Volume 92 — Arkansas Reports

<p>1. Railroads — fence—construction of statute — Acts 1905, c. 165, requiring the .St. Louis & North Arkansas Railway Company to fence its right of way in certain counties, is binding upon a company which purchased the railroad from the above company. (Page 3.)</p> <p>2. Constitutional law — -special acts. — The Constitution permits special legislation when general laws cannot be made applicable, and the Legislature is the sole judge of the necessity for a special statute. (Page 3.)</p> <p>3. Same — reasonableness of statute. — While the reasonableness of the legislative exercise of police power is to be determined by the courts, the necessity for its exercise in a given instance is addressed to the discretion of the Legislature. (Page 4.)</p> <p>4. Railroads — validity op fencing act. — A statute requiring a particular line of railroad running through a certain locality to -fence its right of way is not unconstitutional in singling out such railroad and requiring it to do what other railroads in the State are not required to do. (Page 4.)</p> <p>5. Samé — fencing act — penalty.—Under Acts 1903, c. 165, § 3, imposing a penalty upen the St. Louia & North Arkansas Railway Company for failure or refusal to comply with its provisions, the penalty is prescribed for failure or refusal to comply with any of the requirements of the act, one of which is to keep the fence and st-ockguards in good repair. (Page 6.)</p>

Hudgins, Judge; 1. The court erred in not submitting to the jury the question of a bonus. No instruction was given on this subject. 82 Ark. 499. 2. Defendant was entitled to have the jury instructed that plaintiff could not take advantage of the delay in furnishing ties. 3. The instruction regarding the settlement was erroneous. It is error to instruct upon an issue not in the case. 69 Ark. 380; 70 Id. 441; 80 Id. 200; 79 Id. 375; 76 Id. 348. 4.

Virgil Bourland, Chancellor; 1. The will of John Hare was void, as his only child was not mentioned in his will. His -child' took title to all -his real estate at his death as his only heir. Kirby’s Dig., § 8020; 23 Ark. 569; 70 Id. 483. 2. The doctrine o-f -election can not be invoked. In order to • create the -condition for an election, it must clearly appear that the testator undertakes to 'dispose of some property belonging to the person called upon to -elect. 2.

This was such an abuse of discretion as is a ground for reversal. 42 Ark. 273, 275; 85 Ark. 334; 90 Ark. 78; 9 Cyc. 166, 168, 173, 180-81, 190, 191. The record nowhere shows that appellant asked for an attachment for the absent witness. Due diligence is not shown, no attempt even to get the motion before the jury as the truth or as evidence. Appellant is in no position to complain. 56 Ark. 493.

Robertson, Chancellor; 1. In ejectment or other real estate actions the plaintiff must recover on the strength of his own title, and not upon the weakness of his adversary’s. 113 S. W. (Ark.) 340; 106 S. W. (Ark.) 1169; 77 Ark. 246; Id. 338; Id. 477; 73 Ark. 199; 102 S. W. (Ark.) 190.

S’. Maples, Judge; 1. The probate court has ample equitable jurisdiction over guardians’ settlements to reopen and review them at any time for frauds and errors. Const. 1874, art. 7, § 34; 40 Ark. 443; 33 Ark. 728. 2 A guardian may not be allowed, and the probate court is without authority to award to a guardian, for maintenance and education of the ward, more than the clear income of the estate unless such expenditures have been made tinder direction of the court.

Shaver, Chancellor; 1. Appellee is not entitled to recover because he did not contract for the building of the curb. 2. It was not appellee’s duty, under the circumstances, to build the curb. 3. It is inequitable to compel appellant to bear the extra, expense due to the inequalities of sidewalk improvements on the street in question, caused by the grading and ditching done by the city of Prescott. The statute expressly requires uniformity.

Robertson, Chancellor; t. The test of mental incapacity is not merely that the grantor’s mental powers are impaired, but whether he has sufficient capacity to understand in a reasonable manner the nature and effect of the act which he is doing. 13 Cyc. 573; Words & Phrases, 5, 4475- 2. Bragg did not overreach Hartney or practice any fraud to induce him to make the contract against his will. 3. The heirs of Plartney have no greater rights than he would have if alive. 1.

<p>Appeal from Miller Circuit Court; Jacob M. Carter, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>C. L. Archie and Maggie Archie brought suit against the Western Union Telegraph Company to recover damages for mental anguish on account of the alleged negligence of the defendant company in failing to transmit and deliver a telegram from C. L,. Archie to his brother, requesting him to meet Maggie Archie, the wife of C. L,. Archie, at the station at Corinth, Miss., on a certain day.</p> <p>C. L. and Maggie Archie lived in Bowie County, Texas. Maggie Archie was in ill health, and under the care of a physician. He advised her to leave Texas. Her husband decided to •send her to Mississippi, where they had relatives. He accompanied her to Texarkana, Arkansas, and from that place on the 13th day of October, 1906, delivered to the defendant company for transmission to his brother at Corinth, Mississippi, the following telegram:</p> <p>“To J. W. Archie, Corinth, Miss.</p> <p>“Meet Maggie on No. 30 tomorrow.</p> <p>“C. L. Archie.”</p> <p>On October 14, 1906, Maggie Archie, accompanied by her little boy and girl, arrived at Corinth on train No. 30, between one and two o’clock in the daytime. J. W. Archie did not meet her. After waiting at the station for him for ten or fifteen minutes, she started to walk to his house, which was about -three-quarters of a mile distant. When she had gone two or three blocks, she met a friend, who conducted her there and carried her bundles. She and the children were so weak and sick that at times they had to stop and rest. When they reached her brother-in-law’s, she was so weak and sick that she went to bed. She remained in Corinth about one week, and then went to her father’s about twelve, miles in the country. For several years 'prior to going to Texas she had lived within four or five miles of Corinth, but when she came to Corinth, she came in on the opposite side and not by the depot. She was a stranger to that part of the'town. Corinth is a place of from seven to ten thousand inhabitants. There was a nice hotel near the depot, and J. W. Archie had a telephone in his house. The company received the message promptly at Corinth, but failed to deliver it.</p> <p>There was a trial before a jury and a verdict for plaintiffs in the sum of $500, and the defendant duly prosecuted 'an appeal to this court.</p> <p>Appellee arrived at her destination, a town where she was well acquainted, in broad daylight. She knew where the home of her brother-in-law was. Could have hired a conveyance there for two dollars, but preferred to walk. After walking two or three blocks, she met a friend who took her bundles and accompanied her the remainder of the distance. She suffered no ill-effects. The verdict was grossly excessive. No ground for recovery of exemplary damages is shown, nor prayer for same in the complaint. 115 S. W. 954; 77 Ark. no; 78 Ark. 331; 70 Ark. 136; 80 Ark. 260; 89 Ark. 261; 45 Ark. 524; 65 Ark. 182. Nothing to justify recovery for mental anguish. 83 Ark. 476. See also, 81 S. W. 580; 76 Tex. 263; 44 So. 382; 73 Fed. 273;. 70 Tex. 244; 81 Mo. App. 233. A good hotel stood near the depot where she could have gone and telephoned her brother-in-law, or she could have called a carriage at a trifling cost. Tt was appellee’s duty to minimize the damages, not to aggravate them. 2 Joyce, Elec. Law, § 972; 38 S. W. 637; 81 S. W. 581; 133 S. W. 1064; 15 S. W. 1048; 51 S. E. 931.</p> <p>2. No recovery can be had for mental anguish because it is conceded that there was no negligence in this State. If there was any negligence, it occurred in Mississippi. 77 Ark. 535; 2 Joyce, Elec. Law, § 828; 68 Miss. 748; 9 So. 823; 47 So. 552; 83 Ark. 268; 60 S. W. 435.</p> <p>1. Here is a case of a frail woman traveling with two sick children, herself enfeebled by long illness, whose husband had detained her at a hotel in Texarkana for a day to enable him to wire his brother in Corinth to meet her at the train, finding herself alone in a strange city with no one to meet her. We submit that the evidence shows such wilful wrong and gross disregard of appellee’s rights as justifies the verdict. 77 Ark. no; 83 Ark. 267; 85 Ark. 267; 2 Joyce, Elec. Law., § 972.</p> <p>2. The statute, Kirby’s Dig., § 7947, makes a telegraph company liable for negligence in delivering, as well as in sending, a message, and the fact that the message was delivered in Mississippi does not preclude recovery. 2 Joyce, Elec. Law, § 801 b; Id. § 822.</p>

