Volume 98 — Arkansas Reports

<p>1. Bills and notes — liability of drawee. — The payee of a check, unaccepted, cannot maintain an action upon it against the bank upon which it was drawn, as there is no privity of contract between them. (Page 7.)</p> <p>2. Same — liability of drawer oe check. — The action of a drawee hank in paying a check upon a forged indorsement purporting to be the payee’s did not constitute an acceptance thereof nor release the drawer from its payment. (Page 8.)</p> <p>3. Same — notice oe presentment and nonpayment. — Where a drawee bank paid a check upon a forged indorsement, and the check was returned to the payee who, at the drawer’s suggestion, again presented the check to the drawee bank which refused payment, the drawer was not discharged by the payee’s failure to give notice of presentment and nonpayment, as such notice would have been of no benefit to the drawer. (Page 9.)</p>

The demurrer to the complaint should have been sustained because there was no sufficient allegation of fraud. 2. Plaintiff has failed to establish, by any proper evidence, any agency in Jones further than that of solicitor to procure purchasers for the lots. In the absence of proof that the written instruments had been lost, destroyed or could not be procured, oral testimony was inadmissible to prove the various transfers and the property conveyed. 77 Ark. 177; Id. 244.

<p>Appeal from. Madison Chancery Court; T. Haden Humphreys, Chancellor;</p>

<p>1. Instructions — general and specific. — It is reversible error to refuse a specific instruction applying the law to the facts of the case, although the law is covered by general instructions, unless it affirmatively appears that no prejudice resulted. (Page 21.)</p> <p>2. Master and servant — instructions.—Where, in an action against a master for 'negligently causing the death of plaintiff’s intestate, the defendant asked a proper and specific instruction to the effect that plaintiff can not recover unless defendant was negligent, a modification by the court which made the care due by the master to depend upon the decedent’s contributory negligence was erroneous and misleading. (Page 22.)</p>

<p>1. Trial — transfer oe cause. — Where, in an action for the balance due under a contract for work, defendant asked for a reformation of the contract to conform to the agreement of the parties, the action was properly transferred to equity. (Page 27.)</p> <p>2. Equity — jurisdiction—reformation of instrument. — Equity has jurisdiction to reform an instrument alleged to have been fraudulently altered. (Page 28.)</p> <p>3. Reformation of instrument — when relief granted. — The mere negligence or omission .to read or know the contents of a writing is 'not necessarily a bar to reformation; the relief being proper when the instrument fails to conform to the agreement between the parties, through mutual mistake or mistake coupled with fraud, however the mistake may have been induced. (Page 28.)</p> <p>4. Same — laches.—E¡aPse of time will not bar an action to reform an instrument on account of fraud or mistake until discovery of the fraud or mistake or until it ought to have been discovered. (Page 28.)</p> <p>5. Same — sufficiency of evidence. — To justify or authorize the reformation of a written instrument on account of mistake, the proof must be clear, unequivocal and decisive. (Page 28.)</p>

Carter, Judge; 1. Proof of death while in possession of fend is prima facie proof of seizin in fee. 33 Ark. 150; 31 Ark. 334; 21 Ark. 62; 40 Ark. 108; 62 Ark. 51; 64 Ark. 100; 65 Ark. 422; 15 Cyc. 38; 39 N. W. 980. A complaint which alleges that plaintiffs- are owners of the land and entitled to- immediate possession thereof, and that defendant is in wrongful possession thereof, states a cause of action. 107 Pac.

H. Evans, Judge; The master is required to use ordinary care only to furnish safe and sufficient tools, appliances and instrumentalities with which the servant is to work. 80 Ark. 68; 35 Ark. 602; 46 Ark. 567; Laibait, on Master & Servant, 86. The testimony shows that_ the plank used was sufficient, in the location where it was placed, for the purpose intended, i. e., to assist the oiler in oiling the machinery. 85 Ark. 60.

V. Bourland, Chancellor; 1. A director of a special school district can not lawfully receive pay out of the funds of the district for services as a member of the building committee of the school board in supervising the erection of a school building. Kirby’s Dig. § § 7685, 7687, 7692. 2.

Hence the inquiry in this case is whether there were false and fraudulent representations with reference to material matters affecting the value of the stock transferred, unaffected by appellant’s official connection with the bank. 53 N. J. L. 656; 53 D. R. A. 769.

Carter, Judge; 1. An uncle has no insurable interest in the life of a nephew. 116 S. W. (Mo.) 1; 25 Cyc. 705.

Steel, Judge; There is no abstract of the pleadings, nor of the motion for new trial; only a portion of the evidence and only two of the instructions. Without an exploration of the transcript the court can not determine whether or not prejudicial error was committed. The judgment should be affirmed for noncompliance with rule 9. 93 Ark. 85; Id. 426; 92 Ark. 41; Id. 144; 93 Ark. 213; 92 Ark. 245; 90 Ark. 230; 83 Ark. 359.

<p>Guardian and ward — sale oe ward’s land — jurisdiction oe equity..— The act of April 16, 1873, lodged in the circuit court all the jurisdiction -that had formerly been possessed by probate courts, and gave to the former court exclusive jurisdiction thereof. The act of April 22, 1873, gave to guardians or curators power to sell the lands of wards for reinvestment. Const. 1874, art. 7, § 34, provides that “the judge'of the county court shall be the judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estate of deceased persons, executors, administrators, guardians, persons of unsound mind and their estates as is now vested in the circuit court or may be hereafter prescribed by law.” Held, that equity has no jurisdiction to order the sale of a minor’s land for reinvestment, though it has jurisdiction to prevent waste of a minor’s estate.</p>

<p>1. Negligence — intervening act of child. — Where an explosive is carelessly left where it is picked lip by a child incapable of committing an act of negligence and carried to his companion who explodes it, and is injured, the causal connection of the original act of negligence in leaving the explosive is not broken by any intervening act of negligence and is the proximate cause of the injury. (Page 76.)</p> <p>2. Same — use oE dangerous substance. — Tlie necessary «se of a dangerous substance, such as an explosive, in a careful manner in the operation of a lawful business, does not constitute negligence. (Page 77.)</p> <p>3. Railroads — negligence in use of track torpedo. — Where a railway employee placed a torpedo upon the track as the customary signal to an expected train, and a few minutes thereafter, before the train passed, a little boy picked it up, and his brother was injured by its explosion, no negligence on the part of the railway company was shown. ' (Page So.)</p>

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

<p>1. Trial — improper argument. — A statement by counsel for the plaintiff, in a personal injury suit by a passenger against a railway company, that the defendant “had treated the plaintiff worse than you would treat a dog” was not merely an expression of opinion, and not a statement of a fact not adduced in evidence; and, even if it were error, its prejudicial effect was removed by the instruction to .the jury to disregard it. (Page 84.)</p> <p>2. Same — remarks oe court to jury. — Where, after the jury had been considering the case for some time, and had not agreed on a verdict, the judge recalled them and said: “Gentlemen, I do not understand why a case like this, where liability is admitted, that you can not agree. It is childish. I am not going to discharge you.” Held, no error. (Page 86.)</p>

<p>1. Telegraph company — rule as to eree delivery limit. — A rule adopted by a telegraph company as to the limit for free delivery of messages is made for the benefit of the company, and'may be waive.d by it. (Page go.)</p> <p>2. Same — NEGLIGENCE in DELIVERY 0E TELEGRAM. — Evidence that a telegraph company accepted a message to be transmitted to one who lived beyond its free delivery limits, and that its custom had been to send such messages by some one who resided near the addressee, and that if the company had exercised due care it could have in this way delivered the message to the addressee in time to enable him to attend his mother’s funeral, is sufficient to sustain a finding of negligence. (Page 90.)</p> <p>3. Instruction — when specific objection necessary. — Objection to the phraseology of an instruction should be specific. (Page 92.)</p> <p>4. Damaces — mental suffering — excessiveness.—For failure to deliver a telegram, which, if promptly delivered, would have apprised the addressee of his mother’s death and have enabled him to attend the funeral, an award of $625 was not excessive where the addressee entertained great affection for his mother, and was deprived of the privilege of being present and assisting in burying her. (Page 92.)</p>

