Volume 95 — Arkansas Reports

Johnson Circuit Court; Hugh Basham, Judge; The admission of the fact of partnership by one of the alleged partners is not receivable, in evidence against any of the others to prove the partnership. 29 Ark. 526. That relation can only exist by. virtue of a contract between the parties. 49 111. 439; 41 Ore. 617. A corporation cannot become a partner with an individual. 141 Mich. 604; 133 Fed. 462; 66 -C. C. A. 336.

Marfineau, Chancellor; statement by the court. This is a suit by appellee under sections 649 and 650 of Kirby’s Digest to quiet title to various tracts of land described in the complaint, consisting of-acres, and situated in township 7 north, range 5 west, in White County, Arkansas.

Humphries, Chancellor; STATEMENT BY THE COURT. On the 1st day of January, 1875, Atlas J. Dodd executed the following deed to certain lands in Jackson County, Arkansas: “Know all men by these presents that I, Atlas J. Dodd, for and in consideration of the natural love and affection that I have for my daughter, Martha F., and for the further sum of one dollar to be paid by the said Martha Florence, my daughter, do hereby grant, bargain and sell unto the said Martha Florence…

Steel, Judge; If the contract was made at á board meeting by the three directors, the fact that it was signed by only two does not affect its validity. 83 Ark. 491; 52 Ark. 511. .The school district is estopped to deny the validity of the contract. 87 Ark. 389; 40 Ark. 105; 61 Ark. 397; 67 Ark. 236; 81 Ark. 244; 82 Ark. 531; 81 Ark. 143; 83 Ark. 275.

Barker, Chancellor; A lien may be retained upon the crop on land to secure the payment of the purchase price thereof. 60 Ark. 595. If the vendee fails to exercise his option to purchase within the time limit, his contract to pay rent is absolute. 61 Ark. 270. A landlord’s lien for rent will, even before it is due, take precedence over a lien by attachment. 25 Ark. 417; 27 Ark. 1.

Wells, Judge; The verdict is not sustained by any evidence of negligence on. the part of appellant. 59 Ark. 295; 153 Mass. 191; 69 Pa. 210. A railway is bound for the tortious acts of its employees only when they are in the line of its service. 87 Ark. 540; 81 Ark. 369; 65 Fed. 969; 66 Mo. 572; 3 Ell. on Rds. § 1255: 75 N. H. hi; 71 Atl. 535; 21 L. R. A. (N. ,S.) 93; 122 App. Div. 590; 107 N. Y. 530; 127 App. Div. 580; ni N. Y. S. 1057; 123 App.

Carter, Judge;- STATEMENT BY THE COURT. Thomas & Hammonds, sued the Kilgore Lumber Company before a justice of the peace for the sum of $247.43, alleged to be due on an account for lumber. The defendant filed the following answer and counterclaim: “Defendants deny that they are indebted to plaintiffs in the sum of $247.43 or in any other sum. “II.

The indictment is bad for uncertainty and for failure to charge an offense. Kirby’s Digest, § 1726; 80 Ark. 310. The statute must be strictly construed, and in order to make out a charge under it the language must state facts within its terms. 84 Ark. 136. Every material fact necessary to constitute an offense must be -stated with reasonable distinctness and precision. 12 Ark. 608; 29 Ark. 68; 38 Ark. 519; 43 Ark. 93; 47 Ark. 575; 80 Ark. 310.

21 Ore. 59; SS Ark. 104; 47 O. St. 437; 44 Wash. 31; 50 la. 312; 173 Pa. 101; 9 S. Dak. 116; 98 la. 32. Dower is a legal, equitable and moral right, and next to life and liberty. Scribner on Dower, § 331 5 Conn. 462; 31 Ark. 576. The rights of a purchaser of a widow’s dower before assignment to her will be protected in equity. 62 Ark. 51; 53 N. Y. 298; 20 N. Y. 412; 7 Paige 408; 22 Wis. 501; 6 Allen 305; 13 Ala. 60; 4 B. Mon. 215; 53 How. Pr. 97; 49 Hun 265; 119 N. Y. 324.

Robertson, 'Chancellor; The donation deed was void. 66 Ark. 48. The State is liable, only to the extent of the power actually given its officers. 39 Ark. 580. The patent issued by the State to appellant is evidence of title in appellant. 39 Ark. 120. Therefore the burden of proof is upon appellee to show a superior right. The donation deed is valid, and appellee acquired a good title. Kirby’s Dig., § § 4820, 4802, 4804; 49 Ark. 266; 56 Ark. 276; 43 Ark. 543.

82 Ark. 595. The jury should have been polled. Kirby’s Dig. § 2419; Thompson on Trials, § 2632; 63 Ala. 97; 20 Cal. 69; 31 Ark. 196; 69 Ark. 626. Where the jury may be polled as of right, it is error to receive the verdict in the absence of defendant’s counsel whereby the right is lost. 31 Wis. 615. In filing a bill of exceptions proved by bystanders, the statute must be strictly complied with.' 71 Ark. 577; 57 Ark. 1; 56 Ark. 594.

Roberlson, Chancellor; An executor or administrator cannot become the purchaser of the property he represents. 27 Ark. 637. And the deed may be avoided by any one interested in the land. 46 Ark. 25; 36 Ark. 383; 40 Ark. 393; 48 Ark. 248; 75 Ark. 184; Id. 40; 112 S. W. 373; 119 S'. W. 654. The same rule applies to tenants in common. 49 Ark. 242; 54 Ark. 627'; 61 Ark. 575; 60 S. W. 420; 75 Ark. 184; 73 Ark. 575.

73 Atl. 324. He is liable for damages only when he knows or should have known of the viciousness of the horse. 73 Atl. 324; Van Zile on Bail. § 125. The verdict is excessive. 87 Ark. 113; 82 Ark. 61. A new trial should have been granted. 66 Ark. 612; 21 Ark. 232. An allegation not denied must be taken as true. 13 Barb. 103. A motion for new trial based on newly discovered evidence must be construed with great strictness. 26 Tex. 217; 40 S. W. 619.

H. Evans, Judge; If Parham had any right to proceed on the bond in the circuit court, it was by a regular suit on the bond. Kirby’s Dig., § § 2865, 2867. The right to recover'costs is statutory. 60 Ark. 194. There is no statute authorizing the recovery of costs in special proceedings like this. 70 Ark. 240. But Parham was entitled to a judgment against the contestant for the cost of the transcript. 68 Ark. 130.

Steel, Judge; An agent must account to his principal for moneys collected, and he cannot defend on the ground of illegality. 48 Ark. 487; 23 Ark. 390. An account stated can only be impeached on -the ground of fraud. 13 Ark. 609; 21 Ark. 420; 41 Ark. 502; 47 Ark. 541; 55 Ark. 376; 64- Ark. 39; 68 Ark. 534; 72 Ark. 234; 80 Ark. 438; Id. 469-

Hutton, Judge; A traveler who fails to look and listen in both directions before going upon a railway track is guilty of .contributory negligence. 69 Ark. 134; 65 Ark. 235; 76 Ark. 224. The testimony of the trainmen is consistent, • reasonable and uncontradicted, and cannot be disregarded. 81 Ark. 365.

McCaleb, Judge; STATEMENT BY THE COURT. R. N. Hamill as assignee -brought this suit to foreclose a mortgage on the southeast quarter of the northeast quarter of section 1, in township 19 north, range (2) east, in Randolph County, Arkansas. The mortgage was given to secure a note for $265.86, of date 9th of February, 1891,. and due November 15, 1891.

Wells, Judge; STATEMENT BY Tl-IE COURT. On or about the 23d day of November, 1908, at the town of Banks, in Bradle)r County, Arkansas, Ike Bennett killed a young negro man named Young Hill. Bennett was engaged in the restaurant business. Hill a short time before had been •working for Bennett. At the time he was killed, he was working for Doctor Thomas.

Hutton, Judge; statement by the court. I. N. Strickler brought this suit against W. W. Wallace to recover the sum of $320 alleged to be due him for services rendered in procuring a sale of certain lands. The undisputed facts are that Mrs. M. D. Anderson owned certain lands in St. Francis County, Arkansas, and gave to one George H. Poston an option to sell said lands, which expired on May 12, 1909. Poston sold his option to the defendant, W. W. Wallace.

Carter, Judge; The burden was on appellee to prove that the drawer was not injured by the delay in presenting the check. 2 Dan. Neg. Inst., § 1588; 44 R. R. A. 398. If the drawer is injured by inexcusable delay in presenting a check for payment, he is discharged from liability. 2 Dan. Neg. Inst., § 1598; 44 R. R. A. 397; 4 R. R. A. (N. S.) 132; 21 Atl. 661.

H. Evans, Judge; statement by the court. The appellant instituted this action against appellee in the Garland Circuit Court.

Original Petition for Mandamus; Shaver, 91 Ark. 231. A corporation having no authority to Petitioner is entitled. to the writ requested. insure may be held liable on a contract by which it obligates itself to insure. 74 Ark. 377; 160 U. S. 515; 69 L. R. A. 856; 35 Miss. 618; 72 Am. Dec. 143.

<p>Appeal from Ouachita Circuit Court; George W. Hays, Judge;</p>

Martineau, Chancellor; The directors of a. corporation -cannot be charged with the consequences of an honest error of judgment or accidental mistake in the exercise of their discretionary powers. 1 Morawetz on Corp., § 553; 141 U. S. 132; 34 N. J. Eq. 383; 1 R. I. 312; 51 N. Y. 27; E. R. 5 Ch. 763; 10 Ch. D. 452. The preference was illegal. Kirby’s Dig., § 951; 67 Ark. 11; 81 Ark. 591.

H. Evans, Judge; Appellant was not required to keep the premises in repair, there being no covenants in the lease to that effect. 71 S. W. 903; 10 D. R. A. 147; 55 Am. Dec. 45; 60 Atl. 886; 72 Ark. 405; 51 Ark. 46; 63 Ark. 430. Objection must be made at the time improper evidence is given, otherwise it is waived. The same is true with regard to instructions. 72 Ark. 371.

Cowling, Special Judge; STATEMENT BY TRIE COURT. Appellee was an engineer, employed by appellant in operating a planer at Womble, in Montgomery County, Arkansas.

Hays, Judge; statement by the court. The plaintiff, appellant, sued the defendant, appellee, for $254.62. The -basis of the suit is a claim on the part of appellant that the appellee did not pay the full amount of premium on a certain policy of insurance known as “employers’ liability,” issued April 14, 1904, expiring one year thereafter. This policy of insurance protects against liability on account of accident to certain employees.

On the 8th day of September, 1888, the following agreemént was entered into between Samuel' McA'fee and John H. Miller, both of Moark, in Clay County, Arkansas: “Agreement of Lease between Samuel McAfee of Moark, Ark., and John H. Miller of Moark, Clay County, Ark. “Witnesseth, that I, Samuel McAfee, of county and State aforesaid, have this day leased unto John H. Miller, aforesaid, the S. Yz of'the N. W. Y of sec. 10, township 21 north, range 5 east, of Clay County,…

30 Ark. 520; Id. 5x2. If a minor, after coming of age, gives her guardian a receipt showing that he has paid her all that he was due her, it will, in the absence of fraud, be binding upon the minor. 83 Ark. 226. A guardian must have an order of court before he spends his ward’s money. Kirby’s Dig., § 3792; 63 Ark. 450. The law casts upon the guardian the burden of proving every item of his account which is challenged. 76 Ark. 219.

