Volume 96 — Arkansas Reports

<p>Appeal from Mississippi Circuit Court, Osceola District; Prank Smith, Judge;</p> <p>STATEMENT by The COURT.</p> <p>The appellee on the 14th day of May, 190S, obtained judgment against the Euxora Gin & Manufacturing Company in the sum of $476.60. Execution was issued upon the judgment against the judgment-debtor, and a return of nulla, bona was made thereon. On the 21st day of November, 1908, a writ of garnishment was issued against appellants and others, summoning them as follows:</p> <p>“To answer what goods, property, chattels and effects they, or either of them, had in their possession at the time this writ was served upon them, or that may have come into their possession since the service of this writ, belonging to the said Luxora Gin & Manufacturing Company. And they will further answer what sum or sums of money they or either of them owe the defendant, Luxora Gin & Manufacturing Company.”</p> <p>Appellants answered “that said firm of Tiger Brothers had no goods, property, chattels or effects in its possession, 'either at the time of the service of this writ or any other time within the past three years, belonging to. the Luxora Gin & Manufacturing Company, and further states that it does not owe the said Luxora Gin & Manufacturing Company any sum whatever.”</p> <p>This answer was filed December 2, 1908.</p> <p>After hearing the evidence, the court found the facts as follows:</p> <p>“First, that the Luxora Gin & Manufacturing Company is a corporation.</p> <p>“Second. That the garnishees, E. Tiger and N. Tiger, subscribed and agreed to pay par value for $500 worth of the capital stock of said corporation.</p> <p>“Third. That said E. Tiger and N. Tiger did pay the sum of $100 on their subscription to the capital stock of said corporation, leaving a balance due of $400 on said capital stock, with interest thereon at the rate-of 6 per cent, per annum, and amounting to the sum of $120 at this date, making a total, principal and interest, due from them to the said Luxora Gin & Manufacturing-Company of $520.</p> <p>“Fourth. That on the 1st day of July, 1905, said Luxora Gin & Manufacturing Company offered for sale the other $400 worth of stock owned by the said E. Tiger and N. Tiger to satisfy the balance of the unpaid subscription for the same, and, there being no other bidders, John B. Driver, the then president of said corporation, bid for said corporation the amount of said unpaid subscription, and reported the same to the board of directors. ; , 1 >■ ; i .</p> <p>“Fifth. That when the purchase of said stock by said JohnB. Driver for the said Duxora Gin & Manufacturing Compány was reported to said board of directors, the said 'board of directors expressly repudiated said transaction and refused to ratify the same.</p> <p>“Sixth. That on the 14th day of May, 1908, a judgment was rendered herein in favor of the Rogers Cotton Cleaner & Gin Company, and against the Luxora Gin & Manufacturing Company, on a promissory note for the sum of $474.60, upon which there is due a credit for the sum of $100, the amount realized from a sale of the property mentioned in said judgment.</p> <p>“Seventh. The court further finds that at the time the stock of said E. Tiger and N. Tiger in said Luxora Gin & Manufacturing Company was sold, or attempted to be sold, to satisfy the unpaid subscription thereon, said corporation was hopelessly insolvent, and continued so down to the present time.</p> <p>“Eighth. That at the time of the sale of said stock, or the attempt to sell said stock, the plaintiff was a creditor of said corporation, evidenced by the .obligation upon which the judgment of May 14, 1908, was based.” • ■</p> <p>Upon these findings of fact the court declared the law to' be that an insolvent corporation has no right, as against its creditors, to purchase its own stock, and that the purchase or attempt to purchase the stock of appellant on behalf of the Luxora Gin & Manufacturing Company was null and void against the appellee, who was then and still is a creditor of the Luxora Gin & Manufacturing Company. The court entered judgment in favor of appellee against appellants, Tiger Brothers, for the sum of $410 and costs.</p> <p>From this judgment appellants duly prosecute this appeal.</p> <p>The corporation had the right to purchase its stock. Kirby’s Dig. § 847. The suit should have been dismissed, because the insolvency of the debtor was not proved. 71 Ark. 1. No judgment can be rendered upon the answer of the garnishee. 45 Ark. 271; 52 Ark. 130; 48 Ark. 349; 42 Ark. 219.</p> <p>The failure to file additional interrogatories was a .mere error, which may be waived. 53 S. W. 44;.87 S. W. 50. Judgment against the garnishee was proper. Kirby’s Dig. § 3701; 70 Ark. 128. The statute of limitations was not raised below, and cannot be considered here. 95 S. W. 1005; 91 S. W. 555. The garnishee may plead the statute of limitations. Rood on Garnishment, § 376; 20 Da. Ann. 116; 10 Mo. 557; 32 N. H. 141; 21 Tenn. (2 Hump.) 137; 11 Wash. 527. The five years statute applies. 62 Ark. 406. A question not raised in the motion for a new trial cannot be considered here. 23 Ark. 23; 70 Ark. 429. Insolvency of the corporation was proved. 51 N. E- 605; 72 N. W. 425. Appellants’ abstract is not in compliance with rule nine. 122 S. W. 495.</p>

<p>1. Abortion — sufficiency of indictment. — An indictment for criminal abortion which alleges that defendant did unlawfully, wilfully and feloniously administer and prescribe to a certain woman pregnant with child before period of quickening a large quantity of medicine and drugs with the unlawful, wilful and felonious intent then and there and thereby to produce an abortion and premature delivery of said foetus, etc., is not defective in failing to allege that the defendant administered the medicine with the intent to cause the abortion before the period of quickening.. (Page 9.)</p> <p>2. Evidence — opinion of expert. — While a physician, as an expert witness, cannot testify as to bis opinion based upon a history of the case given to him out of the court room, it is competent to propound to him a hypothetical question based upon facts that were testified to by other witnesses in the case for the purpose of obtaining his opinion upon such facts thus proved before the jury. (Page ro.)</p> <p>3. Appeal and error — necessity of objection to evidence. — Where an improper answer of a witness to a proper question was not objected to, and no request was made to have it excluded, its admission cannot be objected to on appeal. (Page 10.)</p> <p>4. Witnesses — cross examination.- — -It is competent, on cross examination of a medical witness, to submit to him hypothetical questions to -test his competency, as well as to affect his credibility. (Page 11.)</p> <p>5. Same — competency of rebutting evidence. — Where the defendant had sought to contradict the prosecuting witness in a prosecution for abortion by introducing a letter which seemed to contradict her testimony, and which defendant claimed was written by her, it was competent for the prosecuting witness to prove that the letter was written by one of her relatives, and that she had told such relative the facts therein contained, and also that the charges .therein made against defendant’s relatives were true. (Page 11.)</p> <p>6. Accomplice — effect of remaining silent. — The mere fact that one remains passively silent after being informed of a ctime, without intending to shield the criminal, does not make him an accessory to the crime. (Page 12.)</p> <p>7. Trial — argument.—A statement by the prosecuting attorney in an abortion case that the defendant told two witnesses that he had administered medicine to the prosecuting witness to produce an abortion, and that it was undenied in the case, ,and defendant could not deny it, was not objectionable as referring to the fact that the defendant had not testified in the case. (Page 13.)</p>

M. Barker, Chancellor ; STATEMENT BY THE COURT. The Felsenthal Land & Townsite Company is a corporation owning a tract of land in Union County, Arkansas, near the town of Felsenthal, which it proposed as a townsite, and platted into lots. These lots were offered for sale.

Carter, Judge; Unless appellant has released or waived its lien, appellee is liable. 89 Ark. 342. A release must be based on a consideration'. 96 Ala. 454; 31 Ark. 728; 84 Ark. 592. A waiver must either be supported by a valuable consideration or operate by way of estoppel. 72 Ark. 525. A ratification must be with full knowledge of all the circumstances. Jo N. J. L. 808; 64 Conn. 5541 55 Ark. 423.

<p>Real estate brokers — when agent's authority exclusive. — Where a broker is given the right to sell certain land for a definite period of time, it will be implied that his right to sell during that .time is exclusive, and the revocation of his agency, either directly or by making a sale of the property, renders the owner liable to the agent for his commission.</p>

Appellee sued appellants, alleging that on the 17th day of September, 1907, appellants bought of appellee 673,750 sixteen-inch red cedar shingles at $4.03 per thousand; that said shingles were diverted to the appellants on the 18th day of September, 1907; that appellants refused to receive them, to the damage of appellee in the sum of $162.60, for which appellee prayed judgment. Appellants’ answer was a denial of all the material allegations of the complaint.

Lila E. Robinson brought suit against the Arkansas Midland Railway Company to recover damages on account of the alleged negligence of said railway company in failing to provide a safe platform for its passengers. The railway company answered her complaint, and denied the alleged ground of negligence, and alleged contributory negligence on her part.

This is a suit brought by E. A. Ramsey, administrator of the estate of S. J. Calhoun, deceased, against the St. Louis, Iron Mountain & Southern Railway Company.

S. Maples, Judge; If property of the State is erroneously assessed to an individual and sold for his delinquent taxes, the conveyance will neither pass title nor affect the rights of the State. Black on Tax Titles, 54. A forfeiture of State land for taxes is void, and one holding a donation deed based thereon acquires no title. 75 Ark. 146.