O. Mahoney, Chancellor; 1. The sheriff’s deed conveyed the legal title. 28 Ark. 76-79. In 1 T. R. A. (N. S.) 161, it is said only an equitable title passes. The better view is that such a deed is a latent ambiguity, and open to explanation by which the real party is disclosed and the deed treated as if the names were inserted. 68 Ark. 151.

On the 4th day of February, 1909, the mayor of Russellville, a city of the second class, resigned. A special election was ordered for February 16, 1909, to fill the vacancy. Appellee was elected at the election held on that day, and February 23, 1909, was commissioned by the Governor.

When the prosecutrix in a rape case is a woman of immoral or unchaste character, the jury should consider this fact for two purposes: (1) It goes to her credibility, and (2) the jury may consider it as tending to show consent. 66 Ark. 523; 12 L. R. A. (N. S.) 1153; 1 Wigmore on Ev., § § 199-200; 3 Rice on Ev., p. 605; s A. & E. Ene. E. 871, 851-C. 853; 40 Tex. 486; 17 Tex. App. 301, 532; 20 Id. 155,; 3 Hill N. Y. 309; 36 Cal. 522; 40 Ark. 486-7; 27 Mich. 134. 2.

The indictment follows the language of the statute. It charges all the necessary facts. Kirby’s Dig. § § 6622, 6634-6; 18 Ark. 363; 19 Id. 171, 587; 33 Id. 140; 39 Id- 216; 45 Id. 173; 47 Id. 188; 71 Id. 80; 72 Id. 382; lb. 586; 73 Id. 139. 2.

Evans, Judge; The acts of 1875 and 1891 cover the same general subject; the latter act is so at war with the former that the former cannot stand. Section 1667,of Kirby’s Digest is repealed by act 1891, p. 32. 10 Ark. 588; 27 Ark. 421; 47 Id. 488; 31 Id. 17; 11 Wall. 88; 43 Ark. 425. The act of- 1875 (§ 1667, Kirby’s Dig.) is not repealed by act March 4, 1891. 79 Ark. 213.

Martineau, Chancellor; There is a right in equity to protect a person from an invasion of private rights. Chancery courts have jurisdiction to protect the rights of privacy and private rights. 1 R. R. A. (N. S.) 1147; 4 Duer 379; 39 L. R. A. 240; 59 Id. 478; 6 Pom.

. Hutton, Judge; 1. The court erred in directing a verdict for plaintiff. In ejectment against a defendant in possession under a donation deed, plaintiff must prove perfect title in himself, thus overcoming the 'prima facie title in defendant. 40 L. R. A. 825; 28 Id. 612; 38'Ark. 181. 2. A decree in a personal action binds only parties to the suit. 77 Ark. 477; Kirby’s Dig., § 6321; 38 Ark. 192; 35 Id. 450; 61 Id.'464; 66 Id. 305; 60 Id. 374; 17 A. & E. Enc.

Mahoney, Chancellor;' 1. Under the will of Alexander Byrne, Francis Byrne took, a life estate. Irene Lewis, mother of appellant, took one-fifth remainder and Blanche King, hc-r only child, is the owner of said one-fifth of Alex. Byrne’s estate. 22 Ark. 567. 2. As to Blanche King, under section 8020, Kirby’s Digest, Francis Byrne died intestate, there being no mention of her other heirs. 23 Ark. 569; 31 Id. 145; 87 Ark. 204-7; 86 Ark. 368. 3.

Hudgins, Judge; 1. Mandamus was the proper remedy. 31 Ark. 263; Kirby’s Dig., § § 1174, 7184; 48 Ark. 238. 2. The “mulct” or penalty is part of the fine, and payable in county warrants. 54 Ark. 364; 31 Ark. 46; Kirby’s Dig., § 1174; 18 Ark. 238. 3. It was error to impose a jail sentence. Kirby’s Dig., § 248. 1. The prosecution is under sections 1892-3, Kirby’s Dig., and the damages are part of the punishment for the crime. 19 Ark. 176.

■'Elliott, Chancellor; The act No. 247, of Acts 1907, is unconstitutional, being a conflict with section 28, article 7, of the Constitution of Arkansas, which confers exclusive original jurisdiction in all matters relating to county roads, etc., upon the county court. See sections 1, 2, 8, 9, 27, 28 of the act. These sections are so re- ■ pugnant to the Constitution that they should not stand, and with them eliminated the whole act must fall.

<p>Appeal from Pulaski Chancery Court; Joseph B. Martillean, Chancellor;</p>

Evans, Judge; STATEMENT BY THE COURT. Murray L. Corman was a brakeman in the employ of the defendant railway company, and was killed by the derailment of an engine on which he was riding, in the discharge of his duties, on August 9, 1907, at Wagoner, I. T. The engine was pulling a local freight train, and was approaching Wagoner, and was within the yard limits.

Evans, Judge; x. This action was brought, not to recover nominal damages only, but actual damages, and appellant was entitled to be apprised of what items the damages consisted, or in what way appellee had been damaged. The complaint should have been made more specific. ( 2. It was error to admit proof as to the decline in the market value of coke. There was no allegation in the complaint as to such decline, and this testimony came as a surprise.

Appeal- from Union Chancery Court; Rmon O. Mahoney, Chancellor; No ground is alleged for equitable relief. No allegation of insolvency is made, and the damage, if any, is recoverable at law.

Steel, Judge; 1. Words do not justify an assault; and where offensive words are resented with an assault, and in repelling such assault the person using the offensive words kills the other, it is not murder. 75 Ark. 249. There must be 'deliberation and premeditation to constitute murder. 11 Ark. 455; 36 Id. 127; 29 Id. 58S- 2. The remarks and argument of the State’s attorney were highly prejudicial, and should have -been excluded from the jury. 76 Ark. no. ’ 3.

Phillips, Special Judge; STATEMENT BY THE COURT. Appellee sued appellant for false imprisonment, alleging that on or about the 23d day of November, 1907, in the city of Newport, Jackson County, Arkansas, defendant did forcibly, falsely, maliciously and against his will, arrest, without warrant or other legal process, and imprison him and restrain him of his liberties for three days, or thereabout.