S. Maples, Judge; The words “more or less” in a deed can only be considered as intended to cover inconsiderable differences. 19 Ark. 109. And when the quantity is misrepresented, though innocently, the purchaser should recover the shortage. 61 Ark. 120; 19 Ark. 109. Parol evidence is not admissible to explain, modify or alter the deed. 21 W. Va. 632; Id. 326; 67 N. Y. 338. Small shortages only are covered by the words “more or less.” 67 Am.

28 Ark. 196; 21 Am. and Eng. Ene. Eaw, 660. The refusal of either party to abide by his part of the contract will justify the other party in treating it as at an end. 22 Ark. 260; 53 Ark. 488. A party to a contract is not justified in putting it beyond his power to perform it. 67 Ark. 156. Plaintiff is entitled to recover the whole amount of the contract price, diminished by the amount necessary to finish it. 33 Ark. 751; 79 la. 40; 77 Ind. 203; 38 Mo.

Appellants were proponents of the last will of William Moore. Appellees contested the will upon the sole ground that the testator did not have sufficient mental capacity to make a valid will at time he executed the will offered for probate.” The court granted the following prayers of appellants for instructions: “1.

Elliott, Chancellor; The sale being for the maintenance of the minors, the probate court had exclusive jurisdiction, and its judgment in approving the sale is final and cannot be set aside except for fraud. 11 Ark. 519; 13 Ark. 177; 31 Ark. 74; 33 Ark. 575; 44 Ark. 267; 57 Ark. 190; 66 Ark. 416; 73 Ark. 612. The probate court may order the sale of the homestead of minors for their benefit. 65 Ark. 355.

Lea, Judge; statement by the court. 'Appellant was convicted on an indictment which charged her in the first count of grand larceny, towit: that she “unlawfully and feloniously did steal, take and carry away one diamond ring, of the value of fifty dollars, the property of Mrs. G. Street,” and in the second count that she unlawfully and feloniously did receive and have with the intent to deprive the true owner thereof one diamond ring of the value of fifty dollars, the…

H. Evans, Judge; Where the verdict is so clearly against the weight of the evidence as tó shpck the sense of justice of a reasonable person, a new trial will be granted. 70 Ark. 385; 21 Ark. 468; 65 Ark. 278; 24 Ark. 224; 13 Ark. 70; 8 Ark. 155; 10 Ark. 309; 2 Ark. 360; 5 Ark. 407; 6 Ark. 86; 10 Ark. 138; 28 Ark. 309; 39 Ark. 491; 34 Ark. 640; 57 Ark. 468.

Robertson, Chancellor; An administrator is not bound to plead the statute of limitations under ordinary circumstances. 68 Ark. 492. But there are extraordinary circumstances in the case at bar. The fraud which would vitiate a judgment must have been in the procurement thereof. 73 Ark. 440. Equity may refuse relief where it is sought after an undue and unexplained delay. 81 Ark. 284; 86 Ark. 591.

54 Ark. 16; 47 Ark. 241. A lien can be waived or contracted against. 25 Cyc. 673. The demurrer was properly sustained. 65 Ark. 498. Jurisdiction can not be conferred by consent or agreement. 33 Ark. 31; 34 Ark. 399; 70 Ark. 346; 90 Ark. 195.

29 Cyc. 1333-4. The warrant being void, they were not officers, but trespassers. Art 2, § 15, Const. 1874; Kirby’s Dig., § 5145. The search and seizure law is void, because in conflict with 'sec. 15 of the bill of rights. 70 Ark. 94. Failure to overrule a demurrer to a defective affidavit is no ground for reversal. 86 Ark. 436; Kirby’s Dig., § 2506.

63 Ark. 65. To bare licensees railway companies owe no affirmative duty or care. 90 Ark. 285. Deceased was guilty of negligence in not using care to avoid danger. 100 Tex. 63; 72 111. 222; 115 S. W. 1163; 20 L. R. A. (U. S.) 432; 83 Ark. 301; 95 U. S. 695; 82 Ark. 523. Failure of the trainmen to discover the peril of the footman does not make the railway company liable if the footman was also guilty of negligence contributing to the injury. 77 Ark. 404.

S'. Maples, Judge; The allegations of a contract and breach thereof were admitted by the demurrer. 2 Ark. 260; 11 Pet. 257; 6 Enc. Pldg. & Pr. 336. And facts thus admitted must be taken as true against the pleader as well as in his favor. 78 Ind. 245. The amount being less than $100, the justice of the peace had no jurisdiction. Art 7, § 40, Const.; 90 Ark. 198. The amount of each contract determines the question of jurisdiction. 85 Ark. 313; 3 Ark. 494.

Grace, Judge; STATEMENT BY THE COURT. This is an appeal from a judgment of the Jefferson Circuit Court wherein appellee, on May 19, 1909, recovered a verdict for damages in the sum of $1,000 in a suit for libel on a second trial thereof. On the first trial there was also a verdict for plaintiff, which was reversed on appeal to this court. Galbraith v. Murray, 86 Ark. 50.

Wells, Judge; STATEMENT BY THE COURT. J. I. Lamb brought this suit against the St. Louis, Iron Mountain & Southern Railway Company in the Chicot Circuit Court to recover damages for the alleged negligence of the defendant in the shipment of a car of grading implements from Memphis, Tennessee, to Luna, Arkansas. Lamb was a contractor, and was possessed of an outfit, consisting of a car of mules and a car of grading implements.

Hays, Judge; STATEMENT BY THE COURT. This action was instituted in the Columbia Circuit Court by Mrs. Bertie Reeves against the Louisiana & Northwest Railroad Company, .to recover damages for mental anguish caused by the failure to promptly deliver the following telegram: “Rev. J. J. Menifee, Magnolia, Ark. “Austin very low. Tell Bertie to come at once. Answer.

Carter, Judge; The party who purchased the ticket is the only person entitled to sue for the statutory penalty. 30 Cyc. 1340. The statute is a penal one. St. L-, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42. And it must be strictly construed. 64 Ark. 271; 65 Ark. 159; 68 Ark. 34; 74 Ark. 364; 79 Ark. 214; Id. 517; 87 Ark. 409; 88 Ark. 277; 89 Ark. 488. Only the sender of a dispatch is the party aggrieved. 115 Ind. 191.

Hutton, Judge; The evidence does not sustain the verdict. 101 Mo. App. 52. A passenger riding on a freight train assumes all the risks of damages incident thereto. 87 Ark. 109; 76 Ark. 520; 83 Ark. 22. And the company is bound to exercise only the highest degree of care. 4 Elliott on Rds., § 1629; Ark. S. W. Ry. v. Wingfield, 94 Ark. 75; 90 Ark. 494. The passenger assumes the risk of the increased danger. 193 Mo. 104; 165 Mo. 612; 144 111. 261; 84 Mo. App. 498.

32 Ark. 117; 34 Ark. 174; Cooley on Torts, vol. 2, p. 805; 134 U. S. 372. The corporation is liable for the acts of its president. 75 Ark. 579. The acts of appellees were purely judicial. 34 Ark. 105; 14 E. R. A. 1.38; 73 N. Y. 27. Judicial officers are not held liable civilly for their judicial acts. 14 R. R. A. 145. The proceedings were in accordance with law. Compiled Stat, § 1014; Kirby’s Dig., § 2110.

48 Ark. 66; 58 Ark. 3; 61 Ark. 62; 6 Conn. 4x7. The evidence showed rape conclusively, and the former jury must have acquitted appellant because of the improbability of witness’ story. 20 Ore. 427; 141 Mo. 281; 2 Mont. 193; 22 O. St. 541; 36 Pac. 302; 74 Mo. 395; 21 Neb. 171. An acquittal on charge of rape does not bar a prosecution for incest. 60 Am. St. R. 35.

Hutton, Judge; Defendant was entitled to a change of venue. 85 Ark. 518; 83 Ark. 36; 71 Ark. 180; 54 Ark. 247. A party producing a witness cannot impeach him if foe is not an indispensable witness. Kirby’s Dig., § 3137. Malice aforethought means the dictate of a wicked, depraved and malignant heart. 49 N. H. 399. Unless the character of deceased is attacked, the prosecution can not prove his peaceableness. 37 Ala. 103; 96 Ky. 212; 28 S. W. 500; 1 Wfoart. Crim. Law., 549.

<p>1. Appeal and error — chancellor's finding — conclusiveness.—A chancellor's finding of facts will not be set aside unless it is clearly against the .preponderance of the evidence. (Page 244.)</p> <p>2. Waters — obstructing flow of surface water. — A lower adjacent proprietor will not be liable to the upper proprietor for obstructing the flow of surface water by a levee where that was the only practical method of protecting his land from surface water thrown against it by a ditch dug by the upper proprietor. (Page 245.)</p>

Tied: on Real Prop., § 74. And this rule applies to a dowress. 4 Kent, Com. 76. The cutting and selling of timber by a life tenant is waste for which the reversioner may sue. 92 Am. St. R. 621; 53 Am. Dec. 621. The timber can only be cut or used for the proper enjoyment of the estate for life, and not merely for sale. 63 Ark. 15. A verdict should have been directed for plaintiff, for defendant failed to make out a defense. 35 Ark. 147; 69 Ark. 562.

<p>Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk, Judge;</p> <p>Penal statutes should not be so narrowed as to exclude cases which would ordinarily fall within their purpose, and are naturally comprehended by the words thereof. 5 Wheat. 76; 6 Wall. 385; 2 Lewis’ Suth. Stat. Const., § 519. The remedy given by the statute should be given favor of the party aggrieved. 2 Lewis’ Suth. Stat. Const., § 532; 91 S. W. 419; 85 Mo: 164. The law is designed to protect person against the wrongful acts thereby prohibited, and it is immaterial what the amount awarded be ■denominated. 31 Mo. 574. The law is of a penal and police nature, as well as being compensatory. 145 Mo. 105.</p> <p>The act of 1887 was repealed by the act of 1899. 10 Ark. 589; Welch Stave Co. v. Stevenson, 92 Ark. 266; 82 Ark. 302 ; 88 Ark. 324. The demurrer was properly sustained, because the complaint failed to state a cause of action.</p> <p>If the complaint did not state a cause of action with sufficient certainty, the remedy was by motion to make more specific. 59 Ark. 629; 70 Ark. 161; 69 Ark. 208.</p>

<p>1. Adverse possession — payment oe taxes — continuity.—The continuity of constructive possession of unimproved and uninclosed land by virtue of paying the taxes thereon is broken where an adverse claimant made actual entry upon the land before the statute had run. (Page 253-)</p> <p>2. Deeds, — PATENT ambiguity. — A deed describing the land sought to be conveyed as the east part of a certain quarter section (north of •bayou), containing 93.74 acres, is void where the quarter section appears on the government survey to be a full one, where there is no bayou running through the land, and there is nothing in the deed which shows what land was intended to be conveyed. (Page 255.)</p>

65 Ark. 355- The probate court being of superior jurisdiction, the proceedings-therein will be presumed to be regular. 26 Ark. 421; 51 Ark. 338. The allowance made by the -court to Gatlin was proper. 33 Ark. 490; 40 Ark. 219; 48 Ark. 297. The exchange of the minors’ homestead for other land was not a sale. 47 Ark. 460; 37 Ark. 412. It is the homestead interest, and not the fee that is protected. 29 Ark. 633; 37 Ark. 316; 47 Ark. 504; 49 Ark. 75; 53 Ark. 400; 64 Ark. 1.