The plaintiff (appellee) sued the defendant (appellant), alleging that in 1906 he sold a certain lumber business, saw mill, lumber, timber and logs, at Quinton, Oklahoma (then In-dian Territory), to William Knowlton, who agreed to pay therefor the sum of $1,030, evidenced by note and contract; that immediately after said transaction plaintiff entered into an agreement with the United Walnut Company (defendant), whereby the note and contract were made payable to defendant,…

S. Maples, Judge on Exchange; 1. In order to avail himself here of any objection to testimony introduced at the trial, appellant must not only have objected to the testimony when offered or given, but also have obtained a ruling thereon and saved his exceptions. 72 Ark. 371; 73 Ark. 407.; 65 Ark. 107; 76 Ark. 276; 36 Ark. 635; 52 Ark. 180; 74 Ark. 256. 2.

Taylor and Robinson were accomplices. The testimony of one accomplice cannot be used to corroborate the testimony of the other. 2. ■ It was error to admit testimony to show that appellant had been convicted of another offense. It was inadmissible. 67 Ark. 112; 65 Ark. 278; 66 Ark. 494; 68 Ark. 606; 76 Ark. 302.

Where the indictment charges the defendant with taking fish with a trammel net, and the proof shows that they fished with a hoop or barrel net, there is such a variance as will not sustain a conviction. 14 N. E. 643; 13 Ark. 62; 29 Ark. 299; 34 Ark. 160; 60 Ark. 141; 61 Ark. 115; 62 Ark. 516; 55 Ark. 389; Id. 242; 26 Eed. Cas. 15,403; 17 Am. Rep. 40; 19 111. 74; 90 Ky. 637; 8 So. 624; 16 Pac. 417; 23 S. E. 619; 105 S. W. 200; 82 N. E. 226; 126 S. W. 598; 22 Cyc. 456. 2.

Martineau, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellant, as receiver of the People’s Fire Insurance Company, against appellees, State National Bank and L. W. iCherry. When the suit was instituted, R. S. Hamilton was also a party defendant, but his death abated the suit as to him.

This was an action instituted by the appellees to recover for the rent of a two-story brick store house situated in the city of Fort Smith. The original complaint was filed in May, 1909, and sought to recover the rent for the month of April, 1909.

Steel, Judge; The former adjudication was admissible in evidence, and was conclusive. 2 Black on Judg., ■§ § 784-788; 1 Freeman on Judg., § 282. The statements made by counsel were improper and prejudicial. 87 Ark. 461; 61 Ark. 138; 58 Ark. 473; 48 Ark. 131; 70 Ark.'305; 71 Ark. 427; 74 Ark. 256; 75 Ark. 577. There was no former adjudication unless the cause of action was the same. 64 Ark. 301; 18 Ark. 142; 62 Ark. 76; 55 Ark. 286; 66 Ark. 336.

Martineau, Chancellor; 1. It is settled that an injunction will lie to restrain the collection of illegal or unauthorized taxes, and the court therefore had jurisdiction. Kirby’s Digest, § 3966; art. 16., § 3, Const.; 124 S. W. 1021; 126 S. W. 727. 2. A county board of equalization must complete its work before the .first Monday in October. Kirby’s Digest, § 6998, § 1499 sub-div. 1 and 6, § 1500.

M. Barker, Chancellor; The testimony does not support the findings of the chancellor. It should be “full, clear and conclusive.” Appellees’ possession was merely incidental to their logging contract with Tatum, and was' not sufficient to take this’ case out of the statute of frauds. 31 Ark. 481. Where one purchases land' with his own money, no contemporaneous or subsequent parol declaration of a trust can affect the title. 42 Ark. 503.

Carter, Judge; 1. There is nothing in the contention that the indictment is defective' because the instrument alleged to have been forged was- not indorsed. It was not necessary to prove that it was endorsed. 91 Ark. 485; 77 Ark. 537. 2. The appearance of the statutory phrase “against the peace and dignity of the State of Arkansas” in the body of the indictment, at a place where it does not belong, does not vitiate the indictment.

Meeks, Judge; 1. When a party signs his name, either as maker, acceptor, indorser or drawer, to a negotiable instrument and intrusts it to another to fill up the contract, he confers upon that other, in favor of bona ñde holders for value, the right to complete the contract at pleasure, and to bind the party so signing same. 22 How. 97; Id. 108; 40 O. 529; 2 Baxt. (Tenn.) 92; 9 Heisk. (Tenn.) 781; 7 Cyc. 529; Id. 619; 35 Ark. 146; 33 Ark. 712; 1 Mete.

H. Bvans, Judge; When, on September 17, appellants notified appellees of the acceptance of their order, the offer and acceptance became a binding contract. 24 Am. & Eng. Enc. of L. 1030; 47 Ark. 519; Clark on Contracts, 42, 43; Lawson on Contracts, 21. The railway company, on delivery of the goods to it, became the agent of the purchaser. 51 Ark. 137, and cases cited.

Shaver, Chancellor; Ecclesiastical decisions are binding on the 'Courts so far as concerns ecclesiastical questions. 91 Tenn. 328; 92 Fed. 214; 106 Pac. 395; 129 Ga. 1; 154 111. 394; 58 111. 509; 23 111. 456; 13 Wall. 679; 2x8 111. 503. The local church is bound by the orders and judgments of the courts of the church. 102 Tex. 324. Union among churches is a perfectly legitimate part of their purpose and their freedom. 41 Pa. 9; 88 Pa. 60.

<p>Lrror to and appeal from Logan Circuit Court, Southern District; Jeptha H. Evans, Judge;</p>

If the appellant took the property in good faith believing it to be his own, there was no larceny; the felonious intent to steal did not exist at the time of the talcing. And if this intent did not exist at the time of the taking, its subsequent formation would not constitute larceny. 13 Ark. 1Ó8; 40 Am. Rep. 790; 55 S. W. 334; 70 Ark. 204; 69 Ark. 454; 60 Ark. 5; 34 Ark. 334.

Shaver, Chancellor ; 1. A payment of a judgment, voluntarily made, cannot be recovered, even though the judgment be afterwards reversed. The rule is well stated that when a person without mistake of fact or fraud, duress, coercion or extortion, pays money on a demand which it not enforceable against him, the. payment is deemed voluntary and cannot be recovered. 86 Ark. 175; 72 Ark. 555; 49 Ark. 70; 34 S. W. 173; 105 S. W. 286; 118 Pa. St. 455 J 4 Am.

The record of the lodge was sufficient evidence of the fact that a change of beneficiary was asked for and granted. In the absence of an allegation of fraud, oral testimony was not admissible to show whether or not the change was really asked for. 127 S. W. (Ark.) 974. 2.

Steel, Judge; statement by the court. This is an action brought by Thos. Cox & Sons Machinery Company, a domestic corporation, against J. R. Forshee, J. W. Brock, D. Geiser and J. C. Bullard to recover the sum- of $699.68 and the accrued interest, alleged to be due upon a promissory note.

Carter, Judge; 1. The court erred in sustaining the demurrer to the substituted answer. A plea of no consideration is good without stating the circumstances attending the execution of the contract sued on. 34 Ark. 172; 6 Ark. 412; 10 Ark. 273; 11 Ark. 308; 15 Ind. 15; 60 Barb. 346; Newman’s PI. & Pr., 543; 31 Ark. 657; 60 Ark. 612.

<p>Appeal from Yell Circuit Court, Danville District; Hugh Basham, Judge;</p> <p>1. Where there is a shortage or deficiency between two established government corners, it should be apportioned to each subdivision lying between such established corners, and not placed wholly on the lot or subdivision lying on the west line of the section. Rev. Stat. U. S. § 2396; Tiedeman on Real Prop. (3 ed.), § 596; 19 Wis. 452; 2 la. 153; 67 111. 306; 31 la. 488; 44 Kan. 354; 137 Ind. 319; 48 Wis. 75; 92 N. W. 1013.</p> <p>2. The statute of limitations does not apply in this case. It is conclusively shown that appellee held the strip under the belief that it was a part of his tract, and not with any intention of holding any part of appellant’s land. 72 Ark. 498. Having pleaded the statute, the -burden of proof was on the appellee. 86 Ark. 309.</p> <p>1. It is the surveyor’s duty to make his survey conform to the -original (government) survey.' Kirby’s Digest, § 1146. By the government rule, in surveying public lands as many full forties are laid off within the section as it is susceptible of, and if there is 9any shortage it must be placed upon the exterior west or north tiers of forties. Public Domain, 193, 602, 671; 30 Ind. 306; 30 Ala. 245; 57 Mo. 317.</p> <p>2. The line established by Hunt’s survey on January 7, 1901, and agreed upon by appellant’s father and appellee, settles this controversy. Adjoining owners may by parol fix a line which will be binding upon them, even though their possession under such agreement may not continue for the full statutory period. 8 Am. & Eng. Ann. Cas. 83, and authorities cited; 136 U. S'. 1074; 4 Wheat. (U. S.) 513; 62 Ark. 629; 71 Ark. 248; 15 Ark. 342; 75 Ark. 400, 405; 72 111. 113; 14 N. Y. St. 312; 68 Kan. 607; 35 Tex. 801; 91 Mo. 457; 138 Cal. 394; 11 Johns. (N. Y.) 123.</p>

<p>1. Lost instrument — parol evidence. — -Where a will is admitted to have been lost, parol evidence of its existence and effect is admissible. (Page 172.)</p> <p>2. Appeal and Error — chancery cases.- — Though appeals from chancery-courts are tried de novo, a chancellor’s findings of fact will he sustained unless clearly against the preponderance of the evidence. (Page 174.)</p> <p>3. Evidence — hearsay.—In an action involving the title to land testimony of witnesses that they understood that a certain person owned the land in controversy was inadmissible, being hearsay. (Page 175.)</p> <p>4. Same — declarations as to title. — While declarations of a person going to show the character and extent of his possession are competent, his declarations as to his title are not competent for the reason that they are self-serving declarations. (Page 175.)</p>

Steel, Judge; 1. The purpose of the act is to punish for a failure to support or provide for the family, and not to punish a failure to consort with them. Two elements must exist before the offense is complete, failure to provide or make provision for, and desertion and abandonment. “And” means “in addition to.” 156 111. 241; 80 Ala. 95. 2.

