Volume 93 — Arkansas Reports

Wells, Judge; The contract could not be performed within a year, and was therefore within the statute of frauds. Kirby’s Dig., § 3554; 46 Ark. 80. And part performance of such a contract does not take it out of the statute. 48 Ark. 485. The verdict was in accordance with the law. 46 Ark. 80; 96 U. S. 424; 54 Ark. 189; 56 Ark. 600; 9 Ark. 394; 19 Ark. 671; 39 Ark. 280; 57 Ark. 370; 58 Ark. 617; 78 Ark. 336; 80 Ark. 232; Kirby’s Dig., § 5027.

Robertson, Chancellor; No time being mentioned for cutting and removing the timber, the vendee should be held to have a reasonable time. 77 Ark. 16. The words “any time” were used in a restricted sense. 66 Ark. 472; 145 Mass. 156. It means a reasonable time. 77 Ark. 116; 164 Pa. 234; 128 N. C. 46; 78 Ark. 408. The effect of the reservation and agreement to reconvey are not to nullify the grant of the fee. 82 Ark. 210; 93 S. W. 979.

Virgil Bourland, Chancellor; An order of the county court for the building of a new court house is void where there has been no levy made for that purpose. No money shall be paid out of the treasury until the same shall have been appropriated by law. Const. 1874, art. 16, § 12. An appropriation cannot be’used for any other purpose than that for which it was made. 85 Ark. 171.

H. Evans, Judge; 1. The verdict is not sustained by the evidence. No negligence is shown on the part of the appellant. On the contrary, the evidence shows that the engineer proceeded in the usual manner, gave warning of approach by blowing the whistle at the place he was required by the rules to do so, and applied the brakes at the place where he had been accustomed to apply them, and that the wet condition of the track caused the brakes to lock.

Maples, Judge; The mere keeping of malt tonic for sale openly and without the aid or intervention of a device of some kind is not unlawful. 45 Ark. 173. The stuff sold or kept for sale must contain the elements necessary to constitute an intoxicating liquor in -such form as it may be used as a beverage. 69 Ark. 361.

81 Ark. 191. A man has no more right to sit down on a railroad at a crossing than at any other place on the track. 49 Ark. 257. One injured while sitting on a railroad track at a crossing is a trespasser. 50 Ark. 477. Going upon a railroad track at a crossing without looking and listening is negligence per se. 65 Ark. 235 ; 54 Ark. 431; 56 Ark. 457; 62 Ark. 158. An objection to an instruction must be preserved in the motion for a new trial. 78 Ark. 374.

H. Evans, Judge; The testimony of the engineer was uncontradicted, and the jury were not warranted in disregarding it. 78 Ark. 234; 80 Ark. 396; 89 Ark. 120. The presumption of negligence is rebutted when it is shown that the engineer, after discovering the dog, could not have prevented the injury. 80 Ark. 396; 78 Ark. 234; 69 Ark. 619. The engineer had a right to presume that the dog would leave the track. 37 Ark. 593; 69 Ark. 619.

Carter, Judge; STATEMENT BY THE COURT. This is an action of tort brought by C. L. Brown against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for ejection from one of its passenger trains. Plaintiff, was a citizen of Arkadelphia, Arkansas, which is a station on defendant’s line of railroad. On Saturday night of the 17th day of October, 1908, a clerk at the railroad office at said station came into the hotel where Brown was eating supper.

<p>Appeal from Phillips Circuit Court; Hance N. Hutton, Judge;</p>

Carter, Judge; Section 6620, Kirby’s Dig., does not apply where the agent of the railroad company makes an honest mistake as to the amount of fare to be charged a passenger. 58 Ark. 490. Appellant did not plead the agent’s mistake as a defense; it is therefore waived. 82 Ark. 320; 69 Ark. 256; 80 Ark. 70; 46 Ark. 132. Besides, the mistake is not a sufficient defense. 60 Ark. 227; 12 Clark & F. 248; 58 Ark. 492.

Appeals from Independence Circuit Court; Charles Coffin, Judge; W. T. & R. T. Magness and S. A. Moore sued appellant separately. The actions were consolidated and judgments recovered by each of the plaintiffs. statement by the court. “Thomas Creek,” a’stream in Independence County, Arkansas, flowed in a course that was generally south and southwest into “Mud Creek,” which latter stream emptied into White River.

Shaver, Chancellor; Until .the surplus was ascertained, the decree should not have been rendered. 36 Ark. 612; 84 Ark. 172; 11 Gray 179; 76 Ala. 501; Story on Part. 90. The equitable lien of a partner for payment of debts, including debts due him for advances, extends to the real estate of the partnership. 85 Mo. 398. Neither party can convey title to a moiety of the goods, so as to defeat the right of the other to have firm debts paid out of that fund. 9 Me. 28; 5 Johns.

Blackwood, Judge; Section 4348, Kirby’s Dig., does not apply to mutual insurance companies. Act 192 of Acts 1905 is solely applicable. The bondsmen could be sued only under the authority given by section 4380 of Kirby’s Dig.- The allowance of the penalty and attorney’s fee was proper. Act 113, Acts 1905. When default was made, in payment of these drafts, the original debt revived, upon which plaintiffs had a right to sue. 48 Ark. 267.

The burden of proof was on appellee to establish the will by showing that it was in the proper handwriting of the testatrix. Kirby’s Dig. § § 3107, 8012; 38 Ark. 482; 63 Ark. 145; 64 Ark. 349; 70 Ark. 88. While, as a rule, the burden is upon contestants, in a contest over an attested will, even in such cases there are exceptions to the rule. 19 Ark. 550; 25 Am. Dec. 282; 6 Dawson’s Rights, Remedies & Practice, § § 3196, 3209; 1 Jarman on Wills, 69, 71; 46 Mo. 147. 2.

