Volume 94 — Arkansas Reports

Stevenson, Judge; 1. The court should have' given a peremptory instruction for defendants. Articles of dress or personal adornment cannot be taken on a writ of replevin from the person of a defendant without his consent. 16 Gray 213, s. c. 77 Am. Dec. 409. And, if plaintiff had no right to delivery of the property, there could be nothing to go to the jury. 37 Ark. 544; 43 Id. 535; 50 Id. 300; 54 Id. 121; 3 Hill 577. 2.

The contract is void for want of mutuality. Under it appellants agree to pay a certain price for lumber of a certain grade, but nowhere are appellees under any obligation to saw or furnish any particular quantity. They were left free to shut down at any time, or, if opportunity was presented to them after moving the mill to the second location, to sell at an increased price.

Carter, Judge; 1. The court erred in treating appellant’s negligence in the operation of its train as the proximate* cause of the injury. 56 Ark. 387; 21 S. C. 466; 1 Thompson, Neg. § § 44-45. 2.

The court erred in its declarations of law. While it is true that “a denial of liability waives proof of loss” (83 Ark. 128), a waiver obtained by misrepresentations or concealment of material facts required by the “iron safe clause” of a policy does not bind the insurer. One ought not to be allowed to take advantage of his own misrepresentations, even if he is honest in making them. It is an undue advantage, and opens the doors to dishonesty.

<p>1. Constitutional law — obligation of contract — corporate charter. —The charter or articles of incorporation of a corporation is a contract between the State and the corporation, and is protected from legislation of the State impairing its obligation. (Page 30.)</p> <p>2. Same — due process — protection of corporation. — A corporation is a “person” within the due process clause of the Fourteenth Amendment to the Constitution of the United States. (Page 31.) •</p> <p>3. Corporations — powers.—A corporation organized under the laws of the State is bu.t the creature of the Legislature, .and possesses only those rights, powers or property which the charter of its creation confers upon it, either expressly or as incidental to its existence. (Page 31.)</p> <p>4. SAME' — laws as part op charter. — Where a corporation is organized under the general laws of the State, such laws become a part of its charter. (Page 31.)</p> <p>5. Constitutional law — legislative control over corporations. — Under Const. 1874, art. 12, § § 2, 6, providing that no corporations shall, with certain exceptions, be created by special act, and that corporations may 'be formed under general laws, which may from time to time be repealed, and that their charter may be altered, revoked or annulled, in such manner that no injustice shall be done to the corporators, held that the Legislature is authorized to regulate the powers of corporations to enter into contracts when that regulation would not be subversive of any vested rights or the object of the charter. (Page 35.)</p> <p>6. Same — power op legislature over corporations not unlimited.— The power of the Legislature to alter and amend the charter of a corporation is not unlimited; the alterations must be reasonable, .made in good faith, and consistent with the scope and object of the act of incorporation. (Page 35.)</p> <p>7. Corporations — reasonableness op regulation. — The act of February 1, 1909, requiring corporations doing business in this State to pay their employees semi-monthly, is not an unreasonable exercise of the power to amend the charters of corporations. (Page 33.)</p> <p>8. Constitutional law — Equal protection op law. — The act of February 1, 1909, providing that corporations shall pay their employees semi-monthly, does not deny the equal protection of the law, since all corporations of the class affected are treated alike under like circumstances. (Page -33.)</p> <p>9. Same — limiting power to contract.- — The act of February 1, 1909, requiring corporations to pay the employees semi-monthly, is not invalid as restricting the right of such employees to contract with such corporations. (Page 30.)</p> <p>10. Master and servant — construction op statute — penal statute.— The act -of February 1, 1909, making it a misdemeanor for a corporation doing business in the State to fail to pay its employees semimonthly, being penal in its nature, must be strictly construed, and no act that does not clearly violate its provisions can be declared an offense. (Page 37.)</p> <p>11. Same — construction op statute. — Under the act of February 1, 1909, providing that all corporations doing business in this State shall pay their employees semi-monthly, and declaring a violation of that provision a misdemeanor, held that a violation of the law is not committed unless a corporation fails or 'refuses to pay the wages of its employees semi-monthly after a request or demand therefor has been made or unless by its acts and conduct it shows that it will fail or refuse to pay such wages upon request or demand. (Page 37.)</p> <p>12. Same — statutory regulation — construction.—A contract entered into between a corporation and an employee for payment of wages at a longer period than semi-monthly would be void, under the act of February i, 1909, and could not deprive the employee of his right to request or demand the payment of his wages semi-monthly. (Page 37.)</p> <p>13. Same — statutory regulation. — The mere fact that a corporation doing business in this State agreed with an employee not to pay his wages semi-monthly will not be a violation of the act of February 1, 1909, requiring corporations to pay wages of employees semimonthly. (Page 37.)</p>

Martineau, Chancellor; statement by The court. This was a suit brought by the appellants. The complaint set up that Jesse L. Gray died in White County, leaving a supposed will in which he bequeathed to his son, Harrison T. Gray, who had departed this life prior thereto, five dollars, but making no mention of plaintiffs, children of Harrison T. Gray and grandchildren of testator.

The appellee alleged that his wife, Mrs. Zelah Bangs, died January 23, 1909, at about the hour of 3 o’clock in the afternoon; that “about two hours thereafter, towit, about the hour of 5 o’clock, plaintiff caused to be posted with the telegraph operator at Midland, a telegram to John H. Redmon, a friend of both said plaintiff and his deceased wife, at said Belleville, in substance advising said Redmon of said demise, and that the remains would arrive at Belleville on the…

Shaver, Chancellor; J. E. Callaway sued E. M. Hall, R. A. Stuart and R. H. Greene, commissioners for Sewer Improvement District No. 1 in Arkadelphia, to restrain them from assuming to act as such commissioners. The evidence showed that the commissioners were appointed in December, 1905.

Hays, Judge; statement by the court. This is an action in ejectment brought by appellees in the circuit court against appellants to recover certain lands situated in Columbia County, Arkansas. Appellees alleged in their complaint that they and appellants, Nora and Otho Cleveland, are owners as tenants in common of the lands described in the complaint, and that appellants are in the unlawful possession of the same, claiming them adversely to appellees.

The judgment of the justice of the peace was void for want of jurisdiction. 34 Ark. 105; 13 Ann. Ca-s. 1016 and note; 12 D. R. A. (N. S.) 537 and note; 17 L. R. A. (N. S.) 741 and note; Kirby’-s Dig. § § 5450-1; x Abbott/Mun.

<p>Appeal from Yell Chancery Court, Dardanelle District; Jeremiah G. Wallace, Chancellor;</p>

the strength of his own title, and not upon the weakness of his adversary’s title. In this case the appellee has proved no sufficient title in himself. 88 Ark. 31; 89' Ark. 298; 90 Ark. 420; 92 Ark. 30; 82 Ark. 295; 77 Ark. 338. 1. Appellants admit that the tax sale under which they claim is void. They have no rights in the land except to be reimbursed for taxes paid.

Shaver, Chancellor; 1. Appellees’ claim is barred by the statute of nonclaims, the same not having been presented to T. J. Stewart’s administrator for allowance and classification within two years as required by the statute.

