are executed and delivered at the same time, they will be construed as one instrument. 34 Am. Dec. 684; 47 Id. 335. Where a contract is prepared in writing, assented to and acted upon by both parties, though signed by only one of them, the other will not afterwards be permitted to deny the binding force of the contract. 104 Cal. 310; 42 Cal. 245; 30 Fed. 225; 77 Wis. 33; 125 Ind. 19; 24 N. E. 756; 130 111. App. 131; 129 111. 101. A suit could have been based on the deed alone, and the five-year statute of limitations would apply. 84 Miss. 509; 101 Mich. 409; 30 Ark. 872; 78 Ky. 475. When one has five years in which to bring a suit, four years’ delay is not laches. 75 Ark. 382. An acknowledgment of the payment of the purchase money in a deed may be contradicted by parol; and if proved not to have been paid it is a promise in writing to pay it, and the statute of limitations applicable to written instruments applies. 84 Miss. 509; 77 Miss. 872; 73 Miss. 665. The writing does not have to be signed, if it shows the debtor agreed to settle. 74 Cal. 60; 4 Houst. 14. A promise to settle at a future day will remove the statute bar. 30 Miss. 40. “I will settle in a few days” removes the bar. 18 N. C. 18; 32 N. C. 86. That he would settle and make all right removes the bar. 49 N. C. 510. Promise to settle a note is equivalent to a promise to pay it. 8 Wend. 600. A simple promise to settle is sufficient. 38 Vt. 159; 16 Vt. 297; 15 Vt. 560; 13 Vt. 574. Although a debtor denies the indebtedness, yet if he agrees to settle it if established, and the indebtedness is proved, the bar is removed. 18 Vt. 485.</p> <p>To take a case out of the operation of the statute, there must be an acknowledgment of the debt as due at the time, and a promise to pay it. Such acknowledgment and promise must be unqualified and unconditional. 10 Ark. 134; 12 Ark. 595 ; 11 Ark. 666. If there be any condition attached to the promise, it will not remove the bar. 52 Ark. 456; 12 Ark. 762; 26 Ark. 540; 20 Ark. 293.</p>

Shaver, Chancellor; 1. The complaint alleges facts sufficient to constitute a cause of action. The agreement was a lawful one. 6 Words & Phrases, 5612, “Prize.” 2. The court had jurisdiction. There was no adequate remedy at law. Appellees -were trustees for contestants. 27 Am. & Eng. Enc. Law, (1 Ed.) 11 and 12. Chancery always enforces a trust, and interferes to prevent or correct fraud. 75 Ark. 52; 77 Id. 570; 37 Id. 286; 34 Id. 410; 30 Id. 86; 33 Id. 429; 14 Pet. 114. 3.