<p>Appeal from Pulaski Chancery Court; John R. Martineau, Chancellor;</p> <p>1. The land in controversy came chiefly, if not entirely, by gift from the mother to Mrs. Thompson, and, on the death of the latter and her child, went back to the former as a maternal ancestral estate. 15 Ark. 588; 19 Ark. 401; 52 Atl. 172.</p> <p>2. Plaintiff is estopped to claim an interest in the property in controversy. The division of the property of both the estates and the execution of the will was in pursuance of a plan of family settlement, which the parties have acquiesced in and acted upon. 15 Ark. 275; 64 Ark. 19; 91 Am. Dec. 761; 42 Id. 447; 84 Ark. 610; 8 Cyc. 504-5.</p> <p>From the testimony, there can he no question that' the property came to Mrs. Thompson as a new acquisition, that is, 'by purchase, or was received by her in consideration of her interest in the Jared C. Martin estate, and upon the death of- Mrs. Mary Martin it descended to the brothers and sisters of Mrs. Thompson. 15 Ark. 555; 31 Ark. 103; 70 Ark. 371. Even if the conveyance from the mother to Mrs. Thompson be considered as an advancement, it is still a new acquisition. 52 Ark. 55. In order to constitute a family settlement, the parties interested must all agree to it. If appellants thought the land in question would revert to Mrs. Mary Martin at the death of Thompson, this was a mistake of law that could add nothing to appellant’s case, 1 Wend. (N. Y.) 355; 19 Am. Dec. 508; 12 Wis. 125.</p>

This is the second appeal. The case is reported in 92 Ark. 299 (Bouldin v. Jennings). Held: saying: “The sale made described no land, the description in it not being sufficient to designate any.” We further held that the attempt by the probate court to correct the description after the land had been sold under the -insufficient description was void, saying: “The order amending the latter [the report of the administrator…

Robertson, Chancellor; statement by the court. This is an action by Ida Cross against defendants Robinson and Johnson to recover the northeast quarter of southeast quarter, section 2, township 15 north, range 12 east. It was an action of ejectment originally commenced in the circuit court, and then transferred to the chancery court upon motion of defendants to have their alleged title quieted. The appellee deraigns title from the Government to the St. Francis Levee District.

M. Barker, Chancellor; I. This court has power to review the constitutionality of an aot of the General Assembly fixing the rate of tax to be collected by a levee district. The General Assembly has no power to authorize an assessment of 10 per cent, per annum for levee purposes, irrespective of the benefits the lands assessed receive from the erection of the levee.

<p>1. Dower — seisin at common law. — In order to constitute seisin in the husband, which is essential to support dower at common law, it was necessary that there should have been an actual corporeal seisin or the immediate right to such seisin during coverture. (Page 121.)</p> <p>2. Dower under the statute — necessity op seisin. — Under Kirby’s Digest, § 2709, providing that “if a husband die, leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which such husband shall die seized,” it is necessary that there should be an actual corporeal seisin in the husband during coverture to entitle the widow to such dower. Thus a widow is hot entitled to dower in realty wherein her husband had only an estate in remainder or reversion unless the particular estate ■terminated during the coverture. (Page 122.)</p> <p>3. Merger — distinct estates.- — -The merger of two distinct estates will not occur if one is acquired by purchase and the other by right of the purchaser’s wife since they are held in different rights. (Page 123.)</p> <p>4. Dower — seisin op husband. — Where a husband died intestate and dower was assigned .to his widow in certain lands, and subsequently upon her remarriage her second husband purchased the reversion in the dower lands, and died .before the wife, the second husband never had seisin of the lands, such as would support the wife’s claim of further dower as his widow. (Page 124.)</p>

Martineau, Chancellor; statement by The COURT. This action was instituted by the State to recover from the defendant $17,726.55, claimed to be due from the defendant for convict labor. On the 31st clay of July, 1899, the State entered into a contract with the defendant, by which it agreed, for a term of ten years, beginning January 1, 1900, to furnish the defendant three hundred able-bodied men per day on demand.

58 Ark. 528; 71 Ark. 295; 72 Ark. 620; 74 Ark. 1; 62 L. R. A. 774; 134 111. App. 464; 35 A’tl. 179; 81 N. W. 807. The right to open and close is not one of discretion under the law. Elliott, App. Prac. § 671; Thompson on Trials, vol. 1, § 231; 59 Ark. 140. The beneficiary took a vested interest in the policy as soon as it was issued. 31 L. R. A. 67. The ability to distinguish right from wrong is the test as to whether one is liable for homicide. 64 Ark. 523; 54 Ark. 588.

Cowling, Judge; statement by the court. John R. Ford and Relia Ford were indicted for the crime of murder in fhe first degree, charged to have been committed by killing W. F. Nichols. The views we shall hereinafter express render it unnecessary ,to make a detailed statement of the-facts arid circumstances attending the killing. It is sufficient to state that John R. Ford and Relia Ford are husband and wife, and were at the time of the killing.

T. M. Montgomery brought suit against the Ozark Insurance Company to recover upon a policy of fire insurance issued by it to 'him, and recovered judgment. He caused an execution to be issued against the Insurance Company, which was returned nulla bona. Subsequently Montgomery sold and transferred his judgment against the Insurance Company to the Baxter County Bank.

89 Ark. 30; 82 Ark: 11; 161 Mass. 153; 93 Ark. 140; 36 Ark. 232; 23 Ark. L. R. 42 ; Id. 442; Id. 628. The injury was the result of an unavoidable accident for which the defendant is not liable. 86 Ark. 289; 94 U. S. 469; 105 U. S. 249; 69 Ark. 402; 53 Ark. 163; 120 S. W. 984; 62 Kan. 727; 64 Pac. 605; 54 L. R. A. 402; 93 Pa. St. 287; 40 Am. R. 649; 124 Fed. 113; 63 L. R. A. 416; 108 Va. 822; 62 S. E. 972; 85 N. E. 728; 109 111. App. 533; 67 Wis. 616; 31 N. W. 321; 38 Am.

Robertson, Chancellor; 1. If the errors in the decrees ordering the sale of the lands and confirming the same were such as would cause a reversal thereof on appeal, it was the duty of the chancellor to vacate them in this suit. 25 Fla. 927; 14 111. 206; 3 Enc. PI. & Pr. 571, note 1. The report of the commissioners in partition does not show facts sufficient to authorize the court to order the lands sold. 90 Ark. 500.

Phillips Circuit Court; Hance N. Hutton, Judge; The ordinance is a valid exercise of the powers granted by statute to the city council. Kirby’s Dig. § 5648. It is not unreasonable. 88 Ark. 263; 52 Ark. 301; 64 Ark. 152; 146 N. C. 527; 60 S. E. 4131 20 L. R. A. (N. S.) 145; 26 L. R. A. 340, 343; 53 Atl. 202; 55 Atl. 1132; 57 Atl. 267; 50 N. E. 256; 14 N. E. 451. It is clearly a police regulation and within the powers vested by law in the municipality.

GuyFulk, Judge; statement by the court. This suit was brought by appellees for the balance due for work done in the construction of a house on lot 1, 'block 7, Plunkett’s Second Addition to the city of Little Rock.