The indictment is fatally defective. The word wilful is omitted, and no word substituted sufficient to charge murder in the first degree. 60 Ark. 564; 28 So. Rep. 1002; 43 La. Ann. 183; 8 So. 440; 45 La. Ann. 1182; 41 Id. 598; 7 So. Rep. 125; 2 S. E. 455; 11 Am. Rep. 206; 50 Tenn. 6; 76 Ark. 84; 71 Id. 403. 2. Incompetent testimony was admitted to the prejudice of defendant. 73 Ark. 152; 82 Id. 58. 3. No exceptions need be saved under the act of 1909. Acts 1909, p. 259. 1.

Carter, Judge; 1. There is no evidence of an assault with the intent to kill, within the language of our statute. The intent must be coupled with the ability to commit a felony. 49 Ark. 179; 77 Id. 37. There is no proof of the speciñc intent to kill, and the burden was on the State to prove such intent. 54 Ark. 283; Id. 340. 2. There was error in the court’s charge.

Steel, Judge; 1. The third instruction given at appellee’s request involves a contradiction of ideas, in stating to the jury that in taking passage on a mixed train appellee “assumed the risk of necessary and usual jolts and jars” incident to the operation of such a train, and then proceeding to tell them that the appellent was, nevertheless, held to the exercise “of the same high degree of care in the handling of said train as if she were riding on a regular tráin,” etc.…

Haden Humphreys, Chancellor; STATEMENT BY THE COURT. The pleadings show that a waterworks improvement district was formed co-extensive with the corporate limits of the city (then town) of Bentonville in 1897.

Robertson, Chancellor; statement by the court. The Board of Directors of St. Francis Levee District commenced this action in the chancery court of the Chickasawba District, Mississippi County, to enforce a lien on certain lands for levee taxes. The attorney for the Levee District re quested the clerk of the court to issue the warning order to the Blytheville Herald, a newspaper edited and published by Law-horn.

Evans, Judge; 1. The court should have instructed the.jury to find for defendant. The evidence showed that the only negligence of appellant occurred in either Kansas of Missouri. 39 Kans. 93; 116 Mo. 34. 2. The court erred in refusing appellant’s third instruction, submitting the contributory negligence of appellee’s agent in failing to give sufficient address. 3 So. 566; 76 S. W. 613; 60 S. W. 687; 62 S. W. 136; 82 Ark. 127; 116 S. W. 895. ■ 3.

<p>Insurance — construction oe poijcy. — When a policy of casualty insurance was ambiguous on its face, resort may be had to the applications which constituted a part of the contract to explain what the policy meant.</p>

<p>Appeal from Logan Circuit Court; Jeptha H. Evans, Judge;</p>

There was no proof of any fact at issue in this cause. Statements by defendant that she had a government license are not evidence at all. The law requires that such license be “found” on the premises. 2. Bare possession of liquor is not prima facie evidence ol guilt. 85 Ark. 102. 1. The admissions of a defendant are always admissible against him. It was competent to prove possession of a government license. Kirby’s Digest, § 5144. 2. The court properly charged the jury.

This action was instituted in the Garland Chancery Court by appellee against appellant on a- contract between the parties, dated September i, 1905, and two promissory notes for $4x7 each, dated November 21, 1907, and due on November 21, 1908, and November 21, 1909, respectively, and upon a mortgage given on November ’21, 1907, to secure the payment of said notes. The appellee set up the contract, which it made an exhibit.

Maples, Judge; STATEMENT BY THE COURT. This was a suit by appellant against the appellees on four negotiable instruments, acceptances, dated February 5, 1906, and executed by appellees to the American Jobbing Association, and by it assigned to the appellant before due. The suit was begun in a justice’s court. There were no written pleadings.

The appellee delivered to appellant at Jonesboro, Arkansas, certain mink hides for transportation to New York, One lot was consigned to Joe Frak, and another lot to J. T. Silverstein.

Shaver, Chancellor; STATEMENT BY THE COURT. This is an action by Mrs. Z. F. Mason, wife of the late George E. Mason, and the heirs at law of the said George E. Mason, to set- aside a deed which George E. Mason executed to the appellee, the Dierks Lumber & Coal Company, to the land in controversy, upon the ground that said land at the time of the execution of said deed was the homestead of the said George E. Mason, and his wife did not join him in the execution of said deed.

The failure or refusal to perform an obligation assumed expressly or by implication, or* the voluntary abandonment of ■the contract, releases, the obligee from the duty of making demand and performance and tender, and justifies him in abandoning the contract without waiting until .the contract period v expires, and gives 'him an immediate right of action for the •breach and to rescind. 7 Am. & Eng. Ene.

A chose in action for trespass is not transferable with the subject-matter trespassed upon. Only the person in whom rests the legal title, etc., can sue. 10 Ark. 9; 14 Id. 431; 1 Id. 448; Id. 465; 8 Id. 470; 45 Id. 341; 21 Enc. PI. & Pr. p. 805; 4 Harr. (Del.) 345; 5 N. H. 391; 35 Fla. 385; 66 Miss. 618. 2. For injury to the possession of lands, the proper party plaintiff is the party who has possession when the injury is done; no one else can sue. 15 Enc.

Wood, Chancellor; Appellant sued Miller & Daniels to recover timber cut from a certain tract of land. The cause was transferred to equity. The decree quieted title in Miller.

<p>Appeal from Dallas Circuit Court; Henry'W. Wells, Judge;</p>

Wood, Chancellor; 1. Appellees are barred by laches (72 Ark. 101; 81 Id. 352; 81 Id. 432) notwithstanding their disabilities. 55 Id. 85; 64 Id. 345. 2. Appellees are barred by limitation. Act March 18, 1899; 74 Ark. 302; 78 Id. 95. 3. The seven years must be reckoned backward from April 10, 1901. 83 Ark. 154; 89 Id. 300.

Carter, Judge; The court erred in sustaining a demurrer to the third paragraph of the answer. 56 Ark. 450; 60 Ark. 387; 4 L. R. A. 202, and cases there cited. Appellee waived all requirements of notice by abandoning the machinery without setting it up. 1 L. R. A. (N. S.) 142; 81 S. W. 663; 85 S. W. 690. The contract did not contemplate the recovery of special damages, and the demurrer was properly sustained. 64 Ark. 510; 72 Ark. 275; 48 Pa. St. 309; 190 U. S. 540.

The court did not properly instruct the jury as to the true measure of damages. 39 Ark. 167; 41 Id. 431; 2 Lewis, Em. Dom. § § 686, 689, 693. And the judgment is excessive. 2. Testimony as to the selling price of other lands, not similarly situated, was improperly admitted.

Robertson, Chancellor; STATEMENT BY THE COURT. On the 31st day of March appellant brought suit against appellee in the Lee Chancery Court, alleging that he, appellant, was the owner of the land in controversy by deed from Rosa Isaacs, and that he was then in possession of same, that appellee claimed to own the land under a deed of the Commissioner of State Lands which was void for reasons stated that are unnecessary to set forth.