Bvans, Judge; STATEMENT BY THE COURT. The appellant was indicted for the crime of murder in the first degree, was tried and convicted of voluntary manslaughter. Appellant killed one Bus Lawhorn in Saline County, Arkansas, April 13, 1908. Lawhorn was living with his mother on her farm, and appellant was a tenant. On the late afternoon before the tragedy, appellant and Mrs. Lawhorn had a quarrel about supplies.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p> <p>statement by the court.</p> <p>The Hoffman Coal Company brought this suit against the Midland Valley Railroad Company in the Sebastian Circuit Court for the Ft. Smith District, to recover damages for an alleged failure of the defendant to furnish cars for shipment of coal from the coal mine of the plaintiff. There was a jury trial, and a verdict for the plaintiff in the sum of $4,500. From a judgment rendered upon this verdict the defendant has duly prosecuted an appeal to this court.</p> <p>The abstract of counsel for defendant, now appellant, states the substance of the pleadings, with the action of the court thereon, as follows:</p> <p>“The complaint in substance alleges the following: That defendant was engaged in operating a railroad in Sebastian County, which road reached the coal field of said company, in which were located several coal mines, among them a coal mine operated by plaintiff.</p> <p>“It is further alleged that the method of mining coal was to shoot down one day a sufficient amount of coal to be loaded on cars the next day, and that it was plaintiff’s custom to order, at the end of each day, a sufficient number of cars in which to ship the coal that was shot down at the close of the day on which the cars were ordered; that,’ in pursuance of this custom, it ordered on the several days set out in the complaint cars sufficient to-remove its output, which was alleged to be 250 tons, and that the defendant failed to furnish the cars as ordered. Plaintiff further alleges that the coal was to be shipped to points in Oklahoma, Indian Territory and Texas, under an agreement with the Mc-Alester Fuel Company, with which plaintiff had an arrangement to sell its entire output, and that during the times complained of the said Fuel Company had orders for the said coal in Indian Territory, Oklahoma and Texas, and that plaintiff could and would have sold its entire output through the said Fuel Company at an average profit of seventy-five cents (75c) per ton. After alleging the number of days upon whioh it ordered cars and that the said -cars were not furnished as ordered, the complaint further alleges that defendant failed to use due care and diligence to furnish itself with sufficient equipment to carry plaintiff’s coal, and that it could have furnished the cars ordered within a reasonable time thereafter but for the negligence of defendant in not providing itself with sufficient equipment. The complaint concludes with the following allegation of damages: ‘That if defendant had used due care and diligence it could have furnished itself with sufficient equipment to carry plaintiff’s coal, could have furnished cars within a reasonable time after being requested; but by reason of the default of defendant to furnish cars, as hereinbefore alleged, it lost the sale of, and failed to produce, 30,500 tons of coal, which could and would have been sold at the profit aforesaid during said period, to its damage in the sum of $22,875.’</p> <p>“Defendant filed petition to transfer the cause to the United States court. Petition is based upon the contention that, as the complaint shows on its face all the coal shipments for which cars were ordered were interstate shipments, plaintiff’s cause of action, if any existed, arose under the provisions of the acts of Congress, and involves the construction of the acts of Congress, and especially of what is known as the Interstate Commerce Acts. The court denied the petition, and defendant excepted.</p> <p>“Defendant then interposed demurrer to the complaint upon the grounds that it did not state facts sufficient to constitute a cause of action, and on its face showed the court had no jurisdiction. The demurrer further challenged the sufficiency of the complaint upon grounds similar to the grounds set out in the petition to remove the cause to the United States court; the demurrer alleging that plaintiff’s cause of action, if any, arose under the acts of Congress, and that it cannot bring suit in the State court for failing to furnish cars for interstate shipments, but that complaints of this kind must be first lodged with the Interstate Commerce Commission. The demurrer was overruled, and defendant excepted.</p> <p>“Defendant then filed motion to require plaintiff to make its complaint more definite and certain. The motion asks that plaintiff be required to state to what points in Indian Territory, Oklahoma and Texas it desired to ship the coal for which the cars were ordered, and to state for what points it ordered cars for the shipment of coal, to what points the cars were to be consigned, and to state the orders it had for the sale of coal which it did not ship, the parties from whom the orders were received, and to set out, by itemized account and bill of particulars, its damage, so that said bill of particulars would show the orders it had for each day defendant failed to furnish cars, from whom the orders were received, the quantity of coal for which given, the number of cars required, and the places to which shipments were to be made. This motion was overruled, and defendant excepted.</p> <p>“Defendant then filed answer, denying specifically each and every allegation of plaintiff’s complaint.</p> <p>“The defendant, in the second paragraph of its answer, set up the defense that plaintiff, during the times complained of, was a member of a pool, trust and combination organized to control, regulate and fix the price of coal, and to limit the quantity of production ; that the Duel Company, through which its alleged sales were made, was also a member of the pool and combination, and that no coal was sold by plaintiff, or contracted to be sold by it, except by and through the said trust and combination; that it had no orders for coal except as a member of and through the said trust, and that it made no profit, and could not and would not -have made the profit alleged by it, or any profit, except by the unlawful combination of which it was a member. To this paragraph the court sutairied demurrer filed by plaintiff, and defendant reserved its exceptions.”</p> <p>The Hoffman Coal Company had a ten years' lease upon 120 acres of land in Sebastian County, under’no acres of which was a seven-foot vein of coal, which would produce, according to the testimony of the plaintiff, about 7,000 tons per acre, or approximately 700,000 tons for the entire acreage. The Midland Valley Railroad Company began the construction of its line of railroad, and its road was open for traffic in that field in 1903. On the 5th day of December, 1903, the parties to this suit entered into a contract for furnishing cars" to appellee for the purpose of transporting its coal.</p> <p>The contract in substance provided for the building of a spur track to • defendant’s mine, the coal company agreeing to build a tipple, furnish right of way and the expense of laying track, the defendant to furnish the steel and other necessary appliances to lay the track, and to furnish at the tipple “such a number of oars for the shipment of the coal of the party of the second part, so that the party of the second part should be able to operate its mine not fewer hours per month than ninety (90) per cent, of the hours per month the mines are operated of any other person or corporation on the railroad of the party of the first part, including the mines of the party of the first part.” The contract further provided that all coal mined should be shipped over the defendant’s road.</p> <p>There was then introduced in evidence over the objection of defendant a lease for the land upon which plaintiff’s mine was located, made by the Hartford Coal Company to the Hoffman Coal Company, November 1, 1904. This lease was for ten years, and provided for the payment of eight (8) cents per ton royalty on all coal mined.</p> <p>The method of loading coal was to bring it from the underground workings to the tipple, and from the tipple to dump it intp the railroad cars. The capacity of the mine, during September, 1906, was 250 tons of coal per day, which was increased to about 350 tons in July, 1907. The custom of ordering cars was by telephoning defendant’s agent at Hartford about four o’clock in the afternoon, telling him the number of cars that would be needed next day.</p> <p>Such other facts as may be necessary to a proper understanding of the issues presented for our determination will be stated in the respective parts of the opinion to which they are applicable.</p> <p>The complaint shows on its face that the cars ordered, and not furnished, were intended for interstate shipments of coal. The court should therefore have sustained appellant’s petition to transfer the case to the United States court. 158 U. S. 98; 201 U. S. 321; 76 Ark. 82; 109 Fed. 831; 42 S. W. 354; Snyder on Interstate Com. Act, pp. 69, 237, 237; sec. 3, Interstate Com. Act. The defendant was not bound to furnish cars for shipments beyond its own line. The demurrer should therefore have been sustained. 46 Ark. 45; 71 Ark. 571; 54 Ark. 22; 74 Ark. 285; 61 Ark. 560; 122 111. 506; 31 Fed. 864; Hutchinson on Car., § 1367; Elliott on Railroads, § 1724. Appellee’s business being illegal, it cannot complain because a carrier is not prompt in furnishing transportation. Kirby’s Dig., § § 1972-1982. Appellant could not be compelled to permit its cars to go to foreign roads. Its request for a peremptory instruction should, therefore, have been granted. 40 Mo. 491; 99 N. W. 309; 95 S. W. 1701 92 S. W. 531; 52 S. E. 677; 99 Mass. 508; 61 Ark. 650.</p> <p>The petition for removal was not filed in time. It was therefore properly denied. 76 Ark. 362. Any shipper may in this State recover at common law the damages suffered by reason of a common carrier’s failure to furnish cars. 79 Ark. 59; 76 Ark. 220; 75 Ark. 64; 77 Ark. 35. Such a suit can be maintained in the State court. 115 S. W. 107. Appellee was entitled to have its order for .cars filled, although its coal had not been mined. 154 Eed. 112. A common carrier may so hold itself out to the public as to make itself liable'for failure to receive and carry goods beyond its own line. 61 Ind. 577; 141 Ind. 267; 38 la. 601. The defense that appellee was engaged in an illegal business is not available to appellant. 86 Fed. 674; 184 U. S. 547; 68 Pac. 1086. Recovery’can be had in all cases where the plaintiff in his suit is not compelled to rely upon an illegal contract. 145 U. S. 421. Failure of connecting lines to return cars is no defense. 85 Ark. 311. The measure of damages was the loss of profits. 49 111. 211; 26 Minn. 256; 44 Md. 268. A common carrier’s first duty is to furnish itself with facilities for the transportation of such goods as he holds himself out ready to carry. Hutchinson on Car., § 292; 94 S. W. 176; 57 Pa. St. 301; 10 Interstate Com. Rep., 226. A State court has jurisdiction of a suit to recover the excess of freight charged • over and above the amount-allowed by the Interstate Commerce Commission upon the ground that it is a suit to recover back a wholly unjust and unauthorized exaction. 131 la. 405; 108 N. W. 759; 62 Fed. 24; 35 C. C. A. 62. A corporation does not become an outcast by becoming a member of a trust. 184 U. S. 541.</p> <p>The common-law action gives no greater rights than a remedy prescribed by statute. The interstate commerce act supersedes all other remedies. 76 Ark. 83; 158 U. S. 98. A demand for cars for use in shipping coal out of the State is the initial step in an interstate transaction, and falls within the exclusive federal authority. 73 Ark. 373. A railroad company is not bound to furnish cars to be used for an illegal purpose. The demurrer to defendant’s answer should, on this account, have been overruled. 75 Ark. 181; 30 S'. W. 956; 59 S. W. 709; 54 S. W. 804; 71 S. W. 691; 48 Am. St. 317; 17 Id. 445; 6 Wis. 468; 99 Am. Dec. 580, note; 130 U. S. 3965 *55 IT 166; 74 Am. St. 189.</p>

An assignment of perjury must specifically and without uncertainty of meaning designate the particulars wherein the matter sworn to was false. 54 Ark. 584; 59 Id. 113; 51 Id. 138; Bliss, Code PL, § 332. The alleged false testimony must appear to be material on the face of the indictment. 53 Ark. 395. 2. The materiality of the false testimony must be proved as alleged. 64 Ark. 474; 32 Id. 192; 30 Cyc. 1450.