<p>1. Sewers — public interest. — A sewer built not for private use but for any persons who might wish to connect with it upon paying a fee therefor is devoted to a -use in which the public has an interest. (Page 266.)</p> <p>g. Same — reasonable FEE. — In the absence of legislation as to the maximum of charges for the use of sewers, the courts may determine ■ what is a reasonable fee in a particular case. (Page 267.)</p> <p>3. Same — how reasonableness op charge determined.. — In determining what is a reasonable price to be charged for services by a public sewer company, the interest of the public should be considered as well as the right of the stockholders in the sewer company. .(Page 267.)</p>

<p>1. Fixtures — right to remove. — To justify one in removing houses, machinery, etc., from land, it is sufficient to show that he was not a trespasser in going upon the land and that the house, machinery, etc., in controversy were not annexed to the soil in such manner as to become immovable fixtures. (Page 274.)</p> <p>2. Same — removal OF trade fixtures. — Where a building and gin machinery were placed on land by a tenant in such manner -that they might be put on rollers and removed, and with the intention that they might be removed by him during the term, they will not be considered as permanent fixtures, but as trade fixtures and subject.to removal. (Page 274.)</p>

N Maples, Judge; Appellee assumed the dangers incident to climbing the telephone poles when he entered the service. 70 Am. St. 244; 61 Id. 62; 72 Fed. 250. If all the instructions can be read together as a harmonious whole, they should be so treated. 74 Ark. 377; Id. 458; 83 Ark. 61; 87 Ark. 396; 88 Ark. 433.

Hutton, Judge; The statute giving a landlord a lien on the crop of his tenant is in derogation of the common law, and is strictly construed. 163 111. 646; 52 Ala. 223; 69 Ala. 590; 113 Ala. 592. The lien is not enforceable for supplies against an innocent of the crops from his tenant. 67 Ark: 362; 31 Ark. 131; 44 Ark. 111; 36 Ark. 572; Id. 575. Not after six months. 67 Ark. 455. The landlord can not sue a trespasser for damage to the crop of his tenant. 63 Ark. 536.

Carter, Judge; As between the passenger and conductor, the ticket produced must govern. Hutch, on Car., § 1061; 65 Ark. 177; 88 Ark. 282. If a passenger loses his ticket he may be required to pay again, and the auditor is not required to take excuses, nor decide upon the bona fides of the passenger. Elutch. on Car., § 1036. Even if there were an overcharge, the plaintiff was not the party aggrieved within the meaning of Kirby’s Dig., § 6620.

<p>Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham, Judge;</p> <p>There is no way of keeping counsel within bounds but by setting aside verdicts. 62 Ark. 126; 22 la. 253; 58 la. 473; 61 Ark. 130; 71 Ark. 415; 74 Ark. 256; 70 Ark. 306. Counsel has no right to assail a'11 unimpeached witness. 77 Ark. 238; 65 Ark. 625; 75 Ark. 577; 72 Ark. 468; 63 Ark. 174; 74 Ark. 2x0; 72 Ark. 139; 76 Ark. 276; 65 Ark. 389; 70 Ark. 179; 76 Ark. 370; 89 Ark. 58; 87 Ark. 461; Id. 515; 81 Ark. 25; Id. 231; 80 Ark. 23. There are extraordinary incidents, out of the usual course of travel, for which no provision is required to be made. 61 Ark. 149; 77 N. Y. 83; 125 Pa. 24; 81 Pa. 44; 145 Pa. 220; 109 N. Y. 134; Whart. on Neg., § § 103, 104; 68 Md. 389.</p> <p>Witness was qualified from years of experience to testify as an expert. 57 Ark. 572; 23 Ark. 200. A resident on a stream may state that a dam has been raised too high to be safe. 17 Conn. 249. The instructions were correct, 61 Ark. 141; 138 111. 465.</p>

Steel, Judge; McRae & Tompkins and D. L. McRae, for appellant. Under the circumstances plaintiff can not be heard to say that he did not know the car was on the track wrong end in front. 79 Ark. 241; 41 Ark. 542; 48 Ark. 333; 58 Ark. 125; 78 Ark. 520. Plaintiff is presumed to have been aware of the danger arising from the act of so placing the car on the track. 122 S. W. 118; 126 S.'W. 375; 76 Ark. 69.

P. Lamb, Special Judge; A common carrier can not set up as a defense an act of God where the carrier’s negligence concurred with that act: it must be free from fault. 11 L- R. A. 615; 59 Cal. 202; 89 Mo. 349; 35 L. R. A. 356. One obstructing the waters of a stream is not relieved from liability by showing that the overflow was an unprecedented flood, unless it appears that his act did not add to the damage. 74 Mo. 301; 32 N. E. 529; 101 N. W. 736; 42 Am. R. 529.

Proceedings were instituted in the Arkansas Circuit Court by John Foohs against J. S. Bilby, under section 4431 of Kirby’s Digest, to vacate a former judgment of said court. The original suit was brought by Bilby against Foohs in the Arkansas Circuit 'Court to recover a lot of staves manufactured from, timber cut from land alleged to be owned by Bilby. The judgment of the circuit court was for Bilby, and Foohs appealed to this -court.

88 N. E. 1063; 121 Ky. 526; 123 Am. St. R. 205; 90 Ky. 369; 29 Am. St. R. 378; 27 S. W. 999; 119 N. W. 200; Id. 1061. Instruction number one requested by appellee was erroneous. 30 Ark. 362; 51 Ark. 88; 91 Am. Dec. 309; .55 Ark. 393; 57 Ark. 203; 25 Ark. 490.

Hutton, Judge; Where there is any evidence tending to establish an issue in favor of the party against whom a verdict is directed, it is error to take the case from the jury. 89 Ark. 368. Persons moving a train through a city must use ordinary care to avoid injuring .persons on the track, even though they are trespassers. 108 S. W. 305; St. Rouis, I. M& S. Ry. Co. v. Shaw, 94 Ark. 15.

34 Ark. 632; 70 Ark. 385. It is error for the court to charge the jury on matters outside the record. 72 Ark. 139; 44 Wis. 282; 74 Ark. 210; Id. 256. Why should the same rule not be applied to prosecuting, attorneys ? The remarks of the prosecuting attorney were not prejudicial. Newly discovered evidence which is merely cumulative is no ground for a new trial. 66 Ark. 523; 74 Ark. 377. The acts constituting due diligence must be specifically shown. 66 Ark. 314; 73 Ark. 528.

H. Evans, Judge; STATEMENT BY THE COURT. The appellees brought this suit and alleged that they are partners doing business under the firm name of Kelley Brothers.

<p>Appeal from Stone Circuit Court; Charles Coffin, Judge;</p>

F. Greenlee, Special Chancellor; Citing 87 Ark. 490; 15 Ark. 555; Kirby’s Dig., § 4832; 76 Ark. 443. The judgment should be affirmed. Kirby’s Dig., § 4832; 121 S. W. 725. Title to the soil does not vest in the settler before the conditions have been fully performed. 101 U. S. 503.

Martineau, Chancellor; Wills should be so construed as to carry out the intention of the testator. 75 Ark. 19. The first taker under the will took only a life estate, and the fee passes to the person who would take as heir of the first taker. 44 Ark. 458; 58 Ark. 403; 67 Ark. 517; 72 Ark. 336; 49 Ark. 125. Mrs. Bard’s life estate was forfeited by the tax sale to Mercer. Kirby’s Dig., § 7132; 59 Ark. 364; 80 Ark. 583. Section 735, Kirby’s Digest, does not apply to wills.

53 S. W. 107. It is for the county court to determine the place for the establishment of a ferry that will best promote the public convenience. 41 Ark.. 209; 20 Ark. 573. The court shall also determine what tax shall be paid for the privilege, and what toll shall be paid by the public for the use of said ferry. Kirby’s Dig., § § 3562, 3564 and 3565. The court could grant license to only one of the parties applying therefor. 126 S. W. 717.

Grace, Judge; Private property shall not be taken, appropriated or damaged for public use without just compensation therefor. Const., art. 2, § 22. The construction of the levee was virtually a condemnation of appellant’s land to public use. 13 Ark. 198; 80 U. S. 166; 188 U. S. 445. River water in times of ordinary floods is not surface water. 25 L. R. A. 527; 44 O. St. 279; 8 Barn. & C. 355. .

72 Ark. 395; 30 Ark. 533; 58 Ark. 250; 21 Ark. 265. The writ should be issued and regularly returned. 33 Ark. 1x7; 58 Ark. 250. It must be addressed to the clerk. 21 Ark. 265; 58 Ark. 250. The circuit court could not look beyond the record certified. 18 Ark. 449; 25 Ark. 32; 23 Ark. 107. A statute should be construed with reference to its purpose and object. 71 Ark. 556. The words of a statute are to be given their obvious and natural meaning if possible. 67 Ark. 566.

Wallace, Chancellor; STATEMENT BY THE COURT. At the March term, 1908, the Faulkner Chancery Court rendered a decree, granting to the appellant, H. G. Baker, a decree of absolute divorce from his wife, the appellee, now Fannie B. Durham. Although duly served with summons,, the appellee did not appear to deny the allegations against her, nor to resist the suit.

J. O. Manning 'brought this suit against W. P. Jones and R. C. Morehead, to recover damages for injuries sustained by him on account of their alleged negligence and carelessness in shooting him while engaged in hunting on his premises. The circumstances under which the injury occurred are substantially as follows: The place where the injury occurred is a fruit farm owned by a corporation of which the defendant, Jones, was the president and manager.

<p>1. Appeal and error — instruction—necessity of motion for new trial. —The correctness of the court’s action in giving an instruction will not be considered on appeal if it was not made the ground of a motion for new trial. (Page 363.)</p> <p>2. Sales of chattels — breach—prospective profits. — In an action by. a vendee for breach of a contract to deliver saw-logs to be sawed into lumber the reasonable or usual rent or, value of the use of the sawmill or machinery to be used in sawing such logs should be considered in estimating the profits of the vendee. (Page 363.)</p> <p>3. Same — damages—-profits.—In an action by a vendee to recover damages for nonperformance of a contract to furnish saw-logs, the cost of sawing them into lumber should be deducted from the gross profits of the vendee in order to ascertain his.damages. (Page 363.)</p> <p>4. Same — damages—evidence.—In an action by a vendee to recover damages for the breach of a contract to deliver saw-logs, it was not error to refu-se to permit the vendor to prove the expense of maintaining the vendee’s office force, without showing what proportion of the vendee’s expenditure for office force was used in running the sawmill, or that, an increased office force would be needed in operating the sawmill while the vendee was engaged in sawing the logs in question. (Page 366.)</p> <p>5. Same — damages—-evidence.—In determining the damages suffered by the vendee by reason of a breach of a contract to deliver saw-logs, it was not error to refuse to permit the vendor to prove the value of the vendee’s entire plant or the sum of money invested therein and the cost of insurance thereon, as such evidence is too general, and should be limited to the usable or rental value of the vendee’s sawmill during the time necessary to saw the logs. (Page 367.)</p>

. Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge; Accommodation paper of a corporation is good in the hands of a bona ñde holder if .the corporation had, under any circumstances, authority to issue commercial paper. 28 Minn. 291; 156 Ind. 487; 101 Mass. 57. Appellant is a bona ñde holder. 97 Mass. 494; 62 Ark. 41; 3 Thomps. on Corp. 141; 26 N. Y. 505; 26 Barb. 23; 69 Ark. 147; 65 Ark. 204; 2 Mo. App. 299.