N Maples, Judge; There was no error in the instructions given; but they are not before this court for review. It is not sufficient to incorporate the instructions in the motion for new trial, and there allege that certain of them were given and others refused. The instructions must be brought into the bill of exceptions proper, as also the exceptions thereto. 88 Ark. 350; Id. 505; 60 Ark. 250; 86 Ark. 486; 85 Ark. 488; Id. 326; 87 Ark. 50; 76 Ark. 177.

Humphries, Chancellor; 1. If, as is alleged in the original complaint, Cravens became by agreement the agent of appellee’s ancestor for the sole and only purpose of collecting the rents to become due him, C. A. Wenzel, and apply same to the payment of the note, then appellee’s right of action is against Cravens personally, and in no event would it attach against the land. ' 2.

Steel, Judge; Acceptance by appellees of the check purporting to be “in full up to date” was in law an accord and satisfaction, and further recovery is .barred. 138 N. Y. 231; 20 B. R. A. 785; 188 Mo. 623; 113 Mo. App. 617; 100 Id. 601; 161 111. 339; 220 111. 106; 104 111. App. 268; 129 la. 41; 68 Kan. 193; 78 Miss. 912; 85 N. Y. Supp. 1045; 55 Id. 648; 36 Id. 95; 177 Ala. 561; 85 Hun 470; 53 Hun 392; 84 N. Y. Supp. 857; 80 Id. 1102.

Hays, Judge; The burden was on the defendant to prove the release of Parker on the part of the bank. Even acceptance by a creditor of the note or bill of a third party for the debt does not discharge the debtor unless especially so agreed by the parties. 45 Ark. 313, 317; 46 Ark. 163, 166. No express release of Parker by the bank is proved.

Hays, Judge; I. Under the circumstances of this case there has been an abuse of that discretion vested in trial courts with reference to continuances. The testimony of the absent witness was material in the identification of the hog.

Stevenson, Judge; 1. During the time preceding the execution of the will, there is no influence on the part of the proponent over the testatrix shown, except that influence which would naturally arise from the affectionate relationship between a mother and son, which is not unlawful. 13 Ark. 475; 19 Ark. 551,49 Ark. 371.

Defendant having been tried for an offense in the mayor-’s court, it was error to place him on trial for a distinct offense in the circuit court on appeal. 53 Ark. 368; 63 Id. 307; 77 Id. 234; 84 Id. 352; 4 A. & E. Ann. Cas. 1. 2. There is no testimony -to support the verdict of conviction. 3. A cost bond being necessary to give jurisdiction to the mayor’s court, the circuit court acquired none on appeal. 84 Ark. 352; § 2476 Kirby’s Dig. 1.

Morris’s tenants, they cannot question her title or right of possession. 43 Ark. 28. And if he was her tenant since 1894, and paid rent to her through her husband, her possession of the land for that period is established, and she acquires title under the statute of limitations. 38 Ark. 193; 77 Ark. 324; 75 Ark. 395; 2 Taylor on Landlord & Tenant (8 ed.), § 705 and note 3. 1.

Robertson, Chancellor; 1. The rights of the parties were settled on former appeal, by the opinion delivered May 13, 1907. 84 Ark. 14: The only power of the chancery court was to enter a decree as directed by this court. 74 Ark. 81-87; 82 Ark. 1; 85 Ark. 414. 2.

Robertson, Chancellor; 1. Appellee had no legally established ferry or ferry privilege. A license from the county court is a prerequisite. Kirby’s Digest, § § 3555, 3561, 3575; 20 Ark. 561; 25 Ark. 26. 2. Pierce could not transfer his ferry franchise without transferring his land or an interest therein. 26 Ark. 464; 41 Ark. 202. 3. No notice was given to parties interested. 19 Cyc. 498; 84 Ark. 21; 20 Ark. 21. 4.

H. Evans, Judge; 1. Ignorance of some stipulation in the contract is no ground for setting it aside. The mistake of the party, Deing due to his own carelessness or inattention, is no defense. Eawson on Cont, p. 234; 11 Tex. 211; 60 Am. Dec. 234. 2. Farol testimony to vary a written contract is inadmissible. 4 Ark. 179; 5 Ark. 651-672; 15 Id. 543; 24 Id. 210, 251; 21 Id. 69; 66 Id. 445; 67 Id. 62; 71 Id. 185, 289; 1 Greenl. on Ev., § § 275-9. 1.

<p>1. Criminal law — plea of guilty — entry of judgment at subsequent ■ term. — Upon a plea of guilty entered at one term of court judgment may be entered at a subsequent term. (Page 199.)</p> <p>2. Same — conditional plea. — There is no statutory authority for a plea of guilty to be entered and received on any kind of condition, or for judgment to be suspended on condition. (Page 199.)</p> <p>3. -Same — right To withdraw plea. — Whether a plea of guilty in a criminal case can be withdrawn and a plea of not guilty entered is within the discretion of the trial court, the exercise of which will not be disturbed on appeal unless it clearly appears to have been abused. (Page 199.)</p>

Robertson, Chancellor; In order to reform a written contract or instrument, the evidence must be clear, unequivocal and decisive; a mere preponderance is not sufficient. 71 Ark. 616; 5 Mason, 577; 72 Ark. 546; 75 Ark. 75; 79 Ark. 256; 81 Ark. 166; Id. 420; 83 Ark. 131; 84 Ark. 349; 85 Ark. 62; 89 Ark. 309. 1. The evidence in this case proves a clear case of fraud and is convincing. 75 Ark. 382; 73 Fed. 574. 2.

Hays, Judge; 1. Keeping a bawdy house is a common-law offense, and our statute has adopted the common law. Kirby’s Dig., § § 623-4. The Degislature delegated to cities and towns authority to suppress and restrain bawdy houses. Kirby’s Dig., § 5438. The general State law is repealed. 14 Cyc. 492; 2 Tex. App. 425; 38 Mo. 451; 9 Col. 450; McQuillin on Mun. Corp., p. 343; 59 Am. Rep. 731; Sedgwick on Statutory & Const. Daw, p. 100; Dillon, Mun. Corp. (3 ed.), par. 88. 2.

<p>1. 'Bawdy houses — participation in keeping. — The fact that aldermen of a city voted for a resolution the effect of which, if enforced, would have been to license the keeping of bawdy houses in the city was not • sufficient to make them participants in the subsequent keeping of the bawdy houses in the city. (Page 211.)</p> <p>2. Criminal law — former conviction. — A former conviction of a criminal offense is a bar to a subsequent indictment for any offense of which the accused might have been convicted under the indictment or information and testimony in the first case. (Page 212.)</p>

There was no occasion for the exercise of discretion or official judgment, and mandamus is the proper remedy. 43 Ark. 62. The writ will issue whenever the refusal of an officer 10 act in a matter in which it is his plain duty to act may deprive one of his legal rights. 45 Ark. 121; Kirby’s Dig., § § 5156 to 5161, inclusive ; 35 Ark. 565; Id. 298; 33 Ark. 568; 26 Ark. 237.

<p>Larceny — indictment.—An indictment for larceny which alleges that defendant the property of another “unlawfully .and feloniously did steal, take and carry away,” etc., is sufficient, although it does not allege that defendant took the property with intent to convert it to his own use.</p>

■ Appeal from Miller Chancery Court; James D. Shaver, Chancellor; STATEMENT BY THE COURT. The county board of equalization of Miller County, at its 1909 session, raised the valuation of the property of certain taxpayers. A number of persons whose property was affected applied to the county court of Miller County for a reduction of the assessment.