Haden Humphreys, Chancellor; In order to avoid the contracts, the vice pleaded must go to the substance of the contracts as and at the time executed. If the vice and illegality go only to the mode of execution, which is not a part of the contract at its inception, it is not vitiated. The burden of proof is on the party alleging the illegality of the transaction. 8 Am. & Eng. Enc. of R., 1008 and cases cited in note 2; Id. 1010.

Grace, Judge; 1. No exclusive right to sell was given, and appellants reserved the right to make sale themselves. 44 L. R. A., p. 344, note A; 70 Ark. 58; 44 Id. 275; 21 Wis. 303; 20 Minn. 126; Cordova v. Baker, 74 Tex. A principal reserves the right of disposal, even after conferring the power upon an agent, unless the exclusive authority to sell is given. 2. Appellants could only be liable for breach of contract in such damages as were proved.

Martineau, Chancellor; 1. The mortgage is void as to rights of third parties because the acknowledgment was taken before a notary who was president of the bank, the mortgagee. 68 Ark. 166; 70 Id. 309; 63 N. E. 1049; 96 Va. 138; 36 Fla. 575; 13 Mich. 329; 87 Iowa 363; Jones on Mortg., § 249; 50 N. E. 594. 2.

Wells, Judge; statement by the court. The appellant was arrested on a warrant issued by a justice of the peace which reads in part as follows: “It appearing that there are reasonable grounds for believing that Hosia Henderson has committed the offense of carrying a pistol as a weapon, you are commanded forthwith to arrest him and bring him before me to be dealt with according to law.” The appellant was tried and convicted in the justice’s court, and on appeal to the circuit…

Mandamus to Howard Chancery Court; James D. Shaver, Chancellor; 1. The answer and cross-complaint state facts entitling defendant to relief in equity. (1) Fraud, 29 Ark. 612, 617. Relief by injunction. 29 Ark. 139, 141; 74 Ark. 421, 425; 77 Ark. 221. All the necessary allegations are made. 46 Ark. 96, 102; 48 Ark. 312, 316; 56 Ark. 93-95. 2. A railroad cannot exercise the right of eminent domain' for private use. 57 Ark. 359; 74 Ark. 425.

Meeks, Judge; 1. The burden was on plaintiff to prove title. The sale was imperfect and incomplete, as something remained to be done between buyer and seller. 19 Ark. 573. There was no delivery. Replevin does not lie for part of a lot of ties in which only an individual interest is claimed. 44 Ark. 447. Where chattels are sold to two .different purchasers by sales equally valid, he who first take possession will hold as against the other.

r85 of the Acts 1905 is invalid because it is ambiguous, and its construction is meaningless. 36 Ark. 331; 47 Ark. 404; 59 Ark. 237. Invalid also because it is violative of art. 5, § 22, Const. Under this constitutional provision the act of 1905 neither amends the section nor repeals the proviso. Section 1 of the act is to be looked to to see if it does either. What follows it is entirely disconnected from it, separately paragraphed and numbered as a separate section.