Haden Humphreys, Chancellor; A failure of the minds of the parties to meet in any essential vitiates the contract. 5 L. R. A. (N. S.) 407. An agent cannot bind his company by a parol contract of insurance. 100 Ga. 330; 34 N. Y. S. 872; 87 Fed. 71; 20 Ind. App. 206; 66 U. S. 548. The burden was on appellee to show authority in Claiborne. 62 Ark. 33; 39 Atl. 910. Apparent authority is not sufficient. 49 W. Va. 437; 54 Ark. 75; 85 Ark. 345.

The proof does not show any negligence on the part of the defendant company. Under the rules and under the law as imposed by statute, each company was required to keep its trains under control while within the yard limits, and to keep a constant lookout. Appellant had the right to assume that these rules and statutes would be obeyed by the other company, and that the engineer of the local freight would observe the rules imposed upon him.

T. Coiding, Judge;, 1. The accounts were not sworn to according to law. Kinby’s Digest, § 3524; 91 Ark. 600; 64 Ark. 148. An account is a formal statement in detail of transaction — a list or statement of monetary or property transactions or detailed statement. 88 Me. 108; 10 West. Law Journal, 145; 38 Me. 149; 45 Mo. 573 p 102 Mich. 462; 79 Miss. 220; 53 Mo. 423 •; 128 Ala. 505; 64 Ark. 148; 91 Ark. 600.

<p>1. Appeal and error — conclusiveness of master's findings. — Findings of fact made by a master appointed by consent are as conclusive as the verdict of a jury, and will not be disturbed if they are supported by legally sufficient testimony. (Page 189.)</p> <p>2. Partnership — power of partner to pay debts. — The members of a partnership are authorized to settle and adjust claims against the partnership. (Page 192.)</p>

<p>1. Husband and wife — separation agreement — validity.—Covenants and promises in deeds of separation relating to the property and the maintenance of the wife are generally upheld if they are based upon sufficient consideration, are fair and equal, aré reasonable in their terms, are not the result of fraud or coercion, and the separation has actually taken place when the agreement is entered into or immediately follows. (Page 196.)</p> <p>2. Divorce — separation—reasonableness oe settlement. — Where the defendant in a suit for divorce and alimony had property worth from $15,000 to $60,000, while plaintiff had no property of her own, a prior agreement between plaintiff and defendant whereby plaintiff was to receive $500 in lieu of her claims on her husband’s property was not a fair and reasonable settlement, and will not be enforced by the court. (Page 197.)</p> <p>3. Same — alimony—modification.—The allowance of alimony is always subject to modification by the court to meet the changed situation and condition of the parties in interest. (Page 198.)</p> <p>4. Same — abandonment.—Where no cause for granting a divorce exists, but the parties are living apart, if in the future either party manifest a bona fide intention to return to the other, and after a reasonable time his or her efforts at reconciliation are refused, such refusal will amount to abandonment. (Page 198.)</p> <p>5. Same — -attorney’s FEE — contract.—An agreement by a wife to pay her attorney in a suit for divorce and alimony against her husband a certain per cent, of such sums as the court may award her for alimony is void as against public policy. (Page 198.)</p> <p>6. Same — discretion as to allowing alimony. — The allowance of alimony is within the sound discretion of the trial court. (Page 199.)</p> <p>7. Same — allowance of attorney’s FEE. — It was not error in a divorce suit for the chancellor to make a separate allowance to the wife of an attorney’s fee, though she had agreed to pay the attorney a certain per cent, of her recovery of alimony, as it will be presumed that such illegal contract will not be enforced. (Page 199.)</p>

Martineau, Chancellor; Appellant was purely an indorser for accommodation, from which he received no 'benefit; the same was without consideration, and the note is not enforcible against him. 1 Am. & Eng. Enc. of L., 2 ed., 335; 57 Ark. 437; 65 S. W. (Mo.) 303. Parol evidence is admissible to prove want of consideration, in cases like this. 24 Me. 363; 153 N. Y. 130; 1 Daniel, Neg. Inst. 3 ed., 605, § 679; 35 N. Y. Sup. 944; 21 Ind. no; 24 Me. 274; 55 Fed. 906; 93 Ark. 112.

Hays, Judge; 1. ' The court erred in excluding the testimony of the machinist, Farnsworth. The rule admitting the declarations of an agent as binding upon the principal should govern as to this testimony. 1 Greenleaf on Evidence (15 ed.) 173, § 114. See also 100 S. W. 162; 102 S. W. 755; 67 Ark. 306. 2.

<p>MUNICIPAL CORPORATIONS — LOWERING GRADE OE STREET — DAMAGE TO PROPERTY. — The owner of property abutting on a street in a city or incorporated town is entitled to recover compensation for damage done to the property in lowering the grade of the street, under Const. 1874, art. 2, § 22, providing that “private property shall not be taken, appropriated or damaged for public use without just compensation therefor.”</p>

<p>Appeal from Pike Circuit Court; lames S. Steel, Judge;</p> <p>1. The court in permitting the plaintiff to introduce evidence to the effect that on the day before the accident occurred he had made complaint to the millwright, and the latter promised to repair the alleged defective condition of the cog and gearing, so as to make the same safe, thereby permitted a new issue to-be injected into the case, and erred in refusing appellant a continuance in order to meet this proof. 67 Ark. 142; 71 Ark. 197 ; SS Ark. 568; 31 S. W. 401; 28 Tex. 241; 27 Tex. 435; 26 Tex-95; 20 S. E. 494; 4 Enc. PI. & Pr. 863.</p> <p>2. A servant who knowingly consents to work in a place of danger, will be held to have assumed the risk incident thereto. 68 Ark. 316; 65 Ark. 98; 77 Ark. 367; 93 Ark. 560; Labatt on Master & Servant, 259. Instructions 1 and 3 were erroneous. Whether or not appellee assumed the risk after the promise to make repairs, was a question to be determined by the jury. 71 Ark. 518; Id. 510. See also x Dabatt, Master & Servant, § 425; 81 Ala. 200; 60 Am. Rep. 152; 187 111. 333.</p> <p>3. The sixth instruction requested by appellant should have been given. Had it been given, the jury might have found that, notwithstanding the promise to repair, appellee was guilty of contributory negligence in failing to observe the patent dangers he was about to encounter.</p> <p>4. The verdict is so excessive as to evidence passion and prejudice on the part of the jury.</p> <p>Appellee was properly permitted to testify to the fact of having complained to the millwright as to the condition of the cog, and the latter’s promise to repair it. It was clearly admissible under the allegations of the complaint that the defendant knew of the defective condition and failed to repair it. A servant on entering upon the service of the master assumes only such risks as are ordinarily incident to the work — not extra or unusual risks, not those resulting from negligence of the master or other servants. 20 Am. St. .Rep. 37; 40 Mich. 420. Moreover, the testimony as to the promise to repair was admissible in order to rebut testimony tending to show assumption of the risk and contributory negligence by appellee. Kirby’s Dig. § § 6091, 6098, 6108; 78 Cal. 430; 76 Ark. 525; 29 Ark. 386; 33 Ark. 737; 44 Ark. 293.</p> <p>2. Appellant will not be heard to object to certain instructions .without furnishing an abstract of all the instructions given by the trial court. 92 Ark. 245; 90 Ark. 163.</p> <p>3. The verdict is not excessive.</p>

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

There was nothing to divert appellee’s attention, nothing to prevent him from seeing the cars from the time he left the passing track 33 feet away until he was injured. They could not have escaped his attention, and his statement that he looked north 'but had no time to look south for danger is disproved by the known facts. 22 Ark. 390; Id. 555; 19 Ark. 627; 54 Ark. 431; 79 Ark. 608. Appellee was guilty of contributory negligence.