Hays, Judge; Appellant was entitled to judgment for the amount sued for. 61 Ark. 120; 19 Ark. 102; 14 N. Y. 143; 133 N. Y. 227; 30 N. E. 974; 10 R. R. A. 656. In the absence of fraud, the buyer takes the risk of quantity when the words “more or less” are in the descriptive part of the deed. 19 Ark. 108. Appellant had no right to rely on statements made by appellee. 47 Ark. 165.

<p>1. Appeal and error — presumption against error. — Where the record ' on appeal in a chancery case shows that the cause was heard upon oral evidence, and such evidence is not brought into the record by bill of exceptions or otherwise, and there is nothing on the face of the record to show that the court erred, it will be presumed that the decree is correct. (Page 380.)</p> <p>2. Samé — presumption.—Wher.e the appellant seeks to reverse a decree of the chancery court upon the ground that it is clearly against the preponderance of the evidence, and fails to set out the evidence in his abstract, the presumption will be indulged that the findings of the chancellor are correct. (Page 380.)</p>

Haden Humphreys, Chancellor; In filling shipping orders accompanied by the money, the sale takes place where the liquor is delivered to the common carrier for the consignee. 68 Ark. 266; 17 A. & E. Ene. L. 300. In the construction of statutes words and phrases will be given their familiar sense, unless they have acquired some technical meaning. 26 A. & E. Enc. of L. 605-6.

82 Ark. 76. The only remedy open to appellees was to go into county court and show that the assessments were unjust. 83 Ark. 54. Failing in this, an appeal .to the circuit court will lie. Kirby’s Dig., § 1428. No appeal will lie under the general statute. 90 Ark. 221. Where there is a special act on the subject, a general act on the same subject is not applicable.' 68 Ark. 131.

Humphries, Chancellor; It is not enough that the court find that some contract was made, but must find one that is clear, convincing and certain in all its terms. 78 Ark. 160. It takes the same quantity and quality of evidence to procure an injunction restraining the breach of a contract as to enforce specific performance. 120 S. W. 829. The sale of the “good will” does not include a condition that the vendor will not re-enter the same business. 9 L. R. A. TN.

<p>Appeal from Pulaski Chancery Court; John B. Martineau, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>On the 4th day of December, 1907, J. A. Flemister filed a complaint in the Pulaski Chancery Court, in which he alleged in substance that the defendant, National Mutual Fire Insurance Company, of Omaha, Nebraska, a corporation organized and incorporated under the laws of Nebraska, had been engaged in the business of general fire insurance in this. State. That, before engaging in business here, it had filed a bond as required by law with the Federal Union Surety Company of Indianapolis, Indiana, as surety; and had otherwise complied with the laws of the State in regard to foreign insurance companies. That in the city of Omaha, State of Nebraska, a general receiver had been appointed to take charge of the assets of said company and to wind up its affairs on the ground of insolvency. That he was a creditor of said company in this State by virtue of holding two of its policies of insurance. That he files the complaint on behalf of himself and all others similarly interested, and asks that a receiver be appointed to take charge of the assets of said company in this State. The chancellor appointed a receiver in accordance with the prayer of the complaint.</p> <p>The Federal Union Surety Company asked, and was granted, permission, to be made a party to the action. It alleged that it was the surety on the bond of said insurance company. It asked that all parties asserting claims against it be required to file them in said chancery court, and prayed for an injunction to be granted, restraining such parties from proceeding against it elsewhere. The court granted the injunction. No- objection was made by parties having claims against said surety company. All parties interested filed interventions asserting their claims, and voluntarily submitted themselves to the jurisdiction of the chancery court; and the liability of the Federal Union Surety Company was treated by the parties and by the chancery court as an asset of the insurance company to be collected and distributed to the creditors.</p> <p>The National Mutual Fire Insurance Company of Omaha, Nebraska, applied for and obtained permission to engage in business in this State, and, pursuant to the statutes of the State, executed three separate bonds: for the insurance year of 1905, ending March 1, 1906; for the insurance year of 1906, ending March 1, 1907; and for the insurance year 1907, ending March 1, 1908. Each of said bonds is for the sum of $20,000, and is conditioned as follows: “Now, therefore, if the said National Mutual Fire Insurance Company of Omaha, Nebraska, shall promptly pay all claims arising and accruing to any person or persons by virtue of any policy issued by the said company during the term of this bond upon any property situated in the State of Arkansas, when the same shall become due, and shall pay to the State of Arkansas all such sums of money as shall be adjudged against them for the violation of any of the provisions of an act of the General Assembly of the State of Arkansas, approved January 23, 1905, entitled ‘An act for the punishment of pools, trusts and conspiracies to control prices,’ then this obligation to become void; otherwise to remain in full force and effect.”</p> <p>The policies issued by the company in this State were in the usual form of stock policies, and among other provisions contained the following: “This policy shall be cancelled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice it shall retain only the pro rata premium. * * * The holder of this policy incurs no other or greater liability for premium or otherwise than that expressly provided in this policy.” All fire losses occurred before the receiver was appointed, except in the case of W. H. Cajul, which occurred afterwards.</p> <p>There is no dispute in regard to the amount of the claims. After the receiver was appointed, all persons having policies and who had not suffered fire losses were permitted to come in and surrender their policies to the receiver for cancellation, and prove their claims for the unearned premiums.</p> <p>On the final hearing of the case the chancellor found in favor of all the claimants except W. H. Cajul, and held that the Federal Union Surety Company was liable therefor. In the case of W. H. Cajul, the chancellor held that the appointment of the receiver cancelled the policies by operation of law, and, his fire loss having occurred after the receiver was appointed, the surety company was not liable. A decree was entered against the Federal Union Surety Company in favor of the respective claimants.</p> <p>In addition, the chancellor fixed the amount of fees that should ,be allowed the receiver and his attorney, and adjudged that said surety company should pay the same as well as all costs of the suit.</p> <p>The case is here on appeal.</p> <p>A policy of a mutual insurance company is not cancelled by the appointment of a receiver. 56 N. Y. S. 83. When a bond is given for only one year, the surety is bound only for that year. 65 Fed. 476; 11 Fed. Cas. No. 6114; 4 Dil. 185; 26 Am. R. 703; 29 Id. .230; 59 111. 172; Brandt on Sur. 187; 67 Cal. 505; 130 Mass.. 242; 7 Barb. 581; 5 Cow. 424; 3 Cow. 151; 17 Mass. 603; 2 Leigh 157; 87 Ala. 334; 6 Am. St. R..456. The policy holders are members of the company. 109 N. Y. S.' 367; 21 How. 35; 9 Col. 77; 3 S. W. 385; 21 N. Y. 67; 86 Pa. 367; 79 Wis. 492. And they are bound by the rules of the company and the laws of the State. 43 N. J. Eq. 522; 64 Am. St. R. 715; 90 N. W. 926; 96 N. W. 327. As to whether a policy holder is entitled to a return of the unearned premium, see 52 N. W. 744. The premiums in a mutual company constitute a fund, and must -be exhausted before liability on the bond would attach. 66 Atl. 1072; 98 Am. Dec. 89; 45 Id. 656; 71 Id. 662. The court erred in taxing as costs attorney’s fees and receiver’s fees. 60 la. 70; 62 Ga. 146; 86 N. W. 466; 37 N. Y. 536; High on Rec., § § 339, 805, 810. The findings of a chancellor, in a case tried on depositions, will be reversed if against the weight of the evidence. 71 Ark. 605; 63 Ark. 314; 68 Ark. 134; 72 Ark. 67; 73 Ark. 489; 75 Ark. 52; Id. 72; 77 Ark. ,216; Id. 303; 75 Ark. 75; 83 Ark. 343; 85 Ark. 105; 68 Ark. 314; 75 Ark. 9.</p> <p>The liability of the insurance company is fixed by the terms of the policy. American Insurance Co. v. Haynie, 91 Ark. 43; 89 Ark. 378; 52 Ark. 201. The State has the right to regulate insurance companies. 76 Ark. 303; 26 U. R. A. 295; 126 Mo. 281; 129 la. 725; Cooley’s Briefs’ Ins., 57. The by-laws of the company do not form a part of the contract unless referred to in the policy. 8 Cush. 393; 44 N. J. Eq. 224. A member of a mutual company is not liable on future assessments. 70 Am. St. R. 149; 63 111. 187; 57 111. 354; 9 How. Pr. 45; 162 Pa. 638; 86 N. W. 831; 101 N. W. 938; 87 Minn. 392; 49 Minn. 291; N. Y. S. 478; 28 Mo. App. 215; 2 Tenn. Ch. 727; m U. 111. 79; 59 Wis. 162; 91 Mo. App. 339; 77 N. H. 583. The insolvency of the company constitutes a breach of its contract. 78 N. Y. 114; 34 Am. R. 522; 85 Ala. 401; 162 Pa. 586; 42 Am. St. R. 844; 38 L. R. A. 97. The bond covers unearned premiums. 112 Fed. 599. The unearned premium should be returned. 33 L. R. A. 551; 130 Ind. 332; 49 Minn. 291; 60 N. Y. S. 478; 28 Mo. App. 215; 2 Tenn. Ch. 727; in U. S. 264.</p> <p>The liability of the insurance company is fixed iby the policy of insurance. 52 Ark. 201. But the liability of t’he sureties on the bond is fixed by the bond.</p>

<p>Appeal from Scott Circuit Court; Daniel Hon, Judge;</p> <p>Appellant was entitled to a jury trial. Const., art. 2, § 7; 56 Ark. 391; 48 Ark. 426; 57 Ark. 589; 36 Ark. 305; 32 Ark. 553; 26 Ark. 281; 50 Ark. 266; 40 Ark. 290; Kirby’s Dig., § ■6170; 125 S. W. 443; Id. 349; 123 S. W. 384. “Jury” means 12 men. 32 Ark. 17. ,</p> <p>Even if the question were such that appellant was entitled to a jury trial thereon, he waived it. 91 Pac. 115; 57 Ark. 594; 44 Ark. 202. But granting an involuntary nonsuit in a proper case does not contravene the constitutional guaranty of a jury trial. 9 Cur. Law, p. 984; 91 Pac. 115. The bill of exceptions fails to show that a jury trial was demanded and refused. 44 Ark. 202; 4 Ark. 158; 72 Ark. 261.- Compromises are looked upon with favor by the courts. 46 Ark. 219; 31 S. W. 228; .32 Me. 278. And will be' held binding in the absence of fraud ■or duress. 74 Ark. 270. A party to such an agreement can not repudiate without the consent of the other, no U. S. 217; 99 N. C. 58; 121 N. C. 589; 55 S. C. 555.</p>

Appellee, Ellefson, brought suit against appellant for $79.20 upon an open account for goods, wares and merchandise. Appellant, Wilbur, filed answer admitting the correctness of the^ account, but set up a counterclaim for work done, with items attached amounting to $174.05 duly verified. Appellee denied the matters set up in the cross complaint, but did not verify his answer. No evidence was introduced except as to this counter claim.

Martineau, Chancellor; STATEMENT OF THE COURT. This suit was instituted in. the Pulaski Chancery Court by George P. Frazer against John R. Pratt. The complaint in substance alleges that the parties to the suit formed a partnership for the purpose of selling stock for an insurance company, and that by its terms they shared equally the profits and losses.

Hays, Judge; Instructions should be harmonious, else they are calculated to confuse and mislead the jury. 55 Ark. 397; Sackett, Inst, to Juries, 25; 89 Ark. 217. An instruction not applicable to the evidence is erroneous. 90 Ark. 573. The testimony of the witnesses as to the dying declaration was competent and admissible. 68 Ark. 355; 75 Ark. 142; Wharton on Horn., 971.