<p>Appeal from Lonoke Chancery Court; John B. Martineau, Chancellor;</p> <p>statement by Tite court.</p> <p>Mrs. James B. Gray, appellee, on January 21, 1908, instituted this suit in the Lonoke Circuit Court against appellant to recover a strip of land off the south half of the northwest quarter, 11, T. 2 S., R. 9 west, four rods in width and one-half mile in length consisting of 4.17 acres. Appellee alleges that she is the owner of the northwest quarter of the northwest quarter and the south half of the northwest quarter of section xi, T. 2 S'., R. 9 west; that the land of appellant (the N. Já S. W. % Sec. 11, T. 2 S., R. 9 W.) adjoins her land; that appellee and appellant deraign title by mesne conveyances from R. C. Walker; that her deed is from J. F. Walker, and calls for the number of acres set forth in the survey of the United States government, whether it be more or less than 120 acres, and the United States government survey calls for 128% acres. She alleges that appellant is in the unlawful possession of the four acres for which she sues; that same is in a high state of cultivation, and she asks for damages in the sum of $150.</p> <p>The appellant answered, admitting float he was in possession of the land in controversy, and that it was in a state of cultivation, but denied that his possession was unlawful. He sets up the following: That R. C. Walker purchased the West of 11, 2 S. , 9 W., partly with money belonging to J. F. and R. O. Walker, his sons, taking the deed to himself. That the lands were laid off into lots No. 1, 2, 3 and 4, R. O. Walker taking lot No. 1 and J. F. Walker taking lot No. 2; R. C. Walker retaining lots No. 3 and 4. Deeds were made to R. O. and J. F. Walker to their respective tracts, and they were placed in possession of same, but in preparing the deeds ordinary blanks were used, and the lands were described according to the survey calls, and the formal words “more or less” used in connection with the number of acres; but that it was not the intention of R. C. Walker to convey any land other than those embraced in the lots herein above referred to. That subsequently Hoover became the grantee of R. C. Walker to lot No. 3, and a similar mistake was made in the deed to him; that he actually purchased and was placed in possession of the tract lot No. 3, although the deed purported to convey N. y2 S. W., section 11, 2 S., 9 W., containing 80 acres, “more or less.” That appellee knew at the time she purchased the tract that she was actually getting the tract of land that had been purchased by J. F. Walker; that he was not in possession of the strip of land in controversy, did not claim the same, and that she was not buying that. That at the time she purchased from J. F. Walker she knew that appellant was in the actual possession of said land claiming title adverse to J. F. Walker. Seven years adverse possession is pleaded.</p> <p>Appellant prayed that the complaint be dismissed, that the deeds made by R. C. Walker to J. F. Walker and from J. F. Walker to appellee-be reformed so as to correctly describe the land sold by R. C. to J. F. Walker, and from J. F. Walker to appellee, that his title be quieted, and for general relief, etc.</p> <p>The cause, on motion of appellant, was transferred to the chancery court. The testimony showed that R. C. Walker on October 19, 1900, purchased for himself and his sons J. F. and R. O. Walker the west half of section 11, township two south, range 9 west, in Lonoke County, Arkansas. R. C. Walker took the deed in his own name. The proof on behalf of appellant tended to show that soon after the purchase of the land R. C. Walker had a surveyor to lay it off into four lots numbered respectively 1, 2, 3 and 4, that the corners to these lots were designated by iron stakes driven down at the corners of each of the lots, that the Walkers agreed to partition the land among themselves, that according to the agreement J. F. Walker was to have lot 2 as above designated, R. O. Walker was to have lot 1, and R. C. Walker was to have lots 3 and 4.' R. C. Walker executed his deeds to his sons to carry out the partition as agreed upon, that the deed to lot two described the land intended to be conveyed as the S. Yt. of N. W. % section 11, to-wnship 2 south, range 9 west, containing 80 acres “more or less,” but that the parties to this deed only intended by it to convey the lands contained in lot number 2 as it had been designated by the metes and bounds agreed upon; that the deed from R. C. Walker to R. O. Walker conveyed lot number 1, describing it as N. W. y N. W. % and N. E. %. N. W. %, sec. 11, T. 2 south, range 9 west, containing 80 acres more or less; that the parties to the deed intended that the land contained in lot 1, as designated by them in their partition agreement, should be conveyed by the deed; that R. C. Walker retained, under the agreement, the lands contained in lots 3 and 4, and that on the 3d day of January, 1903, he conveyed the lands contained in lot 3 to appellant, W. L. Hoover, describing it as the north half of the southwest quarter of section 11, township 2 south, range 9 west, containing eighty acres more or less; that appellant went into possession, under this deed, of the land contained in lot 3, as designated by the corners in the agreement of partition between the Walkers; that in 1904 he built a fence on the line between lots 2 and 3, marking the south boundary line of lot 2 and the north boundary line of lot 3, according to the agreement of partition, and that he had cultivated such land every year since. The testimony on behalf of appellant further tends to show that prior to the sale of the land from J. F. Walker to appellee,-J. F. Walker and the husband of appellee, who had acted as her agent in the matter, went upon the land, and that J. F. Walker pointed out the division line between appellant and himself.</p> <p>The testimony on behalf of appellant tends further to show that appellee’s husband and agent, before the purchase of the land from Jas. F. Walker and R. O. Walker, offered sixty dollars an acre for the land, and told parties after the purchase that he had paid sixty an acre for it; that the purchase of the lands of Jas. F. Walker by appellee was made in 1905; that appellee’s agent knew at that time that appellant was claiming to the fence between his tract and that of Jas. F. Walker from whom appellee purchased, but did not have a survey made to ascertain the exact boundary between the tracts until November 1907; that soon after the purchase appellee had the line run north and south between the forty acres purchased from R. O. Walker and another forty acres owned by R. O. Walker, but did not take any steps to ascertain the boundary between appellee and appellant.</p> <p>The testimony on behalf of appellee tended to prove that her husband and agent, Jas. B. Gray, purchased the land described in the deeds to her from Jas. F. and R. O. Walker and containing 120 acres “more or less,” according to the United States survey; that she paid $7,200 for the land purchased; that he, Gray, told Jas. F. Walker at the time of the purchase that forty-eight hundred dollars was a high price to pay for farm land, being sixty dollars per acre for his tract of eighty acres, and that Jas. F. Walker remarked that it was true that it was a high price, but that it was good land, all in cultivation, except an acre or so, and that it was a large section, meaning that there was an overplus in the government call in the N. W. of section 11, and that if appellee purchased she iwould receive more than eighty acres. At the time the land was purchased from Jas. F. Walker he never in any manner intimated that there was any verbal agreement as to the lines. The purchase was made from him according to the government survey, and the deed was executed accordingly. Gray, the agent, went with Jas. F. Walker, to look at the land, saw that there was a fence on the south side running east and west, that had been recently built. Mr. Jas. F. Walker did not say whether it was on the line or not. That, after the purchase, appellee through her agent took possession of the part under fence, and later when the land was surveyed the agent demanded possession of the strip in controversy. Witness Gray explained that he had stated to parties that he had paid sixty dollars per 'acre for the land. He meant that he had bought one hundred and twenty acres according to the government call, for which he paid $7,200, which would be understood in the regular and ordinary calls of land as $60 per acre that he paid, but the witness explained that he knew and so did Walker that the calls were for more than 120 acres. Witness stated in regard to the survey that it was perhaps negligence for him to wait for the first two or three years while appellant was in possession cultivating the land to have the survey made in order to ascertain the exact lines, but stated further that he had been trying for something like a year to get the surveyor down prior to the time the land was surveyed. The witness also stated that he had notified appellant about the survey, and that he had refused to assist in the survey. It was shown that R. C. Walker and his sons J. F. and R. O. held the lands as tenants in common until the deeds were made to partition the lands among them. It was shown that the draughtsman of these deeds drew them according to the description given by the parties themselves. Also that the deed of R. C. Walker to appellant was drawn according to the description given by the parties to it. It was shown that Jas. F. Walker at the time he executed the deed to Mrs. Gray knew that the deed from his father to him called for the south half of the northwest quarter, sec. 11, T. 2, range 9 west, containing 80 acres more or less; that he gave appellee’s agent this deed and did not inform him that there was any mistake in the deed. It was shown that the deed from Jas. F. Walker to appellee described the land in the same way as the deed from his father to him. Appellant’s deed from Jas. F. Walker conveyed to appellee lands which according to the calls included the 4.17 acres for which she sues appellant. This was shown to be the fact by a surveyor of the United States government, and a survey made by the county surveyor. The proof showed that appellant had been in possession of the land since January, 1903. The rental value was six 01-seven dollars per acre. The court f^-md that appellant was in the unlawful possession of the land, and rendered a decree in favor of appellee for the land and $108.08 damages. To reverse the decree is the object of this appeal.</p> <p>The evidence and circumstances show that appellee intended to purchase the land within the fence pointed out to her agent as the boundary and accepted as such for three years; that within the fence are 81.75 acres which the parties intended should pass, and which satisfy the term “80 acres more or less” used in the deed, and do not include the 4.17 acres in controversy. The deeds should be reformed. 10 N. Y. 319; 60 N. Y. 298; 83 Ky. 623; 50 Ark. 179; 169 111. 73; 81 Me. 337; 80 Mich. 139; 86 Mich. 121; 46 N. H. 83; 102 Mass. 24; 3 Ch. Div. 779.</p> <p>The evidence fully sustains the chancellor’s finding. It is elementary that, before a deed will be reformed or revoked, the evidence on the part of the party seeking reformation must be clear, positive and convincing. Again, the findings of fact by a chancery court will not be disturbed unless clearly contrary to the preponderance of the testimony. 85 Ark. 83; 71 Ark. 605; 68 Ark. 314; 77 Ark. 216; 78 Ark. 420.</p>

The facts as shown by the pleadings and the agreed statement are substantially as follows: The plaintiff, Vanderberg, and one J. R. Baker were citizens of Woodruff County, Arkansas. The plaintiff owed Baker a debt of $12.55. Baker assigned the debt to one H. J. Miller, a citizen of the State of Missouri.