Hays, Judge; STATEMENT by The court. The plaintiff, appellee, was conducting a general mercantile establishment at Waldo, Arkansas, when on or about the first day of October, 1906, he received by letter from the Roswell Trading Company of Roswell, New Mexico, an offer to ship him two cars of choice alfalfa hay at $15 a ton, delivered at Texarkana.

J. J. Pippins instituted this action to recover damages for personal injuries of a permanent nature, sustained by him while in the service of the Smokeless Coal Company, in consequence of the alleged negligence of the defendant company. . J. J. Pippins was employed by the coal company on the 14th day of January, 1908. He first worked for the defendant company as a digger of coal. Then he w.as put to work as a driver..

Hays, Judge; STATEMENT BY THE COURT- This is an ejectment suit instituted on the 9th day of August, 1906, in the Columbia Circuit Court by the appellees, Dan Scott et-al., against the appellant, A. W. Smith, to recover possession of certain lands in Columbia County, Arkansas. The appellees claim title to this land through their father, William Scott, who died the owner and occupying same as his .homestead in October, 1883. At the time of his death appellees were minors.

43 Neb. 794. The evidence in the record is not sufficient to establish the fact that an affidavit for appeal was made. 68 Miss. 243; 94 Ga. 461; 52 Pac. 756; 4 Heisk. 532. No jurisdiction is acquired on appeal unless an affidavit is made. 24 Ark. 282; 25 Ark. 275; 21 Ark. 93; 65 Ark. 419; 27 Ark. 599. An affidavit for appeal must be presented to the court during some term within twelve months after the judgment was rendered. 65 Ark. 419; 27 Ark. 599.

21 Ark. 468; 24 Ark. 224; 13 Ark. 71; 8 Ark. 155; 10 Ark. 309; 26 Ark. 309; 39 Ark. 491; 70 Ark. 136; 75 Ark. 262; 115 S. W. 942. Incompetent evidence must be objected to when offered, otherwise the objection is waived. 72 Ark. 371. The mortgage secured nothing except the amount due at the date of maturity of the mortgage. 50 Ark. 256. A creditor cannot apply payments elsewhere than according to directions. 54 Ark. 444.

The word “unlawful” in the act does not make the violation of it a crime. “Unlawful” signifies contrary to law; but does not necessarily subject the doer to a criminal prosecution. 2 Bish. Crim. Raw, § 178.

Court, Second Division; Bdzvard W. Winfield, Judge; Deceased did not assume the risk of dangers arising from failure of defendant to perform its duty. 48 Ark. 333; 70 Ark. 299. The defense that deceased was drinking at the time of the injury cannot avail here, when not set up in the answer nor presented to the jury by instruction. 71 Ark. 427.

2 Cyc. 507. The Constitution -provides that appeals may be taken from final judgment of the justices of the peace to the circuit courts under such regulations as are now, or may be, provided by law. Const. 1874, art. 7, sec. 42. An appeal is a matter of right. 44 Ark. 482. The only requisites for an appeal in a criminal case are that the appeal shall be taken and the transcript with the original papers filed in the office of the circuit court within sixty days. 41 Ark. 194.

Martinem, Chancellor; 1. In the absence of an express statute affording a remedy, a mere volunteer who pays the taxes on the lands of another can not recover the amount so paid. 17 Wall. (U. S.) 153, 167; 49 Ark. 192; 76 Fed. 673; 99 Fed. 825; 30 Ark. 600; 43 Ark. 521. Appellee does not come within the provisions of § § 2754, 2759, Kirby’s Dig., nor even within the -provisions of § 7112, Id. 2.

Marshall, Special Chancellor.; statement by the court. This cause has been before this court several times, and the various questions involved in and decided upon former appeals will be found in the following opinions: Rankin V. Schofield, 70 Ark. 83; Rankin v. Schofield, 71 Ark. 168; Rankin v. Schofield, 81 Ark. 440; Rankin v. Fletcher, 84 Ark. 156; Schofield v. Rankin, 86 Ark. 86.

Wallace, Chancellor; The purchaser took the land subject to whatever rights and equities an inspection of the deed would have shown to be in appellant. 18 Ark. 142; 37 Ark. 571; 43 Ark. 467. The plea of limitation is personal to the party entitled to claim it, and he may waive it if he wishes. 36 Ark. 491; 71 Ark. 407; 72 Am. St. R. 835. A third party cannot plead the defense of usury. 66 Ark. 124.

Hudgins, Judge; A new trial will be granted when the verdict is so clearly against the weight of the evidence as to shock the sense of justice of a reasonable person. 34 Ark. 632; 70 Ark. 385; 65 Ark. 278. The jury were the judges of the credibility of the witnesses. 50 Ark. 477; 36 Ark. 653; 19 Ark. 684. Circumstantial evidence is sufficient to corroborate an accomplice. 64 Ark. 247; 76 Aide. 215. The victim of carnal abuse is not an accomplice. 62 Ark. 504.

Lea, Judge; In an indictment for embezzlement, the property should be as accurately described as if the charge were larceny. 42 Ark. 517. Unless appellant was to pay over to his vendor the identical money received for-the piano, he was not a bailee under the statute. 51 Ark. 125; Schouler on Bailments, § 2. Even where title is retained until paid for, the vendee acquires such an interest in the property that he may sell it. 52 Ark.' 168.

Steel, Judge; STATEMENT BY THE COURT. The appellant was indicted for voluntary manslaughter, was convicted of involuntary manslaughter, and sentenced to seven months’ imprisonment in the penitentiary. He appeals to this court. In October, 1907, appellant and several others, including Nick White, were in a wagon going from DeQueen to Ultima Thule. Appellant and White had a fight.

Robertson, Chancellor. When no objection is made to evidence, the complaint must he considered as amended to conform to it. 29 Ark. 323; 40 Ark. 352. A stipulation in a deed of trust that the contract'shall be governed by the laws of some particular State is binding on the parties thereto, although executed in another State. 64 Ark. 39; 34 Miss. 181; 62 lb. R. A. 45. Only the maker, his vendees, assigns or creditors, can plead usury. 66 Ark. 125.

Shaver, Chancellor; The presumption is in favor of the validity of a tax deed. Kirby’s Dig., § § 7104-5; 81 Ark. 3x9; 30 Ark. 732; 59 Ark. 195. Property to be sold for taxes must be properly described in the notice of sale. 25 L. Ed. (U. S.) 327; 59 Ark. 460; 69 Ark. 358; 56 Ark. 172; 50 Ark. 484; 79 Árk. 442; 64 Ark. 432; 62 Ark. 189. And defects therein cannot be cured by any communication made to the bidders on the day of sale. 7 L- Ed. (U. S.) 882.

Robertson, Chancellor; The timber was part of the land on which it stood (118 S. W. 1021), and cannot be conveyed except by deed in the usual form for conveying real estate. 118 S. W. 1021; 61 Mo. App. 409; 5 Barb. 364. The power to convey is to be execute-d only in accordance with the provisions prescribed in the deed. 31 Ark. 406. A purchaser of land takes it with notice of whatever appears in his chain of title. 50 Ark 327.