Tiedeman on Real Prop., § § 3 and 4; 42 Miss. 71; 26 Grat. 752. As to whether personalty does, in any particular case, become realty, depends upon the understanding of the parties. 40 Mich. 693; 86 Mich. 106; 48 N. W. 692; 28 Vt. 428; 11 Fed. 1; 63 Ga. 499; 24 N. J. L. 287; 47 Kan. 442; 28 Pac. 168. But where title to personalty is retained, it does not become a fixture. 33 N. H. 66.

the jury. 71 Ark. 305; 84 Ark. 57; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337. There being no evidence before the jury as to a counterclaim, the court rightfully instructed a verdict for plaintiff. 57 Ark. 461; 39 Ark, 419; 52 Ark. 347; 51 Ark. 140; 47 Ark. 567.

Maples, Judge; STATEMENT BY THE COURT. The grand jury of Benton County presented an indictment against appellant which (omitting formal parts) is as follows: “Said Lon Williams, in the said county of Benton, in the State of Arkansas, being then and there duly elected, qualified and acting county judge of said county, and presiding over and holding the county court of said county, at its regular October term, 1908, unlawfully, wilfully and knowingly did fail to require James…

H. Evans, Judge; statement by the court. Appellee sued appellant in justice’s court on certain accident insurance policies. In her complaint she asked for judgment for $70 and interest, also $10 per week during continuance of disability, and for 12 per cent, penalty and attorney’s fees. She obtained judgment in the justice’s court.

<p>1. Appeal and Error — abstract.—Where appellant’s abstract does not show that a motion for new trial was filed and that it was denied, it will be taken as correct, unless questioned by appellee’s abstract. (Page 86.)</p> <p>2. Same — absence or motion eor. new triad — errors considered.— Where there is no motion for a new trial, only errors in the rendition of the judgment which are apparent on the judgment record will be considered. (Page 87.)</p>

Grace, Judge; 1. The only allegation of negligence is as to plaintiff’s 'fellow-servant and co-employee.

Haden Humphreys, Chancellor; No issue was raised as to improvements, either in the pleadings or evidence. Hence the court was without power to render judgment for improvements. 1 Black on Judgments, 2d Ed. 183; 15 S. W. 870; 133 Cal. 228; 40 S. W. 1041; 51 S. W. 337; 32 S. W. 250. The value of improvements can be recovered only by those claiming under color of title. Kirby’s Dig., § § 2751-2754; 59 Ark. 144; 47 Ark. 62; Id. 528; 53 Ark. 545.

The judgment of the circuit court against Augustus Peters in favor of appellee was void for want of jurisdiction, he being at the time, and before the institution of the suit, insane, and having no guardian to represent him in the action. 1 Black on Judgments, § 205; 1 Freeman on Execution, § 152; art. 7, § 34, Const. 1874; Acts 1873, p. 120, § 4; art. 6, § 10, Const. 1836; Id. § 3; English’s Dig., chap. 48, § 5; Rev. Stat., chap. 43, § 6; 77 Ark. 355; 49 Ark. 51; 50 Ark.…

<p>1. Schools. — Transfer of taxes — effect.—The transfer of a landowner’s school tax from one school district to another does not have the effect of transferring such land, so as to transfer the school tax of a railway company which subsequently acquired an easement in the land; the easement and the fee being taxable separately. (Page 112.)</p> <p>2. Injunction — diversion of school tax. — Equity has jurisdiction to restrain the illegal diversion of a school tax. (Page 112.)</p>

Martineau, Chancellor; Appellants at the time they were enjoined were pursuing a plain statutory remedy in a court of equal and' concurrent jurissuit against the -bond. Acts 1905, § § 4 and 6, approved April from -a policy holder who has suffered a loss, the Auditor of State is the only person to whom authority is given by statute to bring suit against the bond. Acts 1905, § § 4 and 6, approved April 24, 1905.

Hutton, Judge; 1. The court erred in refusing to grant a continuance, because defendant was not prepared to meet the issues presented in the pleadings as to any other than the specific date named therein. Sec. 6140, Kirby’s Dig.; 29 Ark. 372; 59 Id. 165; 67 Id. 142; 69 Id. 363; 70 Id. 232; 71 Id. 197; 75 Id. 466; 78 Id. 536. 2. The opinion of witness Stair as to the shock or jar of the train was, not properly admissible. 66 Ark. 494; 50 Mo. App. 666; 117 Mass. 137.

G. Williamson, Special Judge; STATEMENT BY THE COURT. G. A. Waldrop was thirty-three years of age on February 22, 1908. He had been married a year, and was on the date mentioned acting as a brakeman for appellant, earning a salary of $60 a month. He had previously been acting as conductor at a salary of $90 a month. Fie was regarded as a first-class railroad man, and had a promising future before him. He and his wife lived at Warren, and they had no children.

H. Basham, Judge; statement by the court. Appellees were carpenters, and in the employ of appellant in and about its coal mine. The mine was operated by a shaft, separated into two divisions by wooden partition. Two cages were used to hoist the coal and to let down and hoist men and material. To these cages wire ropes were attached, and the ropes passed over a drum, and the cages were propelled up and down by an engine.