Martineau, Chancellor; 1. The lands were not subject to taxation for ten years after entry. 21 Ark. 40-49; lb. 35; Abbott’s Nat. Dig. vol. 1, p. 570; 3 Id. 170; 4 Id. 264. 2. The lands were sold en masse for a lump sum, and the tax sale is void. 30 Ark. 579; 31 Id. 315; 55 Id. 109; 61 Id. 414; 65 Id. 70; 87 Id. 428; 61 Ark. 464; 46 Ark. 333; 66 Ark. 433. 3.

Carter, Judge; 1. There was no waiver of proof of loss. 72 Ark. 484. The mere mailing of the proof of loss is not sufficient unless it reaches the company within sixty days. Ostrander on Ins. § 238, p. 541; 52 L. R. A. 956;^ 84 Ark. 224; 114 S. W. 210; 112 Id. 200; 82 Ark. 476; 72 Ark. 484; 56 Mo. App. 343; 73 N. Y. Supp. 193; 86 N. Y. sup. 24. 2. There was no compliance with the iron-safe clause. 85 Ark. 579; 83 Ark. 126.

Shaver, Chancellor, The statute, Kirby’s Digest, § 6936, does not provide for any data from which it can be determined how much property a foreign corporation, authorized to transact business here, has in the State, hence it is of no force as to such a corporation. But it is admitted that appellee has not complied with that statute, nor with § § 832 and 833, Kirby’s Digest. It is in no position to come into equity demanding the relief prayed for.

<p>1. Appeal in felony case — by whom granted. — Under Kilby’s Digest, § § 2588-9, providing that appeals in felonies may -be granted by the circuit court or by any judge or judges of the Supreme Court, there is no authority for an appeal in such case to be granted by the circuit judge in vacation. (Page 240.)</p> <p>2. Criminal law — appeals.—The act of May 31, 1909 (Acts 1909, p. 890), amending Kirby’s Digest, § 6218, providing that where a verdict or decision is rendered within three days of the adjournment of a term of the circuit court, a motion for new trial with alternative prayer for appeal may be presented to the judge after term, has no application to criminal cases. (Page 241.)</p>

Elliott, Chancellor; 1. The deed is- void for fraud and deceit exercised in procuring its execution. 17 Ark. 498; Id. 71. If appellant believed she was signing a mortgage and not a deed, the instrument should be construed as a mortgage. Jones on Mortgages, § 279- 2. Where the officer who takes the acknowledgment is the agent of the grantee, his act is invalid, and the record of such a deed imports no notice to subsequent purchasers of encumbrances. 43 Ark. 421; 32 Am.

The appellee was indicted as follows: “The grand jury of Sebastian County, for the Fort Smith District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, R. A. Lester, of the crime of false pretense, a felony, committed as follows, towit: the said defendant, in the county and district aforesaid, on the 10th day of January, 1907, designedly and with the fraudulent and felonious intent to cheat and defraud one J. F. O’Melia, falsely,…

Evans, Judge; STATEMENT BY THE COURT. This was an action to recover damages for a personal injury which the plaintiff alleged he sustained at a public crossing over defendant’s railroad track in the city of Fort Smith, Ark.

Stevenson, Judge; STATEMENT BY THE COURT. Theodore D. Abeles instituted this action against the Southwestern Telegraph & Telephone Company to recover damages for physical injuries received by him on account of the alleged negligence of said company. From a verdict and judgment in his favor for $6,900 an appeal has been duly prosecuted to this court.

Where the court’s findings are not supported by evidence, this court will reverse, notwithstanding the general rule that the findings of a court sitting as a jury are as conclusive as the verdict of -a jury. 65 Ark. 278. 2.

Carter, Judge; 1. The sixth instruction requested by appellant should have been given. If the proximate cause of the injury was a ditch or unprotected culvert in the road crossing over the other railway company’s road, over which appellant had no control, it is not responsible for the injury. 2. Appellee by his own testimony was guilty of contributory negligence; and if that negligence contributed in any degree to the injury, he cannot recover. 29 Cyc. 505.

Elliott, Chancellor; The chancery court was without jurisdiction. Kirby’s Dig., § 59^5 J 71 Ark. 222; Id. 484; 46 Ark. 272. Jurisdiction cannot be conferred by consent of parties where none existed before. 33 Ark. 31; 34 Ark. 399; 70 Ark. 347; 1 Black on Judgments, 217. Since the chancery court would not assume jurisdiction of this cause except upon agreement of parties waiving objections as to jurisdiction, appellant ought not to be heard now to object to the jurisdiction.

H. Bvcms, Judge; STATEMENT BY THE COURT. This case comes to this court upon an appeal taken from a'judgment of the Garland Circuit Court, overruling a. motion filed by appellant asking the said court to modify an order and judgment which it had previously made distributing a fund which had been paid into the said court by the North State Fire Insurance Company, which had been garnished for money in its hands belonging to A. J. Dillard; said fund having been paid into the…

This was an action upon a promissory note in the Sebastian Circuit Court, the plaintiff reciting that the defendants, Lewis Friedman and I. Isaacson, had executed to the plaintiff on the 2d day of November, 1907, a promissory note for two thousand dollars, due thirty days after date without grace, with interest from date at eight per cent, per annum until paid, reciting the nonpayment of the same, protest fees $4.90, and concluding with a prayer for the recovery of said two…

H. Evans, Judge; statement by the court. This was a suit in replevin for a buggy. The facts are substantially as follows: One Barnes owned the buggy, and sold it to one Mitchell, taking a mortgage back to secure the purchase money, which was duly filed with the clerk of the circuit court of Garland County,............. 1907. Cooper Brothers obtained a judgment against Mitchell ............, 1907.

Carter, Judge; statement by ti-ie court. Appellant, a school teacher, of Miller County, was convicted before a justice of the peace of the charge of assault and battery for whipping Everitt Hillar. He appealed to the circuit court of Miller County, was tried before a jury, who returned a verdict of guilty, assessing his punishment at a 'fine of one dollar.

M. Barker, Chancellor; STATEMENT BY THE COURT. This action was instituted by Mrs. Dannie M. Shocklee in the Columbia Chancery Court against J. B. Wilson and J. E. Farris. It was commenced in November, 1907, and its object was to enforce a vendor’s equitable lien on 226 acres of land situated in Columbia County, or to redeem from a mortgage on said lands executed in favor of the defendant, Wilson.

Hutton, Judge; STATEMENT BY THE COURT. On August 14, 1907, the plaintiff, J. G. Booth, brought this suit in the White Circuit Court against the defendant, E. M. King, and, for cause of action, alleged as follows: That he was the owner and entitled to the possession of the following described lands situate in White County, towit: the north y2 of the northwest and the southeast *4 of the northwest %, of sec. 24, twp. 6 north, range 8 west, containing in all 120 acres, more or…

Francis Circuit Court; Hance N. Hutton, Judge; The paper submitted by appellee makes no definite proposition, and could not alone be the basis of a contract. The law contemplates definite bids, which, together with the acceptance will amount to a contract, without reference to an)^ -other bid or thing. 11 111. 254. 1.