32 Ark. 238; 13 Ark. 168; 60 Ark. 5; 34 Ark. 341;' 37 Ark. 261; 56 Ark. 315. Possession is not sufficient evidence of larceny unless accompanied with some claim of ownership or interest. 73 Ark. 32; 80 Ark. 497; 73 Ark. 169; 70 Ark. 144; 42 Ark. 73. Unless the defendant acted with felonious intent, he cannot be guilty of larceny. 70 Ark. 204; 34 Ark. 443; 55 Ark. 244; 34 Ark. 693; 44 Ark. 39; 58 Ark. 576; 67 Ark. 155.

Appellant is not chargeable with negligence. The message was not received at Water Valley until seven minutes after four in the afternoon. Sunday office hours were from eight to ten a. m. and from four to six p. m. The operator’s testimony that she used diligence to find .a special messenger is uncontradicted and stands as proved. 75 Ark. 406. 2.

Mahoney, Chancellor; 1. The burden was on Whittington to show a valid settlement. 24 Ark. 124; 68 Ark. 284. He has not shown it. 2. The probate court had jurisdiction to appoint a second administrator. Const. Ark., art. 7, § 24; Kirby’s Dig. § § 20, 21 ; 46 Ark. 373; 46 Id. 467; Kirby’s Dig. § 46. 3. It is proper- to appoint an administrator de bonis non on discovery of assets subsequent to the discharge of the former administrator. 18 Cyc. 105; 65 S. W. 713.

, Appeal from Monroe Circuit Court; Eugene Eankford, ¡.Judge; I. Mere words, however vile or insulting, do not justify an assault, neither do threats. Clark’s Crim. Daw, 1894 Ed., 215 and cases cited; 2 Bishop’s Crim. Law, 7th Ed., art. 40; 75 Ark. 142; Id. 238. * 2.

<p>Appeal from Sebastian Circuit Court; Daniel Hon, Judge;</p>

W. Meeks, Judge; When the statute of limitations is pleaded, the burden of proof is on plaintiff to show that the partial payment indorsed on the contract sued on was made before the statute bar attached. 70 Ark. 598; 69 Ark. 311; Wood on Dim. (3 Ed.), § 116. And such proof must be made aliunde before the indorsement can be put in evidence. 9 Ark. 455.

Wallace, Chancellor; To impeach a conveyance for inadequacy of con■sideration, the inadequacy must be so gross as ,to Although the deed recited the consideration paid, yet the vendor had an equitable vendor’s lien on the land enforceable against the vendee and his assignees with notice. 41 Ark. 292; 31 Ark. 728; 29 Ark. 218; Id. 440; Id. 563. All persons buying with notice of an equity take subject to that equity. 29 Ark. 568; 31 Ark. 89; 41 Ark. 292.

Haden Humphreys, Chancellor; A suit cannot be maintained upon a title obtained during the pendency thereof. 17 Ark. 443 ; 21 Ark. 186. A meritorious suit cannot be maintained after three years, even by 'one who owned the lands at the time they were appropriated. Kirby’s Dig. § § 2093 and 5064. An indorsement upon a note is not a covenant running with the land. 71 Ark. 289; 77 Ark. 168.

Virgil Bourland, Chancellor; An action of waste can be sustained .against a widow owning dow.er interest in her husband’s land for waste committed by her. 20 Mass. 203; 12 Ga. 235; 112 la. 210. So she may be enjoined from committing waste. 85 la. 78; 53 Ind. 267; 110 Penn. 473; 16 N. J. Eq. 248; 33 Id. 603; 39 Md. 3372 Hill 157; 49 Md. 549; 33 Am. St. R. 280; 66 Id. 370; 41 W. Va. 559; 36 Am. R. 884; 64 Id. 891; 179 Pa. St. 371; 43 W. Va. 562.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p> <p>statement by the court.</p> <p>Appellant (plaintiff below) alleged that on and since February 26, 1906, the Ozark Insurance Company had been a corporation of this State, as organized under the provisions of section 837 and the following sections of Kirby’s Digest authorizing the organization of corporations “for the purpose of engaging in' or carrying on any kind of manufacturing, mechanical, mining or other lawful business,” and that defendant Stevenson was president and defendant Kimmons. was secretary of said corporation from and after said day of February. That said corporation was organized as a mutual insurance company for the purpose of insuring property against fire, and on February 26, 1906, issued to plaintiff its policy insuring certain property against loss by fire for twelve months from that date. That on August 3, 1906, the property so insured was destroyed by fire, and that on April 4, 1908, plaintiff recovered judgment against said corporation in that court on account of said loss for five hundred dollars with interest, which judgment remained wholly unpaid. That the 'defendant president and secretary did not, nor did either of them, file the certificates required by section 848 of Kirby’s Digest during the years 1905 or 1906, and by reason of the neglect to do so had become liable to plaintiff for the amount of said judgment, and it prayed judgment accordingly.</p> <p>Defendant filed a general demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained said demurrer, and, the plaintiff electing to stand upon its complaint, the court dismissed the case at the costs of the plaintiff, - and plaintiff appealed.</p> <p>1. Kirby’s Digest, § 848, applies to all corporations. It was the duty of the officers to make the certificate regardless of the inability, if any such, of complying with every item of the demand.</p> <p>2. This section has never been repealed by implication by section 4349 or any other. Repeals by implication are not favored. 28 Ark. 325. The provisions of the subsequent act must be clearly repugnant to the former. Ib; 41 Ark. 151; 50 Id. 137; 55 Id. State v. Kirk; Sutherland, Stat. Const. (2 Ed.) 465.</p> <p>1. Section 84S, Kirby’s Digest, has no application to mutual insurance companies. It applies only to manufacturing and other business corporations within the meaning of subdivision 2, ch. 31, Kirby’s Digest. Further, insurance companies, etc., are governed by sections 4337, 4347-8-9, etc.</p> <p>2. To determine whether a statute is applicable, or not, to a given case, courts consider the reasons which underlie and support such statute. ■ 3 Thompson, Corp., § 4222. Specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law which might otherwise be broad enough to include it. Suth. St. Const., p. 412, § 325; 59 Ark. 606.</p>