<p>Appeal from White Circuit Court; Hance N. Hutton, Judge;</p> <p>Plaintiff was guilty of contributory negligence, and the court should have instructed a verdict for defendant. 91 Ark. 86; 41 Ark. 542; 70 Ark. 603; 79 Me. 397; 38 W. .Va. 206; 27 Minn. 137; 6 N. W. 553; 98 111. 481; 5 Am. & Eng. Ry. Cas. 651; 37 W. Va. 180; 16 S. E. 457; 106 la. 253; 76 N. W. 670. The risk of injury was assumed by plaintiff. 88 Ark. 548; 77 Ark. 367; 79 Ark. 53; 89 Ark. 588; 87 Ark. 396. Misleading and contradictory instructions should not be given. 72 Ark. 31; 74 Ark. 437; 64 Ark. 332; 89 Ark. 213; 92 Ark. 6. The negligence of the master may be assumed. 77 Ark. 367; 79 Ark. 53; 88 Ark. 548; 89 Ark. 508; 87 Ark. 396.</p> <p>Plaintiff had the right to assume that the master would not subject him to abnormal risks. 80 Minn. 400; 83 N. W. 440; 112 Ind. 166; 11 N. E. 322; 67 Ark. 377; 55 S. W. 165; 43 Minn. 42; 44 N. W. 522; 89 Tex. 635; 35 S. W. 1058; 60 O. St. 487; 54 N. E. 475; 107 Tenn. 340; 64 S. W. 1; 56 Kan. 228; 42 Pac. 724; 104 la. 139; 73 N. W. 614; 98 Wis. 348; 74 N. W. 212; 23 N. E. 675; 102 111. App. 428; 66 N. E. 829; 93 Ga. 259; 159 Mass. 532; 67 Ark. 377; 64 la. 613; 92 N. Y. 639; 16 L. R. A. 189. The risk of injury was not assumed. 77 Ark. 367; Id. 458; 76 Ark, 184; 80 S. W. 387; 70 Ark. 295; 89 S. W. 370.</p>

<p>Landlord and tenant — estoppel to dispute landlord’s title. — In an action of unlawful detainer the tenant is estopped to deny the landlord’s title, though, after having surrendered possession, the tenant may bring ejectment to recover possession.</p>

Evans, Judge; STATEMENT BY THE COURT. This suit was 'brought by the administrator of the estate of Wm. B. Hesterly, deceased, to recover damages for the benefit of the estate and the next of kin on account of an injury to deceased which resulted in his death about five hours afterwards. The complaint was in two paragraphs.

Appeal fi-om Hot Spring Circuit Court; W. H. Bvans, Judge; STATRM3JNT BY THE COURT. C. F. AAriggam brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries alleged to have been sustained on account of the negligence, of the railway company’s employees.

<p>Appeal and error — incompleteness oe transcript — presumption.— Where the transcript on appeal in a chancery case shows that a deposition which was considered by the chancellor has not been brought up, the presumption will be indulged that the missing evidence sustains the chancellor’s finding, though the chancellor certifies that the missing deposition is in all essential respects the same as a deposition which appears in the transcript.</p>

<p>Accord and satisfaction — acceptance of check reciting payment in Full. — When a debtor sends á check to his creditor, bearing upon its face a statement that it is a payment in full, the retention and collection of the check by the creditor renders it an accord and satisfaction of the debt; and it .is immaterial that the creditor immediately wrote the debtor stating that the check was not accepted as a settlement, where no offer was made to return the check if desired by the debtor.</p>

Humphries, Chancellor; statement by tpie court. On May 27, 1909, Frances M. Johnson executed a note to Graham Bros. Company, a corporation, for the sum of $6,000, with interest at the rate of seven per cent., payable semiannually. The note was due May 27, 1911. The note was secured by deed of trust executed by Mrs. Johnson to S. M. Stuckey, trustee, in favor of Graham Bros. Company, the beneficiary and payee of the note.

<p>Appeal from Lafayette Chancery Court; /. M. Barker, Chancellor ;</p>

<p>1. Banks — effect of deposit. — By a general deposit a bank becomes the debtor of the depositor, and bound by an implied contract to repay same upon his demand or order. (Page 297.)</p> <p>2. Same — rights of depositor. — Where a depositor in a bank owes the bank a sum of money, he is entitled to set off the amount of his deposit against the bank’s demand. (Page 297.)</p> <p>3. Receivers — effect oí appointment. — Receivers of insolvents are not regarded as purchasers for value without notice, but .rather as personal representatives of the insolvents, and fake their assets subject to setoffs, liens and incumbrances as they existed at the time of their appointment. (Page 297.)</p> <p>4. Banks — insolvency—preíEREnce.—A depositor in an insolvent bank is entitled to have his deposit set off against his paper that had not matured at the time of the bank’s insolvency, and such set-off will not operate as a preference within the insolvency act, Kirby’s Digest, § 951. (Page 298.)</p>

<p>1. Counties — authority to issue warrants. — The power and authority to issue county warrants is derived solely from the statute, and before such warrants can be received in payment of the taxes and debts due the county they must conform to the provisions of the statute authorizing their issuance. (Page 301.)</p> <p>2. S'ame — duty oe officers to receive county warrants. — Under Kirby’s Digest, § 1466, providing that “all warrants drawn upon the treasurer shall be paid out of any money in the treasury not otherwise appropriated, or out of the particular fund expressed therein, and shall be received, irrespective of their number and date, in the payment of all taxes and debts accruing to the county,” it is the duty of the sheriff, collector or treasurer of the county to receive such warrants offered in payment of faxes or dues to the county, without regard to the date of their issuance. (Page 302.)</p> <p>3. Same — effect of making warrants payable in future. — Where a claim against a county is not due, but the county court issued a warrant payable when the claim is due, such warrant is not receivable in payment of the taxes and debts accruing to the county until the claim is due and payable. (Page 303.)</p> <p>4. County warrants — negotiability.—County warrants are not negotiable instruments in the sense of the law merchant, and persons acquiring them take them with notice of the purpose for which they were issued and of the order of the county court authorizing their issuance. (Page 304.)</p>

Hutton, Judge; STATEMENT BY THE COURT. From July, 1908, to November 14, 1908, the appellant, who was plaintiff in the court below, was in partnership with one Jacob Thompson, Jr., of Helena, in the real estate brokerage business, under the firm name of Blackwood & Thompson, and on the 9th of October, 1908, the appellee and 'his co-owner, McAlexander, decided to sell their plantation in Tunica County, Mississippi, for thirty-five thousand dollars.

Lea, Judge; 1. F. P. Townsley was never served with summons, and is improperly named in the judgment.-' 2. An abstract instruction is misleading and improper. 14 Ark. 530; 37 Ark. 580; 6 Ark. 156. Instruction 4 is erroneous not only for this reason but also because it assumes facts to exist which are in controversy, and allows a recovery for physical pain, which is neither a natural nor probable consequence of slander. 62 Atl. 272. 3.

<p>Ejectment — betterments—good faith. — Where the losing defendant in an ejectment suit testified that he was advised by his attorneys that his title was in fee simple, and that he occupied and improved the land in the honest belief that he had a perfect title, but that both before and after he purchased the land he received information that plaintiffs, who were the children of defendant’s grantor, were going to claim the land at her death, he was not a bona ñde purchaser, and could not claim betterments.</p>

<p>Trial — improper argument. — Upon the trial of a felony case, the prosecuting attorney said: “At the last term of this court the husband of Mrs. A. B. Quertermous was on trial, and the defendant testified for him; and now the defendant is on trial, and Mrs. Quertermous comes as a witness for the defendant. The defendant testified for the witness’ husband at a former term of the court when he was being tried, and she is now testifying for the defendant. It looks like swapping work.” Held, that the argument was not improper.</p>

H. Basham, Judge; The juror Hanks, being a justice of the peace, was not suoject to jury duty; the court therefore erred in overruling appellant’s challenge of him for cause, and in requiring appellant to exhaust one of his peremptory challenges on him. Kirby’s Dig. § 4537; 69 Ark. 449; Id. 323. Appellee confesses error as to retention of the juror Planks and requiring appellant to exhaust a peremptory challenge upon him.