Wells, Judge; 1. Proof of threats and ill will is not alone sufficient to authorize conviction in cases of homicide. 21 Cyc. 1008. Strong probability or suspicion is not sufficient, but the proof must be such as to satisfy the mind of a reasonable person to a moral certainty or beyond a reasonable doubt. 21 Cyc. 1006. - 2.

47 Ark. 442; 61 Ark. 407; 73 Ark. 600. The right to recover costs did not exist at common law. 60 Ark. 194. Defendant’s motion should have been stricken from the files. 7 Ark. 121; 12 Ark. 635. The statute requiring nonresidents to file bond for costs is not mandatory. 11 Ark. 9. This petition can not be controverted by answer. 19 Ark. 121. There was no motion for a new trial, and no bill of exceptions taken; consequently there is nothing before this court. 36 Ark. 456.

Hays, Judge; The -contract, by reason of its lack of mutuality in the corresponding undertakings of the parties, is unenforeible. 64 Ark. 398; 93 Mich. 491; 29 Am. Rep. 530; 7 Am. & Eng. Enc. of E. (2 ed.), 114; 90 Ark. 509. The contract is mutual.

77 N. W. 601; 31 Mich. 270. The verdict should have been for appellant. 25 Tex. 594; 4 Tex. 38. The verdict is void for uncertainty. 32 Tex. 330; 32 S. W. 1048; 72 Tex. 5; 19 Tex. 148; 5 S. W. 556; 55 S. W. 379; -40 S. W. 345; 107 Ga. 152; 4 Barr 196. It is the duty of the jury to decide the point in issue. 4 How. 131; 32 Ha. 1271; 4 Tex. 492; 100 Me. 342; 16 Tex. 18.

Shaver, Chancellor; 1. The city had the authority to pass the ordinance in question. Kirby’s Digest, § § 5438, 5528-29, 5648, par. 4. The term “butcher” or “butcher shop” is embraced in the word “market.” 73 Mich. 661. It is unreasonable to assume that the Legislature had only in view the regulation and superintendence of public markets, in the technical sense of the word, as distinguished from “butcher shops.” 58 Pa. St. 119; 60 Pa. St. 445; 20 Am. Law Reg.

<p>Appeal from Washington Circuit Court; Daniel Hon, Judge on exchange of circuits;</p> <p>STATEMENT by The court.</p> <p>On the 5th day of November, 1909, the grand jury of Washington County returned an indictment against each of the appellees, charging him with the offense of gaming on the 17th day of October, 1909, and by consent the cases were consolidated and tried together before the circuit court sitting without a jury.</p> <p>Appellees entered a plea of former conviction, which was sustained by the court, and the State has appealed.</p> <p>The cases were tried in the circuit court at its May term, 1910. Two of the appellees were introduced as witnesses by the State, and testified that all the appellees had committed the crime of gaming in the city of Fayetteville, in Washington County, on divers and sundry days during the four or five months preceding the 17th day of October, 1909.</p> <p>The appellees, to sustain their plea of former conviction, introduced witnesses to prove the following state of facts:</p> <p>On the 17th day of October, 1909, the chief of police saw the appellees gaming in the city of Fayetteville, and reported them to the city attorney. On the 25th day of October, 1909, the city attorney filed an affidavit in the police court of said city, charging each of appellees with the offense of gaming on or about the 17th day of October, 1909. A warrant of arrest was issued and served upon appellees on the same day. The appellees appeared in the police court on the same day, and entered their pleas of guilty, but, the city attorney being absent on account of attendance in the circuit court, judgment was not pronounced; and the court announced that the cases would be continued from day to day until the city attorney could be present. On the nth. day of November the city attorney and the appellees' appeared in the police court. The pleas of guilty of appellees were not withdrawn, but two of the appellees were sworn and examined as witnesses. They testified that all of the appellees had committed the offense of gaming on the 17th day of October, 1909. They also testified that all of the appellees had been guilty of gaming on 'divers and sundry occasions within the four or five months preceding that time. They gave the dates and place where this occurred. The police court did not require the city attorney to make an election, and said that it was his custom in cases of this kind to examine witnesses and find out about the nature and extent of the crime committed. He said that, while he knew that indictments had been returned against appellees charging them with gaming, he did not try to bar indictments in the circuit court.</p> <p>By their plea in the mayor’s court, the defendants only confessed themselves to be guilty of the crime of gaming on the 1 Jth day of October, 1909. 12 Ark. 169. To render the plea of former conviction availing, the court must not only have jurisdiction, but the proceedings must be regular. 32 Ark. 726; 56 Ark. 367; 70 Ark. 74; 48 Ark. 34. See also 42 Ark. 35; 43 Ark. 70; Id. 372; 94 Ark. 211. The proceedings in the mayor's court, the form of trial there gone through, notwithstanding the plea of guilty previously entered, were but a mere evasion, not in good faith, but intended to bar indictments pending in the circuit court.</p> <p>The police court acquired jurisdiction prior to the finding of the indictment, and, 'the charge being gaming on or about *the 17th day of October, 1909, and the proof showing all the games played by the defendants within one year next preceding, and no election having been made, the conviction in the police court was a bar to the indictments, and the' plea was properly sustained. 65 Ark. 38; 72 Ark. 419.</p>

<p>1. Master and servant — assumed risk. — Where an experienced miner was injured by the fall of an overhanging rock, which was defectively propped, it was error to instruct the jury that if he knew the dangerous condition of the rock but did not appreciate the danger therefrom he did not assume the risk, since if he knew that the rock was defectively propped he must also have known that it was dangerous for him to go under it. (Page 209.)</p> <p>2. Instructions — reeusar oe specific instruction. — It is error to refuse to give a specific instruction clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted. (Page 212.)</p> <p>3. Same — presenting apperrant’s theory. — It was error to refuse an instruction which properly presented appellant’s theory of the case. (Page 212.)</p> <p>4. Master and servant — presumption oe negrigence. — In the absence of a statute to that effect, no presumption of negligence arises from the fact that an employee is injured while at his work. (Page 212.)</p> <p>5. Instructions — repetition.—It is not error to refuse to repeat instructions. (Page 212.)</p> <p>6. Master and servant — assumed risk. — Where a mine owner delegates to a servant the duty to inspect the car track and entries in the mine, and to report their unsafe condition to the mine foreman, and the servant neglected to perform this duty, he assumes the risk of injury from his negligence. (Page 212.)</p>

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

Appellee’s anxiety, as shown by the proof, was without real foundation, due to her imagination, and was not that mental anguish for which the law will award compensation. Mental anguish “contemplates suffering in mind over the real ills, sorrows and griefs of life.” 83 Ark. 476; Id. 39; 90 Ark. 268. 2. Appellant is not liable for mental anguish due to special circumstances, notice of which was not communicated to it. 79 Ark. 331 14 111- App. 531.

<p>Appeal from Union iCircuit Court; George W. Hays, Judge;</p> <p>If an administrator makes payment or distribution under an order which is void, or which orders distribution before the debts are paid, he is not protected. 18 Cyc. 632. If a sale is not made for the payment of debts, the proceeds, if needed therefor, must be applied to the debts. Id. 334.</p> <p>The judgment against the administrator, on which the scire facias was sued out, is conclusive against the bondsmen. 18 Cyc. 1190; Id. 1192; Id. 1272; Id. 1274; 46 Ark. 265-6.</p> <p>J. C. Wright was not a distributee, but a creditor of the estate. There can be but one construction of the order of April 15, 1901- — that is, that the sale was made for the sole purpose of paying his debt and another. But one meaning can be given the order of April 14, 1902, that is, it was an order directing the pay of his claim with the land or .proceeds. If this order was not specific, it must be construed with the order directing the sale and the report of sale. 23 Cyc. 1101, 1102, 1104.</p> <p>The order directing the application of the proceeds was a final order, and appealable. 92 Ark. 616; 74 Ark. 81. Not having been set aside in term time, nor appealed from, all .matters included therein became res judicatae, and the later order, that 'of July, 1906, was a nullity. 14 Ark. 244; 1 Ark. 497; 6 Ark. 282; 10 Ark. 241; 39 Ark. 482; 12 Ark. 95; 89 Ark. 163; 53 Ark- 3*6; 23 Ark. 444; 40 Ark. 393; 20 Ark. 526; 36 Ark. 401.</p>