<p>Appeal from Jackson Circuit Court; Charles Coffin, Judge;</p> <p>1. The arrangement between these parties constituted a partnership. Whether or not exclusive authority to buy and sell cotton seed was conferred upon Pearce is a disputed question; but, if such authority was conferred, appellant would not be bound by it unless notice had been given thereof. 30 Cyc. 401 ■ (e) and cases cited.</p> <p>2. If exclusive authority was conferred upon Pearce, it was revocable by the action of a majority of the partners. The bill of sale to appellant was executed prior to the bill of lading to appellee executed by Pearce’s procurement. The execution of the bill of sale constituted a revocation of Pearce’s authority. 31 Cyc. 1303 and cases cited; 30 Cyc. 481; George on Partnership, 158.</p> <p>3. Pearce’s testimony is not sufficient to contradict the date of the bill of sale. Its execution and delivery was all that was necessary to complete the sale to appellant. 31 Ark. 163; 35 Ark. 190; 80 Ark. 572. There could have been no delivery to appellee until the bill of lading was procured.</p> <p>1, In case of a trading partnership, every partner, in the absence of any special arrangement between the parties, is entitled to. take part in the management of the busniess; but this rule may be modified by partnership agreement, contract or conduct of the parties, so that one part of the business may be committed to one member, another part to another member, or the whole management to one member of the firm. 23 Ark. 566; 44 Ark. 34. Such an agreement cannot be waived or changed except by consent of all members of the partnership, and then only in a court of equity. 44 Ark. 36; 54 Ga. 29; 55 Ga. 427; 32 Vt. 616. The proof is clear that Pearce was made the sole manager of the Tupelo Gin Company, and that he was elected secretary and treasurer, was given exclusive authority to buy and sell cotton seed and had entire management of the Tupelo gin. If appellant had notice of these facts, or had sufficient facts before it to put a reasonable person on notice that such was the the case, it was bound by such partnership agreement, and purchase of seed from any other persons than Pearce would not be binding or valid. 48 Am. St. Rep. 436; 38 N. PI. 27; 75 Am. Dec. 183; 4 Johns. 251; 4 Am. Dec. 273. But this is not a trading partnership, but is a non-trading partnership, such as a number of persons engaged in mining operations, or in a farming operation, and in such cases a bona fide purchase does' not apply. 26 Am. Rep. 185; 19 Am. Rep. 757. In such partnerships the .authority imparted to the individual member to bind the partnership in transactions with third persons is limited by the nature of the business. 5° Miss. 358.</p> <p>2. There was no completed sale to appellant. The bill of sale was executed by two partners only. They could not bind the gin company. Two members of the partnership had no power to make the sale under the agreement, and there was no such delivery as is required by law. Moreover, appellant knew that Pearce was the only one authorized to buy and sell seed. 1 Bates on Partnership, § 323.</p>

Hutton, Judge; t. The statement of warranties was a part of the contract, and appellee was bound by it. 29 Ind. 568; 33 N. E. 106; 58 Ark. 528; 65 Ark. 295; 1 May on Ins. 335'. 49 S. W. 153; 53 N. Y. 603; 19 L. R. A. (N. S.) 798. Misrepresentation by the assured as to his occupation avoids the policy. 62 N. W. 1057; 65 Ark. 295. 2.

Grace, Judge; The attempt in this case to lease the property for five years was not binding. It would require an order of the probate court to authorize a lease of it, and^ then it could not extend beyond a period of one year. Kirby’s Dig., § 82; 34 Ark. 204; 64 Ark. 353.

37. Appellee was not prejudiced by the shipment back to her of the old jewelry— she. still owed the balance stated and no more. The contract was not thereby rescinded. She was then the owner of the new jewelry, and owed the balance. 32 N. E. 411; 92 Pac. 1087; 154 Fed. 826; 108 Fed. 179; 9 Cyc. 635.

Martineau, Chancellor; Appellant acquired title to the five acres by her continuous adverse possession of and residence upoon the same for the period of thirty years, claiming the same as her own. Kirby’s Dig., § 5056; 36 N. W. (Minn.) 551; 22 N. E. (Ind.) 725; 6 So. 634; 42 N. W. 915; 34 Ark. 598; 38 Ark. 181; 45 Ark. 81; 9 So. (Ala.) 537; Id. 368.

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

Martineau, ■ Chancellor; Under the statute the decree is erroneous. Kirby’s Dig., § 2707. There is no testimony that the dower could not be allotted in land, nor that it would be to the best interest of the parties that it be sold. The court’s finding is not conclusive, ■but this court will review the evidence to see if the findings are founded on facts disclosed by the evidence.

<p>1. PeEading — indefiniteness—remedy.—In an .action of trespass for cutting and removing timber on several tracts of land, the complaint is not demurrable because it fails to state the kind, quality and value of the timber cut from each tract, the proper method of raising such objection being a motion to make the complaint more specific. (Page 297.)</p> <p>2. Same — demurrer—waiver by peEading over. — If it was error to overrule a demurrer to a complaint in trespass which raised the objection that the complaint was not sufficiently definite, such error was waived by the defendant pleading over. (Page 298.)</p> <p>3. Trespass — cutting timber — burden of proof. — In an action for cutting and removing timber from plaintiffs land, the burden is on plaintiff to prove the quantity and value of the timber cut by defendant. (Page 298.)</p>

Fulkerson, Judge; The statute of limitations does not run against a minor, neither can a minor be estopped by any conduct during minority to claim its inheritance. 85 Ark. 556; 87 Ark. 206. A void judgment has no effect; it neither binds nor bars. 81 Ark. 463. The validity of the judgment of a probate court ordering the sale of lands does not depend upon the sufficiency of the petition therefor. 44 Ark. 267; 70 Ark. 88; 74 Ark. 86.

Appellee by its action in. demanding indemnity for injuries coming within the time it now claims it was not protected, and at a time when there was no dispute between the parties, will not now be permitted to change front and say it was not protected after March 3, 1903. 106 S. W. (Mo.) 561, 567; 20 Cent. Dig. § 2129. ’ 2.

B. McDonough, Special Judge; The second instruction given by the court is erroneous. The measure of damages is the difference between the actual and selling market value of the machinery and what appellee contracted to pay for it. 47 Ark. 167; 30 Ark. 540. This is not an action for deceit but upon express warranty. The second instruction was right. 30 A-m. & Eng. Enc. of L~ (2d. Ed.) 217 and authorities cited; 64 Ark. 510.

Saline Circuit Court; W. H. Evans, Judge; STATEMENT BY THE COURT. The suit at bar was first instituted by the appellant before a justice of the peace of Saline County, to recover from' the appellee a mule and two bales of cotton, which he had mortgaged to appellant to secure an open account for supplies advanced to him with which to make his crop. At each time appellee bought supplies of appellant he was furnished with an itemized list of each' purchase and its price.

Virgil- B our land, Chancellor; STATEMENT BY TI-IE COURT. On December 15, 1906, appellee loaned to W. F. Latham one thousand dollars, for which Latham executed his note, due sixty days after date. The note was not. paid, and appellee brought this suit to recover the amount of the note.

Martineau Chancellor; 1. There are no such acts of adverse and hostile possession shown in this case as to give appellee title to the land.

Elliott, Chancellor; Under the stipulation in the deed, when David failed to pay the note as he contracted, the relation of landlord and tenant instantly began, and that relationship was as fully in force as though no contemplated sale had ever existed. 75 Ark. 578; 78 Ark. 574.

Fulkerson, Judge; Trustees are not .held responsible for the devastavit which co-trustees may perpetrate. 141 U. S. 151; 30 Fed. 307; Story’s Eq. Jur. § 1280; Perry on Trusts, § 417. Directors of corporations may delegate duties to cashiers as well as to presidents. 77 Ark. 172; 62 Ark. 33; 66 Ark. 327; 141 U. S. 132; 155 Mo. 1; 87 Ky. 574; 147 Pa. St. 140; 12 S’erg. & R. 256; 8 Wheat. 338; 91 Fed. 587; 33 C. C. A. 222; 183 Mo. 552; 82 S. W.76.