<p>1. Master and servant — assumed risk. — Where a fireman upon a railway locomotive, at the time of entering service, knows that the feed glass of the lubricators of two-thirds of the company’s engines are unscreened, and is injured by explosion of an unscreened feed glass, he will be held to have assumed the risk therefrom. (Page 155.)</p> <p>2. Same — duty to warn servant. — It is not the duty of a master to warn an inexperienced servant of the dangers -liable to be encountered by him in the performance of his duties where experience is not necessary to enable him' to do with safety the work he is employed to perform. (Page ISS-)</p> <p>3. Same — failure to warn servant — EFFECT.—Failure of a railway com-' pany to notify a fireman that the feed glass of the engine’s lubricator was liable occasionally to burst was not the cause of the glass breaking and injuring such fireman. (Page 155.)</p>

34 Ark. 263; 27 Ark. 496; 26 Ark. 323. The competency of witnesses under fourteen years of age must be made to appear by proper examination in the presence of the defendant. 25 Ark. 92; 10 Cal. 66. A fourteen year old boy who states that he knows that it is wrong to lie, but does not know what will be done with him if he does, has not the requisite capacity for a witness. 88 Ala. 181; 72 Ala. 191; 24 S. C. 185.

Appead from Howard Circuit Court; James S. Steel, Judge; The sole issue is, was the third annual premium paid? The appellee relies upon a receipt for that premium unfortified by any other proof. The receipt alone was oiily prima facie proof of payment. The evidence on the part of appellant is clear and uncontradicted that this receipt was issued by mistake, and that this premium was never paid.

Kirby’s Dig., § 2348; 74 Tex. 287; 11 S. W. 1117; 45 Cal. 323; 80 Ill. 251; 70 Miss. 554; 12 So. 582. There was error in the remarks of the prosecuting attorney. 24 Tex. App. 433; 6 S. W. 540; 6 Tex. App. 19; 24 Mo. 475; 90 N. C. 688; 126 Ill. 150; 18 N. E. 817. The proceedings of the court are presumed to have been regular. 72 Ark. 590. Appellant cannot complain here for the first time that the demurrer was not overruled. 73 Ark. 407; 76 Ark. 280.

Haden Humphreys, Chancellor; 'Appellee cannot rely on her deed, because it shows on its face that it is absolutely void. 77 Ark. 576; 56 Ark. 172; 59 Ark. 172; Id. 460; 69 Ark. 532; Id. 357. Fraud is a question of law when the facts are undisputed. 2 Wend. 466; 20 Am. Dec. 635. In equity fraud may be inferred from circumstances. 33 Ark. 69. If one sells real estate and retains possession of it, it is a badge of fraud. 2 Ga. 1; 46 Am. Dec. 368; 14 Ark. 69.

Hudgins, Judge; 1. Assuming that a “merger” contract existed, ’it was in legal effect an effort on the part of the officers of appellant, a mutual company, to reinsure the policy of appellee in the Arkansas Mutual Fire Insurance Company, which was illegal.

Carter, Judge; The happening of the accident does not show negligence. 79 Ark. 439; 82 Ark. 372. The children are not entitled to recover beyond their majority. Kirby’s Dig., § 6290; 53 Ark. 117; 63 Ark. 563. The wife for herself and as next friend for the children was the proper party to prosecute this suit. Kirby’s Dig., § § 2690, 2708, 2636; 71 Ark. 258; 157 U. S. 195. It is the province of the jury to’ determine the weight of the evidence. 101 S. W. 738.

S. Maples, Judge; 1. The issues should have been submitted to the jury. 80 Ark. 194; 82 Id. 86; 73 Id. 568. 2. The testimony of witnesses Payne and Swan, in support of appellants’ counterclaim, was admissible to show the agreement of the parties. The written order being silent, parol evidence was clearly admissible to show fully the agreement of the parties. 9 Cyc. of Ev. p. 350; 27 Ark. 510; 55 Id. 353; 81 Id. 389.

On the trial of the cause it developed that all specifications given by plaintiff were promptly filled, except the Jericho car, which was cancelled by plaintiff, and the Paragould car, which was delayed by defendant for a time, but promptly shipped after a slight change in the specifications by plaintiff.

S. Maples, Judge; Appellant was not a trespasser (48 Ark. 493), and appellee’s foreman could, by warning him of the presence of the spiked slab, have prevented his injury. The failure to do so presented a question for the jury as to appellee’s negligence; and appellant’s failure to look where he stepped, when but a moment before the way had been clear, should not have been made the test. 87 Ark. 325; 89 Ark. 496; 90 Id. 543.

H. Evans, Judge; STATEMENT BY THE COURT. Fred Dallas brought suit against the St. Louis, Iron Mountain & Southern Railway Company, for injuries alleged to have been received by him in being wrongfully ejected from one of its passenger trains, and in being left in an unconscious condition near the tracks of its line of railway, whereby his leg was cut off ■by another of defendant’s trains, which passed shortly after-wards.

Wood, Chancellor; STATEMENT BY THE COURT. This was an action originally instituted in the Chicot Circuit Court by the appellee, Uda Cahn, against the appellants to recover upon a supersedeas bond executed by them in connection with an appeal-to the Supreme Court taken from the decree and proceedings of the Chicot Chancery Court rendered in a cause wherein J. Kaufman was plaintiff and Henry and Mattie Love, his wife, were defendants.

The jury will not be allowed to supply such missing link, by inference or presumption from other facts unless they be legitimate and fair, 11 Ark. 630; 34 Ark. 632. Whether or not the evidence in a case possesses any probative value is a question of law and not of fact, and the appellate court will set aside a judgment when the record shows no substantial evidence in support of the verdict. 122 Mo. App. 213.