Elliott, Chancellor; 1. Equity does not favor forfeitures, and deeds must be strictly' construed as against the grantors. “Courts always construe clauses in deeds as covenants rather than conditions, if they can reasonably do so.” 2 Washburn on Real Prop. (5 ed.) § 3; Id. § 5; Tiedeman on Real Prop. (2 ed.) § 279; 2 Washburn, Real Prop. (14 ed.) § 7; 25 S. W. (Mo.) 201; 15 Wall. 146; 2 Story’s Eq. § 1319; 4 Kent’s Com. 131; 59 Ark. 405-8.

<p>Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge;</p> <p>statement by the court.</p> <p>Appellants sued appellee for damages in the killing of a mule belonging to appellant Bene, -and on which appellant McDonnell held a mortgage. The testimony on behalf of appellants tended to prove that the mule of appellant Bene was found lying close to appellant’s railroad, badly injured, and showing evidences of having been struck by appellant’s train. There were mule tracks in and about the railroad bed as if a mule had been grazing there. There were tracks that indicated that the mule had come upon the track and had run a distance of 150 yards on the railroad and then that it had been thrown to one side. There was blood and hair on the ties between the rails of a switch near the main track. The mule was tying on the left side of the track going south to the east of the road bed. The railroad was north and south at that point. The tracks indicated that the mule had been running at a good speed, before it stopped at the point where it appeared that the mule was thrown from the track. The mule was a white or gray mule and was shown to have a value of $200. The evidence on behalf of appellee tended to. prove that the train that killed appellant’s mule was running at the time about 30 miles an hour, the speed limit for the through freight. The engineer testified: Couldn’t do anything but hit him. That the mule came running from this tool house, right on the track. That he didn’t have any show to do anything. That he only had 45 or 50 feet when he first saw him coming on the track. That he did not see the mule before he reached the seed house. That he couldn’t have seen him if he had been on the south side of the house. That the witness was going south, and that the mule was on the south side of the tool house. That he could not, at the rate of speed he was running, do anything because the mule jumped from that tool house right on the track, and that he could not have stopped the train. That he was keeping a lookout. That his fireman was putting in a fire at that time. That he holloed to him and told him that he had struck a mule. That he is required under the rules to make a report to the superior officer about hitting stock. That he did make a report at Pine Bluff on his arrival there of that case. That the injury occurred about 5 o’clock on the 30th of August. That it was daylight; that he could have seen anything down the track. That his headlight was kept burning until sunup. That his headlight was in good condition, an electric headlight. The track along there was a straight •track. He was looking down the track all the while for the 'distance of a mile. He could have seen the mule that distance. The tool house was fourteen or fifteen feet from the track, and was a shed 12 x 14 feet. There was a verdict in favor of appellants for $213.00. A motion for new trial was sustained by the court on the ground that the verdict was not supported by the evidence. The appellants appealed, stipulating for judgment absolute in favor of appellee if the Supreme Court should affirm the judgment of the lower court in setting aside the verdict.</p> <p>It is reversible error for the trial court to take from the jury consideration of a case where there is anjr evidence to support an issue. 63 Ark. 94; 77 Ark. 556; 70 Ark. 74; 71 Ark. 305; Id. 446; 73 Ark. 561; 91 Ark. 337. Only in cases where the evidence is uncontradioted, or is of itself insufficient to sustain a verdict for the plaintiff, will the trial court be justified in directing a verdict for the defendant. 76 Ark. 520. The theory upon which courts set aside verdicts of juries is want of evidence to support them, and not the lack of preponderance. In this case the only issue was the negligence of the appellee, the burden being upon it to remove the presumption of negligence cast upon it by statute; and the action of the court in setting aside the verdict was aft invasion of the right of the jury to weigh the evidence and to accept or reject the testimony of witnesses on a disputed point. Kirby’s Dig. § 6607; 42 Ark. 122; 39 Ark. 413; 36 Ark. 87; 54 Ark. 214; 57 Ark. 137; 80 Ark. 415.</p> <p>The trial court, having the same opportunity as the jury to observe what passes at the tidal and to form a just estimate of the credibility of the witnesses, is not only authorized, but if is its duty, to set aside the verdict when, in its judgment, the verdict is contrary to the height of the evidence, and substantial justice has not been done between the parties. 29 Cyc. 831; 2 Am. & Éng. Ann. Cas. 762, note; 17 Kan. 172; 58 Mo. 421; 39 Cal. 565; 49 Kan. 1, 30 Pac. 109; 81 la. 99, 46 N. W. 862; 37 Wash. 537; 47 Ark. 567; 41 S. W. 215; 34 Ark. 632, 637; Kirby’s Dig., § 6215; 65 Ark. 278, 283. The testimony of the engineer, the only eye witness to the accident, being consistent, reasonable and uncontradicted, overcame the prima facie case of negligence made by proof of the killing of the animal, and could not arbitrarily be disregarded. 78 Ark. 234; 67 Ark. 514; 89 Ark. 120; 80 Ark. 396.</p>

<p>1. Taxation — tax sale — county having two districts. — If the special act of April 1, 1901, dividing Mississippi County into two judicial districts, contemplated the sale of delinquent lands in the Ohickasawba District, at Osceola, the law in this respect was changed by the act of May 6, 1903, providing “that hereafter the delinquent lands in counties having two judicial districts shall be advertised and sold in the district in which the lands lie.” (Page 338.)</p> <p>2. Same — tax sale — county having two districts. — The requirement of the act of May 6, 1903, that delinquent lands in counties having two judicial districts shall be sold in the district where the land is situated, is mandatory. (Page 339.)</p> <p>3. Same — tax books — county having two districts. — The requirement of Kirby’s Digest, § 7019, that the county clerks of the counties in this State having two judicial districts shall prepare a set of tax books for each district, is mandatory. (Page 339.)</p>

Francis Circuit Court; Hance N. Hutton, Judge; statement by the court. This is an action by Thomas Page, William Page and Charles Page against the Metropolitan Life Insurance Company to recover on a policy of life insurance.

Kirby's Dig. § § 2992-3-4-5, 7226, 7229. The fact that the viewers met on a different day from that named in the appointment did not divest the court of jurisdiction, nor render its judgment void. If appellees were aggrieved, their remedy was by appeál and not by certiorari. 61 Ark. 295; 43 Ark. 33; 44 Ark. 5, 13 and cases cited; 52 Ark. 213; 47 Ark. 441.

Hudgins, Judge; 1. The burden of proof was on appellee to show that she could have been reached by proper effort. 91 N. E. 867; 84 N. Y. 54; 130 S. W. 616; 130 S. W. 212; 7 So. 419; 41 So. 405; 65 App. Div. 149. It Was appellant’s primary duty to deliver the telegram to James Clark, in whose care it was addressed. 13 S. W. 985. 2. The court’s instruction as to the degree of care required of appellant (instruction 2) was erroneous.

Hudgins, Judge; 1. Where the plaintiff testifies to ailments alleged to have resulted from an accident and attributes the same to such accident, and introduces the testimony of a physician who treated her after the accident, who likewise 'attributes her diseased condition to such accident, she, by introducing such testimony, waives the right to have considered as privileged communications to, and discoveries made by, physicians who treated her before the alleged accident for…

Martineau, Chancellor; The findings of fact by a master who is appointed by consent of parties is as conclusive as the verdict of a jury. 83 Ark. 414; 74 Ark. 338 and authorities cited. His findings in this case must .stand if there is any evidence tO' support them.

Guy FullZj. Judge j statement by the court. „ Appellee brought this suit against appellants to recover damages for a breach of a covenant contained in a deed -executed by appellants to appellee, conveying the timber on a certain 160 acres of land. The complaint alleges that the land in question is wild and unimproved, and that the Southern Dumber Company has a superior title to said land, and refused to permit appellee to remove the timber therefrom.