<p>Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>A. W. Cheatham filed his complaint in the St. Francis Chancery Court, alleging his lawful possession of a certain portion of the Rinden farm known as the Posey field, under a lease from W. R. Taylor and Rena Taylor to E. W. Arterberry, and prayed an order enjoining the appellee, the J. W. Beck Company, from interfering with his right to peaceably occupy and cultivate said field until dispossessed in manner and form as the law directs, etc.</p> <p>The J. W. Beck Company answered, also making its answer a cross bill against A. W. Cheatham, R. R. Pettus, W. R. Taylor and Rena Taylor, claiming right to possession of the same premises under a lease from the Taylors dated August 4, 1906, which described the land as follows:</p> <p>“A tract of land known as the Rinden farm is intended to and does include all the lands in cultivation, as well those lands that are now leased to parties to be cleared as those that are now cleared, and especially the lands leased to Joe Meyers and E. W. Arterberry, and also all lands that are suitable to be cleared and put in cultivation.”</p> <p>The answer denied the allegations of the complaint. The cross complaint alleged that Cheatham and Pettus had refused to pay to appellee the annual rent, which had been demanded.</p> <p>The prayer of the cross bill is for judgment against A. W. Cheatham and R. R. Pettus for two years’ use and occupation of the Posey field and Hughes residence, and also for possession of said premises, or, in the event that the lease from the Taylors to Arterberry be held valid, then that the Taylors be required to bring into court the outstanding rent notes executed by it and submit to a credit of $435 for each of five years, etc.</p> <p>To the cross bill A. W. Cheatham and R. R. Pettus filed their separate answer, denying the claim of the J. W. Beck Company, and claiming the right to use and occupy said premises under .a lease from the Taylors to E. W. Arterberry, dated September 2, 1905, and afterwards transferred by Arterberry to R. R. Pettus. Also claiming that Taylor on September 2, 1905, delivered to Pettus the notes given by Arterberry for annual rent of the land, with directions to collect the notes as they should fall due and credit the proceeds on Taylor’s indebtedness to Pettus.</p> <p>W. R. Taylor and Rena Taylor filed their separate answer to the cross bill, admitting execution of the lease contract to. the J. W. Beck Company and setting up the defense that, as both the Arterberry and Myers leases would expire during the life of the lease to Beck Company, “it was expressly agreed between the parties to the lease that the Beck Company should be entitled to the possession and use of the Posey field, the E. C. Hughes residence, the Arterberry lease and the Joe Myers lease, after the expiration of the several leases under which said lands were held,” and prayed that the contract be reformed and corrected to conform to the real intention of the parties.</p> <p>The court adjudged “that the lease contract should not be reformed, and that the defendant, the J. W. Beck Company, is entitled to recover on its cross bill; and that the J. W. Beck Company is entitled to the rent from the Posey field during the life of the Arterbery lease which will expire with the year 1910, and that R. R. Pettus is entitled to the use of the same at a rental of $225 per annum;” that “for the year 1910 the J. W. Beck Company is entitled to the use and possession of the E. C. Hughes residence.” Judgment was entered against R. R. Pettus for the possession of the E. C. Hughes residence, also, for $225 per year, or three years, $675 for use of Posey field, with interest $47.64, and aggregating $722.64.</p> <p>An appeal was granted to all defendants to the cross bill,</p> <p>1. Appellee, not having made actual entry into possession either of the Posey field or Hughes residence under their lease from the Taylors, should not maintain this action for use and occupation, or for possession. 18 Am. & Eng. Enc. of R. (2 ed.), 211, 453; 33 N. J. R. 55; 10 N. Y. 479; 91 N. W. 793.</p> <p>2. When Taylor delivered to Pettus the Arterberry rent notes with directions to collect same and apply the proceeds to the credit of Pettus’ debt against the Taylors, the notes became a pledge or collateral security for so much of their debt to Pettus, conferring upon him a special property in the notes, a right to their possession and a lien upon the proceeds which was paramount to the rights of other creditors, purchasers or assignees of the Taylors. 38 Ark. 285; 49 S. W. 541.</p> <p>Where a landlord leases land and afterwards conveys it without .reservation, his right to the rent passes to the purchaser, and the tenant must attorn to him. 10 Ark. 9. Likewise, if he leases to one party for a term, and afterwards, while this lease is unexpired, makes a second, or “over-lease,” to another party for .a longer term, the second lessee is considered as a grantee of the reversion, and is entitled to the rents agreed to be paid by the first lessee. 18 Am'. & Eng. Ene. of L-, 283 ; 1 Tiffany, Landlord and Tenant, 872.</p> <p>The landlord may dispose of accruing rents to one person and of the reversion to another who may be either a grantee or second lessee. 1 Tiffany, Landlord and Tenant, IT05, et seq.</p> <p>To Tender an over-lease effective as a grant of the reversion, there must be an attornment by the first lessee to the second lessee, otherwise the latter acquires only an interesse termini. L. R. 1 Eq., 403; 4 Coke, 52. It appears by the testimony that the rent was severed from the reversion long before the date of appellee’s lease. 76 Ala. 298; 90 N. C. 245; 71 111. App. 309; 1 Tiffany, Landlord and Tenant, 1107, and authorities cited; 133 Mich. 617; 34 Mich. 292; 113 Mich. 449.</p>

Carter, Judge; statement by the court. The appellant was convicted of the crime of false pretenses.

<p>Appeal from Sebastian Circuit iCourt, Fort Smith District; Daniel Hon, Judge;</p> <p>By the allegations of his complaint and his own testimony appellee has shown that the injury resulted from his own negligence. 61 Ark. 556; 65 Ark. 236; 69 Ark. 139; 49 k. 458; 64 Ark. 363; Id. 360; 61 Ark. 620; 79 Ark. 228; 80 Ark. 188; 91 Ark. 18; 94 Ark. 524; 95 Ark. 190; 127 S. W. (Ark.) 715; 65 Ark. 239; 84 Ark. 275; 125 N. Y. 407; 103 Ind. 312; 9 Fed. 867; 95 U. S. 542; 60 N. W. 57'; 128 Ind. 138; 105 Mass. 77; 24 Atl. 747; 42 N. W. 24; 7.5 N. Y. 273; 25 Mich. 274.</p>

<p>1. Cancellation op instruments — jurisdiction.—The right to a cancellation of instruments is exclusively equitable, is often granted as ancillary and preliminary to the final relief by which a party’s primary right, estate or interest is established or enforced, and is exercised to remove an obstacle which stands in the way of one’s right, interest or estate. (Page 263.)</p> <p>2. Same — instruments void at law. — The equitable relief of cancellation of instruments may be resorted to even in the case of instruments void at law except where the invalidity of the instrument is apparent on its face. (Page 263.)</p> <p>3. Equity — jurisdiction in probate matters. — Equity-has no jurisdiction over the settlement of a guardian, while it is still pending in the probate court. (Page 264,)</p> <p>4. Cancellation op instruments — sufficiency of evidence. — An executed conveyance will not be cancelled unless the ground for cancellation is established by evidence that is clear, unequivocal and decisive. (Page 264.)</p> <p>5. Wills — election.—Where a will leaves property to a devisee and at the same time undertakes to convey property belonging to him to another, the devisee is required to elect whether he will take under the will or reject the provision of the will and retain his property. (Page 266.)</p> <p>6. Will — revocation of Election — restitution.—Where an infant heir elects not to take under his father’s will, and asks that a settlement with his father’s widow, made in pursuance of the provisions of such will, be set aside for fraud, he must offer to restore what he received under that will. (Page 267.)</p>

<p>Appeal from Pulaski Circuit Court, Second Division; P. Guy Pulk, Judge;</p> <p>“The liability of the principal to indemnify his surety is a debt contracted within the meaning of the statute, and arises at the time when the surety signs the note,” etc. 10 Cyc. 858. A surety may secure the same debt several times in succession when it is renewed by the debtor, but it is not his debt nor his renewal, and each time he secures it he enters into a new contract with his principal.</p> <p>Where an indebtedness has been extended from time to time 'by the execution of several renewal notes, the date of the contracting of the debt relates back to the date when the first note was executed. If the first note was executed before any annual report became due, or while the corporation was not in default, then no cause of action against the officers accrued to the payee of the note or to the surety thereon. Thompson, Com. Gorp., par. 4222; 101 U. 9. 188; 10 Cyc. 858; 106 Mass. 131; 16 Gray 142. The giving of a note in renewal of a previous note is not a payment of the first note, and does not create a new indebtedness, in the absence of an agreement to that effect. 5 Ark. 569; 48 Ark. 267; 51 Ark. 300; 68 Ark. 233; 84 Ark. 220.</p>

Since this is a civil action, and boith parties reside in the Western District of Clay County, and the cause of action, if any, arose there, the circuit court of Clay County for the Eastern District… Held: and has been held since before the passage of the act, in the Eastern District of the county.

Appeal fro-m Baxter Chancery Court; George T. Humphries, Chancellor; statement by the court. This was an action instituted by one of the minority stockholders of a business corporation for the purpose of making one of its directors and officers account for the alleged misappropriation of its funds, and to declare him a trustee of certain property claimed to have been purchased by him with its money.

<p>1. Corporations — when ultra vires no defense. — That a corporation exceeded its charter powers in becoming a surety for another cannot be pleaded by the principal who received the benefit of such contract. (Page 310.)</p> <p>2. Same — WHEN ultra vires no defense — Where a corporation became surety for another, and took a mortgage to indemnify itself, and paid the debt secured, neither the mortgagor nor her grantee can insist, in a suit to foreclose such mortgage, that the corporation exceeded its charter powers in becoming a surety for another. (Page 3io.)</p> <p>3. Principal and surety — judgment against surety — effect.—A judgment against a surety on a bond, though by consent, is prima facie evidence of the amount of the surety’s liability in a suit against the principal to foreclose a mortgage given by the principal to indemnify the surety against such liability. (Page 311.)</p>

<p>1. Carriers — running train at unusuae speed. — Ordinarily, it is not negligence per se to run a train at an unusual speed in a town, but the question is one of fact for the jury. (Page 314.)</p> <p>2. Instructions — effect of confiect. — The giving of a correct instruction will not cure an erroneous one where the two are directly conflicting. (Page 314.)</p> <p>3. Carriers — dutv to passenger at station. — The exercise of ordinary care is the measure of the duty of a railroad company toward its passengers while waiting at a station to take a train; the duty of using the highest degree of care being exacted only during the time in which the passenger is on the train or is getting on or off. (Page 315.)</p>

Mandamus to Pulaski Circuit Court; F. Guy Fulk, Judge; Kirby’s Digest, § 6225, settles the duties of the trial judge with reference to signing the bill of exceptions. If the bill of exceptions presented is true, he must allow and sign it; if not true, it is his duty to correct it, or cause it to be corrected, and sign it.