Fulkerson, Judge; 1. Capital stock of a national bank invested in United States bonds is not subject to taxation. Rev. Stat. U. S. § 3701; 2 Pet. 449; 2 Black (U. S.) 620. The capital stock of a national bank cannot be assessed by State authority. 4 Biss. 472; 53 N. Y. 49; 3 Dill. 298; 52 S. E. 494.

Blackwood, Special Judge; 1. McNair could have defended against Mrs. Green’s suit in chancery on the ground that he was an innocent purchaser for value, and that the note was no lien as against him. As to Naylor, it was never a lien against the lot. He was not a party to the note given by Mrs. Crisman to Kissinger, nor to their contract. Clark on Contracts, 349; Lawson on Contracts, 422; 46 Kan. 246; 29 Mass. 554; 123 Mass. 28.

Hudgins, Judge; 1. The evidence fails to show liability on part of defendant. The company is not liable for hidden defects of which it had no knowledge, and of which it could not have known by the exercise of ordinary care. A proper inspection would not have disclosed the defect in this -case. 4 Lll. on Railroads, § § 3783-4; La'batt on M. & S. § 102; 146 Ind. 564; 67 Ala. 13, 20. A railroad is not -bound to adopt extraordinary tests to discover defects. 76 Ala. 494.

Rob'ertson, Chancellor; 1. The report of the master is clear, able and exhaustive. His findings are sustained abundantly by the evidence, and the chancellor should have given them the same weight as that given the finding of a jury on questions of fact. 108 S. W. Rep. 518; 85 Id. 769; 12 Minn. 307. 2. He was appointed by leave of the court and consent of parties. 48 Pa. 499. 3. The master’s findings are conclusive when sustained by my evidence.

Carter, Judge; STATEMENT BY THE COURT. On fhe 1st day of February, 1908, appellee boarded the log train of appellant at Blevins, Arkansas. To the log 'train was attached a coach for passengers. The train consisted 'of ten or twelve cars, some of them loaded with logs. There were as many as two or more cars of logs next to the passenger coach. It was a heavy load. It was after dark. There were no lights on the coach when appellee boarded it.

Hays, Judge; STATEMENT BY THE COURT. Mrs. T. M. Shocklee owned a tract of land in Columbia County, Arkansas, known as the “Lane place,” which her husband, acting as her agent, rented to Eubanks, Henry & Company for ■the year 1904, taking a note for the rent in the sum of one hundred dollars, due October 15, 1904, payable to T. M. Shocklee, dated February 2, 1904.

Hudgins, Judge; STATEMENT BY THE COURT. The appellee alleged in his original complaint that the defendant company on the nth day of July, 1908, by its freight train known as “Red Ball” No. 253, at or near mile post No. 64 in said county, negligently struck and killed a mare, and negligently chased said mare for a long distance, and on to an open span to a bridge, where her feet went through, and she lay helpless on the track in front of said train; and that said company and…

Carter, Judge; STATEMENT BY THE COURT. The appellee sued appellant on a policy of insurance issued ■by appellant -to appellee, insuring the latter against bodily injuries effected directly through external, violent and accidental means. The policy provided for the payment of one-third of $5,000 if the assured should become permanently and totally blind in either eye.

This is a proceeding by certiorari to quash certain proceedings had before a special chancellor, J. M. Parker, at the October term, 1908, of the Yell Chancery Court.

Appeal'from Garland Circuit Court, W. H. Evans, Judge; The words “goods, wares and merchandise” in the statute of frauds include whatever is not embraced in the words “lands, tenements and hereditaments.” 13 Graft. 789; 24 N. Y. 353; 36 Vt. 64; 55 R- R- A. 155; 54 Atl. 225; 34 N. H. 477; 26 Atl. 134; 2 Wend. 327. There must have been a sale before the ¡broker is entitled to his commission. 87 Ark 506; 105 Cal. 514; 45 Am. St. 87; 13 La. Ann. 51; 50 N. Y. S. 128; 27 App.

H. Bvans, Judge; As a general rule, it is negligence as a matter of law for one approaching a railroad crossing to fail to look and listen for the approach of trains. 78 Ark. 59.

31 Am. R. 216; 35 Me. 200; 141 Mass. 174; 38 A-m. R. 754; Id. 139; 41 Minn. 384. A cana'l company, acting under authority of the Legislature, is not liable for damages for cutting off the flow of surface water, 2 Johns. 283; 53 Am. R. 581; 21 L. R. A. 593. The action was barred by the statute of limitations. 52 Ark. 240; 62 Ark. 360; 35 Ark. 622; 86 Ark. 406; 20 L. R. A. (N. S.) 894; 88 C. C. A. 236; 161 Fed. 72. .

A blank statement of the year is fatal, when it is not alleged that the offense was committed within the period of limitation. 14 Ky. L,. Rep. 400; 30 Mich. 371. The burden is upon the State to prove that the offense was committed -within twelve months next before the finding of the indictment. 57 Ark. 495; 77 Ark. 441; 42 S. W. 915. The former indictment introduced in evidence by the defendant rendered impossible the rebuttal of the presumption of former conviction. 61 App.

H. Evans, Judge; Where the directors file a certificate, they are not liable under § 845 Kirby’s Dig. Section 803 of same does not authorize a judgment against t'he directors for failing to take a step in the organization, nor for taking a step improperly, nor for-not completing the organization at all. Under the statute they must intend to neglect t-heir duty in this regard before they can be held liable.

W. Meeks, Judge; 1. There is no corroboration of the prosecuting witness as to the promise of marriage. Her testimony must be corroborated both as to the promise of marriage and the fact of sexual intercourse. 77 Ark. 16; Id. 468; 40 Ark. 482; 73 Ark. 265. 2.

Hays, Judge; 1. The court erred in refusing to admit testimony offered by appellant to prove 'that it offered appellees employment, thus taking away its only defense. Kirby’s Dig. § 6649. 2. The court’s peremptory instruction to find for appellees was erroneous in that it authorized the jury to render a verdict for penalties after a tender had -been made. Hunt on Tender, § 342; 64 Ark. 93; 66 Ark. 413.

H. Evans, Judge; There was no negligence shown on the part of appellant; therefore the case should not have been submitted -to the jury. .4 Elliott on Railroads, § 1589a; 76 Fed. 734; 96 Minn. 434; 118 Mo. App. 239; 94 S. W. 293. .When the facts are undisputed, and only one inference can be drawn from them, negligence is a question of law for the court. 84 Pac. 1026; 44 Kans. 586; 69 Ark. 562.

Carter, Judge; STATEMENT BY THE COURT. This was an action instituted by the plaintiff below, Phil Garrison, by his next friend, against the St. Louis, Iron Mountain & Southern Railway Company for the recovery of damages on account of personal injuries sustained by being struck by a train of defendant while attempting to drive a wagon across its tracks at a public crossing in the city of Prescott, Arkansas.

Francis Chancery Court; Edward D. Robertson, Chancellor; statement ey the court. On August 30, 1899, appellee brought suit in the St. Francis Chancery Court against T. F. Moore, B. F. Hamit, Jr., R. L. Vansant and the Choctaw & Memphis Railroad Company, to recover judgment for work done in building the railroad of the company mentioned. The work was done under contract with the firm of T. F. Moore & Company, which firm was a subcontractor under R. L. ’Vansant.