Carter, Judge; 1. In charging the jury as to the general custom, the court’s instruction is not responsive to the issues. The instruction also errs in declaring the law to be that plaintiffs were obliged to properly load and ship bananas “in a condition to stand shipment to Texarkana within a reasonable time,” etc. That is not the test.

Evans, Judge; None of the circumstances making it necessary for appellee to debark at Poping were made to appellant. 71 Ark. 572. The court erred in taxing an attorney's fee in this case. 81 Ark A29; 72 Ark. 357.

shed for clerical misprisons. 75 Ark. 574; 66 Ark. 559; 90 Ark. 123. In an indictment for forgery by signing a company’s name, it need not be alleged that the company is a partnership or a corporation. 122 Ala. 100; 25 N. Y. 380; 48 Ark. 94; 71 Miss. 874; 17 Nev. 224; 21 Wend. 409; 1 Johns. 320.

Robertson, Chancellor; After lapse of the term, the court had no power to vacate the judgment, except upon complaint filed as provided by law. 52 Ark. 31S; 53 Ark. 21. The decree was not authorized by the mandate. 84 S. W. 1046; 91 S. W. 27. The trial court is left free to make any order with reference to new matter in a case that has been remanded to it by the Supreme Court not inconsistent with the opinions of the Supreme Court. 16 Ark. 181.

Shaver, Chancellor; Where a person, not the payee of a note, signs his na'me upon the back of, it without date, it is presumed to have been done at the inception of the note. 11 P'a. St. 482; 30 Me. 310; 44 Me. 433; 4 Houst. 284; 85 Me. 485; 13 Met. 265; 107.N. C. 565; 1 Dan. Neg. Inst., § 728. Such person is bound as surety ás fully as if he had written his name on the face under that of the maker. 24 Ark. 511.

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

Hays, Judge; One who purchases land from a patentee of the State is entitled to presume that the ’patent was issued to the person entitled to receive it. 76 Ark. 525. The patent is sufficient evidence of title. 31 Ark. 609; 39 Ark. 120. A decree of 'a court of equity cannot be attacked collaterally, but must be attacked by bill of review in a direct proceeding. 43 Ark. 34; 11 Ark. 519; 66 Arfe. 1; 72 Ark. 101.

Evans, Judge ;■ Extrajudicial confessions are admissible if voluntarily and freely made. 28 Ark. 121; 3 Ark. 368; 73 Ark. 407; 63 Ark. 457; 66 Ark. 506; 73 Ark. 495; 72 Ark. 145; 77 Ark. 126; 77 Ark. 426. A confession is sufficient to sustain the verdict, when accompanied with other proof that the crime was committed.. Kirby’s Dig., § 2385.

Kirby’s Dig., § § 6145-6148. Under a statute like ours the court may permit the petition to be signed at the return term. 7 Mo. 187. The failure to sign the petition cannot be regarded as a matter of substance, and therefore does not render the judgment void. 131 Mo. 258; 33 S. W. 6. When a motion is filed to permit the party or his attorney to sign the pleadings, it takes precedence over a motion to reject the pleading for want of signature. 15 N. E. 217.

Blliott, Chancellor; The complaint, though verified, was not evidence. The statute requires evidence in such cases. Kirby’s Dig., § 6120. By defendant’s answer, the basis of appellee’s cause of action was put in issue, and their defense inured to the benefit of all. 71 Ark. 1. As appellant was the real party in interest, i-t had the right, to defend for all. Kirby’s Dig., § 5999.

The Western Union Telegraph Company has appealed from a judgment rendered against it in the Lonoke Circuit Court in favor of Sidney B. Webb for damages for mental anguish, suffered by him on account of the alleged negligence of appellant in transmitting a telegram sent by him concerning the burial of his mother.

Hays, Judge; The defendant is liable on his subscription. 64 Ark. 637; 70 Ark. 451; 80 Ark. 543; 86 Ark. 287. Appellant could not sue for subscription after all the shares authorized by its charter had been taken. 24 N. Y. 159.

Carter, Judge; Action -by the T. & C. Insurance Company and others against G. W. Fouke and others. From a judgment for defendants plaintiffs have appealed. , It was error to admit evidence to show that the lamp was used carefully. 55 S. W. 534; 13 S. E. 459; n S. E. 499- As to whether it was used carefully was a question for the jury. 81 Ark. 591; no S. W. 99; 67 Ark. 371.

Robertson, Chancellor; To entitle defendant to recover for the value of improvements made, he must claim them in his answer. 75 Ark. 146: 15 Cyc., p. 234. No variance between the pleading and proof will be deemed material unless it misleads the adverse party. Kirby’s Dig., § 6140. The pleadings will be treated as amended to correspond with the proof. 29 Ark. 330; 62 Ark. 434.

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

Hutton, Judge; This court will take judicial notice of the fact that Little Red River is a navigable stream, n Wall. 41151 Greenl. Ev.', § 6; 26 Kan. 682; 28 Ind. 257; 10 Abb. N. C. 107; 64 N.'W. 239. The allegations of the complaint are sufficient averments that it is navigable. 39 Ark. 403.

H ttvcms, Judge; Any benefit accruing .to him who makes the promise, or any trouble, loss, or disadvantage undergone by the other, is a sufficient consideration to sustain a promise. 24 Ark. 201; 1 Ark. 229; 21 Ark. 20; 22 N. H. 248; 5 Pick. 384; 21 Wend. 588; 2 Hill 606; 33 Ark. 97.

Second Division; F. Guy Fulk, Judge; The tax imposed is ultra vires and void. 30 Ark. 435. The courts will interfere to correct an unreasonable exercise or a mistaken application of the police power. 34 Ark. 603; 43 Ark. 82; 52 Ark. 201; 56 Ark. 370; 83 Ark. 351; 85 Ark. 590; 90 Ark. 127. The ordinance is not void. 26 Ark. 527; 13 N. Y. 427; 167 Mo. 554; 64 L. R. A. 679. _ The tax is a proper charge. Acts 1889, p. 18; 53 Ark. 300; 90 Ark. 5.

Improvement districts are governmental agencies — public quasi corporations, and they are not liable for injuries to individuals for negligence, unless so expressly provided by statute. 81 Ark. 391; 55 Id. 148;-i Smith, Mun. Corp., p. 3; 117 Cal. 114; 14 Cyc. 1057; 135 111. 269; 2 Dillon, Mun. Corp., § 761-2; Cooley, Const. Lim. 240-7; 55 111. 346; 8 Am. Rep. 652; 236 111. 36; 121 Cal. 96; 52 Ark. 107; 87 Id. 8; 73 Id. 447; 56 Id. 205; 86 Id. 61. 2.

Hudgins, Judge; statement by the court. The appellee as constable levied upon a horse under an execution regular upon its face, issued on a judgment rendered against appellant by a justice of the peace, on a cost bond given by appellant to pay all costs that should accrue in a criminal prosecution instituted by the affidavit of appellant charging one James Picklesimer of the crime of slander. The appellant as the owner sought to replevy the horse.