Hutton, Judge; 1. The court s-hould have instructed the jury to return a verdict for the defendant. The contract, as appears by the first three paragraphs, is without consideration on the part of appellee. 2. The case should have been transferred to equity -because of the mistake in reducing the agreement to- writing, which was not -discovered until after the -commencement of this action. 71 Ark. 484; Kirby’s Digest, •§ 5995.

Wells, Judge; statement by the court. The appellee was a section foreman on appellant’s railroad. He sued appellant for malicious prosecution, alleging that on the 8th day of April, 1908, plaintiff was in the employ of defendant railroad company as section foreman, and was stationed at Portland, Arkansas.

Prohibition to Jackson Circuit Court; Charles Coffin, Judge; STATEMENT BY THE COURT. This is an application for a writ of prohibition directed to the judge of the circuit court of Jackson County. The application is made by J. S. Jones, clerk of the county court of Jackson County.

Bernhardt, Special Judge; statement oe the court. The appellee, according to the evidence of himself and other witnesses, was in the act of boarding one of appellant’s combination freight and passenger trains at Watson station for the purpose of taking passage to Yoncapin.

Hays, Judge; The owner of the 'horse having died .before the, trial, the court was without authority to assess the statutory damages against appellant in favor of the owner of the horse. 23 Ark. 152; 56 Ark. 324; 11 111. 211; 32 111. App. 226; 6 Mo. App. I35l 39 Ark. 104; 51 Ark. 83. The right to enter judgment for the penalty abated at the death of the owner. 1 Cyc. 47, 48, note 51; Id. 50; 41 Ark. 295.

Elliott, Chancellor; 1. The ordinance of 1887 is a contract which comes within the protection of that clause of the Federal Constitution which prohibits the passage of laws impairing the obligations of contracts. 172 U. S. 1, 9; 70 Ark. 300, 303; 208 U. S. 590; 181 U. S. 142; 189 U. S'. 207. The contract does not place the burden of installing service pipes upon the water company.

Humphreys, Chancellor; 1. Before one can be held liable for services rendered, there must have been at least an implied contract. 128 SW. 1036. In order that an acceptance may be effective after a refusal, the offer must have been renewed. 119 U. S!. 149; Clark on Contracts, 53. 2. Appellants are not estopped.

Wells, Judge; Whether there was actual or express malice was a question for the jury, and instructions which take away this question from the jury are erroneous. 56 Ark. 494-501; Id. 94-98. The burden of proving malice is on the plaintiff. Newell on .Slander, 827, 323; 129 S. W. 807. Where express malice on the part of the defendant is not shown by the evidence, exemplary or punitive damages can not be recovered. 25 Cyc. 536 (b) (1) ; Id. 539 (5); 56 Ark. 94.

Wells, Judge; 1. Two separate .and distinct causes of -action were set up in the complaint, one for the benefit of the estate and the -other for the benefit of the next of kin. The court erred in overruling the demurrer. 53 Ark. 117; 59 Ark. 215. And this error is not -cured by the consolidation act of 1905, p. 798. 2. If the deceased died from any -other cause than that alleged in the -complaint, there can be no recovery.

Carter, Judge; 1. Where the answer admits a material allegation in a complaint, no pro-of is necessary on that point, -and the allegation should go -to the jury as evidence. 31 Cyc. 214; Kirby’s Digest, § § 6137, 6138; 41 Ark. 17; 46 Ark. 132; 73 Ark. 344; 11 Am. & Eng/Enc. of Law, (2 ed.), 488; 134 U. S. 241; 59 Cal. 97; 40 Pac. 491; 20 Am. St. Rep. (Col.) 290; 38 111. 409; 66 N. Y. (Hun) 12; 90 N. Y. 110; 40 S. W. (Mo.) 1030 28 Pac. 201; 103 U. S. 262. 2.

Carter, Judge; The. court erred in refusing to transfer the cause to equity, in striking out paragraphs five and six of the answer, and that part of paragraphs seven and eight relating to tihe payment of levee taxes for the year 1906. Kirby’s Digest, § 6098.

Carter, Judge; As to “supplies,” there has been no attempt to comply with the iron-safe clause of the. contract. This word necessarily includes stationery, ink and things of like nature used in the business of the insured. 44 Am. St. Rep. 893; 68 N. Y. Supp. 781. Every word used in the contract should be given a reasonable meaning, to the end that the intention of the parties may be given effect. 3 Fed. 560; 18 R. R. A. 97; 12 N. Y. Sup. Ct. (5 Duer), 594; 3 Ark. 252.

Carter, Judge; STATEMENT BY THE COURT. The plaintiff, M. H. E. Beckley, brought this suit against the defendants, A. J. Miller, W. N. Adams, W. E. Adams, E. M. Hall, R. E. Major and J. M. Adams, to recover the sum of $506.40, alleged to be due him by the defendants for labor done and materials furnished in the erection of a school building in Arkadelphia. No service was had upon the defendant, A. J. Miller.

It is not claimed nor shown that there was an unreasonable -delay in shipment; or that the damages claimed resulted from such -delay. In the absence of an express contract as to time of transportation, the -carrier is held only to transport within a reasonable time by the use of all convenient dispatch. 41 Ark. 476; 2 Hutchinson on -Carriers, § § 651-2-3. 2.

<p>1. Master and servant — assumption oe risk. — An instruction to the effect that if a miner knew that there was a dangerous quantity of gas in an entry where he was -told to work he did not assume the risk therefrom unless he appreciated the danger of working there was erroneous in a case where the miner, being experienced, must have appreciated the danger of working if he knew that there was a dangerous quantity of gas. (Page 390.)</p> <p>2. Evidence — hearsay.—Where it was a question whether defendant’s vice principal ordered a certain brattice to be removed from an air course in a mine, such fact cannot be proved by proving that one of defendant’s employees had said that the vice principal had given, such a direction. (Page 392.)</p> <p>3. Master and servant — negeigence oe feeeow servants. — Prior to the fellow servant’s act (Aets 1907, p. 162), corporate employers were not liable to their servants for injuries caused by the unauthorized and negligent act of a fellow servant. (Page 393.)</p> <p>4. Limitation op actions. — amended complaint. — Where the original complaint was not barred by the statute of limitations, the statute will not be a defense against an amended complaint which did not set forth a new cause of action, but merely amplified the original complaint. (Page 393.)</p>

Carter, Judge; Giving the evidence of the plaintiff the consideration most favorable to him, there was a question of fact as to whether he was guilty of such negligence as to preclude a recovery, which should have gone to the jury. 89 Ark. 222; 76 Ark. 138; 57 S. E. 764; 39 S. E. 569- Plaintiff’s attempt to cross the track between the cars to which an engine was attached, or, if not attached, was likely to be at any moment, was contributory negligence as a matter of law, and…

The writ coram nobis should have been allowed. Its purpose was to produce testimony, either before this court or the court below, discovered after the trial and judgment, which completely exonerated defendant from any crime. The motion therefor has merit and shows due diligence. 2. The testimony of Bradley, as explained, and of Osborne shows that the logs were not branded, and there was no testimony connecting defendant with the taking of the logs. 69 Ark. 545. 3.

<p>1. Evidence — varying writing by parol — distinction between receipt and release. — While a receipt is only prima facie evidence of payment, and may be rebutted by proof that no payment was in fact made, a release, which is an express agreement in writing for a release of enumerated demands or of all demands, is binding unless set aside on account of fraud or mistake, and cannot be contradicted or varied by oral testimony. (Page 408.)</p> <p>2. Same — contradicting receipt by parol. — An instrument which contains no element of a release of all demands, but is merely an account for balance on claims and a receipt for the money paid in discharge thereof, may by parol evidence be shown not to have included a certain item. (Page 409.)</p> <p>3. Same — RES inter alios acta. — A judgment in a former suit between plaintiff and a stranger is inadmissible as an adjudication of plaintiff’s rights, so far as concerned bis claim in the. action against the defendant. (Page 409.)</p> <p>4. Appeal and error — question not raised below. — A question as to the validity of plaintiff’s contract with defendant, not raised in the trial court, cannot-be raised on appeal. (Page 409.)</p>