Carter, Judge; 1. The court erred in overruling the demurrer to the second count of the complaint. The oircuit court was without jurisdiction. Art. 7, § 40, Const. 1874;-i Ark. 252; Id. 275; 2 Ark. 449; 3 Ark. 494; 5 Ark. 34; 9 Ark. 465; 18 Ark. 249; 34 Ark. 188; 35 Ark. 287; 55 Ark. 143; 72 Ark. 334; 74 Ark. 615; 78 Ark. 595; 85 Ark. 213; 89 Ark. 435. 2.

Robertson, Chancellor; 1. This case is ruled by the case of ithe Bank of Black Rock v. Decker, 65 Ark. 33. The transaction was a mortgage, good between the parties, but void as against subsequent innocent purchasers. Interpleaders 'being such purchasers, they hold title to the property free of the bank’s Hen. Kirby’s Dig. § 5396. 2. Whether the transaction be regarded as an unrecorded mortgage or as a pledge is immaterial. Delivery of possession is essential in either case.

Francis Circuit Court; Hance N. Hutton, Judge; Where uncontradicted testimony shows that a letter has not been received, the presumption of its receipt growing out of the fact that it was stamped and mailed is overcome. 72 Ark. 305, 80 S. W. 151. The presumption of receipt of a letter only arises upon proof that it was properly addressed, stamped and mailed.

H. Evans, Judge; STATEMENT BY THE COURT. The Oakleaf Mill Company was a domestic corporation operating a sawmill in Hot Spring County, Arkansas, where it maintained its chief office. Frank Lash was one of its employees, and was killed in an accident at this mill in said Hot Spring County, on the 25th of August, 1909.

Phillips Circuit Court; Hcmce N. Hutton, Judge; STATEMENT BY THE COURT. This suit was brought by appellee to recover damages for the benefit of the widow and next of kin and the estate, for the wrongful death of 'his intestate, caused, it was alleged, by the failure to furnish him proper medical and surgical attention.

Francis Circuit Court; Hance N. Hutton. Judge; STATEMENT BY THE COURT. This is a suit by the administrator for damages for the benefit of the widow and next of kin and the estate of E. M. Burns, deceased, for his wrongful death, caused, at was alleged, by the negligence of the Helena Gas Company.

Plaintiff was never a passenger on the train within the rule established by law. The relation of passenger and carrier is contractual, and there must be an offer and acceptance as a passenger. The failure to procure a ticket did not warrant an attempt to force himself upon the train in the face of the advice of the conductor. 21 Ark. 164. A verdict should have been directed for defendant. 132 Mass. 116; 43 111. 176. 2.

Guy Fulk, Judge; STATEMENT BY THE COURT. This is an action by appellant against appellee on a life insurance policy in the sum of $200 issued by appellee to W. A. Haynes November 1, 1906.

Grace, Judge; 1. The verdict is not sustained by my evidence, and is contrary to the evidence. There was a total- failure of proof to show that defendant’s servants actually knew or were fairly chargeable with notice of plaintiff’s presence in the car; further, the uncontradicted evidence shows that such was not the case. 93 Ark. 15. 2. The court erred in its oral instructions. 93 Ark. 15 ; 90 Ark. 18. 3. The verdict is excessive. There were only a few ■bruises. 1.

Hayes, Judge; 1. The punishment is excessive. 76 Ark. 515, 520. 2. It was error to refuse to give instruction No. 5 asked by defendant, and in modifying it. It was the duty of the State to prove beyond a reasonable doubt that defendant did not kill in self-defense. The burden was on the prosecution. 3. The court erred in admitting testimony as to the action of Seth Childs, and in permitting P. Price to testify to substantially the same facts.

V. Bourland, chancellor; 1. The court should have sustained the.demurrer because it did not state facts sufficient to constitute a cause of action nor fact sufficient to give the chancery court jurisdiction. Courts of equity will not interfere where the acts complained of do not work great and irreparable injury, and where no private property or corporate rights are involved. 25 Ark. 301.

This was a suit for damages for $200 alleged to have been caused by the negligent killing of a gra}^ mare, the property of appellee, by the railroad company, and for the penalty provided by statute, double damages, for the failure to post and keep posted the .description of such animal as the law requires.

H. Humphreys, Chancellor; STATEMENT by the court. This was a suit by the bank against J. B. Frost upon an alleged indebtedness, and to set aside certain alleged fraudulent conveyances of lands from him to the other defendants.

<p>Appeal from Independence Circuit Court; Charles Coffin, Judge;</p> <p>The old statute, Kirby’s Dig. § 6225, worked great hardship in cases where the trial judge was dead, insane or had left the State, and persons desiring to perfect appeals were prevented from doing so through no fault. It was manifestly the intention of the Legislature by the amendatory act, Acts 1909, p. 147, to correct the mischief occasioned by the former statute. where the trial judge was physically incapacitated, as was the case here, from signing the bill of exceptions before the time for filing same bad expired. 3 Coke, 7; 5 Ark. 58; 13 Ark. 58; 24 Ark. 155; 3 Ark. 285; 28 Ark. 200, 203; 29 Aide. 304. Effect is to 'be given to the larger expression, “otherwise incapacitated.” 27 Ark. 420.</p> <p>Under the former statute, Kirby’s Dig. § 6225, it was necessary that the bill of exceptions be signed by the trial judge, and no other judge was authorized to do so. 37 Ark. 371; Id. 528; 40 Ark. 173.</p> <p>Under the amendatory act (Acts 1909), the trial judge must still allow and sign a bill of exceptions, unless he dies, becomes insane or from some other cause becomes incapacitated; and the expiration of his term of office did not incapacitate him from signing it, etc. 42 Ark. 280; 95 Ark. 71; 73 Ark. 600; 74 Ark. 528; 70 Ark. 451; and authorities cited in dissenting opinion in case of Lee v. Huff, 61 Ark. 502.</p>

Martineau, Chancellor; Where in a deed the word “.trustee” is added to the name of the grantee, but there is no declaration of trust, the word “trustee” may be regarded as descriptio personae. 104 Fed. 398. A trust must be declared in writing. 45 Ark. 481, 483; 99 U. S. 100; 56 Ark. 130, 136; 55 Ark. 414; 42 Ark. 503; 41 Ark. 393.

Robertson, Chancellor; 1. The chancery court had jurisdiction. The redemption from the sales to’ Fleming could have -been made at any time before June 9, 1904. Kirby’s Dig. § 7095. The act of 1893, § § 7-10, was followed. Acts 1895, pp. 88-90. The decree is conclusive. 74 Ark. 174; 204 U. S. 241. It is immaterial that the ownership of land is incorrectly alleged, or that the owner not named as a party. 74 Ark. 104. The suit is in rem. Acts 1895, p. 89; 74 Ark. 180.

V. Bourland, Chancellor ; The findings of the chancellor are clearly not supported by the evidence. The insurance mioney could not be applied on any other debt than the two notes due. The two debts and mortgages were separate and distinct, and the chancellor erred in applying the $1,000 to the payment of the notes sued on. 1. The findings of the chancellor are' sustained by the proof.