Jackson Circuit Court; Charles Coffin, Judge - Possession with ostensible title makes a prima facie case. 13 Ark. 163; 48 Ark. 454; 88 Ark. 98; 1 Dan. Neg. Inst., p. 186 and 806. The holder of collateral taken before maturity is a bona tide holder. 102 U. S. 25; 99 Fed. 18; 60 S. W. 1006; 41 Ark. 418; 42 Ark. 22. Poirier v. Morris, 20 Daw & Equity 103.

Wells, Judge; The policy was void because of the additional insurance. 72 Ark. 306; 100 N. Y. 451; 84 Ark. 186; 69 Ark. 489; 121 S. W. 1046. There is evidence to support the verdict. It should not, therefore, be disturbed on appeal. 84 Ark. 78. The false statements must have been knowingly and wilfully made. 65 Ark. 332; 123 Mass. 280; 106 Ala. 351; 2 May, Ins. 477.

The act is invalid as to interstate shipments. 89 Ark. 468; 76 Ark. 82; 204 U. S. 553. 2. The count was without jurisdiction of the amount sued for in the second count of the complaint. The act imposes no burden upon an interstate shipment. It is a mere police regulation, which applies to a shipment after it has arrived at its destination within the State. 7 L. R. A. 295; 32 Fed. 849.

Evans, Judge; In charging the forgery of an instrument, it is not necessary to set out matter which is not necessary to the validity of the instrument. 2 Bish. Crim. Prac., § 410; 58-Ark. 242; 77 Ark. 543; 90 Ark. 123; 86 Ark. 126; 14 O. St. 55; 53 Am. D. 652; 69 Ind. 485; 47 111. 152; 33 Vt. 261; 129 Va. 147; 38 N. W. 519; 108 Ind. 444. The test as to the validity of an indictment is that it is to be measured by the statute. 63 Ark. 6x3.

S. Maples, Judge; If Morton received only four votes on the first ballot, he . was not elected on that ballot. 53 Conn. 76; 55 Am. 65; 63 Atl. 512. But, even if Morton were elected, the (action of the board in proceeding to a second ballot was equal to a removal, and the person thereafter elected would be entitled to hold the office. Kirby’s Dig., § § 4284 to 4291; 41 Am. St. R. 236; Id. 606; 97 N. W. 887.

Circuit Court; George W. Hays, Judge; STATEMENT BY THE COURT. H. B. Dunn and Bob Stewart, partners under the name of Dunn & Stewart, brought a suit against the St. Louis, Iron Mountain & Southern Railway Company for injuries to eight (8) horses which were contained in a carload shipped from Kansas City, Missouri, to Pine Bluff, Arkansas.

<p>Appeal and Error — harmless error. — A decree sustaining the report ■of a master appointed to state an account between the parties should not be set aside at a subsequent term because the master did not consider a certain deposition if nevertheless such report was based on the weight of the evidence, including, such deposition.</p>

Stevenson, Judge; The liability of the defendant is determined from the language of the contract. 46 la 631. The provisions may limit total disability to the inability to carry on any and all kinds of business. Under such clause the insured must be unable to carry on, not only the duties of his ■ usual occupation, but the duties of any other occupation. 79 111. App. 145; 46 la. 631; 25 Tex. Civ. App. 366; Joyce on Ins., § 3032; Bacon, Ben.

Guy Fulk, Judge; It is within the power of the court to alter the phraseology of a legislative act when such alteration is necessary to carry out the intention of the legislature. End. Int. Stat. § ■§ 295, 319; 34 Ark. 263; 35 Ark. 56; 58 Ark. 113; 128 Pa. St. 593; 63 N. J. L. 291; 56 Wis. 425.

Meeks, Judge; The production of the note and proof that the indorsement was made before maturity raised the presumption that plaintiff was a bona Ude holder. 48 Ark. 454; 50 Ark. 289; 32 S. W. 357; Dan. Neg. Inst., § 814; 94 U. S. 753 i 128 Ga. 504; 57 S. E. 869; 90 Pac. 1090; 97 S. W. 1232; 114 Ea. 883; 38 So. 594; iox Minn. 30; in N. W. 730; 130 Wis. 326; no N. W. 192. Abstract instructions should not be given. 2 Ark. 360; 90 Ark. 78.

Hays, Judge; The court erred in refusing a continuance. 71 Ark. 197; 67 Ark. 142. The evidence is not sufficient to support the verdict, because it fails to show that the injured person was discovered in time to avoid the injury. 86 Ark. 306; 82 Ark. 522; 79 Ark. 608; Id. 225; 72 Ark. 572; 61 Ark. 549. The evidence is sufficient to support the verdict. 79 Ark. 621. It is for the jury to determine all disputed questions of fact. 67 Ark. 531; 65 Ark. 116; Id. 255; 67 Ark. 433.

<p>Appeal from Independence Circuit Court; Charles Coffin, Judge;</p> <p>Indefiniteness in pleading must be reached by motion, and not by demurrer. 71 Ark. 564; 70 Ark. 161; 66 Ark. 480; 56 Ark. 629; 52 Ark. 378; 49 Ark. 277; 71 Ark. 422.</p> <p>If the complaint shows a conviction of the plaintiff, the presumption of probable cause is rebutted. 15 D. R. A. (N. S.) 1143; 46 Kan. 550; 12 B. Mon. 555; 120 U. S.'141; 99 Mo-. 183; 19 R. I. 338; 33 Atl. 525; 14 R. I. 609. Even binding to await the action of the grand jury is prima facie evidence of probable cause. 76 Ark. 41. When a complaint contains material facts which constitute a defense, it is bad on demurrer. 13 N. E. 51; 10 N. E. 100. In an action for malicious prosecution, the petition should state facts and conclusions. 90 Mo. 377. An answer which sets up only conclusions of law is demurrable. 43 Ark. 296; 57 Ark. 284.</p>

Martmeam, Chancellor; STATEMENT BV THE COURT. Appellee sued appellant for a divorce April 28, 1909, alleging that he was married to appellant in Little Rock, Arkansas, April 10, 1908, that he and his wife went to Carlisle to live, and that the next day appellant willfully abandoned him without cause, .and has so continued to willfully desert him for a period of more than one year.

Wood, Judge; statement by the court. The facts of this case, so far as it is necessary to state them, are substantially as follows: Benjamin Graham, trustee for the American Freehold & Mortgage Company, brought suit in the Ashley Chancery Court to foreclose a deed of trust executed by Princehouse & Barr to the Mortgage Company on certain wild lands, to secure an indebtedness to the company.

Steel, Judge; STATEMENT BY THE COURT. The appellant sued appellees on account for goods alleged to have been sold by appellant to appellees. Appellees answered, denying that they were indebted to appellant in the sum sued for.

108 Ind. 21; 8 N. E. 636. After the death -of the life tenant the lessee holds by the acquiescence of the remainderman. 21 N. Y. 280; 24 Ark. 545; 38 Ark. 413; 36 Ark. 572; 82 Ark. 244. The crop in the ground at the time of the death of the life tenant goes to the administrator. 2 Blackstone 122; 3 Kent 471 ; 1 D. R. A'. 427; Kirby’s Dig., § 2732.