<p>Appeal from Benton Circuit Court; Joseph S. Maples, Judge;</p> <p>The State court had no jurisdiction of this cause of action. Hepburn Act, § 1. The shipper may select the connecting carrier, and. compel the initial carrier to make the through shipment in this way. Hutchinson on Car., § 130; 9 Int. Com. R. 182; 12 Id. 418; 50 Neb. 592; 97 S. W. 778. But this was not true at common law. no U. S. 667. In the absence of evidence to the contrary, the presumption is that the damage occurred on the line of the delivery carrier. 76 Ark. 589; 74 Ark. 597; 73 Ark. 114; 72 Ark. 502; 100 S. W. 889. The amendment must be read into the original act as if the entire act had been re-enacted. 89 Ark. 598; 73 Ark. 600. The jurisdiction conferred on United States courts by the act is exclusive. 41 Neb. 375; 168 Mo. 652; 33 Cal. 212; 36 Cal. 281; 45 Cal. 90; 6 Blackf. 125; 13 L. R. A. (N. S.) 966; 6 Neb. 423; 65 Tex. 301; 68 Miss. 454. It requires a uniform system applicable to the whole country. 101 U. S. 691; 114 U. S. 196. The United States courts have exclusive jurisdiction under this act. 105 Fed. 785; 74 Fed. ■981; 80 Fed. 78; 112 Fed. 826; 142 Fed.. 187; 152 Fed. 293; 157 Fed. 857; 165 Fed. 1; .58 Fed. 858; 116 U. S. 104; 95 la. 113. The Hepburn Act is unconstitutional in that it deprives defendant of its property without due process of law. 4 Wheat. 235; Id. 519; 18 How. 276; 94 U. S. 113; 96 Id. 101; 106 Id. 196; 124 Id. 219; 169 Id. 366; 166 Id. 226; 17 Wall. 438; 92 U. S. 481; Id. 543; 95 Id. 294; 103 Id. 182; 154 Id., 46; 163 Id. 85; 148 Id. 312; 85 Ark. 422; 174 U. S. 580; 20 Wall. 266; 2 Pet. 657; 159 Fed. 500; 8 Wall. 623; m U. S. 746; 90 N. W. 1099; '155 111. 98; 98 N. Y. 107; 99 N. Y. 377; 109 N. Y. 389; 46 Atl. 234; 45 S. E. 331; 66 N. E. 1005; 196 U. S. 447; 207 U. S..463; 10 S. E. 285; 59 Pac. 341; 125 U. S. 188; 127 Id. 205; 15 S. W. S7; 44 Conn. 291; 47 N. E. 302.</p> <p>Causes of action in tort and contract may be joined. 85 Ark. 129. The State court may hear the common law cause of action. 83 S. W. 362; 80 Ark. 542. A claim for damage to goods accrues upon the delivery of the goods in a damaged condition. 88 Ark. 594. Appellant is liable for the damages. -■83 Ark. 92; 81 Ark. 469. The contract was to deliver at the destination. 74 Ark. 10. A contract limiting liability is void if prohibited by statute. 169 U. S. 133; 24 la. 412; 28 L. R. A. 718; 58 Am. St. R. 430; 95 la. 260; 63 N. W. 692; 45 la. 470-Tbe State court has jurisdiction. 90 Ark. 308; 89 Ark. 404.</p>

<p>Appeal from Jackson Circuit Court; Charles Coffin, Judge;</p> <p>To constitute a binding contract, there must be an offer and an acceptance. 90 Ark. 133; 52 Ind. 286; 4 Col. 353; 37 la. 186; 40 La. 402; 1 La. 190; 10 La. Ann. 120; 24 Id. 620; 105 111. 43; 42 N. Y. S. 578; 30 Ark. 186; 100 S. W. 271; ni S. W. 668. The correspondence was simply preliminary, and not a final contract. 86 Hun 374; 2 Cranch, C. C. 143 ; 108 Cal. 666; 1 Mart. (U. S.) 420; 30 La. Ann. 117; 30 La. Ann. 316. The question as to whether there was a contract should have been submitted to the jury. 141 N. C. 277; 8 Pa. Sup. Ct. 424; 35 N. J. Eq. 266; 53 Pa. St. 373; 2 N. Y. St. Rep. 218.</p> <p>The acceptance and retention of the check involved the acceptance of the condition. 55 N. E. 717; 138 N. Y. 238; 33 N. E. 1035; 20 E. R. A. 785. Correspondence may result in a contract, although there is an agreement that it will later be reduced to writing. 29 L. R. A. 431; 144 N. Y. 209; 88 Wis. 622; xo Bush 632.</p>

Hays, Judge; The separation of the jury without an order of court is prima facie ground for a new trial. 44 Ark. 1x5; 57 Ark. 1; 73 Ark. 501; 84 Ark. 569; 12 Ark. 782; 33 Ark. 317; 20 Ark. 36; Id. 53; 26 Ark. 323; 28 Ark. 155; 34 Ark. 341; 35 Ark. 118. If the assault is so fierce as to make it apparently as dangerous to retreat as to stand, it is not the duty of one assaulted to retreat. 49 Ark. 547; 64 Ark. 147; 62 Ark. 286.

Martineau, Chancellor; STATEMENT BY THE COURT. Foster Terrell owned lands in Eonoke County, Arkansas, consisting of his homestead and lands adjoining, in all 322^ acres, with 238 acres in cultivation. Foster and -his wife executed -a deed of trust on the land to the Arkansas Eoan & Trust Company to secure an indebtedness of $1,300. Foster Terrell died in 1894, leaving his wife and ten children surviving ’him. Some of the children were minors.

Evans, Judge; The 'burden was on appellee to establish a breach of covenants, and to show the existence of a paramount outstanding title. 11 Cyc. 1152-3; 33 Ark. 833; 47 Ark. 300; 74 Ark. 202.

Wood, Chancellor; The demurrer should have been sustained. 36 Ark. 456; 65 Ark. 610. The action should have been dismissed for want of affidavit of tender. 23 Ark. 644. Even if the tax deed had been void, two years’ possession thereunder would render title good. 79 Ark. 364. And the purchaser is not liable for rent until ■redemption is effected or tendered. 52 Ark. 132.

Hays, Judge; statement by the court. T-his suit was instituted in the Union Circuit Court by the Cornie Stave Company against the Edgar Lumber Company to recover damages in the sum of $972.11 for an alleged breach of contract. Both parties are corporations duly organized under the laws of the State of Arkansas.

H. Evans, Judge; STATEMENT BY TI-IE COURT. The Industrial Mutual Indemnity Company issued to William N. Watt a policy of life insurance for the sum of $1,000, payable to Mabel Watt, his wife. William N. Watt died from a pistol shot wound, and Mabel Watt brought this suit to recover the amount of the policy.

77 Ark. 444. The evidence failed to show a conspiracy between appellants. The indictment was sufficient to put appellants upon notice of what they were expected to answer. Kirby’s Dig., § §’2228, 2241, 2242 and 2243; 84 Ark. 477. It was not necessary to prove an unlawful agreement between appellants by direct and positive evidence. 77 Ark. 444.

Roberteson, Chancellor; The court erred in making the administrator a party defendant. 22 Ark. 191. The action of the bank in paying the money to the administrator was a conversion of the money. 34 Ark. 421. The court should not have transferred the cause to chancery. 56 Ark. 391; 65 Ark. 503; 1T3 U. S. 550. A delivery is not necessary to constitute a trust. 75 N. Y. 134; 31 Am. R. 446; 80 N. Y. 422; 179 N. Y. 112; 105 N. Y. s. 332.

<p>1. Peddling — sale of steel ranges. — Acts 1909, p. 292, providing that “before any person, either as owner, manufacturer or agent, shall travel over and through any county and peddle or sell any lightning rod, steel stove range, clock, pump, buggy, carriage, or other vehicle, or either of said articles, he shall procure a license,” is violated where a manufacturer of steel stove ranges employs men to travel through a county and solicit orders for such ranges and employs other men ■to deliver the ranges so sold, without procuring a license. (Page 468.)</p> <p>2. Same — application op statute. — Where a nonresident manufacturer of stove ranges, without procuring a license as a peddler, employed men to travel through a county and solicit orders for their sale and delivery within this State, and shipped the ranges to fill the orders in separate packages in car load lots from another State, without the purchasers’ names being designated on the packages, and separated the packages after they reached this State, and delivered them to the purchasers, the ranges not being separately appropriated to the filling of any particular order, the transactions were in violation of the peddling act of 1909. (Page 470.)</p> <p>3. Interstate commerce — state regulation. — Acts 1909, p. 292. prohibiting peddling without license, is applicable to articles shipped from another State and peddled here, as the license is not required for the sale of goods, but for peddling them. (Page 470.)</p>

Kirby’s Dig., § 5352. The judges of this court will not explore the record to discover errors of the trial court. 90 Ark. 393; 89 Ark. 43; 83 Ark. 359; 88 Ark. ,450; 75 Ark. 571; 87 Ark. 351; 46 Ark. 69; 59 Ark. 257; 75 Ark. 347; 55 Ark. 547.

Martineau, Chancellor; Appellant is entitled to subject by a creditor’s bill the fees of the county treasurer that had already accrued to him for work. 56 Ark. 476; 70 Miss. 267; 49 Mo. 565; 42 Pac. 733; 10 Fed. 799; 91 Fed. 574; 11 Col. 337; 20 Conn. 416; 10 R. I. 285; 13 N. H. 502; 26 Pac. 1002; 10 B. Mon. 108; 12 Bush 354; 15 O. St. 462; 35 S. W. 412; 65 Tex. 359; 29 Atl. 815; 84 Ga. 769; 92 Mich. 285; 21 Neb. 675; 66 la. 99; 31 Gratt. 784; 17 N. E. 75.

Court, Eastern District ; Charles Coffin, Judge; Instead of returning the defective table, appellee elected to retain it, and he is bound thereby. 22 Ark. 454; 81 Ark. 549; 77 Ark. 546; 53 Ark. 155; 77 Ark. 522; 48 Ark. 325; 38 Ark. 351; Id. 334. And the measure of damages would have been the difference between the defective table and the table contracted for. 78 Pa. St. 141; 21 Ark. 349; 25 Ark. 164; 64 Ark. 228; Mechem on Sales, § 817; 83 Ark. 232.

V. Bourland, Chancellor; The 'contract was within the statute of frauds. Kirby’s Dig., § 3665; 50 Ark. 71. Appellee is estopped to assert his contract. 33 Ark. 465. Possession, to take a contract out of the statute, must be delivered and obtained solely under the contract. 30 Ark. 262. The purchase of the property by appellant, and putting his mother in possession of it that she might live on it the remainder of her life was in effect a gift. 74 Ark. 104; 1 Ark. 83.

Wood, Chancellor; Only one improvement can be embraced in an ordinance .authorizing the making of assessments. Hamilton on Ass., § 393; 2 Page & Jones on Tax. by Ass., § 790; 66 Cal. 313; 4 Pac. 31; 52 Neb. 345; 72 N. W. 218 ; 61 111. 142; 11 Phila. 447. The ordinance was valid. 75 111. 21; 46 Mich. 150; 59 Pa.