<p>1. County courts — jurisdiction—bridges.—Section 28, art. 7, Const. 1874, conferring upon county courts “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, etc.,” is not violated by Acts 1909, c. 119, authorizing parts of Sebastian and Crawford counties to be constituted as the Fort Smith and Van Burén District for the purpose of building a free bridge across the Arkansas River between For.t Smith and Van Burén, and providing that, after the bridge is constructed, the county courts of Crawford County and of the Fort Smith District of Sebastian County may take it over and maintain-it as a public highway. (Page 414.)</p> <p>2. Locae improvement — bridge.—A public bridge, as well as a street in a city or a highway in the country, is of great benefit to the traveling public, but it may also be of special benefit to adjoining lands so as to justify special assessments thereon to defray the expense of its construction. (Page 416.)</p> <p>3. Same — area.—There is nothing in the Constitution which forbids the creation of an improvement district embracing parts of two counties. (Page 417.)</p> <p>4. Same — taxation—uniformity.—The constitutional requirement of uniformity in taxation is satisfied when assessments for local benefits are imposed with substantial or approximate equality upon all standing in like relation. (Page 418.)</p> <p>5. Same — assessment—conceusiveness.—Acts 1909, c. 119, § 7, providing that the assessment of benefits in the two localities upon opposite sides of the Arkansas River should “bear the same proportion to each other which the assessments of real estate in said divisions of said district bear to each other as determined by the last county assessment of said divisions of said district,” is a legislative determination that the two localities will be benefited in the same proportion that their assessments bear to each other, and will be binding in the absence of any showing that this determination was incorrect or unjust. (Page 419.)</p> <p>6. S'amB — liability of homestead. — Special assessments for local improvements are “taxes” within section 3, art. 9, Const. 1874, providing that homesteads shall not be subject to the lien of any judgment or to sale under execution except, among other things, for -taxes. (Page 420.)</p> <p>7. Same — tax as paramount lien. — Acts 1909, c. 119, -providing that the lien for assessments shall be superior to the liens of prior mortgages, etc., does not impair the obligation of contracts, as every property owner holds his property subject to the exercise of the taxing power. (Page 431.)</p> <p>8. Same — consent of land owners. — While the Constitution requires that the creation of improvement -districts in cities and towns must be based on the consent of a majority in value of the property owners, no such constitutional requirement is imposed in the case of improvement districts formed outside of cities and towns. (Page 422.)</p> <p>9. Same — conclusiveness of commissioners' finding. — Acts 1909, c. 119,- § s, providing that the commissioners therein provided for shall find whether the petition for the proposed improvement contained a majority in value of the land owners of said district, and shall so declare, and shall proceed to carry out the act, the finding of the commissioners upon this subject is conclusive, and cannot be reviewed by the courts. (Page 424.)</p> <p>10. Same — public bridge — grant of right-of-way over. — Acts 1909, e. 119, § § 2, 39, is not void for providing that the commissioners of the Fort Smith and Van .Burén District shall have the power to grant a right-of-way over said bridge to any public utility, and to receive rents therefor, but that such concession shall not interfere with the reasonable u-se of such bridge as a public highway. (Page 425.)</p>

Wells, Judge; 1. A void judgment rendered by the county court can lawfully be vacated after the term in which it was rendered has expired. 89 Ark. 160; 23 Cyc. 697. 2. Any voter has the right to be made a party to the record to contest a county seat removal proceeding. 54 Ark. 409; 72 Ark. 394; 23 Cyc. 697. 3. The judgment was' void because no sufficient abstract of title accompanied the petition.

Shaver, Chancellor; All the disputed facts in this case are settled by the court’s decree in favor of appellant. That it erred in its findings of law appears from the findings of fact. The judgment of revivor upon the scire facias was as effective as an adjudication as other judgments, and can not be collaterally avoided for any mere error or irregularity. 2 Freeman on Judgments, § 448; 43 S. C. 440; 1 Edw. Ch. (N. Y.), 497; 35 Cyc. 1159.

<p>1. Negligence — independent contractor — liability after acceptance of work. — The general rule is that, after a contractor has turned work over to the proprietor, he incurs no liability to third persons by reason, of the condition of the work, a'nd the responsibility for its subsequent maintenance is shifted to the proprietor. (Page 443.)</p> <p>2. Same — independent contractor — sufficiency of acceptance of work. — The rule that the liability of a contractor ceases when he turns over the work to the proprietor does not require formal acceptance; the liability of -the contractor ceases with the practical acceptance after completion of the work. (Page 444.)</p>

<p>Appeal from Union Circuit Court; George W. Hays, Judge; „</p> <p>The sheriff was never instructed not to return the execution, and the rule announced in 74 Ark. 413, does not apply. The instruction given by one of plaintiff’s attorneys not to advertise and sell the property does not excuse the failure to make return. 35 Cyc. 1725, par. 22; 47 Ark. 373; 22 Ark. 524.</p> <p>Where the failure to fully perform his statutory duty by the sheriff is 'due to the conduct or instructions of the plaintiff in execution or his attorney of record, the sheriff is not liable. The execution is under the control of the plaintiff and his attorney, and the officer must follow instructions. 24 N. J. L. 542; 84 111. App. 132; 63 Ind. 428; 2 Swan (Tenn.), 82; 7 Humph. (Tenn.), 189; 7 Heisk. (Tenn.), 579; 25 Am. & Eng. Enc. of Eaw (2 ed.), 692; Id. 466; Murfree on Sheriffs, par. 969, 969a; 41 N. W. 1097; 50 111. 58; 77 N. Y. 466; 74 Ark. 413.</p>

The statute of the forum does not 'begin to run until the defendant comes within the jurisdiction in which the suit is brought. The time elapsing between the accrual of the right of action in the foreign State and the acquiring of residence in the State -where suit is brought forms no part of the statutory period. 2 Vern. 540; 13 East 439; 126 Ala. 616; 28 So. 620; 4 Conn. 47; 24 Conn. 432; 3 Kan. 26; 9 S. W. 507; 55 Me. 230; 12 Neb. 471; n N. W. 729; 3 Johns.

Carter, Judge; 1. A judgment upon the merits of a .controversy is binding upon all parties and privies, and is a complete bar to any new action, suit, defense, setoff or counterclaim involving the same matter. 24 Am. & Eng. Enc. of Daw, (2 ed.), 710; 19 Enc. PI. & Pr. 736. 2. Appellee’s -defense is ibarred by the former recovery. 24 Am. & Eng. Enc. of Daw (2 ed.), Tit. Res Judicata; 85 Md. 8. 3.

<p>Appeal from Pulaski Chancery Court; John B. Martineau, Chancellor;</p> <p>The decree foreclosing the mortgage against the homestead was erroneous. Mandelbaum in dealing with Stevenson was bound to inquire into the nature and extent of his authority. 62 Ark. 33; 19 Am. Dec. 94. Moreover, he was put on notice by Stevenson’s own statement that he, Mandelbaum, was not surrendering the shares of stock for the benefit of appellant. Steele on Agency, § 82; 53 Ark. 135; 79 Ark. 401. Appellee is not in the position of an innocent purchaser without notice, 'because Mandelbaum, her agent, it is clearly shown, acted with notice that there was no consideration passing to appellant. He could not be a bona fide holder of the note and mortgage because they were not taken in the due course of trade or of business. He acquired no better title than Dickinson or Stevenson, who had none. 47 Ark. 363; 3 Am. St. Rep. 205; 16 Id. 661; 48 Id. 400. An equitable lien could not be created upon the homestead merely by the deposit of' the mortgage. 3 Pomeroy (3 ed.), § 1265.</p> <p>1. Neither appellee nor his agent had ever been notified of the termination of Stevenson’s agency, and they were justified in the belief that he was still appellant’s agent with power to act in the substitution of the collateral. 31 Cyc. 1639, 1640; 24 Pa. Sup. Ct. 396. And the evidence shows that she ratified his act.</p> <p>2. Appellant is estopped to deny the validity of the note and mortgage in the hands of appellee. 42 Ark. 24; 7 Cyc. 799; 11 Ark. 285; 33 N. J. Eq. 338; 63 N. J. Eq. 549, 53 Atl. 139; 63 N. E. 751; 86 Pa. 80; 1 Parson, Eq. Rep. 248; 60 N. E. 983. There is no allegation nor proof of bad faith on the part of Mandellbaum' in the purchase of the note, and the burden of proving that it was not taken in good faith was on the appellant. 1 Daniel, Neg. Inst., § 776; 2 Wall, no; Tiedeman on Commercial Paper, § 289; 61 Ark. 81. Mere knowledge of facts that would raise a suspicion as to the validity of the paper or gross negligence on the part of the taker at the time of the transfer is not sufficient to impair the buyer’s title. 30 S. W. 1077; 96 U. S. 58. Purchaser of negotiable paper is not bound to make inquiry, though dealing with an agent. 1 Daniel, Neg. Inst., § § 771-775. The fact that no consideration moved to the principal 'does not defeat estoppel. 102 111. 84-86. See aíso 105 Mo. App. 384; 79 S. W. 1013; 16 Cyc. 728.</p>