Quo warranto; 1. Power to issue, hear and determine the writ of quo warranto in the exercise of original jurisdiction is conferred upon this court by sec. 4, art. 7 of the Constitution.

Hudgins, Judge; 1. The remedy by nunc pro tunc proceeding to correct errors after the lapse of the term is available only to make the record speak the truth, so as to show what was actually done, or what judgment or order was actually rendered. It cannot be used to change or modify a judgment so as to recite something which was not done or ordered, even though it be something that ought to have been done.

H. Evans, Judge; STATEMENT BY the COURT. Appellee was a passenger on appellant’s train. He was passing between the coach and smoking car. On the platform between the cars and in the direct line of the passage way there was a little step box or stool about seven or eight inches high. Appellee stepped over this box in passing from one car to the other, and as he did so the train gave a sudden jerk.

October 30, 1908, appellant filed complaint in the Lonoke Circuit Court against the St. Louis, Iron Mountain & Southern Railway Company, charging that, while he was a passenger on the defendant’s train, the conductor recklessly, maliciously and unlawfully struck and choked said plaintiff,”' and that the conductor and the porter and the brakeman again assaulted him, beat him upon the head, cursed, choked and threatened to kill him.

Sec. 1553, Kirby’s Dig. A town cannot pass an ordinance in conflict with the general law of the State'. Art. 12, sec. 4, Const. 1874. The city is unquestionably liable for negligence of its officers and agents which results in injury to persons. 90 Minn. 158; 95 N. W. 908; 91 U. S' 540; L. R. 1 H. L. Cas. (N. S.) 93; 2 Cl. & F. 331; D. R. x Eng. & Ir. App. 93; 1 Hurl. & N. 439; 11 Ad. & Ell. 223; 37 Eng.

Circuit Court; Antonio B. Grace, Judge; statement by the court. Appellant entered into a lease -contract with appellee’s intestate on August 1, 1903, for a certain brick store building on Main Street in Pine Bluff, Arkansas, to continue for five years, ending September 1, 1908.

40 Ark. 487. It was also error to permit the prosecutrix and her mother to testify as to the resemblance of the child to appellant. Proof of acts of unchastity subsequent to the alleged seduction was inadmissible. Wigmore, Ev. (vols. 1 and 5, art. 205) ; 11 Ala. 68; 34 Ga. 1; 48 la. 671; 51 Ia. 467; 55 N. Y. 644. The testimony as to the likeness of the child to its alleged father was proper. 1 Wigmore, Ev., 166; 3 Id. 1974-1977.

On the 8th of January, 1909, appellee as one of the heirs at law of Mrs. Eliza Deckard, deceased, filed a petition in the probate court of Independence County, alleging certain facts as causes for the removal of appellant as administrator of the estate of Mrs. Deckard, and praying the court to remove him.

Elliott, Chancellor; statement by the court. The appellee alleges that Ida R. Dale obtained judgment for twenty-five dollars against one Jas. P. Barrett in the justice of the peace court of Prairie County, and had garnishment issued against W. H. Bland & Company; that Barrett filed a schedule, claiming as exempt all indebtedness due him from Bland & Company; that same was allowed and supersedeas issued.

The presumption of negligence arising.from the killing of the stock w.as clearly overcome by testimony which was in itself consistent and reasonable and not contradicted in any material point. The jury should have been instructed to find for the defendant. 67 Ark. 514; 78 Ark. 234; 89 Ark. 120; 80 Ark. 396. 2. The stock is not shown to have been killed in the county where suit was brought. Proof of the venue is jurisdictional.

The evidence presented a question for the jury. Brickwood’s Sackett’s Instructions, § 258; 47 Ill. 510; 37 Ark. 193 ; 47 Id. 567; 57 Id. 461; 66 Id. 366; 73 Id. 561; 76 Id. 520; 82 Id. 86. Especially in view of the fact that the burden was on the plaintiff, and he had no supporting witness. 88 Ind. 122; 82 Ark. 86; 88 Id. 550.

Lea, Judge; The allegation in the indictment as to the date of the commission of the crime shows affirmatively that it was not committed within the jurisdiction of the court. The indictment thus fails to meet the requirements of section 2228, Kirby’s Dig., and is therefore insufficient. 165 Ind. 443; 10 Mo. 291; 81 Me. 271; 30 W. Va. 386; 1 Tyler (Vt.) 295; 1 How. (Miss.) 260; 94 Pac. 553; 8 Col. 364.

The preponderance of the evidence is to the effect that Gross was a party to the contract, and appellant was not therefore within the statutory requirement as to the giving of ten days’ .notice as subcontractor. Kirby’s Dig., § § 4976 and 4993. The statute should be liberally construed. 30 Arle. 29; 30 Id. 569; 49 Id. 475 ; 51 Id. 302; 58 Id. 7; 84 Id. 560. 2. The lien was filed in proper time. 56 Ark. 516. 3. The contract was not within the statute of frauds. 76 Ark. 292. 4.

The copy of the deed from Kansas & Texas Coal Company to Little Rock & Texas Railway Company was inadmissible because (a) no foundation was laid for its introduction — no showing of effort to obtain the original deed, nor why the original was not produced. Kirby’s Dig. § § 756-757; 76 Ark. 400; Id. 461; 77 Ark. 244.

Maples, Judge; 1. Appellant having had process issued for the attendance of his witnesses, and used due diligence to procure the same, it was error to overrule his motion for a continuance. 60 Ark. 564; 62 Ark. 286; 71 Ark. 180. 2. There is no evidence in the record to show that the indictment was returned in open court by the grand jury.