Wood, Chancellor; STATEMENT BY TRIE COURT. The plaintiff, A. W: Files, instituted this suit in the Ashley Chancery Court against the defendants, Floyd Walker, sheriff of Ashley County, J. W. Simpson and George Norman.

1. Animals — permitting stock to go at large. — The owner of stock in this State is not negligent in permitting them to run at large upon the uninclosed premises of another. (Page 459.) 2.

V. Bourland, Chancellor; STATEMENT BY THE COURT. On the 21st day of December, 1903, the city of Fort- Smith, by ordinance No. 634, granted to Harry E. Kelley and assigns” a franchise for furnishing natural gas to the inhabitants of the city for a period of fifty years. The Mansfield Gas Company, a corporation, owned natural gas wells in the vicinity of Fort Smith and a plant or system of mains and pipes for operating same in the city.

73 Ark. 193; 50 Ark. 95. The county court has no jurisdiction to determine a contest for a district office. Art. 7, sec. 11, Const. 1874; 68 Ark. 558; 66 Ark. 204. Parol evidence is inadmissible to contradict the returns of an election unless it be shown that the ballots have been tampered with. 53 Pac. 173. The testimony of the voter is stronger than that of an election officer. 73 Ark. 187; 50 Ark. 85; 69 Ark. 501. The equivalent of fraud overturns returns. 41 Ark. in.

Carter, Judge; The title to the property has not changed. 48 So. 22; 89 Ark. hi; 67 Ark. 553. Title acquired at public sale is not divested until the sale is confirmed. 74 N. W. 270; 53 Neb. 816. Transfer from one partner to another does not affect the policy. 133 111. 220. A vendor’s lien does not work a forfeiture. 77 Ark. 27; note to 20 E. R. A. (N. S.) 776. The verdict was properly directed. 63 Ark. 200; 67 Ark. 584; 72 Ark. 51.

Wells, Judge; The relation of passenger and carrier being established, the passenger is entitled to damages for mental suffering caused by insulting and abusive conduct of the carrier’s agent toward the passenger. 3 Mason 245; Fed. Cas. No. 2575; 1 East 106; 103 111. 549; 3 Clitr. 416; 106 Mass. 180; 6 Ind. App. 205; 80 Md. 23; 62 Me. 90; 62 N. J. L. 286; 4 Ell. Rds. § 1638; 90 N. Y. 588; 8 Bush 147; 85 Ky. 547; 36 Wis 657; 133 N. Y. 261; 18 111.

Steel, Judge; An affidavit was necessary in order to maintain the action. Kirby’s Dig. § 2759. Even though the tax deed be void, the holder had been in actual possession for the statutory period. 76 Ark. 447; 71 Ark. 390; 66 Ark. 141; 79 Ark. 194; 80 Ark. 82; 83 Ark. 334. Appellant should have saved exceptions to the court’s ruling on his motion to dismiss. 70 Ark. 418.

Francis Circuit Court; Hance N. Hutton, Judge; The plain and obvious meaning of the words “more or less” is generally taken to be that the parties are to run the risk of gain or loss as there might happen to be an excess or deficiency in the estimated quantity. 19 Ark. 102; 28 Ky. 181; 41 N. F. 599; 27 Atl. 253; 22 Fed. 1192; Warvelle on Vend. § 798.

Evans, Judge; A manufacturer or distiller may sell whisky in five-gallon original packages without incurring the penalties provided by the law for unlawful sale of liquors. 60 Ark. 247. Those who grow grapes may make wine thereof and sell same in original packages of not less than five gallons, notwithstanding the fact that at the next preceding election the vote of the people was against such sale. 67 Ark. 422; 84 Ark. 482.

* Appeal from Jefferson Circuit Court,; Antonio B. Grace, Judge; Betters written ' by officers of the association discussing plaintiff’s claim are not competent evidence. Bacon on Ben. Soc. § 467; 131 111. 498. Parol evidence -is always admissible to establish fraud. 1 Story, 135. There is no authority in the contract for making such change of beneficiary. 55 Ark. 212; 52 Ark. 202. Relief must be granted according to the terms of the contract. 71 Ark. 301.

Humphries, Chancellor; Plaintiff must recover, if at all, on the strength of his own title. 37 Ark. 643; 64 Ark. 383; 76 Ark. 449; 77 Ark. 347; 90 Ark. 190; 90 Ark. 420. Appellant is an innocent purchaser and entitled to the possession of the land. 129 U. S. 579; 123 U. S. 307. The rights 'of appellant are superior to those of appellee. 89 Ark. 298.

Appellant on September 18, 1909, filed against .appellees the following complaint (omitting formal parts) : “The plaintiffs state that they are and at all times herein mentioned were partners, doing a retail grocery business in the city of Morrilton. “That prior to the 1st day of August, 1907, defendants and one Mrs. E. Bogard entered into the following contract with each other, towit: “ ‘In Duplicate. “ ‘Tease. “ ‘This agreement is made and entered into this 3d day of…

R. R. Randleman was the owner of the south J4 of sec. 12, township 21 north, range 7 east, in Clay County, Ark. The timber on the north half of said tract of land belonged to J. A. Taylor. Randleman brought suit in replevin against Taylor to recover the value of a lot of cypress timber alleged to have been wrongfully cut and removed from the land by Taylor and manufactured into lumber by him.

75 Ark. 577; 65 Ark. 475; Id. 619; 77 Ark. 19. Remarks of an attorney were held -to be prejudicial where there was no evidence to support them. 72 Ark. 427; 70 Ark. 305; 63 Ark. 174; 72 Ark. 461; 71 Ark. 415.; 68 Ark. 529. A verdict will not be disturbed where there is any evidence to support it. 23 Ark. 131; 33 Ark. 196; 46 Ark. 141; 19 Ark. 673; .24 Ark. 251.

Rob-' ertson, Chancellor; Where lands are erroneously proceeded against as' owned by one not the owner, the sale does not effect the true title. 77 Ark. 477; 92 S. W. 26. There must be personal service of summons where the owner is in the county, or an oocupant upon the land. 83 Ark. 534; 103 S. W. 737. A person brought into the court for one purpose is not there for all purposes. 70 Tex. 588; 9 S. W. 295; 87 Tex. 69; 26 S. W. 1060; 152 111. 468; 38 N. E. 932.

H. Evcms, Judge; The court should have instructed the jury find for appellant. 54 Ark. 431; 56 Ark. 457; 61 Ark. 549; 62 Ark. 157; 65 Ark. 235; 78 Ark. 55; 88 Ark. 172; Id. 231; 37 Ark. 593; 71 Ark. 38. It is the duty of one approaching a railroad track to look both ways for trains. 69 Ark. 134. The evidence was sufficient to warrant a recovery. 74 Ark. 409; Id. 478. Appellant did not use proper care to avoid the injury after discovering the deceased. 80 Ark. 186.

Wells, Judge; statement by the court. Appellant by this suit seeks to recover damages of appellee for mental anguish, under section 7947 of Kirby’s Digest, growing out of the alleged negligent failure of appellee to deliver a telegram. He also asked to be allowed to recover fifty cents, the amount charged by appellee for the transmission and delivery of the message. His complaint states a cause of action. The appellee denied its material allegations.