107 U. S. 325; 41 Ark. 502; 53 Ark. 155; 68 Ark. 534. Counterclaims as a defense cannot be interposed upon a separate cause of action from the contract sued on. 27 Ark. 489; 40 Ark. 75; 54 Ark. 190; Kirby’s Dig., § 6099. Conflicting instructions should not be given. 74 Ark. 437; 57 Ark. 203; 72 Ark. 31. The suit having been prematurely brought, the plaintiff could not recover. 32 Ark. 782.

Steel, Judge; It was appellee’s duty, independent of contract, to maintain its culverts so as not to impede the free passage of surface water. 87 Ark. 480; 39 Ark. 463; 82 Ark. 447; 80 Ark. 235; 45 Ark. 252; 44 Ark. 360; Id. 258; 66 Ark. 271. The nuisance was not of a permanent character, within the sense that the statute of limitations begins to run from the date of construction. 52 Ark. 240; 57 Ark. 387; 72 Ark. 127; 76 Ark. 542; 80 Ark. 235; 82 Ark. 387; 86 Ark. 406.

Wells, Judge; If appellees wished to recover the value of the scrip, the action should have been in tort, for the value thereof, and not for the value of the money received for it. 25 Ark. 100; 31 Ark. 159; 76 Ark. 600. What the scrip sold for does not necessarily show the market value. 38 Ark. 179. And evidence of that is not sufficient to support a verdict. 31 Ark. 158.

54 Ark. 626. Evidence of other crimes is admissible when so connected that it appears that defendant 'had a common purpose in all. 56 Ark. 284; 109 Mass. 457; iS N. Y. 589; 58 Vt. 315. Whatever tends to prove a man guilty of the crime charged may be given in evidence, though it also tends to show he has committed other crimes. 72 Ark. 598. Bish. New. Crim. Prac. 1123; Clark’s Crim. Prac. 517; 75 Ark. 433.

H. Evans, Judge; The existence of a city ordinance must be proved. 80 Ark. 264; 68 Ark. 483. The mayor of a town has the same jurisdiction within its limits as a justice of the peace. Kirby’s Dig., § 2083; 68 Ark. 247; 88 Ark. 213.

H. Evans, Judge; The uncontradicted evidence is that Ferguson had been discharged by appellant before he discharged appellees. The case should be reversed for misconduct of counsel for appellees. 58 Ark. 473; 61 Ark. 130; 62 Ark. 216; 58 Ark. 353; 70 Ark. 305. Improper statements are not cured by withdrawal or admonition. 61 Ark. 138; 63 Ark. 174; 65 Ark. 626; 92 Ind. 34; 76 N. W. 462; 123 111. 333.

121 N. Y. 199; 23 Ind. 265; 98 Tenn. 139; 129 Ala. 349; 55 Ark. 498; 55 Atl. 287; 86 Ark. 56; 16 la. 252. Whatever will preclude plaintiff’s right of recovery may 'be given in evidence. 2 Ark. 415; 3 Ark. 552. It is too late to except to the qualifications' of a juror after verdict. 23 Ark. 51; 35 Ark. 109; 70 Ark. 244; 15 Ark. 403.

Guy Fulk, Judge; The commission shall have complete supervision over the assessment and collection of taxes and the enforcement of the tax laws of the State. Act May 12, 1909, section xi. All taxable property in the State shall be assessed at its true value, and to that end the commission shall compare the returns of the assessment and proceed to equalize the same. Id. § 12.

Elliott, Chancellor; Appellee is barred by his laches in neglecting, he and those under whom he claims, to assert their rights for more than forty years, and until the enhanced value of the lands made an assertion of title to appear advantageous. 96 U. S.. 611; 155 U. S. 314; 43 Fed. 12; 78 Tex. 84; 81 Ark. 352; 10 Am. & Eng. Dec. in Eq. 91; 1 Dillon (U. S.) 333; Fed. Cas. No. 9952; 5 Fed. 305; 49 Fed. 512; 53 Fed. 415; 57 Fed. 959; 79 Fed. 143; 61 Ark. 575 ; Id. 527.

Circuit Court; /. Hugh Basham, Judge; The fellow servants act of 1907 is constitutional, and applies to all domestic corporations. 87 Ark. 587. Deceased was in the .exercise of proper care for his own safety at the time of the injury. 114 Fed. 66; 98 111. App. 483; 92 Mo. App. 12; 28 Ind. App. 108. Appellee should have furnished appellant’s intestate a reasonably safe place to work. 77 Ark. 1.

Martineau, Chancellor; The admission of parol evidence to establish a contemporaneous collateral substantive agreement does not violate the rule that it will not be admitted to contradict or vary the terms of a written contract. 27 Ark. 511; 56 Ark. 399; 64 Ark. 653; 20 Ark. 460. If a corporation accepts the benefits of an agreement entered into by its promoters, it will not foe permitted to deny that it agreed to assume the burdens of the same. 1 Morawetz, § 549.

Hugh Basham, Judge; statement by the court. This is a suit by appellee to recover of appellants a certain mule. The complaint was in the usual form in replevin, and was against John M. Hatley.

86 111. 78; 71 Ark. 199; 66 Ark. 287. Contracts of suretyship are construed strictly in favor of the surety. 73 Ark. 473; 59 Mo. App. 44; 82 Ark. 592; 65 Ark. 550; 9 Wheat. 680; 92 Ind. 240; 47 Am. R. 140; 29 Kans. 487. Recovery in an amicable action is not evidence against a surety. 4 Pa. St. 348. A surety on a building contract is discharged if the principal is paid faster than the contract provides. 6 C. B. N. S. 550; 2 Keen 638.

Robertson, Chancellor; The statute of non-claim has no application to a debt secured by a deed of trust. 22 Ark. 535. Payment' by an administrator of an unprobated debt of his decedent which is secured by mortgage will not arrest the running of the statute of limitations unless there was no order of the probate court authorizing such payment. 65 Ark. 1. The law presumes that everv man does his duty until the contrary is shown. 25 Ark. 311.

6 Ark. 264; Id. 443; 17 Ark. 71; 19 Ark. 194. Where there are more issues than one, and a verdict on only one, there can be no final judgment, but a venire facias de novo will be awarded. 9 Ark. 62; 4 Ark. 526; 5 Ark. 193; 18 Ark. 248. If these motions fail, then the remedy is reached by motion for a new trial. 119 Ind. 273; 21 N. E. 735; 4 D- R- A. 549.

H. Evans, Judge; Appellee should not have been permitted to testify to what his wife had told him. 86 Ark. 450; 83 Ark. 331; 78 Ark. 225. The evidence was competent because it was the best evidence obtainable. But if the admission of the testimony in question was error, this court will not reverse if the judgment upon the whole case was right. 10 Ark. 9; 19 Ark. 667; 23 Ark. ,115; 33 Ark. 811; 43 Ark. 296; 44 Ark. 556; 46 Ark. 542.