Shaver, Chancellor; STATEMENT BY THE COURT. On the 10th day of April, 1902, appellants and others’sold to the Boyd-Hods-on Lumber Company the timber on two thousand acres of land in the counties of Nevada and Pike. The sale was evidenced by a -duly executed deed to the timber.

Elliott, Chancellor; Proof that the deeds and papers were lost during the war was sufficient to introduce copies. Ark. 400.

Stevenson, Judge; 1. There is no evidence that appellant was actually a member of the firm to whom .the credit was extended; and unless it is shown that he. held himself out to appellee as a member of such firm, he is not estopped to deny it. 22 Am. & Eng. Enc. of R. 59; 80 Ark. 23, 29; 18 Am. St Rep. 282; m U. S. 529; 27 R. R. A. 126.

Wells, Judge; 1. The circuit judge was without jurisdiction to issue a restraining order or injunction as an aid to a suit of unlawful detainer. Chancery courts alone have jurisdiction in such matters (sec. 3966 et seq., Kirby’s Dig,), except when the chancellor is, absent from the county. Sec. 1294, Kirby’s Dig.; 74 Ark. 423; 81 Id. 462; 84 Id. 341. 2. The unlawful detainer suit was not a proper action for the appointment of a special administrator. 69 Ark. 217. . 3.

H. Evans, Judge; The sixth instruction given on behalf of appellee, in which the jury were instructed that the facts relied on by appellant “must be sufficiently distinct to leave no doubt” was erroneous. A preponderance of the evidence is all that is required in civil cases. 31 Cyc. 1667. Taking the instructions as a whole, the law of the case was properly given.

H. Evans, Judge; 1. The verdict of the jury at the first trial was an acquittal of murder. 29 Ark. 31; 32 Ark. 221; art. 2, § 8, Const. Ark. It was therefore improper to arraign the defendant and again place him on trial for murder in the first degree. 2.

The court’s charge to the jury on the question of the presumption of innocence was not full enough in that it did not instruct them that this presumption continues throughout the trial or until his guilt is established to the satisfaction of the jury beyond a reasonable doubt. 164 U. S. 492; 116 Ala. 445; 29 Fla. 527; 95 Neb. 1038; 96 N. W. 266; 55 Neb. 777; 9 Enc. of Ev. 923; 106 Cal. 104; 101 Wis. 627; 127 Ind. 419. 2.

Hays, Judge; 1. The instruments, executed in the form of deeds and bills of sale, are testamentary in character, the surrounding circumstances being taken into consideration in ascertaining the intention of the maker. 50 Ark. 367; 74 Id. 104; 30 A. & E. Enc. of E. 576; 101 S. W. 42; 66 S. W. 536; 17 N. W. 522; 76 N. W. 41 x; 15 N. E. 42; 69 N. E. 892; 80 N. E. 1086; 41 N. E. 1007; 84 N. E. 638; 75 S. W. 677; 58 S. W. 318; 86 Ill. 616; 153 Ill. 636. 2.

Robertson, Chancellor; 1. The court- had no jurisdiction to hear and determine Seitz’s right to schedule. This is an action to impound a certain fund, and such an action is not within the exemption statutes of this State. Kirby’s Dig., § § 3904-3906; Const., art. 9, § § 1 and 2.

Carter, Judge; The requirements of sections 1414-1415, Kirby’s Dig., were complied with. Though the petition does not follow the exact language of the statute, the allegations as to the length of the proposed improvement, the tortuousness of the watercourse, the, frequency of overflows and the consequent impairment of the value of the lands to be drained, were sufficient to bring to the attention of the court the existing conditions.

Francis Chancery Court; Edward D. Robertson, Chancellor; The act of 1909 does not require “a majority of the qualified electors of the county,” as called for in the constitutional provision (Amendment No. 5, Const., and § § 7324 et seq. Kirby’s Dig.), nor does the order of court state that the proposition received such a majority; but this does not raise a presumption that such a majority did not vote in favor of the road tax.

Hutton, Judge; 1. Even though appellees retained title to the shovel, yet, unless they were entitled to the immediate possession of it at the time suit was brought in replevin, they cannot recover. 11 Ark. 249; Id. 475; 17 Ark. 449; 16 Ark. 90; 37 Ark. 64. And the burden was upon them to establish their right to such immediate possession. 42 Ark. 313. 2.

Haden Humphreys, Chancellor; The Spear Mining Company and the Spear Realty Company were not responsible for the debts of the Flynn Mining Company. 37 Ark. 23; 25 Ill. 353; 42 Ia. 563. The corporations were separate and distinct, and one would not be liable for the debts of the other without an express agreement to that effect. 48 S. W. 806; 33 L. R. A. 800; 61 Wis. 20; 70 U. S. 234; Angell & Ames, Corp., § § 40, 46, 100, 591, 595.

Steel, Judge; It is error for the court to substitute for the statutory guardian some other person as next friend to represent a minor. 31 Ark. 58; Id. 229. It is the duty of the statutory guardian to represent his ward in all suits. Kirby’s Dig., § 6023; 42 Ark. 222. The record showing the minor’s disabilities had been removed by the court was conclusive on collateral attack.

Martineau, Chancellor; statement by the court. The appellants, Swaim and Hicks, alleged that they were the owners of certain lots in the incorporated town of England, on which were situated business houses and residences. They allege that on one of the lots was a hotel in which appellant Hicks and family resided, and which was also occupied by other families and guests of the hotel, and that appellant Swaim had his residence on another lot adjoining the Hicks lots.