Hudgins, Judge; Under the law of 1838, § § 87 and 88, Dig. 1838, none but the claimant could make the affidavit required to establish such claim. 14 Ark. 237; 24 Ark. 410; 21 Ark. 519.

His act in voluntarily standing upon the drawhead of the moving.log loader running at the rate of five or six miles an hour, and in jumping off into the center of the track immediately in front of the loader instead of getting off at the side where a place had been provided, was negligence per se, and the court should have so held as a matter of law. 14 L. R. A. 552; 88 Ark. 20; 72 Ark. 440; 69 Ark. 489; 128 Fed. 529- 1.

This was a suit instituted by the plaintiff as next friend of John Hots, a minor, for the value of services performed by the minor for the defendant. Defendant has a verdict. In December, 1899, shortly before he became 13 years old, Hots was taken into the home of defendant, where he was almost constantly employed in hauling, farming and clearing in the service of the defendant until September 4, 1907, when he left as a result of a disagreement between him and defendant.

Steel, Judge; The contract was never completed. No plans and specifications were ever attached. 15 Neb. 273. The case of 52 Ark. 117 does not apply. If the contract had been complete, the only damages recoverable would be the profit made on completion of the work. 33 Ark. 545. The contract sufficiently describes the work to be done, without the plans and specifications. 30 A. & E. Enc. Law, p. 1197. The Rowton house was itself plans and specifications sufficient.

Robertson, Chancellor; 1. Mrs. Ward was not present when the instrument was executed, but if she was she did not sign it except by mark, and there were no witnesses to signature. Kirby’s Dig., § 7799; 60 Ala. 293. 2. The instrument does not describe the land, and is void for uncertainty. Besides, the fruit tree contract is not a mortgage. Washburn on Real Prop., § 475. There is no granting clause; no habendum clause; no warranty clause or covenants; no defeasance clause.

Land cannot be taken and used for a public road against the owner’s will without remuneration. Const. 1874, art. 2, § § 21, 22; Kirby’s Digest, § § 3009, 2901; 45 Ark. 429; 136 U. S. 121. 2. Having appropriated the land for public use without compensation, the county must pay for the land taken as though a road had been established.

A 3-year lease of land and sale of the growing timber thereon is required to be in writing by the statute of frauds. Kirby's Dig., § 3654; 28 Am. & Eng. Enc. Daw (2 Ed.), 540; 69 Ark. 442; 75 Id. 336. The writing is void, as there is no description of the lands. 16 Ark. 340-6'; 21 Id. 533; 45 Ark. 17; 49 Id. 306. Part performance does not take out of the statute a contract not to be performed within a year. 48 Ark. 485. It can only be good for one year. 36 Ark. 518-522.

Meeks, Judge; STATEMENT BY TRIE COURT. On the 6th day of February, 1909, the prosecuting attorney of the 16th judicial circuit of the State of Arkansas instituted separate proceedings against T. B. Findley and T. V. Marshall, partners under their firm name of Findley & Marshall, and Joe Fancaster, under the act approved February 13, 1899, alleging that they were engaged in the illegal sale of liquor in a prohibited district, and asked that the same be destroyed.

Wood, Chancellor; 1. The evidence sustains the findings of the master, and his findings are as conclusive as the verdict of a jury. 85 Ark. 414. 2. The contract specified “all of the cottonwood trees 20 inches in diameter and up at the stump now standing or located on the following lands.” It is plain and unambiguous, and the size specified referred to the time the contract was executed. 55 L. R. A. 513; Id. 524 and notes. 1.

Robertson, Chancellor; The complaint neither discloses a clear right to the maintenance of the dam nor to an injunction to restrain the 'cutting. The sole ground alleged for equitable relief is the impossibility of ascertaining damages at law while defendant at the same time is admitted to be solvent. The mere further allegation of “irreparable injury” is not sufficient.

Humphries, Chancellor; STATEMENT BY THE COURT. The Doniphan Dumber Company brought suit in the Cleburne Chancery Court to quiet title to certain lands in said county, and employed Howard Reed, editor and publisher of The Jacksonian, to publish two legal notices in connection therewith. On December 17, 1907, he furnished its attorneys, at their request, proofs of publication without first receiving his pay for said services.

Lea, Judge; statement by the court. Appellee sued appellant on a policy of fire insurance issued February 15; 1907, insuring for a lump sum of $52 a stock of merchandise and household goods. The insurance on the stock of goods was $1,000, and on the household effects $500. It was alleged that the fire and total loss of the property insured occurred during the life of the policy.

Steel, Judge; statement by the court. This was a suit by appellant against the appellees on an instrument evidencing the sale and purchase of certain household and kitchen furniture and utensils.

■Appeal from Monroe Chancery Court; John M. Elliott, Chancellor; 1. H. Greenwald is bound by the fraudulent representations of her agent in these negotiations. 5 Am. & Eng. Enc. of E. 322. The test of the deceit and fraud in this case is the preconceived intention of the agent to defraud. 47 Ark. 247.

Humphries, Chancellor; STATEMENT BY THE COURT. This is -a suit by appellant against the appellees to set aside a deed executed by J. A. Watkins as trustee to Elbert L. Watson.

Grace, Judge; 1. Under the doctrine laid down in the Triplett case, 54 Ark. 289, since followed and approved by this court in many cases, and the definition of fellow servants in the Snellen case, 82 Ark. 337, to be “persons employed by the same master to accomplish one common object, and so related in their labor performed in the service of the master as ordinarily to be exposed to injuries caused by each other’s negligence,” it is clear that appellant was not a fellow…

Grace, Judge; 1. The negligence must be proved. It cannot be inferred from the mere happening of the accident. 82 Ark. 372; 79 Ark. 437; 74 Ark. 19; 51 Ark. 467; 101 Md. 168. 2. The master is not the insurer of the servant’s safety, but is only held to ordinary care in providing a safe place and safe appliances in which and with which to work. 35 Ark. 602; 44 Ark. 524; 48 Ark. 333; 59 Ark. 98; Id. 465; 80 Ark. 260, 263; 83 Ark. 460; 90 Ark. 145. 3.

Humphries, Chancellor; 1. On the question of dedication by the plat, the whole plat must be considered in order to determine the extent of the dedication, io F. R. A. 673. The certificate attached to the plat clearly limits the dedication to the streets described in the deed. The principles that govern the dedication of streets and alleys differ greatly from those that govern the dedication of parks.