<p>Appeal from Clay Chancery Court, Western 'District; W. W. Bandy, Special Judge;</p> <p>The findings of a chancellor on conflicting evidence will not be disturbed by this court. 83 Ark. 524; 87 Ark. 593; 114 S. W. 1181; 120 S. W. 843; 62 Ark. 611; 72 Ark. 67; 73 Ark. 489; 117 S. W. 765.</p>

Carter, Judge; He who uses his legal right harms no one. 59 Miss. 116; 9 N. Y. 444. One living in a city must necessarily submit to the inconveniences of city life. 78 Ky. 400; 188 Mass. 6; 118 N. W. 768; 23 Mich. 448. The measure of damages, unless the injury is permanent, is the depreciation in rental value during the continuance of the nuisance. 118 S. W. 786. The damages should at most be only nominal. 58 L. R. A. 390; 14 Id. 229; 74 la. 169; 86 Ala. 515.

Martineau, Chancellor; One cannot erect a nuisance upon his own land adjoining vacant lands owned by another, and thus control the use to which the vacant lands may be subjected in the future. 63 N. Y. 568; 20 Am. R. 568. Brick burning is not a nuisance per se, but may become so by reason of the manner of operation. Wood on Nuisances, 727. The depot and cotton platform are a nuisance, and should be abated. 70 Ark. 12; Joyce on Nuisance, pp. 299, 243.

Carter, Judge; Where one elects the more dangerous of two methods of performing an act and is injured while so doing, no recovery should be allowed. 128 Fed'. 529; 82 N. E. 675; 79 N. E. 1040. Going between the cars was the proximate cause of the injury. 79 N. E. 1040; 83 N. E. 343. One should not adopt the more dangerous of two methods of doing a thing. 149 Mich. 126; 129 Fed. 347.

Hudgins, Judge; Speculative testimony of probable damage tends to divert the mind of the jury from the real damage. 23 Wend. 434. The elements entering into the estimate of damages for a right of way must not be of a remote or speculative character. 39 Ark. 167; 16 Barb. 196; Id. 100; 13 Barb. 169; 53 Barb. 457; 35 N. H. 134; 10 Cush. 385; 12 Cush. 605; 27 Pa. St. 99; 33 Id. 57 5 34 la. 353; 128 N. Y. 465; 6 Wis. 636.

On February 12, 1909, A. H. Kaufman and I. S. Kaufman, partners as Kaufman & Company, brought suit in the Lonoke Circuit Court against the Central Arkansas & Eastern Railway Company, alleging that said railway company, while operating a locomotive over its line of railroad, negligently set fire to their barn containing corn and other products, and that the same was destroyed by the fire. They asked judgment in the sum of $513.

Evans, Judge; STATEMENT OE EACTS. The appellee sued appellant for damages which he alleged resulted to him by reason of the negligent failure of appellant to deliver a carload of Hereford cattle at Brady, Texas, on or before April 18, 1908.

Evans, Judge; The presumption that stolen property was, found on the thief is not conclusive, and, of itself, is not sufficient for a conviction. 34 Ark. 443; 68 Ark. 529. The act or declaration of a co-conspirator made after the transaction or enterprise is incompetent. 20 Ark. 216; 45 Ark. 132; Id. 165; Id. 328; 57 Ark. 1; 59 Ark. 422.

M. Barker, Chancellor; The counterclaim does not arise out of the contract set forth in the complaint, nor is it connected with the subject of the action. 87 Ark. 166; 66 Ark. 400; 32 Ark. 281; 48 Ark. 396; 40 Ark. 75; 57 Ark. 606; Kirby’s Dig., § 6099. The statute is plain, and has been applied frequently. 22 Ark. 409; 27 Ark. 489; 55 Ark. 312; 57 Ark. 312; 60 Ark. 400. In a suit on contract damages cannot be set off. 27 Ark. 489; 30 Ark. 50; 4 Ark. 527.

Carter, Judge; When appellant turned over five bales of cotton in the fall of 1904, it was a full and complete settlement. 112 S. W. 402. Ahbie Warren was a competent witness. 119 S. W. 837.

H. Evans, Judge; The act of March 11, 1899 (Kirby’s Dig., § 6787 et seq.) covers every feature of the act of 1887 (Kirby’s Dig., § § 6611-12-13-14-15 and 6620). The two acts are wholly inconsistent, and cannot stand together. The later act repeals the earlier. Art. XVII, § 10, Const, as amended; Acts 1899, § § 1 to 8, 9, 11, 14, 18, 31; 60 Ark. 221; 82 Ark. 302; 88 Ark. 324.

A married woman may borrow money to lend or give to her minor children (as is the case here), or to use for any other purpose, and is liable upon her promissory note given for such borrowed money. 62 Ark. 146; 43 Ark. 163; 70 Ark. 5; 78 Ark. 275. The testimony of all the witnesses, except that of appellant herself, goes to show that Mrs. Davis signed the note as surety only. Appellant’s statement that she loaned the money to Mrs. Davis is a mere conclusion.

<p>Appeal and error — final judgment. — A decree declaring in general terms the right of a trustee to receive into his possession the property of certain minors not already expended in their behalf, and referring the case to a master to ascertain the amount of suoh property, but without providing for the enforcement of the decree until after the master reports, is not final, and therefore is not appealable.</p>

This is an action instituted by John IT. Reece, administrator of the estate of King B. Flowers, deceased, against Matt Picchi, Vincent Picchi, Dominick Picchi, B. C. Truman and Amanda Truman upon bonds alleged to have been executed by them as the purchase price for real estate purchased by them at administrator’s sale.

Hudgins, Judge; The amount awarded appellee is supported by substantial evidence, and is not excessive. The uncontradicted evidence shows that .deceased contributed from $50 to $60 per month— $600 to $720 per annum. A finding by the jury, the judges of the weight .and sufficiency of the testimony, on any disputed fact should not be disturbed.

Kirby’s Dig., §' § 7833 to 7856, inclusive. The bar of the statute is postponed or avoided by fraud in the defendant committed under such circumstances as to conceal from the plaintiff all knowledge of the fraud, and thus prevent him from asserting his rights. 68 Ark. 455; 25 Cyc. 1173. The statuté runs only from the time the fraud is discovered. 61 Ark. 527; 139 Ind. 545; 91 S. W. 866; 90 S. W. 884; 112 N. W. 184; 89 Pac. 317; 85 S. W. 761; 2 App.

Wood, Chancellor; The decree should be affirmed for failure of appellant to preserve and abstract the oral testimony heard at the trial, and has omitted from his abstract more than half of the depositions read on the part of the plaintiff. 63 Ark.-513; 72 Ark. 22; 79 Ark. 86; Id. 185; Id. 263; 80 Ark. 20; Id. 259; 80 Ark. 579; 86 Ark. 369; 88 Ark. 449.

<p>1. Limitation of actions — money had and received. — Where a mother died, leaving a homestead, a husband and minor children, a suit by the children to hold the surviving husband liable for rents of the homestead during their minority is barred unless brought by them within three years after reaching their majority. (Page 627).</p> <p>2. Infancy — estoppel.'—Where a minor, who was one of the plaintiffs in a suit, -petitioned that the suit be dismissed as to him, and his petition was not withdrawn after reaching his majority, but remained in the record for nearly two years thereafter and until final decree was rendered, he will be held to have abandoned the suit and cannot complain of the decree dismissing it. (Page 627).</p>

Wallace, Chancellor; The one issue raised by the pleadings and proof is whether appellee paid the taxes and the collector by mistake improperly applied the payment to the wrong tract.