Evans, Judge; The court should have directed a verdict for appellant: (1) Because the evidence failed to show that the absence of a 1,500 candle power headlight was the proximate cause of White’s death. 56 Ark. 279; 29 Cyc. 631; 13 Cyc. 216; 76 La. 744; 83 Ark. 584; 86 Ark. 465; 77 Ark. 599. (2) Because deceased plainly assumed the risk of the absence of such headlight. 54 Ark. 389; 56 Id. 31; 77 Id. 374; 82 Id. 11.

V. Bourland, Chancellor; The complaint states sufficient facts to constitute a cause of action, and the right at the time to maintain the action. The $300.00 was not a penalty, but an agreed amount to be paid by the erection of the wall by a certain date; and when appellee failed to deliver the wall as stipulated and at the time agreed upon, the $300.00 then became due in money and so recoverable. 14 Ark. 315-319; 54 Ark. 340; 14 Ark. 345-352; 57 Ark. 168-178.

Martineau, Chancellor; It was error to transfer the cause to equity, over the obiection of plaintiff. He was entitled to a trial by jury. Kirby’s Digest, § 6170; 73 Ark. 462; 52 Ark. 411; 72 Ark. 115. Parol evidence was admissible to show that Reinman indorsed the note to pass the legal title, and that Walker was really the owner of the note and the real payee. 93 Pac. 366; 17 L. R. A. (N. S.) 1105; 1 Daniel on Neg. Instr., § 644a, 741; Randolph on Com. Paper, § 788.

<p>Appeal from Independence Circuit Court; Charles Coffin, Judge;</p> <p>No motion for new trial was filed, nor was there any bill of exceptions. There is nothing before this court for review. 27 Ark. 37; 26 Id. 537; Ib. 464; 46 Id. 17; 64 Id. 483; 70 Id. 418.</p>

Appellee has no right to go behind -the execution of the deed, having acepted it. The acceptance of a -deed by the vendee is a final consummation of all prior negotiations. It was error to admit letters written prior to the making of the deed — the completion of the contract. 2. The deed, receipt and exhibits were filed with the answer —part thereof — and not denied under oath, and hence must be taken as genuine. Kirby’s Digest, § 3108.

<p>Appeal from Washington Chancery Court; T. Haden Humphreys, Chancellor;</p> <p>1. The chancery court was without jurisdiction to make the order appealed from. Art. 7, § 15, Const.; § 5137, Kirby’s Dig.; 5 Ark. 303; 6 Id. 318; 11 Id. 598; 20 Id. 136; 27 Id. 675; 34 Id. 188; 56 Id. 391; 80 Id. 145; 36 Pac. 807; 65 Ark. 410; 81 Id. 330; 149 U. S. 157.</p> <p>A court of equity has authority to abate nuisances. Fletcher, Eq. PI. & Pr., § 49; 43 Am. Dec. 773; 1 Pomeroy Eq. Jur., § 257; 2 Redfield, Law of Railways, § § 215, 216; 1 Abbott, Mun. Corp., § 130; Wood, Law of Nuisances (2 ed.), § 777; 123 U. S. 623; 134 U. S. 33; 144 U. S. 548; Black, Intox. Liquors, § § 54, 343, 344; 89 Ark. 175; 85 Ark. 544. Also to restrain existing or threatening public nuisance. 4 Pomeroy Eq. (3 ed.), § 1349; 10 Ill. 351; 143 Ind. 98; 16 Gray (Mass.) 245; 149 Mass. 20 L. R. A. 732; 24 N. J. Eq. 89; 18 L. R. A. 646; 46 L. R. A. 552; 45 Wis. 425; 87 Ill. 450; 2 Green (N. J. Eq.) 136; 28 Kans. 726; 158 U. S. 564.</p> <p>The act of February 13, 1899 (Kirby’s Dig., § 5137), in effect declares the shipping of intoxicating liquors into a prohibited district for the purpose of unlawful sale to be a public nuisance. The chancery court therefore had jurisdiction. 72 Ark. 171.</p>

O. Mahoney, Chancellor ; The complaint states a cause of action, and the demurrer should have been overruled. Appellants own a revisionary interest, and are entitled to maintain an action for damages to the inheritance. Under the common law the action of trespass on the case would lie. 18 S. C. 551; 1 Hill (S. C.) 260; 42 W. Va. 312; 17 Fed. 216; 43 N. H. 320; 6 Conn. 328; 4 Har. 181; 64 Mass. (10 Cush.) 232; 82 Mass.

Wallace, Chancellor; 1. Liability under the bond was not limited by the terms of the first contract of employment, but was fixed by the bond itself. 89 Ark. 382; 91 Ark. 43. And the general rule is that contracts of suretyship should receive the same liberal interpretation accorded to any other contract. Child, Suretyship and Guaranty, 114; 117 N. Y. 196; 148 N. Y. 241; 27 La. Ann. 653; 99 Ill.

& Eng. Enc. of L. (1 ed.), 946-7; 23 L. R. A. 33; 81 S. W. 367; 97 Tenn. 367; 25 S. W. 1126; 76 S. W. 1040. Negligence of a parent or other person having a child’s custody will not be imputed to the child in a suit brought by a next friend for it, and the jury are the sole judges as to whether the child’s contributory negligence was the cause of its injuries. 2 Am. & Eng. Enc. of L. (Old Ed.) 750; 63 Ark. 185; 59 Ark. 185; 55 Ark. 254; 88 Ark. 484; 77 Ark. 398.