Hays, Judge; reversed. 1. The statute under which the indictment was presented in this case required appellant to “construct and at once build and maintain a regular station,” etc. The demurrer should have been sustained because the indictment only charges that appellant “failed to maintain a regular station,” etc., without charging a failure to “construct and build.” 47 Ark. 488. 2.

Carter, Judge; W'here material evidence is discovered after the trial, which is essential to a complete defense of the action, and the failure to discover it sooner is not due to any negligence on the part of the defendant, this is a ground for setting aside the judgment and granting a new trial, after .the term in which the judgment was rendered has been adjourned. Kirby’s Dig. § 6220.

Bttiott, Chancellor; statement by the court. The Home Insurance Agency, one of the plaintiffs below, instituted this suit gainst the defendant, E. B. Bloom, and in its complaint prayed for an injunction restraining .the defendant, either for himself or for others, from soliciting insurance in Jefferson County, Arkansas, for five years from November x, 1905.

Martineau, Chancellor; 1. The levy or assessment was void, being made by the board of commissioners. Only the county court is empowered to levy or assess this tax. Kirby’s Dig., § 1388. 2. The commissioners were without power to bind the district by borrowing money. The law relating to fencing districts does not either directly or indirectly authorize them to do so. Kirby’s Dig., § § 1373-1407.

Wells, Judge; The court erred in striking out the testimony of Hauptman and Matthews, and in refusing to admit the testimony of Robinson and Beadel. This testimony was admissible to establish the promise of Bailey to settle Jackson’s outstanding bills, and to show a new, original and valuable consideration actuating Bailey to make the promise.

Carter, Judge; 1. The first instruction asked by plaintiff should have been given. 67 Ark. 306; 82 Id. 372; 83 Id. 318; 157 U. S. 72; Bailey on Master and Servant, p. 101. 2. The third and fourth instructions given for defendant were erroneous. 77 Ark. 9. 3. The tenth instruction was clearly erroneous. 1. The modification of the first instruction given for plaintiff was proper. 2. The burden was on plaintiff to show injury by reason of the alleged defects.

Blliott, Judge; 1. There was no way to revive the lien of the mortgage as to third parties, except by compliance with Kirby’s Digest, § 5399. This was not done. 2. There is no evidence to show fraud. 1.

Virgil Bourland, Chancellor; x. Judgment against the sureties by consent does not bar them from any benefit under the mortgage. The right to foreclose accrued as soon as Ella Sharp failed and refused to perform the judgment. 25 Ark. 170; 23 Id. 530. The mortgage was a contract for indemnity, and failure to satisfy the judgment gave the sureties the right at once to enforce the contract. 23 Ark. 530.

Hutton, Judge; 1. The condition in the deed was subsequent and not precedent, and there -only remained to the grantor a right of entry upon the breach which cannot be assigned to a third party, and a conveyance to a third party cannot work a forfeiture. 145 Fed. Rep. 296, 301; 97 U. S. 693; Tiffany, Mod. Taw, Real Prop. § 751 Warvelle, Real Property, 51; Goodwin, Real Property, 39; 2i Wall. 63; 33 Fed. Rep. 693; 50 Ark. 141. 1.

Neither of defendants personally, or through their employees, ever sold liquor to the minor in Arkansas. The order came through the United States mail, and defendants had no knowledge or information that the purchaser was a minor. It was not a crime. 47 Ark. 555. The railroad was the agent of the purchaser. 45 Ark. 361; Black on Intox. Liquor, § 422. 2.

It was error to strike out from the answer the 6th paragraph. If plaintiff rendered himself incapable by reason of intoxication of performing the duties resting upon him under the contract, defendants had the right to take the property away from his management and control. He thereby first violated the contract. 85 Ark. 596, 599. 2.