Shaver, Chancellor; statement by the court. The appellant states in his complaint that about January 26, 1905, he purchased from Paul T. Davidson a certain lot of land in the city of Arkadelphia, Arkansas, for one hundred dollars; that he paid ten dollars cash and executed his note for ninety dollars with interest at ten per cent, per annum from date until paid, due one year after date; that Davidson executed to appellant bond for title, which appellant had lost; that when…

Hudgins, Judge; When it appears that prejudicial error has been made in the trial, this court will reverse. 58 Ark. 253; 123 111. 333. The conductor is the proper person to pass on the question as to whether a person desiring to take passage on a train is a proper person to be admitted to the train. 75 Ark. 490. Appellant is not liable for the humiliation or mortification, if any, suffered by appellee on account of his arrest and imprisonment. 87 Ark. 524.

A. S. McCrary was duly notified to appear before the State Board of the Arkansas Medical Society in the hall of the House of Representatives, in the State House, in the city of Little Rock, Arkansas, on November 10, 1909, and show cause why 'his certificate to practice medicine in said State should not be revoked under subdivision (d) of sec. 8 of act 219 of the Arkansas General Assembly, approved May 6, 1909. It is as follows: “Section 8.

Martineau, . Chancellor; Permission to file the bill should have been given. 36 Ark. 532; 33 Ark. 161; 47 Ark. 17; 84 Ark. 203. The demand on account of cotton was barred by limitation. 37 S. W. 17; 41 Am. St R. 302; 139 Ala. 586; 64 Ark. 348; 59 Ark. 446; 70 Ark. 319; 75 Ark. 465.

Martinecm, Chancellor; Appellees obtained no title by the alleged conveyance of W. H. Smith. 67 Ark. 15; 88 Ark. 56; 80 Ark. 421; 86 Ark. 448; 19 Tex. 303. The weight of the evidence is against the decree and the validity of the conveyance. 119 Fed. 406; 16 Pa. St. 212; 37 La. Ann. 871; 41 N. J. Eq. 167; 27 Pa. St. 333; 14 la. 481; 116 Mo. 155; 98 Wis. 559; 7 Wheat. 283.

Robertson, Chancellor; When time is of the essence of the contract, failure to pay promptly will work a forfeiture. Prior v. Baldridge, gi Ark. 133; 48 Ark. 413; 54 Ark. 16; 61 Ark. 266. The contract is valid. 104 Am. St. R. 267; 65 Cal. 596; 52 Am. R. 310; 84 Cal. 316; iS Am. St. R. 187; 24 Pac. 280; 3 C. Greene 128; 54 Am. Dec. 492; 19 N. J. Eq. 350; 31 Pa. 218. Time is of the essence when? 3 Ga. 100; xo Allen 239; 38 N. H. 400; 2 O. St. 236; 59 Am.

Wells, Judge; Actual malice is not necessary when the words published are actionable per se. 122 S. W. 449. A corporation is liable for slander. 43 So. 471; 1 Clark & Marshall on Corp. pp. 627, 629; 57 Miss. 759; 34 Am. Rep. 494; 37 Ala. 560; 74 Ala. 85; 49 Am. Rep. 800; 69 Miss. 185; 30 Am. St. R. 528; 13 So. 847; 73 Miss. 161; 31 L. R. A. 390; 55 Am. St. R. 522; 18 So. 922; 142 N. C. 1; 54 s. E. 793; 55 Mich. 224; 54 Am.

Francis Chancery Court; Edward D. Robertson, Chancellor; The sale by the pledgee without notice to the pledgeor of the time and place was illegal and a conversion. 47 Fed. 236; 93 Ala. 599; 41 Cal. 519; 128 111. 533; 32 Ark. 742; 22 la. 307; Story on Bailments, §- 310; 52 Pa. St. 498. The pledgeor was entitled to the excess of what the property brought over and above the indebtedness. Edw. on Bail., 236; 32 Ark. 748.

<p>Appeal from Pulaski Chancery Court; John B. Martineau> Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>This suit was brought by appellees against appellant to enjoin him from erecting buildings for, and from maintaining, a wagon yard in what is alleged as a residence district of the city of Little Rock, Arkansas. After showing the location of their residences and the value thereof, appellees allege: “that Cooper leased for ten years lots 4, 5 and 6, block 148, Little Rock, being northeast corner of Rock and Fourth streets, for' a flat roof wood structure for a wagon yard where farmers and peddlers shelter themselves and teams, with wagons usually loaded with vegetables, chickens and other farm produce; that many vegetables and eggs decay in transit, and chickens die and are left in the yard; that said yard will stable about 100 mules and horses; that two large rooms will be built for himself and .patrons, who will eat and sleep there and cast their leavings in the yard; that droppings of animals and' decayed matter will create a stench and dráw flies and mosquitoes and cause disease, depriving them of the comforts of hom$, creating a nuisance and depreciating their property; that the frame had been erected, covering 150 feet on Fourth and 192 feet on Rock, with four rooms on Rock to be used by both- white and colored to sleep in, with a number of small sleeping rooms and two large lobby rooms, with a chimney between for cooking on the north side of said lots; that said lots are without sewer connections, and said frame structure will contain large quantities of feedstuff, dangerous on account of fire; that said fractional lot 3 is within the fire limits, and no proper permit has been obtained to erect said building, and, same being of wood, does not comply with the ordinance. There was a prayer for injunction.</p> <p>Cooper answered, denying the allegations of the complaint and alleging that said yard will be across a street sixty feet wide from Whissen and across another street sixty feet wide from Comer, and will be in a business part of the city, where the business houses are fast encroaching upon what few residences are left, which are largely boarding houses and flats; that he is erecting the most approved and up-to-date building for said yard, and, when completed, it will be run in a cleanly and first-class condition, and not be a nuisance to any one; that he has a permit from the city to erect same; that his building only covers 183 feet on Rock; that he obtained a permit to erect it on lots 4, 5 and 6, but by mistake commenced to erect it on fractional lot 3, which is within the fire limits; that he is removing his improvements therefrom, and will erect nothing thereon unless he gets a proper permit; that the rooms on Rock will be rented out for stores and not used for sleeping rooms; that he will erect rooms on said lot 3 if he gets a permit, but will not use them for the purposes alleged.</p> <p>After hearing the evidence the court rendered the following finding and decree: “That the building proposed to be erected in the manner shown by the .plans and exhibited by the defendant and the testimony in relation thereto will constitute a nuisance, and will render the property of the plaintiffs uninhabitable as residences. It is therefore considered, ordered, adjudged and decreed that the defendant, Warren Cooper, his .agents, employees, and all persons acting under him, be, and are hereby, perpetually enjoined from erecting on block one hundred and forty-eight, in the city of Little Rock, Arkansas, a building according to the plans shown by the defendant and the testimony herein. To which finding and decree of the court the defendant at the time excepted, and asked that his exceptions be noted of record, which was done, and the defendant prayed an appeal to the Supreme Court, which is granted.”</p> <p>Where a building to be erected is not a nuisance per se, the erection thereof should not be enjoined; but the owner should be permitted to proceed at his peril. 20 Ark. 671; 20 Ga. 350; 22 N. J. Eq. 28; 44 Am. R. 10; 66 Am. Dec. 790; 54 Id. 45 5 28 Am. St. R. 396; 54 L. R. A. 545; 20 N. J. Eq. 415; 11 Atl. 660. When the injury apprehended is doubtful or contingent, an injunction will be denied. 76 Am. Dec. 332; 68 Id. 750; 66 Id. 790; 51 Am. R. 463; 44 Id. 10; 32 Id. 138; 28 Id. 378; 45 Id. 505 ; 21 L. R. A. 569; 54 Id. 545. A livery stable is not a nuisance per se. 85 Ark. 544; 87 Ark. 213; Joyce on Inj., § § 200-202; 52 Ark. 23. Defendants have a remedy at law. 69 Atl. 697; Campbell & Stevenson’s Dig. Ord. City of Little Rock, § 1441.</p> <p>A property owner should so use his property as not to injure others.. 3 Grant 390. A lawful business may become unlawful if located in the vicinity of private residences. 4 Eng. Law & Eq., 15; 11 Hare 266; 4 C. B. (N. S.) 336; 2 Ch. Div. 697; 42 Id. 637; 56 Wis. 512; 20 N. J. Eq. 207; 5 N. Y. S. 885; 10 Ala. 64; 9 Ga. 425; 108 U. S. 334; 59 Mo. 322; 58 Ind. 185. Citizens are not required to move away from a nuisance. 3 Barb. 153; 4 Robt. 469; 51 N. Y. 300; 3 Sand. 283. The locality is a residence section. 143 Ind. 35; 148 Ind. 35; 157 Ind. 593. Residents in the old part of town will be protected. 19 N. J. Eq. 298; 55 Conn. 31. The fact that there are other nuisances in the same vicinity is no excuse for refusing to enjoin appellants. 31 Mich. 293; 23 N. J. Eq. 205'. Testimony as to how the wagon yard would be run was incompetent. 50 Mo. App. 63; 68 Ind. 397; 73 Ind. 295; 123 S. W. 376.</p>

Hutton, Judge; The case should be reversed and dismissed. 57 Ark. 82; Board of directors v. Barton, 92 Ark. 406. The findings of .the trial judge will not be disturbed, in the absence of gross abuse. 90 Ark. 514; 58 Ark. 371.

90 Ark. 88; Id. 256. The contract was valid. 15 Am. & Eng. Enc. Law. 979. All facts communicated by a patient to her physician are not privileged. 31 Ark. 693. The contract was unlawful and can not be enforced. 48 Cal. 379; 82 Hun 15. It was contrary to public policy. 144 111. 422; 36 Am. St. R. 459; 52 Pac. 909; 1'D. Chip. 137; 10 Ala. 206; 14 Mont. 467; 43 Am. St. R. 647; 66 Ark. 535; 84 N. Y. 543; 7 Bing. 369; 67 111. 256.

<p>1. Seduction- — indictment.—An indictment for seduction need not allege that the defendant was a single and unmarried man. (Page 556.)</p> <p>2. Continuance — absent witnesses — application.—An application for .continuance on account of the absence of certain witnesses should show where these witnesses reside and that it is probable that their testimony could be obtained in the event that the case is continued. (Page 558.)</p> <p>3. Same — what application should snow. — An application for continuance on account of the absence of witnesses should show that the desired facts could not be proved by other witnesses. (Page 558.)</p> <p>4. Same — what application should show. — An application for continuance on account of the absence of witnesses should specifically set forth the facts expected to be proved by the desired witness, and not in general terms or by indefinite allegations. (Page 558.)</p> <p>5. Marriage — how proved. — In a prosecution for seduction it is competent to prove that defendant was already married by showing that he had introduced a woman, to his friends and acquaintances as his wife and conducted himself towards her as her husband. (Page 559.)</p>

<p>- Appeal from Pike Circuit Court; James S. Steel, Judge;</p> <p>A master is liable for the negligence of a vice principal concurring with that of a fellow servant. 88 Ark. 37; 67 Ark. 1. Appellant did not assume the risk of the danger. 77 Ark. 374; 90 Ark. 228; Id. 567; 89 Ark. 427; 88 Ark. 548; 87 Ark. 321; Id. 396; 79 Ark. 56; 86 Ark. 514. Directing a verdict f01defendant was error. 88 Ark. 28; 73 Ark. 560; 71 Ark. 447: 76 Ark. 522; 89 Ark. 534; 89 Ark. 222; Id. 372.</p> <p>There was no controverted fact to be passed upon by the jury. 41 Ark. 382; Wood on Master and Servant, § § 326-8 and 335; 57 Ark. 461; Hughes on Inst. 120; 127 Wis. 550; 7 Am. & Eng. Ann. Cas. 437; 58 Ark. 217.</p>