<p>Appeal from Nevada Circuit Court; Jacob M. Carter, Judge;</p> <p>statement by the court.</p> <p>Horatio Burnett, a minor, by his father and -next friend, John C. Burnett, brought this suit against H. H. Darling and C. P. Darling, partners under their firm' name of Darling Brothers, to recover damages for injuries sustained by him while employed at the sawmill of the defendants.</p> <p>Evidence was adduced by him to prove the following facts: On the 16th day of March, 1909, he went to the sawmill of the defendants to secure employment. At that time he was 19 years old. He had worked around the mill before that, trucking, stacking and off-bearing lumber. He was employed, and was given the job of running the “bull-wheel,” which was a machine used for drawing logs up the chute to the saw. When large logs were being drawn up, it frequently happened that the belt became loose. Burnett says that he had been directed by C. C. Darling to tighten the belt by holding it down with a pinch bar; and that he did not know the dangers attending the work. While so engaged, he sustained the injuries for which this action was brought. There was no idler on the belt. An idler is a pulley that runs on top of the belt to hold it down. While operating the bull-wheel, Burnett stood on a plank platform, which was about five feet above the ground. He had to go about six feet from this platform to the place where he held the belt down with the pinch bar. He walked on planks and over the line shaft to get there. The shaft was about two feet from the ground.</p> <p>At the time Burnett was injured he had been engaged in holding 'down the belt with a pinch bar; and while doing this he stood across the shaft with each foot on a sill. There was a collar on the shaft which was fastened to it with a set-screw. When the log had been pulled up, Burnett started to return to his platform at the bull-wheel. Burnett said:</p> <p>“I stood on sills when I was using the pinch bar; they were oily; about as oily as anything gets to be; it run 'out of the boxes onto the sills. I had pulled the log up before I was hurt, and went to come back out there, and the set-screw caught my pants leg right at the bottom- at the side of the left foot, and wound my pants’ leg up. The pulley kept pulling, and got up as far as it could, and got me down, and the belt commenced slipping, and the pulley stopped.”</p> <p>It is not claimed that the verdict is excessive, and for that reason it is not necessary to abstract the testimony showing the character and extent of Burnett’s injuries.</p> <p>Evidence was adduced by the defendants to prove that they had told Burnett and their other employees not to go in behind the line shaft and hold down the belt; that such action was dangerous and would cause them to get hurt; “that, if the belt would not pull the logs, to stop the -mill, cut the belt and replace it so that it would pull the logs.”</p> <p>There was a -verdict and judgment for plaintiff in the sum of $500.; and defendants have duly prosecuted an appeal to this court.</p> <p>1. Appellee’s own testimony shows that he was apprised of the danger incident to the work and appreciated the same. Where a servant has such knowledge and appreciation, there is no duty resting upon the master to warn and instruct as to such dangers. 124 S. W. 524; 56 Ark. 232-8; 6 h. R. A. 733-5.</p> <p>2. The court should have given the fourth instruction requested by appellant without modification. 51 Ark. 469; 58 Ark. 206; 48 Ark. 348; 77 Ark. 405; 84 Ark. 377; 85 Ark. 237; 88 Ark. 20; 126 S. W. 1005; Id. 322; 1 L/abatt, Master & Servant, § 363; 26 Cyc. 1245.</p> <p>Both as to patent as well as to latent dangers, it is the master’s duty to warn and instruct young and inexperienced employees. Knowledge of the danger does not imply appreciation of the same. 90 Ark. 473. The evidence does not establish that appellee appreciated the danger.</p>

Shaver, Chancellor; 1. A judgment of a justice of the peace can not be superseded after the expiration of 30 days from the rendition of the judgment. Kibby’s Digest, § § 4665, 4666, and 4667. 2. The chancery court was without jurisdiction, the appellee having a full and complete remedy at law. 52 Ark. 445; 34 Ark. 354; Id. 291; Kirby’s Digest, § 3224; 8 Ark. 52; 58 Ark. 314; 48 Ark. 510; Id. 331.

Evans, Judge; 1. There was no legal obligation upon appellant to exercise care to make the use of the cotton warehouse platform safe for appellee. This case does not fall within the doctrine announced in Brinkley Car- Co. v. Cooper, 60 Ark. 545, and 70 Ark. 331-5, and the court’s instruction numbered 1 is erroneous. 48 Ark. 491-3, and cases cited; 77 Ark. 561; 89 Ark. 122; 69 N. H. 649; 57 Ark. 461; 101 Pa. 258; 7 Texas Civ. App. 65; 26 S. W. 474; 90 Ark. 278. 2.

<p>1. Evidence — presumption that officer does duty. — The law presumes that every officer does his duty and that in his official acts he has not exceeded his authority, and if he can act only in a certain contingency that ■ such contingency has happened. (Page 479.)</p> <p>2. Sheriffs and constables — assault—presumption—burden of proof. —In an action against a constable for unlawfully killing plaintiff’s decedent it was not error to refuse to instruct that if the decedent was unhurt when taken into custody, and was found to be hurt before his trial on the next day, the defendant must show how he was hurt, as such instruction would overturn the presumption that an officer does his duty, and change the burden of proof in such cases. (Page 479-)</p>

<p>1. MASTER' — EFFECT OF reference. — Where the record in a chancery case shows that a special master was appointed by agreement of the parties, without stating what was referred to him, it will be inferred that the court’s order intended to invest him with the powers and to charge him with the duties prescribed by Kirby’s Digest, § 6333, which are to take testimony and state an account between the parties according to the facts. (Page 489.)</p> <p>2. Appeal and error — conclusiveness of consent master’s findings.— Findings of fact of a consent master are as conclusive as the verdict of a jury or the findings-of fact by a court sitting as a jury. (Ijage ' 489-)</p> <p>3. Same — conclusiveness of master’s findings of law. — Where questions of law were not expressly referred to a consent master, the parties are not bound by his conclusions of law. (Page 489.)</p> <p>4. Master — reference—questions of law. — Where the parties consented to the appointment of a master, but did not expressly consent that questions of law should be referred to him for decision, it is the duty of the court to determine such questions. (Page 489.)</p> <p>5. Abstracts op title — construction of contract.' — Under a contract whereby plaintiff, undertaking to abstract the title to defendant’s lands, agreed to give a complete transcript of all special acts of Congress, or of the State, plaintiff was not required to abstract the act of Congress of September 28, 1850, granting swamp lands to the States, nor the act of Congress donating internal improvement lands, nor the several statutes of this State curing defective conveyances and acknowledgments. (Page 490.)</p> <p>6. Same — construction of contract. — Under a contract requiring plaintiff to make a complete transcript of special acts, he is not entitled to charge for a summary of a special act. (Page 490.)</p> <p>7. Same — construction of contract. — Under a contract requiring the plaintiff to abstract all matters affecting vitally or historically the title to defendant’s lands, and fixing the charge therefor, plaintiff was not required to abstract the minutes of the St. Francis Uevee Board, nor the delinquent lists of the levee tax collectors, since the decrees of the chancery court foreclosing the lien of the levee tax were conclusive of all matters adjudicated therein. (Page 491.)</p> <p>8. Same — charge For transfers. — Under a contract whereby an abstracter of titles was entitled to charge for each “transfer” of land, the abstracter is entitled to charge, as for separate transfers, for each selection and approval of swamp lands, for the patent to the State, for the entry in the State land office of the patent to individuals; so also for a contract to convey, as well as for the deed executed pursuant thereto. (Page 491.)</p> <p>9. Same — construction of contract. — Where plaintiff prepared the contract under which he sought to charge for abstracting “tax forfeitures,” the contract should be construed against him, and should not be held to include all antecedent steps with reference to the assessment of taxes. (Page 491.)</p> <p>10. Same — charge for transfers. — Under a contract whereby plaintiff was to transcribe tax deeds, but to charge for them as transfers of title, regardless of the number of pages used in copying them, plaintiff was not entitled to charge by the page for copying such tax deeds. (Page 492.)</p> <p>11. Same — construction of contract. — Under a contract which provided for the preparation of abstracts of title of “all decrees, orders of court, tax forfeitures, and miscellaneous matters appearing in each and every abstract, of record or on file, .affecting vitally or historically, the title to 'the land embraced therein,” the abstracter was not entitled to charge for abstracting records which did not vitally or historically affect the title to the land. (Page 492.)</p> <p>12. Same — correction oe inaccuracies — Where an abstracter offered to correct inaccuracies in his abstracts as soon as his attention was called thereto, and still -offers to do so, he should not be charged, as -against his claim for compensation, with the expense of having such corrections made by -others. (Page 492.)</p>

H. Evans, Judge; Appellant is not liable because (-1) the proof shows that R. G. Daniels bought and owned the Majestic Theater individually; (2) that he did not contract this debt in the name of the appellant; (3) it does not show that the by-laws or minutes of the corporation gave him any authority to purchase and operate theaters for appellant, or (4) that it held him out as having such authority. 62 Ark. 42. 1.

The answers of 'deceased to questions propounded to him with reference to, his habits as to drinking intoxicants being false, and knowingly and wilfully so, as appears by the proof, he thereby perpetrated a fraud, and the certificate issued to him and the assumption of risk by the insurer, were void ah initio, and this fraud was material to the risk. 58 Ark. 529, 532, 535, 540, 544 and cases there cited; 72 Ark. 621, 623; 66 L. R. A. 322, 334.

S. Maples, Judge; 1. Negligence is but an inference or conclusion drawn from facts alleged and proved, and a complaint should contain, not conclusions or inferences of law, but a statement, concise in form, from which they are drawn. 41 Mich. 435; 66 N. W. 842; 10 Minn. 151; 26 Pac. 560; 41 Atl. (N. J.) 710; 43 Atl. (R. I.) 536; 14 Enc. PI. & Pr. 335; Id. 336.

Steel, Judge; The agency of Campbell could not be established by proof of statements made by him to the effect that he was such agent. 31 Ark. 212; 33 Ark. 251. 1.

M. Barker, Chancellor; STATEMENT BY THE COURT. This is a suit in chancery commenced on the 12th day of August, 1909, by D. E. Morgan against E. J. McCuin, Mrs. N. McCuin and Neely Burton. The purpose of the action was to reform a certain deed executed by Morgan to Burton, and to recover possession of the land in controversy. E. J. McCuin claimed no title to the property, and the suit was discontinued as to him.

Haden Humphreys, Chancellor; In view of the court’s finding that' appellant was deprived of its appeal in the case at law by accident and mistake, without negligence on its part, there is left but one question on this appeal, i. To the first count of the complaint at law the appellant pleaded the statute of frauds as a defense, and the court’s refusal to properly instruct the jury on the statute of frauds, as requested in appellant’s offered instruction No. 3, deprived it of…

Elliott, Chancellor; 1. Appellant has acquired title, under the act of March 18, 1899, having color of title to the land beginning with the year 1874, the same being wild, unimproved and unoccupied for a period of over 30 years, and no improvements having been placed thereon until the year 1902; having also paid all taxes thereon since the year 1869, and especially the taxes thereon for each year in succession from the year 1894 to the year 1901, inclusive. 82 Ark. 51; 78…

Steel, Judge; 1. The evidence does not sustain the verdict. The facts that Mr. Wade was riding the mare a large part of the time, that the .two horses were kept together at his house all the time when he was not riding, that appellee never assessed the mare as her property nor did any one for her, and Wade’s claim to divers persons that he owned the mare, are inconsistent with a claim of a gift.