<p>Appeal from Sebastian Circuit Court, Fort Smith District, Daniel Hon, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>Appellant was convicted on an indictment which charged that he “oti the 23rd day of February, 1909, about the hour of two o’clock in the night time of said day, unlawfully, feloniously, and burglariously, and with force did enter the store house of J. D. Broyles, with the intent then and there to commit a felony, towit: grand larceny of the goods and property of J. D. Broyles.” There was testimony tending to. prove that appellant in company with two others went into the saloon of Broyles after -midnight on the night alleged, and that appellant called the bartender to the cigar stand and engaged him in conversation. In the meantime the other two parties who entered the saloon with appellant went behind the screen or partition where there was whisky and stole same. Eleven quarts of rye whisky were stolen from the saloon that night. Without going into detail, it is sufficient to state that the evidence tended to prove that there was a conspiracy between appellant and others who entered the saloon with him on the night alleged to steal the whisky, and that they did steal whisky on that night which had a market value in Eort Smith of over ten dollars.</p> <p>There was evidence to warrant a finding that appellant intended when he entered the salootn to steal the whisky. The court instructed the jury as follows, by reading sections 1603 and 1604 of Kirby’s Digest and then declaring the law to be:</p> <p>“1. To constitute burglary, a house or other building must be broken into or entered in the night time with the intent to commit a felony; but one who enters or breaks into a house in the night time with the intent to steal more than ten dollars worth of goods or other personal property is guilty of burglary, whether he steals that amount or not, if it is his intention in entering to steal more than ten dollars in value. If, after entering the store, he formed the intent to steal, and did steal more than ten dollars in value, he would not be guilty of burglary. The intent must have existed before or at the time of entering.</p> <p>“2. If the jury find from the evidence, beyond a reasonable doubt, that the defendant, in the Eort Smith District of Sebastian County, within three years next before March 4, 1909, the date of the indictment, unlawfully entered the store house of J. D. Broyles in the night time, either by himself or with other persons, with the intent to commit grand larceny of the goods or personal property of J. D. Broyles to steal from his store goods or other personal property of more than the value of ten dollars, you will find the defendant guilty.</p> <p>“3. If the business house and goods therein were in the possession of J. D. Broyles, and held and controlled by him, he would be hel-d under the law to be the owner of the same.</p> <p>“4. You are instructed that the market value of an article is the price for which it would sell in the regular way where one person desires to sell, and another person desires to buy and has the means or ability with which to pay. No isolated sale is the market value of an article, but it is what it would sell for on the market in the regular way.”</p> <p>The appellant objected to each of these instructions, and duly excepted to the ruling of the court in giving them.</p> <p>Appellant asked the court to instruct the jury as follows:</p> <p>“1. Gentlemen of the jury: You are instructed to acquit the defendant, the State having failed to make out a case against him.</p> <p>“2. You are instructed that, though the defendant entered the saloon in the night time, the said saloon being open during business hours, lights burning, bartender or bartenders on duty, and the business running in the regular way, the defendant entering at the regular door, as did other customers, that, under those conditions, the crime of taking goods therefrom could not, as a matter of law, amount to burglary, and you should acquit the defendant.</p> <p>“3. If you find .that the defendant did break and enter or did enter the said saloon as charged with the intent to commit the crime of petit larceny only, he is not guilty of burglary, and you are instructed to acquit him.</p> <p>“4. The defendant pleads former conviction of petit larceny upon the identical facts as taken to establish this charge, and you are therefore instructed that if that plea is established you cannot convict the defendant upon any degree of larceny.</p> <p>“6. If you fail to find from the evidence that the defendant, prior to entering the saloon, formed an intent to commit a felony therein, he is not guilty of burglary, and your verdict should be acquittal.</p> <p>“7. One of the elements of burglary, under our statute, is an unlawful entry; and if you find from the evidence that said saloon was open, and the defendant entered during business hours in the regular way, the lights burning, and the bartender present, the business running in the usual course, as a matter of law, the defendant entered by invitation, and is not guilty of burglary, and you should acquit him.</p> <p>“8. You are instructed, as a matter of law, the presumption is in favor of innocence, and the burden to establish a felonious intent is upon the State; and if such an intent is not clearly proved beyond a reasonable doubt, you should find for the defendant.</p> <p>‘To. If you find from the evidence that there were other cases of liquor besides the one taken and carried away, to which the defendant had access and which he refused to take, this is to be regarded as evidence in his favor.</p> <p>“n. Each juror should feel the responsibility resting upon him as a member of the body, and realize that his own mind must be convinced of the guilt of the defendant beyond a reasonable doubt before he can consent to a verdict of guilty; and if any one of the jury, after having considered all the evidence, and after having consulted with his fellow jurors, entertain such reasonable doubt, you can not in such case find the defendant guilty.</p> <p>“12. If the business house and goods therein were in the exclusive possession of J. D. Broyles and held and controlled by him, he would be held, under the law, to be the owner of the same.</p> <p>“13. Unlawful entering, as employed in our statutes, in the definition of burglary, signifies the violation of some prohibitory law.”</p> <p>Of these the court gave 3 and 6, but refused the other. The court modified prayers numbered 7 and 8 and gave them as modified as follows:</p> <p>“No. 7. One of the elements of burglary, under our statute, is an unlawful entry; and if you find from the evidence that the said saloon was open, and the defendant entered during business hours in the regular way, the lights burning and the bartender present, the business running in .the usual course, as a matter of law, the defendant entered by invitation, and is not guilty of burglary, and you should acquit him unless you find that at the time of entering he did so with the intent to commit grand larceny, to steal from the store house goods of the value of more than ten dollars.</p> <p>“No. 8. You are instructed as a matter of law, the presumption is in favor of innocence, and burden to establish a felonious intent is upon the State; and if such intent is not established from the evidence, the jury should acquit.”</p> <p>Appellant objected to the rulings of the court in refusing its prayers and to the giving of prayers 7 and 8 as modified and duly excepted to the rulings.</p> <p>Appellant in his motion for new trial assigned as error the various rulings to which he had saved exceptions. His motion was overruled., aiid he duly prosecuted this appeal.</p> <p>There is wanting in this case the element of unlawful entry necessary to constitute burglary, and even the element of common trespass. On the contrary, entering as he did through the open door along with other customers during business hours, he came by invitation, and no burglary is shown. 37 S. W. 438; 59 S. W. 888; 12 N. H. 42; 25 Ya. 919; 73 Ark. 32; 42 Ark. 73; 6 Cyc. 209, 215.</p> <p>1. It was entirely proper for the court -to refuse appellant’s requested peremptory instruction, since unquestionably there was a question of fact for the jury to determine, namely, whether appellant along with others entered the saloon with intent to steal. 63 Ark. 94; 66 Ark. 362; 70 Ark. 74; 71 Ark. 305; 71 Ark. 445; 73 Ark. 566; 77 Ark. 556; 82 Ark. 86; 83 Ark. 246; 84 Ark. 57; Id. 620; 87 Ark. 70.</p> <p>2. That the crime of burglary may be committed in entering a store house, saloon or other place of business during business hours is plain under our statute. Kirby’s Dig. §§ 1603, 1604, 1605. California with a statute almost identical so holds. 142 Cal. 8; 144 Cal. 748. On the question of intent at the time of the entry, the rule is that the motives of the accused will be judged by the circumstances and such proof as is to be had. 11 Current Daw, 490 and note.</p>

The venue is a jurisdictional fact which must be proved by the State in order to convict of a criminal offense. 77 Ark. 19; 58 Ark. 242. 2. There was no sufficient evidence as to the damage. No foundation was laid for the question, nor previous knowledge as to the value of the horses, no opportunity of knowing values shown in the witness nor any experience.

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

Winfield, Judge; Abe Stiewel brought suit against Charles S. Stifft, alleging that defendant was indebted to him in the sum of $4,300 and interest in payment of certain stock in the Bank of Little Rock alleged to have been purchased by plaintiff for defendant in September, 1902, and also that defendant owed $2,422 to the above-named bank upon an account, which had been assigned to plaintiff. Defendant denied any indebtedness to plaintiff, and pleaded the statute of frauds.

Kirby’s Digest, § 4832, did not intend to, nor does it, change the law of inheritance. On the death of McCracken, his rights vested in his heirs. The widow had a homestead right, but held the fee as trustee for the heirs. Thompson on Homestead and Ex. §§ 170-1. 2. The widow cannot acquire title adverse to the heirs. 44 Ark. 504; 35 Id. 84; 47 Id. 287. 1.

Martineau, Judge; 1. The contract and transactions were usurious and void. There was no sale of goods. Steele was not a merchant. The commission charge was a mere subterfuge to cover usury. Webb on Usury, § 80, p. 88. 2. The two notes to Steele, Sr., were not covered 'by the mortgage. It was usury to charge ten per cent, commission on the market price of the goods, or money furnished, then 20 per cent., and then adding 10 per cent, interest.

Humphries, Chancellor; STATEMENT BY THE COURT. Plaintiff (appellee) alleged in his complaint that he is the son and only heir of the body of William A. Foushee' that said William A. was the son mentioned in section 7 of the will of Jos. P. Foushee; that said Jos. P. Foushee had died, and his will bad been duly probated; that William A. had died, leaving plaintiff his son and sole heir of bis body.

This is a suit by appellee against appellant for damages for mental' anguish growing out of the alleged negligence of appellant in failing to deliver a telegram.

Hays, Judge; 1. The indictment is sufficient in form fully to apprise the appellant of the particular crime with which he stood charged and against which he should defend himself. It fully meets the requirements of the statute. Kirby’s Digest, § 1712. And a conviction or acquittal under it would prevent the State from putting the defendant in jeopardy a second time for the same offense. 5 Ark. 444; 19 Ark. 6x3; 73 Ark. 487. 2.