Rea, Judge; The case should have been submitted to the jury. 81 Ark. 486. A telephone company will not be permitted to make illegal discriminations between patrons. 76 Ark. 124; 2t L. R. A. 639; 36 D. R. A. 535; 51 L. R. A. 744; 14 L. R. A. 424; 32 D. R. A. 697. Defendant had no right to refuse service to force settlement of a disputed account. 85 Am. St. R. 882; 39 S. E. 257; 6 Wis. 539; 17 Neb. 126; 52 Am. Rep. 404; 8 Am. & Eng.

34 So. 479; 42 So. 167; 60 S. E. 211; 83 S. W. 690; 81 Am. St. 150; 37 So. 809; 88 S. W. 107; 86 S. W. 327; 65 Ga. 332; 8 la. 536; 60 Ark. 564. Due diligence was used' to secure the attendance of the witness. 34 So. 479. The State failed to prove the corpus delicti. 60 S. W. 771.

8 So. 529; 32 Gratt. 946; 34 Am. R. 799; 106 Ind. 272. Defendant must have known it to have been stolen. 118 N. W. 1042; 94 Pac. 218; 105 Minn. 217; 61 S. W. 1072. A verdict finding defendant guilty of receiving stolen property is insufficient to support a judgment or sentence. 44 So. 940; 54 Fla. 96; 43 So. 311; 55 Ga. 191; 38 La. Ann. 357; 67 Pac. 42; 135 Cal. 61.

Kirby’s Dig. § 723. The judgment should contain a statement of the facts constituting the contempt. 73 Ark. 358. The grounds of the contempt need not be stated. 5 Ired. Law, 149; 73 Ark. 358; 14 East 1; 5 Dow. 199; 3 B. & Aid. 420; 11 Adol. & El. 273; 9 Adol. & El. 1. Contempt judgments were not reviewable at common law. 22 Ark. 149.

Meeks, Judge; A tenant cannot dispute the title of his landlord. 43 Ark. 28; 53 Ark. 532; 64 Ark. 453; 45 Ark. 117. The defect, if any, in the conveyancing was cured by the curative act of March 13, 1899. Even if the deeds were invalid, she could not now succeed. 62 Ark. 326; 75 Ark. 139; 77 Ark. 57; 112 S. W. 892.

V. Bourlcmd, Chancellor; The action of the council in including property and assessing it is only prima facie evidence that it is included and benefited. 52 Ark. 107; 84 Ark. 257. The council’s findings are only conclusive when the statute makes them so. 2 Dill. Mun. Corp. 800; 117 U. S. 683. A law must be interpreted in favor of the citizen when burdens not known to the common law are imposed. 71 Ark. 556.

Grace, Judge; The Fellow Servant Act applies to logging roads. 69 L. R. A. 887; 61 Id. 249. Deceased being in defendant’s employ at the request of its servant foreman, he was not a trespasser, and was entitled to the same protection as other employees. 1 Hurl. & N. 773; L. R. 2 Ex. 30; u Ex. 832; 6 Jur. (U. S.) 53; 69 Pa. 210; 48 Miss. 112; 43 O. St. 224; 58 Ark. 318. The foreman had authority to make such requests. 17 Colo. 564; 31 Am. St. 340; 12 Am.

114 S. W. 920. There is no proof of any joint betting. 9 Ark. 193. The proof was sufficient to authorize the verdict. 3 Ark. 66. It is for the jury to determine whether persona holding cards were playing a game of cards. 59 Ala. 89; 83 Ga. 575; 10 Tex. 545.

Robertson, Chancellor; statement by the court. This suit was instituted by the appellee, Minor M. Markle, in the Craighead Chancery Court for the Western District, against the appellant, J. A. Koons.

Evans, Judge; He who relies upon a contract has the burden of showing that the minds of the parties met in making it. 38 Mich. 159; 1 Mont. 363; 3 Pa. 573. Delivery is an essential element in the execution of a written contract. 5 Col. App. 303; 117 111. 493; 52 N. Y. 570; 113 N. C. 442; 75 Va. 309. The parol evidence tending to impeach the contract sued on was erroneously admitted. 4 Ark. 179; 5 Ark. 672; 13 Ark. 593; 16 Ark. 511; 20 Ark. 293; 31 Ark. 411.

the continuance of such default. 74 Ark. 507; 85 Ark. 3371 75 Ark. 25. The burden of proof is on the insured to show a waiver of forfeiture by the insurer. 67 Ark. 584; 13 Ency. Ev. 539, 1020. And the proof must be clear and convincing. 13 Ency. Ev. 1020, and 29 Ency. Ev. 1105. If agreed to by the parties, payment may be made by check or note. 133 N. C. 179; 9 How. 390; 46 Atl. 1005; 59 Neb. 451; 81 N. W. 312; 165 N. Y. 608.

81 Ark. 143. Fraud must be proved, when relied on, and the burden is on the pleader. 63 Ark. 22. The acceptance and use of the charts by the school board was a ratification of the contract of purchase. 67 Ark. 236. The electors of the district. never authorized the purchase of said charts. No two of the directors were together to make a contract. Therefore, none was made, and the district is not bound. 52 Ark. 511; 64 Ark. 489.

Francis Circuit Court; Hance N. Hutton, Judge; In determining whether or not a deed sufficiently describes land, it will be considered in connection with the plats of the government survey. 73 Ark. 221; 40 Ark. 237; 68 Ark. 554. The act of April 2, 1895 (p. 91), contains no limitation upon the right to attack a decree that is void for want of jurisdiction. 83 Ark. 544.

Stevenson, Judge; Appellant is not liable because of repeated changes in the possession of the property insured, contrary to the terms of the policy, such changes being without appellant’s knowledge and consent. -An insurance company does not waive any forfeiture of anything of which it had no knowledge. 67 Ark. 588; 3 Cooley’s Brief on Ins. 2467.

Robertson, Chancellor; The tenders of cotton made in 1906 were sufficient, and interest should not be allowed; 34 Vt. 201; 39 Vt. 51. In making a tender of something other than money it is not necessary to keep it good. 12 Am. Dec. 696; 2 Kent, 508. In an action for purchase money the defendant may recoup for breaches of covenant. 134 Fed. 1. That defendant knew the timber contract was outstanding detracts nothing from the force of the covenants. 33 Ark. 503; 84 Ark. 415.

Wallace, Chancellor; Death of the maker of a note stops the statute of limitation until an administrator is appointed. 73 Ark. 45. There is no . adverse possession shown. 56 Ark. 485; 70 Ark. 53; 43 Ark. 469; Id. 504; 56 Ark. Curative acts are not violative of the rights of heirs. 44 Ark. 365.

Grace, Judge; The deed created an estate tail at common law. 67 Ark. 517; 9 N. J. L- 10; Tied. Real Prop., § 39; Kent, Com., vol. 4, pp. 11, 12, 13, 14; 51 Ark. 61, 71; 44 Ark. 458; 58 Ark. 303. Where an estate was granted to “A for life, remainder to the heirs of his body,” the rule would not operate; but if granted to “A for life, remainder to his heirs,” the rule would operate, and A would take a fee simple. 58 Ark. 303.