Grace, Judge; 1. 79 Ark. 293, settles this case. The indictment was good before or after verdict, and the demurrer should have been overruled. The words “forcibly” and “ravish” include “against her will.” Webster, Dict.; 17 Tex. App., 574; 1 Id. 90; 11 Id. 301; 39 Tex. Cr. App. 488; 47 Tex. 226; 7 Tex. App. 625; 44 Ala. 110; 12 Pa. (S. & R.) 69; 6 Minn. 279; 85 Wis. 203; 70 Conn. 104; 50 Barb. 128; 2 Wh. Cr. Law, § 1134; 3 Chitty, Cr. Law, 812. 2.

H. Evans, Judge; 1. All the instructions given at the request of the State are erroneous.

S. Maples, Judge STATEMENT BY THE COURT. On July 30, 1907, about 4 o’clock a. m. of that day, the father of appellee delivered to appellant at Okmulgee, I. T., the following telegram: “Edith Crenshaw, Fayetteville, Ark. Walter very low. Come at once,” signed W. N. Crenshaw.

S. Maples, Judge; In this kind of action neither the title nor the right to possession is in controversy. 79 S. W. 988. It is purely a^tort, and can only be resorted to to protect actual possession; and the plaintiff’s possession must be actual, and the defendant’s entry-and subsequent holding must be forcible. 41 Ark. 535. Force is the gist of the action, and it must be actual and hostile. 38 Ark. 257. See also 69 Ark. 34; 49 Cal. 74; 19 Cyc. 1132.

V. Bourland, Chancellor; 1. In a divorce proceeding the reputation of neither party is in issue. A. B. Poe’s testimony as to appellant’s reputation was not admissible, and should have been excluded. 5 Am. & Eng. Enc. of L. (2 ed.), 862; 5 N. H. 195; 93 Ky. 510. General reputabion can be proved only by witnesses who know that reputation in the vicinity in which the party lives. 1 Greenleaf on Ev., (7 ed.), § 461. 2.

Carter, Judge; The cars were consigned to shipper’s order, notify J. M. Townes, at Texarkana. Appellee was not at Texarkana during the period complained of, and had no agent there to receive notice. A direction to notify him at Texarkana would not require appellant to notify him at Little Rock. Hutchinson on Carr. § § 709, 723. 1.

Elliott, Chancellor; 1. There is no proof that the Little Rock Vehicle & Implement Company had legal title to the land.

Evans, Judge; 1. That appellees are liable in a ‘case of this kind is well settled, and, as between them, the presumption is that the damage to the goods was caused by the negligence of the last connecting carrier. 73 Ark. 112; 72 Ark. 502; 82 Ark. 150. It was appellee’s duty to furnish a car suitable for this class of goods, and it is not relieved of liability because of its contract with a refrigerator company to furnish a car properly iced. 82 Ark. 143. 2.

S. Maples, Judge; 1. The evidence does not support the verdict. 2. Where public offenses are punishable by both fine and imprisonment, the statute does not confer jurisdiction upon police courts concurrent with justices of the peace. Dillon on Mun. Corp. (2 ed.), § § 35§, 359; Kirby’s Dig. § 5626; Id. § § 2081, 2082, 2086, 2110, 2476, 5471, 5464, 5465; art. 2, § § 7, 8 Const. Ark.; art. 8, § 49, Id.

Steel, Judge, 1. One partner may sue in the name of himself and co-partners without their consent; but if he does against their consent, he must indemnify them against costs. Lindley on Partnership, p. 473; 30 Cyc. 565 and cases cited. 2. If there was no fraud, Cobb had the right to dismiss the cause, as much so as Ingersoll had to bring it. Lindley on Part. p. 473- 3. Instruction 4 should have been given.

Steel, Judge; 1. For distinction between a warranty and a condition, see 81 Ark. 549; 108 N. Y. 232; 1 Cush. (Mass) 271. In this case the engagement as to quantity, as presented by the guaranty against leakage, is an agreement collateral to the main purposes of the.contract, and can not be construed as a condition, the breach of which permits the vendee to rescind. 2.

Carter, Judge; 1. Under appellee’s own statement there is no liability on the part of appellant for the injury.

Meeks, Judge; STATEMENT BY THE COURT. The appellant, being the owner of a lot of timber at Iuka, Baxter County, wrote the appellee in June, 1907, proposing to manufacture and sell said timber, and on July 3, 1907, appellee wrote Mr. Weller that it would buy his timber at certain prices quoted, and giving him directions how to cut and ship it, etc. Weller failed to get a mill to cut his timber at that time, and nothing more was done till October 7, 1907, when Weller wrote the…

Appellant rented to D. IT. and A. L,. Shelby by written contract a ten-room house in Fort Smith, together with certain furniture and fixtures therein. A list of the furniture was attached to the lease.

<p>Larceny — finding lost goods. — If the finder of lost articles neither knows nor has any means of ascertaining the owner, and appropriates them . to his own use, he is not guilty of larceny, whatever may be his intent at the time; if he does know, or has the immediate means of ascertaining, who the owner is, there must be a felonious intent to steal at the time of the taking, in order to constitute larceny.</p>

W. H. Davis was a brakeman in the employ of appellant. On the 22d day of August, 1908, he had charge of. the switching list” -at Marianna, and in consequence thereof it was his duty to direct how the switching was to be done. It was the duty of the other members of the crew, the engineer, fireman and brakeman, to follow the directions of Davis in making whatever switching was necessary in the yards at Marianna after the train arrived there that day.