<p>Appeal from Independence Circuit Court; Charles Coffin, Judge;</p>

<p>Appeal from Mississippi Chancery Court; Bdward D. Robertson, Chancellor;</p> <p>The demand was sufficient. 73 S. W. 234; 34 Atl. 265; 32 Atl. 229; 10 N. W. 562; 9 Ore. 418; 11 Ala. 535; 19 Mass. 544. The denial constituted a negative pregnant only. 32 N. W. 382; 48 N. E. 772; 17 Pac. 890; 31 Pac. 804; 77 Am. Dec. 511; 82 Id. 82; 74 Pac. 503; 54 Pac. 400; 32 Ark. 105; 46 Ark. 134; 45 Pac. 204; 13 Pac. 536; 19 Pac. 446; 120 S. W. 393. The law presumes that the person to whom a letter was properly addressed and mailed received it. in U. S. 194; 124 S. W. 513; 69 S. W. 53; 26 N. E. 738; 3 N. E. 486; 29 Am. R. 503; 43 N. Y. Sup. Ct. 344.</p> <p>The presumption that a letter was received by the addressee is no more than an inference of fact. 105 Mass. 392; 124 •S. W. 513; 69 S. W. 53. It must be proved that the letter was received. 58 Ark. 8; n Ark. 2x2; 56 S. E. 429; 114 N. W. 1098. The failure of a party to testify should raise no presumption against him. 1x9 S. W. 672; 34 Mo. App. 454.</p>

<p>Appeal from Hot Spring Chancery Court; Alphonzo Curl, Chancellor;</p> <p>The county judge may, at the suit of a taxpayer, be enjoined from doing something prohibited by law. 54 Ark. 645; 73 Ark. 523; 80 Ark. ip8; 52 Ark. 541; 77 Ark. 570; 75 Ark. 52; 46 Ark. 25; 48 Ark. 544; 37 Ark. 286; Id. 164; 34 Ark. 410; 30 Ark. 278; 15 Ark. 24; 14 Ark. 50; 30 Ark. 56; 57 Am. Dec. 435. The county judge can not derive any advantage from his position. 49 Ark. 245; 68 Ark. 542; 77 Ark. 31. Specific performance will be enforced in such cases as to personalty. 13 Col. 280; 22 Pac. 461; 43 Am. Dec. 621; 51 Am. Dec. 589; 69 Md. 51; 13 Atl. 625; 51 Ark. 489. The statute of frauds has no application. 85 la. 112; 52 N. W. 108; 17 N. W. 495; 64 Ark. 627; 16 Neb. 21; 21 N. W. 451; 7 la. 163; T07 Ind. 432; 8 N. E. 167; 82 Ala. 622; 2 So. 520; to Me. 374; 25 Am. Dec. 242; 121 Mo. 169; 25 S. W. 192; 26 E. R. A. 751.</p> <p>This court will not exercise original jurisdiction to grant injunctions. 2 Ark. 93; 12 Ark. 102; Id. 84; 16 Ark. 195; 19 Ark. 411; 25 Ark. 288. It is only in cases of irreparable injury that this court will grant injunctions pending appeals. 54 Ark. 118; 48 Ark. 331; 54 Ark. 539; 29 Ark. 340. Unless all the evidence is brought up in the record, the decree of the chancellor will not be disturbed. 90 Ark. 393; Id. 214; 89 Ark. 349; Id. 64; Id. 41; 88 Ark. 467; 87 Ark. 232; 86 Ark. 368; 84 Ark. 429; Id. 73; 81 Ark. 427.</p>

24 Ark. 224. A mortgage of personal property passes the whole legal -title to the mortgagee conditionally, and a sale thereof by the mortgagee is not conversion. 33 111. App. 297; 8 Johns. 96; 2 Den. 170; 35 Cal. 404; 27 Cal. 258; 2 Gray, 303; 3 Cush. 322. Plaintiff, being neither in possession nor entitled to possession, can not maintain trover. 10 Cal. 392; 138 Mass. 513; 38 Md. 242; 6 H. & J. 100; 47 Minn. 433; 64 S. W. 942; 65 Ark. 316.

Humphries, Chancellor; Incorporated towns have authority to assess real property for the purpose of constructing sewers only. Kirby’s Digest, § 5664; 56 Ark. 191; 59 Ark. 356; 2 Dill, on Mun. Corp., § 769, The council could not go beyond the limitations prescribed in the petition. 71 Ark. 556; 59 Ark. 344. The interest is part of the cost of construction. 55 Ark. 148; 24 O. St. 249.

H. Evans, Judge; Contradictory instructions should not be given. 83 Ark. 205; 72 Ark. 41; 91 111. 63; 34 la. 375. They are calculated to confuse the jury. 95 111. 383.- The jury have no right to indulge in conjectures not supported by evidence. 71 111. 391. The failure of one party to comply with a contract releases •the other. 65 Ark. 320.; 64 Ark. 228; 67 Ark. 156; 22 Ark. 258; 38 Ark. 174.

Robertson, Chancellor; Before land can be sold under a power contained in a mortgage, it must be appraised by three disinterested householders in the county appointed by a justice of the peace who also lives in the county. 69 S. W. 551. They must actually view the property. 94 S. W. 715. And a sale without complying with the statute in these respects is invalid. 105 S. W. 586. The burden was on defendant to show that he was an innocent purchaser. 35 Ark. 102.

<p>Estrays — necessity eor exhibiting animae. — Title to any of the animals mentioned in Kirby’s Digest, § 7852, cannot be acquired by virtue of the estray laws unless the person taking it up exhibits it in the stray-pen of the county on the first day of the next term of the circuit court of his county.</p>

Hutton, Judge ; Service of summons on defendant was .not. legally. ,made¡.¡ Kirby’s Digest, § 6048; 59 Ark. 583; 59-Ark, 593; 106-TJ. .ft-, 350. It was plaintiff’s duty to inspect the material of .which the scaffold was built. 88 Ark. 292; 76 Ark, 691 89 Ark- 59 68 Ark. 316; 65 Ark. 98. When a foreign corporation fails to designate an agent -upon whom service of summons may be had,' such service may -be1 had upon the Auditor. Kirby’s Dig., § 835.

61 Ark. 628; 44 Ark. 264; 57 Ark. 141. The intervener was the party entitled to open and close the argument. 57 Ark. 136; 92 Am. Dec. 545; 37 S. W. 103; 51 Kan. 566; Kirby’s Digest, § 2928; 58 Ark. 556; 45 Ark. 492. It is not error to refuse prayers for instructions not responsive to the issues. 77 Ark. 234; 75 Ark. 76; 75 Ark. 373; 77 Ark. 455; 81 Ark. 561; 89 Ark. 308.

<p>1. Venue — conversion OE timber. — An action for the conversion of timber is not an action “for an injury to real property” within -Kirby's Digest, §’ 6060, requiring such an action to be brought “in the county in which the subject of the action or some part thereof is situated.” (Page 601.)</p> <p>2. Instructions — appeicabieiTy to evidence. — The giving of an abstract and misleading instruction will be ground for reversal. (Page 602.)</p> <p>3. Agency — liability oe agent — damages.—Where plaintiff’s agent was sued for converting or allowing to be converted the timber of the plaintiff, and there was evidence that defendant had knowledge that ■timber had been wrongfully cut from the plantiff’s land and neglected to report same to the latter, it was error to instruct the jury that, if defendant knew of such cutting, they should find for plaintiff the value of the timber so cut and removed unless defendant notified plaintiff of said cutting and removal, in the absence of proof of any damage from defendant’s neglect to inform plaintiff of the cutting. (Page 603.)</p> <p>4. Pleading — variance.—Under a complaint which alleged that defendant as plaintiff’s agent had converted defendant’s timber it is not admissible for plaintiff to recover damages for defendant’s negligent failure to notify plaintiff that the timber had been converted by another. (Page 603.)</p> <p>5. Negligence — recovery oe damages. — evidence.—Under a complaint which alleged that it was the defendant’s duty as agent to report depredations upon plaintiff’s timber, that the conversion of certain timber was known to defendant and that he never reported same to plaintiff, plaintiff could not recover more than nominal damages without showing that he sustained actual damages from defendant’s negligence. (Page 603.)</p>