<p>• Appeal from Union Circuit Court; George TV. Hays\ Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>Appellant was an employee of appellee as a carpenter in its bridge and building department. Pie sued appellee for damages growing out of personal injuries, which he received by falling from a trestle for a distance of about 23 feet. Appellant alleged that be was directed 'by his foreman to occupy the watchman’s car, which was placed beside the trestle approaching the bridge and near the bridge;, that the appellee in accordance with its custom provided quarters for its employees while engaged in the work that appellant was doing; that the watchman’s car was very unsafe; that no safe place was provided (by appellee for appellant and other employees to do their cooking; that they bad to do their cooking on a box of gravel on the end of a narrow platform adjoining the trestle; that appellant, while assisting in the preparation of supper, had to go upon the trestle between the rails of the track; that 'appellee had negligently left a quantity of clay spread between the rails which had been rendered exceedingly slippery by the rain which had been falling; that this condition was unknown to appellant, and, owing to the darkness, he could not with ordinary diligence have observed it; that, while engaged as above stated, he slipped on the clay, lost his balance, and fell upon some timbers lying on the ground below, and received severe inj'itries, which are described.</p> <p>The appellee answered, denying all the material allegations and setting up contributory negligence and assumed risk as defenses.</p> <p>Witness Orren testified that he and appellant were engaged in the work of “fireproofing” a bridge for appellee across the Ouachita River in November, 1908. They had been engaged in the particular work at the place where appellant was injured about one month. Appellant had assisted in putting down the boards and planks and in spreading the gravel and clay over the floor made in this manner; the work on the bridge and trestle at this particular point had been done two weeks before, and, while he may not have assisted in spreading the gravel at this particular place, he had passed over it constantly for two weeks while going from where they had been camping to the place where they were fireproofing other trestles and bridges and in returning to camp. That witness and appellant and one “Henry,” under the directions of appellee’s foreman, were occupying at night the watchman’s car on the bridge near the trestle. The plank platform in front of the car was thirty feet long and six feet four inches wide out to the guard rail of the trestle or bridge, and' from this guard rail to the other across the track was ten feet. The spaces between the bridge or trestle timbers had been closed by planks or boards so as to make a solid floor, and gravel and clay had been spread over this floor three or four inches deep, thereby forming a platform immediately in front of this car about thirty by sixteen feet. The surfacing on the trestle near the car consisted of more clay than gravel. When witness, plaintiff, and “Henry” “arrived at the car, it was dark, cloudy and raining.” Witness indicated the location of the fire box, and described the accident as follows: “He (appellant) came out there with the potatoes.and set them down. I said: ‘Bring me that box,’ and Henry said: ‘Bring me a dish rag/ He brought me. the box, and I set it down, and then he handed ‘Henry’ the dish rag, and I heard a noise, and looked around, and saw his (appellant’s) foot hanging over the guard rail, and I grabbed up the lantern and held it down, and saw him struggling and went down the ladder to him.” Witness further says: “Was seated between the firebox-and the car door; Henry was sitting beside the fire box on the rail of the track or the guard rail of the trestle. Plaintiff, appellant, walked behind Plenry and to the right of him to hand him the dish rag, when he fell.” The accident occurred about 6:5o p. m. They had poor light, a small railroad lantern and a sorry fire. It had been raining all evening. It was twenty-three feet from the ground to the top of the guard rail. Witness had worked for the defendant (appellee) two years. Pie had always occupied a car provided iby the railroad. Pie was always subject to call, even outside of regular hours. If any one had desired to leave the watchman’s car that night, he would have had to walk over the bridge in the dark. An examination after the accident showed that appellant’s foot had slipped from the steel rail to the guard mil. Appellant testified as follows: That he worked from seven to six o’clock on the day of the accident.' That his work was putting in strips between the ties for fireproofiing bridges. That he started to Calion on a handcar, but when he got to the watchman’s car the foreman made him get off there, in spite of his protests. He was told that his things were in the watchman’s car, and they were crowded in the other car. That he knew of no place he could go that night. It was about 6:15. It was dark, cloudy and raining. The last he remembers is giving a dish rag to Young. Pie was then behind and to one side of Young, standing between the steel rail and the guard rail of the trestle. His next recollection is being in the hospital in Little Rock. The rest of his testimony describes his injuries and sufferings and his condition.</p> <p>The testimony of the only other person present (“Henry”) was substantially the same as the above. The court instructed the jury that, under the pleadings and evidence, appellant was not entitled to recover and directed a verdict for the appellee. Appellant duly prosecutes this appeal.</p> <p>This case should have been allowed to go to the jury and the court erred in directing a verdict for defendant. Where a railroad undertakes to provide accommodations for its employees, they are entitled to the same protection that the general public are. The employee must not be exposed to hidden dangers of which they are not aware, nor of dangers in the nature of a trap. Thompson on Neg. (2 ed.) § 968; 63 L. T. (N. S.) 837, cited 46 L. R. A. 58, note 2; 87 Am. Dec. 644; 46 L. R. A. 59, note col..i; 114 Wis. 279; 29 Cyc. 453; 89 Ark. 122; 114 S. W. 1057; 76 N. Y. 92; 32 Am. Rep. 282; 96 Tenn. 164; 34 L. R. A. 615, 618 col. i; 80 Me. 62, 77; 34 R. R. A. 619, col. 2; 77 Ark. 566; 125 S. W. 655; 89 Ark. 122; 48 Ark. 493.</p> <p>1. There was nothing unsafe about the car as a place to sleep. The accident was due solely to plaintiff’s own negligence.</p> <p>2. The doctrine of assumed risk clearly applies if plaintiff was busy with the master’s business. But he was not — he was busy about his own affairs. Plowever, the rule governing assumed risks applies to a license-where the accident results from a condition with which he is familiar. 82 Ark. 534; 85 Ark. 600; 89 Ark. 50; 90 Ark. 387; 30 N. E. 1016; 23 N. E. 233; 19 Atl. 939; 51 N. W. 1043; 30 N. E. 580; 35 Am. Rep. 202.</p>

T. Humphries, Chancellor; STATEMENT by the court. This action was instituted by appellee against appellant to-cancel a deed to certain lots in Charleston’s Addition to the town of Batesville. Appellant was the son- of appellee. She -set forth-certain facts whi-ch she alleged constituted fraud, -deceit, misrepresentation and undue influence on the part of appellant by which she was induced to sign the deed.

The Chicago Building & Manufacturing Company, on the 27th day of January, 1909, filed its suit in the justice of the peace court of Brinkley Township against J. A. Stoker to enforce the payment of a subscription ;by J. A. 'Stoker to the Brinkley Creamery Association.

Steel, Judge; 1. The demurrer should have been overruled. All persons who have an interest may be joined as plaintiffs. Kirby’s Digest, § § 6005, 6229; 79 Ark. 64; 79 Ark. 181; Bliss, Code PI. § 74; 50 Ark. 64. 2. The complaint states a cause of action. Kirby’s Dig. § 6091.

Hudgins, Judge; 1. No notice of any defects was given for nearly five months after the machinery was set up and used, hence there was no liability under the contract. 75 Ark. 206; 2 Mech. on Sales, § § 1380, 1384; 6 N. W. Rep. 46; 44 Iowa 237; 5 Neb. 482; 79 Mo. 264; 76 Ark. 74; 78 Id. 177. 2. No recovery can be had for the broken parts, because the contract was for delivery on board cars at Jackson, Tenn.

Martineau, Chancellor; 1. The only way the bridge could.be built is under the act of 1901, § § 1,2 and 4; Acts 1901, p. 291; Kirby’s Digest, § § 548-9, 550-553. It must be built by the county court and justices of the peace. Kirby’s Dig. § § 526-529, 548. The act of 1901 repealed S. & H. Dig. § § 526-529. 2. The river is a navigable stream, but not over 406 feet wide, and the county court had no.authority to build the bridge. Section 548, Kirby’s Dig. 3.

Hudgins, Judge; 1. A counterclaim for damages is allowable in replevin. 56 Ark. 450; 42 Ark. 100; 60 Id. 387; 34 Cyc. pp. 1417-1418. 2. Replevin suits may be transferred to chancery on motion. 56 Ark. 450; 42 Id. 100; 71 Id. 408; 73 Id. 464. A case on appeal from .the probate court cannot be transferred (70 Ark. 88), and in 46 Ark. 166 it was held there -was no Code provision for transfer in appeal cases from a justice of the peace 'court.