Robertson, Chancellor; i.. The decree for levee taxes was valid on its face, and recites proper notice. The report of sale was properly confirmed, and the deed from the commissioner to the board of directors was properly executed, examined and approved. It was in the nature of a proceeding in rem, immaterial that the ownership of the lands be accurately stated therein, and the judgment was enforceable against the lond only. Acts 1895, p. 88.

Lea, Judge; 1. It was error to refuse defendant the right to open and, close the argument. The burden of proof, under the pleadings, was on defendant. 32 Ark. 597; 13 Ark. 479; 29 Ark. 153; 82 Ark. 331. 2. The testimony of Brown as to the conversations and propositions had, etc., was inadmissible. They were made prior to the final agreement. Where a contract is reduced to writing, parol evidence is admissible to vary, alter or explain it. 3.

Stevenson, Judge; 1. Whether the Oldham and Patterson acts of the Legislature are constitutional or not is immaterial to the right decision of this case. This court has already held that an appropriation is void after the lapse of two years. 85 Ark. 171- 2. As to the Oldham Act, that statute “itself furnishes the best means of its own interpretation,” and there is no need to resort to other means of interpretation. Sutherland, Stat.

Steel, Judge; The cause should have been transferred to equity. The facts disclose a partnership between the plaintiff and N. M. or E. T. Roach. 87 Ark. 142; 134 Pa. 482; 104 Cal. 302; 35 Ga. 234; 74 Ark. 437; 63 Ark. 518; 44 Ark. 423; 80 Ark. 23; 145 U. S. 611. 1.

Grace, Judge; Kirby’s Dig., § 3156, providing that the deposition of a witness who lives more than thirty miles from the place of trial and in an adjoining county may be used is only permissive; and if such witness actually attends the trial in obedience to a subpoena, he is entitled to his mileage. 18 Ind. 32; 29 Ind. 426; 51 Mo. 532; 103 Ala. 542; 96 Ia. 202. The deposition of such witnesses may be used. Kirby’s Dig., § 3156.

Appellee, having been offered a choice of contracts and having for a consideration elected to take a contract limiting the liability of the carrier, was bound by its terms.

J. H. Carroll died March 2, 1908. His only known next of kin were seven children of a brother who had died in Leeds, England.

Hutton, Judge; 1. The evidence fails to show such negligence as to make the company liable, and does show an assumed risk and such negligence on part of plaintiff as to preclude recovery. Negligence must be shown affirmatively. 79 Ark. 76; 57 Ark. 461; 26 Cyc. 1202-3-4; 116 Fed. 627; 106 Fed. 645; 1 Am. St. 22. Contributory negligence bars a recovery. 63 Ark. 427. 2.

Mathes, Special Judge; STATEMENT by the court. Clara Grayson, a young woman, lives at Blytheville, Arkansas. On July 7, 1904, she stepped on the railroad track where it intersects one of the main thoroughfares of the city.

Lea, Judge; Ordinary rules of law do not apply to applications for bail. 39 Ark. 126. The authority given to a judge of the Supreme Court to issue the writ of habeas corpus carries with it the right to hear and determine the same. 40 Ark. 507; 15 S. W. 850; 40 S. W. 650. Section 3834, Kirby’s Digest, provides that writs of habeas corpus may be issued by the judges of the Supreme Court, chancery and circuit courts.

Hays, Judge; 1. The eleventh instruction given by the court is erroneous because of incorporating therein the clause, “thinking it a settlement for wages for time lost on account of the injury.” To avoid a written instrument on the ground of mistake, such mistake must be mutual. 74 Ark. 336. One who signs a contract without reading it, after being given an opportunity so to do, cannot afterwards complain that he signed it without having read it. 70 Ark. 312; 71 Ark. 185.

The venue was not proved. If it be conceded that the court can take judicial notice that cities and incorporated towns in the State are within the jurisdiction of any particular court, it nevertheless could not take judicial notice of collections of houses, although they may have a name by which they are locally known. “Old Jenny Lind” or “Mine 18” is not found on any map, and is not even a postoffice.

Shaver, Chancellor; 1. This was -not a party wall, nor an agreement, nor a sale for a party wall. Tiedeman on Real Property, 620; 54 Ark. 519; 78 Ark. 65; 22 Am. & E. Enc. Law, 237. 2. If it was, it comes within the statute of frauds. Kirby’s Digest, § 3654; 49 Ark. 503; 54 Ark. 519. 3. There was no such part performance as to take the agreement out of the statute. 22 A. & E. Enc. Law, 250. 4.

Virgil Bourland, Chancellor; The court should have made G. R. Mitchell a party for the protection of the bank. 1. The motion to make G. R. Mitchell a party came too late — after the case was tried. Besides, he had no interest. 2. No judgment can be properly entered against a garnishee in -default of an answer until after judgment- for plaintiff. 70 Ark. 127; 62 Id. 616; 48 Id. 350; 45 Id. 271. 3. All parties interested were before the court.

The act of 1909 omits the objectionable proviso of the act of 1901, which led this court to pronounce the latter act void. 75 Ark. 542. The Legislature was familiar with this decision, and passed an act without any exceptions to its provisions. 2. The act does not interfere with or attempt to burden commerce among the States. 82 Ark. 309-321. The Legislature is presumed to act in view of the Constitution, and not to intend the violation of its provisions.

Robertson, Chancellor; 1. The act of 1857 was repealed by the act of 1861. (Acts 1861, 161), but the old board continued to act until 1862, when the last meeting was held. A meeting in 1867 is not proved. 2. No title passed by the assignment of the certificates of entry. The legal title was in the State, only the equitable title passing to the board, a creature and agency of the State.