Hays, Judge; 1. There is no proof that the horse was stolen in Miller County. Giving the evidence the strongest probative force, it only shows that the horse was in appellant’s possession in Miller County for five months after it is alleged to have been stolen. 2. There .is no proof of a larceny.

Under the conditions shown in this case, and the positive proof of the defendant’s sickness prior to and at the time of the trial, the consequent inability to prepare for trial and the danger to his health, it was manifest abuse of discretion to deny his- motion for a continuance and to force him into trial. 9 Cyc. 188; Id. 96; 71 Ga. 481; 38 Ga. 50; 29 Ga. 271; 80 111. 236; 78 111. 212; 100 Ky. 194; 34 La. Ann. 100; 1 Bay (S. C.) 1; 53 5. W. 623; 14 Tex. App. 129; 14 Cent.

The appellant was convicted of the crime of an assault with intent to kill one Joe Tewellen. The evidence for the State tended to support the verdict. The evidence for appellant tended to show that at the time of the assault appellant was under the influence of intoxicating liquor to such an extent as to be incapable of forming the specific intent to take' the life of Tewellen.

Appellants were convicted on separate indictments in the Sebastian Circuit Court of the crime of perjury. The indictments charged in apt language that Hallie Stewart was on trial before the police court of the city- of Fort Smith for the offense of using a room for immoral purposes, i. e., with having used the room with one Wm. Brent for purposes of prostitution, and that the police court had jurisdiction.

Hays, Judge; The state of facts proved by the appellant constitutes a complete justification for the killing, whether it was done intentionally or unintentionally. The deceased had committed a felony and was escaping, and defendant was authorized by law, with or without a warrant of arrest, to prevent his escape, if possible, and to slay him if in the pursuit he could not overtake him. Kirby’s Dig., §2120; 43 Ark. 99, 105.

Grace, Judge; x. Defendant’s witness, Tillman, had testified to a state of facts incompatible with the statements made by him in his conversation with Durden, which was overheard by the witness Kelly. Tillman on cross examination specifically denied having had suoh conversation, and Kelly’s testimony in rebuttal was properly admitted to impeach him. 68 Ark. 544; 67 Ark. 598; 47 Ark. 70; 24 Ark. 620; 15 Ark. 359. 2.

Hudgins, Judge; STATEMENT BY THE COURT. This is an action by Ruth E. McNamare, widow of F. Mc-Namare, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for alleged negligence in killing her husband while in the employment of said railway-company.

Martineau, Chancellor; 1. Where an injunction is issued without authority of law, that is, in a matter over which the court had no jurisdiction, no one can be punished for disobeying it. 43 Ark. 63.

Virgil Bourlmdj Chancellor; 1. The court’s finding that the trees were worth only 50 cents each is not in accord with proof. By the decided weight of the testimony they were worth at least $1.00 each. His finding is persuasive only. 41 Ark. 294; 75 Ark. 75. 2. It was the master’s duty under the order of reference, and so understood by the parties, to take testimony and ascertain and report the value of the trees.

Hays, Judge; The testimony of Bell Wood was incompetent, and its admission prejudicial. She admitted that she had never told any one prior to the trial who the father of the bastard child was, and that the deceased did not know that appellant was accused of being its father.

Hudgins, Judge; The question of fact as to whether or not the appellant accomplished his purpose is settled by the verdict of the jury. 50 Ark. 387; 21 Ark. 306; 24 Ark. 251. Consent of the victim is not material in this case. Where the female assaulted is under the age of consent, absence of consent will be presumed because of her incapacity to give it. 50 Ark. 387; 29 Ark. 120; 11 Ark. 389.

90 Ark. 161, 214, 230,.393, 398; 89 Ark. 41; 88 Ark. 449; 87 Ark. 368. It should be affirmed because the bill of exceptions was not filed within the time allowed by the trial court.

<p>Continuance — absence oe witness. — Where one accused of a felony-handed the clerk the name t>f a witness with the address “Smack-over,” a town in another county, and the clerk handed the subpoena for -such witness to a deputy sheriff, who mailed it to “Officer at Smackover,” and nothing further was ever heard of the writ, it was not an abuse of the court's discretion to refuse a continuance on account of the absence of such witness.</p>

Hays, Judge; 1. This case falls within the exception to the rule against disturbing the verdict of a jury. Even where there is a conflict in the evidence, this court will direct a new trial, where the verdict is so clearly and palpably against the weight of it as to shock the sense of justice. 34 Ark. 639. The verdict against Wilson Pickett inflicting the highest punishment is conclusive evidence that the jury were swayed by prejudice or passion.

S. Maples, Judge; x. It was error to permit either Todhunter or Boaz to testify as to the confession made, as they were not voluntary but extorted. 66 Ark. 53; 50 Id. 305; 22 Id. 336; 11 Id. 408; 69 Id. 599-602; 3 Ene. Ev., pp. 301-273. Confession must be voluntary and without restraint, coercion or influence of any kind.

Wells and Antonio B. Grace, Judges; 1. Mere disbelief in capital punishment is not a ground of disqualification of a juror. Kirby’s Dig., § 2363, sub-div..7; 17 Am. & Eng. Enc. of E., 2d Ed. 1134, sub-div. “d;” 16 Ark. 579.

- .In certain instances it is permissible to show that the prosecutrix in a rape case made, complaint of the outrage soon after it happened, but the details of that complaint or the naming of her assailant is not admissible. 63 Ark. 470; 66 Ark. 264; 11 Am. Cas., 95' and note. 2. The alleged declaration of appellant to the witness Wilson some three to five months prior to the time this crime is charged to have been committed was improperly admitted.

Steel, Judge: 1. Thomas w.as a party, having signed the petition when a resident of the district, and -had a right to appeal and -make the necessary affidavit. 2. Only one point was named and one building; the main building, which -constituted one center. 40 Ark. 290; 43 Ark. 150; 45 Ark. 458; 56 Ark. 107. Lindley v. State, qo Ark. 284, settles this question.

Kirby’s Dig., § 3524. This witness’ attendance must be so claimed and proved at each session he attends. Id. § 3525; 64 Ark. 148. If he is a volunteer witness, he is entitled to a fee only for the day he is sworn and testifies. 56 Ark. 249. The witnesses at each term claimed their attendance, showing the number of days attended, of which the clerk made a minute. They doubtless believed that they were doing all that was required of them.

W. Winñeld, Judge; 1. There can be no recovery in this case unless 73 Ark. 205 is overruled. 77 Ark. 533. The rule is well established that a telegraph company has the right to establish reasonable office hours for its offices, and that delay in the transmission of a message, caused by the fact that a terminal or intermediate office is closed, is not an unreasonable delay, nor does it render the company liable for damages.