<p>Appeal from Clark Chancery Court; James D. Shaver, Chancellor;</p> <p>Suit for an injunction by the city of Arkadelphia and others against the Wilson Water & Electric Company.</p> <p>statement by the court.</p> <p>The appellees alleged in their complaint the following: “That appellant, the Wilson Water & Electric Company, was a domestic corporation, holding a charter from the city for supplying it and its inhabitants with water for all purposes; that plaintiffs have been for many years consumers of water furnished by the water company; that they have incurred large expense in putting in pipe lines and fixtures for conducting water from the mains of the water company to their premises, relying on the water company to furnish them water on a flat rate as fixed by the water -company, or as might be fixed by the -city; that nuury of the inhabitants of the -city, including plaintiffs, have filled up their wells, relying upon the water company for their water supply, and many have done away with surface privies and have equipped their premises with underground sewers, connected with the water company’s water system, upon the contract with the water company that it would furnish water for flushing said sewers, etc.; that plaintiffs have regularly paid for all water furnished, and are ready to continue to pay for said water on a flat rate basis; but the water company, in disregard of its duties and obligations, threatens to cut off the water supply of the city and its inhabitants and these plaintiffs, to their irreparable loss and damage; that it has already cut off the water supply of some of the plaintiffs, and now has its employees going over the premises of plaintiffs, and other customers, cutting off their water supply; that many of the plaintiffs have no other means for obtaining water for any purpose; that plaintiffs have-no other adequate remedy.</p> <p>The prayer of the complaint was that the water company be restrained from cutting off the said water supply, and that it be required to turn on the water supply to those whose water has been cut off, etc.</p> <p>The answer is as follows: It denies that, in disregard of its duties, and obligations under its franchise, it threatens or has threatened, to cut off the water supply of the city, etc., and of the plaintiffs herein.</p> <p>It states that the defendant heretofore adopted rules and regulations governing the use of water by its patrons, etc., which rules were printed and distributed among, its patrons, etc.; that in the said printed rules and • regulations, under the head “Meter Rate for Water,” the following rule appears: “Meters will be put in whenever deemed proper by the -company.” Section thirteen of defendant’s franchise is as follows: “The maximum rate to be charged by the grantee for water shall be as follows: When the quantity used averages from one hundred to- one-thousand gallons per day, thirty -cents per thousand gallons; when the quantity used averages over one thousand gallons, twenty-five cents per thousand gallons. Elat rates shall be based upon the above consumption; provided, however, that in no case shall the rate for private residence occupied by one family, one connection without hose bib, water for domestic purposes only, exceed $2.25 per quarter; and provided further that if the flat rate in any case should exceed the rate established by the water company, as evidenced by its book of rules, * * * the consumer may demand metered service according to the rules and regulations of the grantee, but in no case shall measured water be furnished at a less rate than $2.25 per quarter for each taker so furnished.”</p> <p>The city council of the city on the 1st of March, 1909, passed and published the following ordinance, towit:</p> <p>“Section 1. That the maximum rate to be charged by the water company, its successors and assigns, for measured water shall be as follows: When the quantity used averages from one gallon to one thousand gallons per day, thirty cents per thousand gallons; when the quantity used averages over one -thousand gallons per day, twenty-five cents per thousand gallons; but in no case shall measured water be furnished at a less rate than seventy-five cents per month. Elat rates shall be based upon the above consumption, provided however that in no casé shall the flat rate for private residence, occupied by one family, one connection without hose bib, water for domestic purposes only, exceed seventy-five cents per month; and provided further that, if any consumer or taker shall be or become dissatisfied with the flat rates at which water is being supplied him, he may, after installing and connecting a meter- of some standard make, on his premises, demand measured water, or metered service, according to the prices hereinabove fixed for measured water; and provided further that, in case the water company shall become dissatisfied with the flat rate paid for water by any consumer, it may require the said consumer to install a meter of some standard make and charge for measured water the prices above fixed. In event said- meter so installed gets out of repair, or fails to register, the consumer shall be charged at the average daily consumption as shown by the meter when in order, until same can be repaired or replaced. The minimum rate for measured water will be seventy-five cents per month.</p> <p>“Sec. 2. And the water company, its successors and assigns, are hereby required to accept and adopt the above rates.”</p> <p>In pursuance of this ordinance, the defendant, about the 1st of September, 1909, gave notice by publication that all customers and consumers of water furnished by defendant would be required to furnish, pay for and install water meters, to measure the water used by them, on or after the 1st day of November, 1909.</p> <p>Defendant, in order to facilitate the enforcement of its rules and the above ordinance, divided its consumers into classes as follows, towit: Class A. All parties who own their residence property and pay more than seventy-five cents per month for water. Class B. All persons who rent residence property and pay more than seventy-five cents per month for water. Class C. All business houses and firms who pay more than seventy-five cents per month for water. Class D. All other consumers of water.</p> <p>All the plaintiffs, except the city, belong to class A customers. In addition to the printed notice above referred to, the defendant gave to each of the plaintiffs, except the city, written notice, notifying them, that they would be required to .pay for and install at their expense, meters on their respective premises on or before the 1st day of November, 1909, which notice was sent to them by United States mail, properly addressed to each of .them, more than thirty days .before the 1st of November, 1909.</p> <p>Plaintiffs failed to put in said meters, not because they were not given sufficient time to do so, but because they were disposed to question the right of defendant to require them to install .meters at their own expense; and defendant proceeded to cut off their water supply because they failed to comply with the reasonable rules and regulations of the defendant, as above stated. Defendant states that it was compelled, for its own protection, to require said meters to be installed, as it had discovered that large quantities of water had been wasted, and were being wasted,, ■without any regard to the rights of the company; that it was costing defendant a large sum of money for fuel and other purposes to furnish water for its customers. That without the installation of meters the defendant had no means of stopping the needless waste of water by'its customers.</p> <p>The decree recites: “That the court, having heard the testimony and being advised, finds: That the city is a municipal corporation of the second class; that all other plaintiffs are citizens of said city, and are patrons of defendant water company; that on the 15th of August, 1904, the city granted to the water company a charter authorizing it for a term of thirty years to-supply water to the said city and its inhabitants, upon the terms and conditions there named. That section thirteen of said charter is as follows: ‘The maximum rate to be charged by the grantee for water shall be as follows: When the quantity used averages one hundred to one thousand gallons per day, thirty cents per thousand gallons; when the quantity used averages over one thousand gallons per day, twenty-five cents per thousand gallons. Flat rates shall be based upon the above consumption; provided however, that in no case shall the rate for private residence, occupied by one family, one connection without hose bib, water for domestic purposes only, exceed $2.25 per quarter; and provided further that if the flat rate in any case should exceed the rate established by the water company as evidenced by its book of rules * * * adopted in 1897, * * * the consumer may demand metered service according to rules and regulations of the grantee; but in no case shall measured water be furnished at a less rate than $2.25 per quarter for each taker so furnished/</p> <p>“That the printed rules and regulations * * * referred to in section thirteen, copied as above, were filed and copied with the said charter. That on the ...... day of October, 1909, * * * the water company published in The Siftmgs-Herald, a newspaper regularly published in said city, the following notice to the patrons of the water company to require them to install water meters at their own expense towit: ‘All water users are hereby notified that they will be required to put in water meters on or before the 1st day of Novembei-, 1909, according to the rules of the company. The consumer to pay for the 'meter and to pay for keeping same in repair. All who desire to continue the service on a flat rate may do so by paying double the price paid now. The city will be the only exception to this rule. This action on the part of the company is made necessary by the condition that the receipts will not pay expenses and a reasonable return on the investment, due largely to the wanton waste of water, which we have been unable to control. The approximate cost of installing a meter of any standard make, complete with meter box for residence use, will be about $16.50/</p> <p>“On the 6th of September, 1909, -the city passed and published an ordinance, as follows:</p> <p>“ ‘an ordinance.</p> <p>“ ‘Be it ordained by the City Council of the city of Arkadelphia, Arkansas.</p> <p>“ ‘Section 1. That section one of an ordinance entitled,' ‘An ordinance to fix and regulate the price and rates to be charged for furnishing water * * * in the city by the water company,’ * * * which was passed March 1, 1909, be amended so as to read as follows:</p> <p>“ 'Section 1. The maximum rate to be charged by the water company, * * * for measured water shall be as follows: When the quantity used averages from one gallon to one thous- and gallons per day, thirty cents per thousand gallons; when the quantity used averages above one thousand gallons per day, twenty cents per thousand gallons; but in no case shall measured water be furnished at a less rate than seventy-five cents per month, for each taker so furnished. Flat rates shall be based upon the above consumption, provided, however, that in no case shall the flat rate for private residence occupied by one family, one connection, without hose bib, water for domestic purposes only, exceed seventy-five cents per month. And provided that if any customer shall become dissatisfied with the flat rate at which water is being supplied him, he may, after installing a meter of some standard make on his premises, demand measured water, meter service, according to the prices as hereinabove fixed for measured water. And provided further, that, in case the water company shall become dissatisfied with the flat rate paid for water by any customer, it (the water company) may, after installing and connecting a meter of some standard make, at its (the water company’s) expense, on the consumer’s premises, require the consumer to pay for measured water at the rates above fixed for measured water. * * *</p> <p>''The plaintiffs, other than the city, prior to the 1st of November, 1909, received and had notice that the water company would require its patrons to install meters on their respective premises, at their own exp’ense, and, failing to do so, their water supply would be cut off. That said plaintiffs refused to comply with that rule, or request, because of their contention that the water company should install the said meters at its own expense. That on the 1st of November, 1909, the water company proceeded to cut off the water supply of plaintiffs because of their refusal to install meters at their expense.</p> <p>“The court finds that the said ordinance is valid, and that the above cited rule adopted by the water company, requiring its patrons to put in meters at the consumer’s expense, is in conflict with said ordinance, and is therefore unreasonable and void; that the water company has the right, if desired, to install meters at its expense.”</p> <p>Upon these findings the court rendered th.e following decree : “That the relief prayed in plaintiff’s complaint is hereby, granted, and the defendant, etc., do absolutely desist and refrain, from shutting off the water supply, obstructing or interfering with the water supply of plaintiffs. And the defendant is hereby required to continue to supply water to plaintiffs upon the terms and at the rates provided by said ordinance of the said city upon the payment to the defendant of the rates fixed by the said ordinance, or upon tender to the defendant of the said amount, or in the event the defendant shall at its own expense furnish a meter, to the service pipes of the plaintiffs or any of them, and supply measured water, then the defendant is required to continue to furnish and supply said plaintiffs water at the meter rare, as fixed by said ordinance, upon payment by plaintiffs .of the amounts authorized to be collected.”</p> <p>The appellant has duly prosecuted this appeal.</p> <p>The court should have specified some amount in which bond should be given before the injunction order was made. Kirby’s Dig. § 3975; 108 La; 204; 61 L. R. A. 781. In the absence of a bond the order is void. 42 Kan. 739; 22 Pac. 735; 45 Kan. 523; 24 Pac. 960; 82 Cal. 167; 22 Pac. 1086; 75 Tex. 180; 12 S. W. 180; Kirby’s Dig. § § 3975, 3977, 3979, 3981; 1x4 N. C. 474; 19 S. E. 367; Const. § 20, art. 7; 12 Ark. 657; 87 Ark. 45. The water company may require the consumer to provide >a meter at his own expense. 199 Mass. 118; 18 L. R. A. (N. S.) 746; 116 Wis. 606; 61 L. R. A. 33; 25 Ch. Div. 443.</p> <p>The expense of the meter cannot be imposed on the consumer. 45 N. J. L- 246. The company cannot make arbitrary charges with the penalty of forfeiture of the right to use the water. 2 Stew. Eq. 77; 1 Allen 361; 104 Mass. 95; 2 Dutcher 298. The ordinance was valid. 34 Ark. 603; 70 Ark. 221. The injunction order was properly issued. 104 Ala. 315; 16 So. 123; 49 Neb. 579; 68 N. W. 945. The meter is for the benefit of the company. 82 Cal. 286; 6 L. R. A. 756; 52 Mo. App. 312.</p>

<p>Appeal from Ashley Circuit Court; J. M. Wells, Judge;</p> <p>The motion for restitution should have 'been denied. 77 Ark. 234; 13 Ark. 234; 132 N. Y. 363; 10 Wend. 355; 24 Wend. 32; 3 Denio 130; 1 Sand. 209; 29 Barb. 87; 29 Hun 18; no N. Y. G16; 95 Pa. St. 333; 7 J. J. Marsh. 241; 84 N. C. 215; 80 N. C. 26; 90 N. Y. 199; 6 111. 435; 17 Am. Dec. 99; 9 T. B. Mon. 79; 7 N. H. 485; 28 Am. Dec. 363; 139 U. S. 276.</p> <p>The motion for restitution was properly granted. 78 Ark. 574; 60 Neb. 205; 82 N. W. 622; 77 Ark. 238; 13 Serg. & R. 41; 10 Id. 103; 2 Ves. Jr. 572; 4 Biss. 126; 6 Paige 418; 60 N. Y. S. 404; 28 Abb. N. C. 155; 65 Ark. 556.</p>

<p>Appeal from Mississippi Chancery Court, Osceola District; Edward D. Robertson, Chancellor;</p> <p>The statute of limitation does not run against the State. 13 Wall. 99; 98 U. S. 489; 16 Tex. 305; 21 Tex. 753; 27 Tex. 32; 14 S. W. 251; 124 S. W. 3S9; 94 S. W. 1014; 79 N. E. 580; 96 Pac. 673; 52 S. W. 516; 33 S. E. 328; 2 111. 106; 37 Ala. 495; 34 la. 85; 90 Ind. 359; 12 La. Ann. 645; 26 Id. 243; Kirby’s Dig. § 7039; Id. 7040. The complaint stated a cause of action. 24 Ark. 147; 58 Ark. 599; 15 Pac. 295; 55, Pac. 579; 53 N. E. 1049; 14 S. W. 668; 46 S. W. 625; 67 S. W. 693; 63 Ark. 568. If the statute of limitation runs at all against the right of the taxpayer to maintain this suit, it does not begin until two years have elapsed since the filing of the collector’s settlements. Kirby’s Dig. § 7x74; 16 Ark. 480; 49 Ark. 317; 30 Ark. 604; 21 Ark. 99; 160 Eed. 611; 1x6 N. W. 82; 61 N. W. 1096; 103 111. App. 333.</p> <p>The statute of limitation does run against a county. 65 Pac. 710; 56 Pac. 254; 39 Ark. 262; 54 Ark. 168; 41 Ark. 45; 58 Ark. 151; 37 Ala. 495; 56 Tex. 520; 62 Tex. 16; 22 Mo. 525; 56 O. St. 165; 58 Ala. 569; 62 S. W. 557; 63 S. W. 155; 52 Kan. 622. The right to prosecute this action is barred. 46 Ark. 35; 35 Ark. 555; 33 S. W. 80.</p>