.Appeal from Perry iChancery Court; Jeremiah G. Wallace, Chancellor; 1. There is no proof that appellee was the wife of Powell at the time of the execution of the mortgage, and, since three years elapsed between the execution of the mortgage and his death, the fact that she was his wife at the latter date does not warrant the presumption that she was his wife at the former date.

The decision of this court on former appeal, 87 Ark. 628, left no question at issue but the one whether or not, under the emergency shown, the engineer acted with ordinary care. The fourth instruction, given by the court, errs in that it eliminates -the question of the engineer being in the exercise of ordinary good care when under the emergency -existing he believed it would be safer not to blow the whistle or ring the bell. 60 Ark. 586. 2.

Hays, Judge; In a prosecution of this kind where the only questions at issue are the age of the prosecutrix and the fact of the intercourse, the production of the child of the prosecutrix witness before the jury is improper.

<p>Appeal from Benton Circuit Court; /. S. Maples, Judge;</p>

H. Collins, Special Chancellor; The claim to priority for wages was not defeated by the assignment of the account. 19 Am. & Eng. Ene. of L. 2d Ed. 25; 2 Id. 1052, note Laborers’ Liens; 18 Wall. 659; 104 Cal. io; 36 Me. 384; 54 Miss. 286; 60 Ala. 448; 83 Ala. 266; 1 Jones on Liens, ¶ 990; Id. § 991; 37 Ark.- 511; 71 Me. 113; 36 Am. Rep. 299; 31 Me. 134; 4 Cyc. 72; 107 U. S. 596; 111 U. S. 776; 25 Cyc. 678. The lien was personal, and could not be assigned. 27 Ark. 564.

Hutton, Judge; statement by the court. Lindsay Jones, by N. A. Ford, his mother and next friend, brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries received by him while attempting to hoard one of defendant’s local freight trains.

<p>1. Acknowledgments — conclusiveness.—Where a grantor appears and makes an acknowledgment before an officer authorized to take acknowledgments, the recitals of the officer’s certificate, regular on its face, are, in the absence of fraud or duress, conclusive of the facts therin stated. (Page 566.)</p> <p>2. Same — fraud—burden of proof. — The burden of showing that a certificate of acknowledgment of a deed was procured by fraud or duress rests upon him who attacks such certificate, and the evidence to sustain such charge of fraud or duress must be clear, cogent and convincing. (Page 566.)</p> <p>3. Same — proof of fraud. — Testimony of a married woman that she acknowledged her husband’s deed because she was told that only by doing so could she get anything for the land is insufficient to prove that her acknowledgment, was procured by fraud or duress. (Page 566.)</p>

■ Appeal from Benton Circuit Court; J. S. Maples, Judge; 1. It was error to include several garnishees in one writ without alleging a joint liability or indebtedness. 17 Ark. 364; 37 Ark. 478. 2. It was error to proceed to trial and judgment without first an issue being raised as to the allegations in the answers of the garnishees, and notice thereof given to them. Kirby’s Digest, § 3700; 19 Ark. 241; 48 Ark. 349; 67 Ark. 347.

Humphries, Chancellor; statement by the court. This suit is by Reota Haynes, formerly Reota Arnold, for 80 acres of land, and for the canceling of certain conveyances of same, and for an accounting of the rents and profits. Benjamin F. Arnold died in 1895 in Randolph County, leaving him surviving, appellant, his only child and heir, about five years old, who afterward married Haynes.

Robertson, Chancellor; If the conveyance of the land from R. D. Hancock to his wife was void for fraud, it avoided the whole conveyance. At the death of both R. R. Hancock and his wife without issue, the land lost the character of a homestead, and the court erred in setting off as a homestead the one acre tract at the suit of collateral heirs. 70 Ark. 69; 21 Cyc. 624; Id. 458; 47 Ark. 403; 55 Ark. 139; Wait on Fraud.

Carter, Judge; 1. The third instruction requested -by defendant was correct and should have been given. 51 S. W. 238; 81 S. W. 33. 2. The testimony of the witness Tuland -that at the time of the shooting he heard some one exclaim “Oh, don’t!” without identifying who it was, either by sight or sound of voice, was improperly admitted. 43 Ark. 289; 71 Ark. 112; 56 Ark. 326. 3.

<p>1. Deeds — reservation of life estate. — A deed reserving a life estate in the grantor, and providing that the deed shall be absolute at the grantor’s death, is valid. Lewis v. Tisdale, 75 Ark. 321, followed. (Page 592.)</p> <p>2. Evidence — declarations oe grantor. — The acts and declarations of a person in possession of a tract of land are admissible to show the character and extent of his possession, but not to contradict his deed to another. (Page 593.)</p>

H. Collins, Special Chancellor; 1. Under the facts in this case, the only valid indebtedness secured by the mortgage was the two five thousand dollar notes upon which appellant was surety. This being true, appellant would be subrogated to the entire rights of the mortgagee, and entitled to priority of payment. 1 Jones on Mortgages (2 ed.) ¶ 88i; Baylies on Sureties & Guarantors, 368, 369, § 5; 27 Cyc. 1070; Id. 1065. ' 2.

S. Maples, Judge; statement by the court. On the 9th day of December, appellees gave to the agent of appellant a written order for a pair of scales to be shipped to them at their place of business at Sulphur Springs in the State of Arkansas. The order was addressed to appellant at its place of business at Toledo, Ohio, and contained a provision that the order should not be countermanded.

<p>1. Adverse possession — extent.—Where the evidence shows that the owner of a certain quarter section by parol gave it to the appellee, who took possession of a part thereof by virtue of such gift, her possession, being referable to the gift, extended to the boundaries of the land. (Page 612.)</p> <p>2. Levees — delinquent taxes — validity oe sale. — A sale of land for taxes due the St. Francis Levee District under Acts 1895, c. 71, was void where neither the owner residing in the county nor her tenant in possession was made a party to the suit to collect such taxes. Van Btten v. Dougherty, 83 Ark. 534, followed. (Page 613.)</p> <p>3. Gifts — attempt of donors administratrix to sell. — A donee of land was not required to take notice of a proceeding in the probate • court to sell her land as part of her donor’s estate. (Page 613.)</p> <p>4. Estoppel — silence.—The owner of land, in possession under a parol gift, who knows that the property is being advertised for sale as the property of her donor’s estate is under no obligation to seek out a prospective purchaser and notify him of her title. (Page 613.)</p>

<p>1. Insurance — benefit insurance — defense.—Where the defense to a suit upon a benefit certificate was that the insured was in arrears to the benefit society, and therefore not entitled to sick benefits, such defense was not a technical one, and it was error to instruct the jury that “technical defenses to actions upon insurance policies are not regarded with favor by the courts.” (Page 617.)</p> <p>2. Instructions — when abstract instructions prejudicial. — Where abstract instructions are misleading, they will be held to be prejudicial, and will cause a reversal of the judgment. (Page 618.)</p>

John Carbaugh, who lived in Fort Smith, Arkansas, was a contractor, and engaged in the building of houses. He also was-engaged in the manufacture and sale of brick. The Fort Smith Biscuit Company had instructed its president to let a -contract to iCarbaugh for the building of its factory and two ovens. Carbaugh was unable to procure one O’Neal, a stone contractor, to lay the foundation of the building.

<p>1. Jury — examination—presumption.'—Where the record recites that certain jurors were duly selected, sworn and impaneled as members of the jury, it will be presumed on appeal that they were examined under oath as to whether they were qualified jurors. (Page 628.)</p> <p>2. Appeal and error — harmless Error. — If it is competent to impeach a witness by proof that men were allowed to visit her house during all hours of the night, the exclusion of such testimony was not prejudicial where the witness herself testified substantially to the same effect. (Page 628.)</p>

Carter, Judge; x. It was error to permit the witness Sutton to detail the conversation and statement of John Easter in the absence of the defendant. The general rule does not apply in this case because a conspiracy was not proved — no testimony of a conspiracy to which defendant was a party except the statements of this witness, who, by his own testimony, was an accomplice, accessory and co-conspirator, 77 Ark. 444, 450; 3 Greenleaf. on Ev.

Hays, Judge; 1. It was error not to adjudge in appellant’s favor interest on the amount of the debt found by the jury to be due to appellant from May 30, 1908, to the date of the judgment. 32 Ark. 612-616; Kirby’s Dig. § 5379; 36 Ark. 355-64; 46 Ark. 87-95; 43 Ark. 275-84; 89 Ark. 41-45. 2. The court also erred in failing to adjudge in appellant’s favor the penalty or damages provided for by the statute.

Steel, Judge; 1. The statutory duty to give signals for the protection of persons at highway crossings does not apply to any except public highways, and if, in this case, there was a failure to give signals, it was not negligence. Kirby’s Dig. § 6595; 3 Yeates (Pa.) 417, 421; 3 Ore. 97; 8 Pac. 907; 7 N. Y. Sup. Ct. 289, 312; 7 Pick, (Mass.) 162, 164; 3 Elliott, Railroads, 335, § 1158; 64 N. Y. 535; 189 111. 559; 62 Md. 479. 2.