<p>1. Covenants for title — statutory covenant. — Under Kirby’s Digest, § 731, the use of the words “grant, bargain and sell” in a conveyance of land, without words of limitation, is equivalent to covenanting (1) -that the grantor is seized in fee; (2) that he -has good right and full power to convey; (3) that the grantee shall quietly enjoy the premises; and (4) that the premises are free from incumbrances done or suffered by the grantor. (Page 503.)</p> <p>2. Definition — incumbrances.—Incumbrances are any rights to interests in land which may subsist in third persons, to the diminution of the value of the land, and not inconsistent with the passing of the fee of same by deed. (Page 504.)</p> <p>3. Covenants — when run with land. — A covenant for quiet enjoyment of land is a covenant which runs with the land, for breaches whereof the grantee, his heirs or assigns, may sue as if it were expressly inserted in the conveyance. (Page 504.)</p> <p>4. Same — when broken. — A covenant for quiet enjoyment, implied by virtue of Kirby’s Digest, § 731, was broken where a.title paramount to that of the grantee’s was held valid in a suit against them to which their grantor was a party. (Page 504.)</p>

Mandamus to Jefferson Circuit Court; Antonio B. Grace, Judge; The matter is within the sound discretion of the court and the statute is directory merely. Mandamus will not lie. 66 S. E. 629; 9 Am. Dig. § 61 (b), p. 1883; Kirby’s Digest, § 2256; 1 West. Rep. 375; 4 Cent. Rep. 760; 39 Da. An. 759; 10 West. Rep. 920; 123 111. 227; 3 L. R. A. 778; High, Ex. Rem.

Evans, Judge; 1. The petition to transfer to the Federal court deprived the State court of jurisdiction. 75 Ark. 116; Dillon on Removal of Causes, § 75; 18 Enc. PI. & Pr. 338, 341; 176 Fed. 872; 81 Id. 518; 47 Id. 530; 213 U. S. 207; 215 Id. 437. 2. The deceased was not a passenger, not having been accepted by any one authorized to receive passengers. Hutchinson on Car.

Humphries, Chancellor; Under the contract • no interest could be charged. 22 Cyc. '1474, 1491; Kirby’s Dig. § 5387; 53 111. App. 245; 9 N. W. Rep. 265; 36 Mich. 239; 51 Me. 376 ; 29 Am. Dig. 44, note K. Where no interest is specified “until paid,” only six per cent, can be recovered from maturity until paid. Final judgments bear six per cent, interest unless a larger amount is agreed upon. Kirby’s Dig. § 5387. The note drew 10 per cent, interest..

1. Municipal corporations — ordinance fori impounding stock. — Under Kirby’s Digest, § § 545°, 5451, impowering cities and towns to prevent the running at large within their corporate limits of stock and cattle, and to provide for the impounding of same, municipal ordinances providing for the enforcement of these statutory provisions are valid police regulations. (Page 523.) 2.

Martineau, Chancellor; STATEMENT BY THE COURT. This suit was brought against the officials of the State who by law constitute the Board of Commissioners for the management of the Arkansas Penitentiary, to reform a contract of sale of certain lands to said board for the State for a convict farm.

Hutton, Judge; This suit was brought under § 4457, Kirby’s Dig., and the court held there was nothing in existence upon which to base a contract for a fee. This was error. 74 Ark. 551. At the time of making the contract there was nothing in existence capable of being contracted for. 66 Ark. 260; 30 S. W. 684.

Evans, Judge; STATEMENT BY The COURT. This is a suit for damages for personal injuries resulting from appellee’s having been thrown- violently against the front of the engine upon attempting to mount the pilot thereof in the discharge of his duty.

Martineau, Chancellor; 1. The evidence does not support the finding of the chancellor. No resulting trust was created, as the evidence must be clear and convincing. 48 Ark. 169; 45 Id. 484; 64 Id. 162; 71 Id. 378. The same rule is true of real and personal property. 2. Where a husband gives or delivers property to his wife, it becomes, so far as he is concerned, absolutely her property. 23 Ark. 508; 73 Id. 282; 31 Conn. 134; 50 Mo. 262; 1 App.

H. Humphreys, Chancellor; 1. The allegation in the complaint of the assessment and nonpayment of this local tax was all that was required of the plaintiff to make a prima- facie case. Kirby’s Dig. § 5691. - 2. The statute' is not in conflict with § 22, art. 2, Constitution of Arkansas, for § 23 of that article and § 27, art. 19, confer authority for such ‘legislation. 42 Ark. 152; 69 Ark. 68; 59 Ark. .513.

Elliott, Chancellor; STATEMENT BY THE COURT. This action was instituted by Marie A. Justice as guardian and next friend of Earle M. Wilson, a minor, in the chancery court against H. A. Parker as guardian of said Earle M. Wilson and W. K. Sims, T. H. Jackson and H. A. Carter as sureties'on his guardian’s bond to surcharge and falsify, his account as such guardian.

Barker, Chancellor; STATEMENT BY THE COURT. This cause involves the construction of the following deed: “State of Arkansas. “County of Columbia. “Know all men by these presents that we, William A. and Selestia Ann Beasley, for and in consideration of the love and affection that we have to our daughter, Selestia Ann Jinett Dempsey, wife of John Dempsey, we do hereby give and bequeath and convey unto our said daughter and her children, the natural offspring of her body, all…

Tire indictment is bad for uncertainty and ambiguity as to parties, offense, county and circumstances. 35 Ind. 419. 2. The instructions are erroneous, and the court erred in admitting testimony. 3. The testimony is at variance with the indictment. I11 false pretenses it is necessary to set out the false statements and prove them as alleged. 60 Ark. 142. 1. The indictment is sufficient under our statute. 17 Tex.

V. Bourland, Chancellor; STATEMENT BY THE COURT. The plaintiff, Boyce L,. Gulley, trustee, instituted this action in the chancery court against Franklin Bache to recover an unpaid stock of the face value of $5,000 in the Witteville Coal Company, for which it is alleged the defendant subscribed, and upon -which it is .alleged he has only paid $2,000, leaving an unpaid balance of $3,000.

The right of- redemption, being purely statutory, must be exercised in the manner prescribed by the statute. 17 Am. & Eng. Enc. of L. 1034; 17 Cyc. 1335; 71 Am. Dec. 268; 132 Fed. 417; 21 Cent. Dig. tit. “Executions,” § 861, cases cited; 23 Barb. 278; 34 N. Y. 225; 56 N. Y. 507; 68 N. Y. 473; 28 Ark. 359; 31 Ark. 334, 339; 40 Ark. 124; 41 Ark. 57, 61; 30 Ark. 720; 69 Ark. 5914 55 Ark. 30; 70 Ark. 410; Id. 326; 71 Ark. 318, 322; 84 Ark. 208; 57 Ark. 195.

F. Greenlee, Special Chancellor; The issue on former appeal, 86 Ark. 255, was the right of appellants to redeem, and it was remanded to the lower court “with directions to deny to appellees (appellants here) the right to redeem.” They had no right to raise the same issue again ’by an amendment to -their motion to redeem, and appellee’s demurrer thereto should have been sustained. 79 Ark. 193; 13 PI. & Pr. 861 and -cases cited.

<p>Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; appeal</p>

V. B our land, Chancellor; STATEMENT BY THE COURT. The appellant, the National Bank of Wichita, a foreign corporation of the State of Kansas, brought suit against the Wichita Coal & Material Company, a corporation organized under the laws of Kansas and doing business at Paris in the State of Arkansas, for the sum of $3,672.09, the balance due on a promissory note for the sum of $5,000, executed to it by said coal company on the 3d day of April, 1908, and to foreclose a…