Volume 99 — Arkansas Reports

Hudgins, Judge; STATEMENT BY THE COURT. August 12, 1909, the grand jury of Marion County returned into court the following indictment against ■ the appellant, towit, (omitting caption) : “The grand jury of Marion County, in the name and by the authority of the State of Arkansas, accuse the St. Louis, Iron Mountain & Southern Railway Company of the crime of failing, refusing and neglecting to comply with a certain finding, decree and mandate of the Railroad Commission of…

Guy Fulk, Judge; x. This court has twice held that the act of 1903 appropriating $1,000,000 for the purpose of completing the State capitel was not a continuing appropriation but was void after the expiration of two years. Art. 5, sec. 28, Const. 1874; 85 Ark. 171; 93 Ark. 513. The law provides what disposition is to be made of appropriations unexpended at -the end of two years. See Kirby’s Dig. § § 3416-17-18.

<p>1. Embezzlement — description oe eunds. — An indictment of a public officer for embezzlement .of public funds is not defective, under Kirby’s Digest, § 1994, in failing to describe the funds so embezzled. (Page 40.)</p> <p>2. Same — duplicity.-—Where the first count of an indictment charged defendant with embezzling public funds, and the second charged that he feloniously did convert such funds to his own use, and alleged that the same offense was charged, the two counts charged a single offense. (Page 42.)</p> <p>.3. Same — indictment—surplusage.—An indictment of an, officer for embezzlement of public funds alleged that defendant “did,'then and there fail and omit to pay over to his successor in ofhce the money and funds aforesaid, but then and there feloniously and fraudulently did convert the same to his own use and benefit.” Held, that the clause italicized is surplusage. (Page 42.)</p> <p>4. Same — proving settlement with county court. — In a prosecution of a county treasurer for embezzlement of county funds it is not competent for the State to introduce in, evidence a judgment of the county court fixing the amount due by him to the county. (Page 42.)</p> <p>5. iSame — repeal oe statute. — In an indictment for embezzlement it was error to give in charge to the jury section 1842 of Kirby’s Digest, such section having been repealed. (Page 44.)</p> <p>6. Same — instruction.—Where an indictment of a county treasurer for embezzlement of county funds contained the superfluous statement that defendant failed to pay over certain funds to his successor in .office, a charge that if accused was treasurer of the county and had in his possession funds belonging thereto and feloniously converted them to his own use or lent them or permitted another to use them, he should be found guilty, was erroneous and misleading, in connection with testimony that the funds had been loaned to banks, as the jury may have concluded that they were authorized to convict him for loaning the funds. (Page 45.)</p> <p>7. Same — instruction.—In an indictment of a county treasurer for embezzlement of county funds it was error to instruct the jury to find defendant guilty if he loaned such funds, or used them in any way for his private purpose, or failed to pay to his successor in office the amount adjudged by the county to be due by him. (Page 45.)</p>

<p>1. Fraudulent conveyance — presumption.—Fraud is never presumed, but must be proved, and this may be done by inference from circumstantial evidence, but no such inference can arise from doing an act warranted by law. (Page 53.)</p> <p>2. Homestead — right oe debtor to acquire. — An insolvent debtor may exchange lots which are subject to the claims of his .creditors, but upon which they have no liens, for a homestead which is not subject to their claims. (Page S3.)</p> <p>3. Same — right To acquire by exchange. — Where a father, being insolvent, in good faith conveyed lots owned by him which were subject to the claims of his creditors, to his daughter in exchange for a homestead, and the lots so conveyed did not greatly differ in value from the homestead, the conveyance was valid, though the creditors were thereby deprived of property that could' have ibeen .subjected to the payment of their debts if such exchange had not been made. (Page 55.)</p>

Guy Fulk, Judge; 1. A motion to dismiss an appeal must be made, if at all, at or before the time the party making it enters his appearance. If not then made, the motion will be treated as waived, io Ark. 308; 25 Ark. 87; 31 Ark. 489; 33 111. App. 631; 66 111. 102; 26 Neb. 65; 44 O. St. 329; hi Ind. 225; 7 Cush. (Mass.) 521; 69 111. 281; 61 Ind. 465. 2.

H. Bvans, Tudge; The court erred in submitting to the jury the question of the right of condemnation or the necessity therefor, instead of submitting only the question of the assessment of damages. Plaintiff having filed no answer to the cross-complaint, it should have been taken as confessed. 8 Ark. 279; 71 Ark. 364; 74 Id. 104; Const, art. 2, § 22, art, 12, § 9; Kirby’s Dig. § § 2938, 2939, 2947, 2952; 76 Ark. 239; 43 Id. hi ; 45 Id. 278; 78 Id. 83; 59 Id. 171.

<p>1. Carrying weapon — instruction.—An instruction that “before you would be warranted in convicting the defendant you must believe * * that the defendant did in the county and State and within the past twelve months wear and carry as a weapon a pistol,” was not objectionable as permitting a conviction for carrying a pistol as a weapon on a day subsequent to the filing of the information if all of the testimony was directed to a prior time, and there was no specific objection to the instruction. (Page 68.)</p> <p>2. Same — unloaded pistol. — A pistol may be carried as a weapon though unloaded. (Page 68.)</p>

<p>X. Evidence — preponderance.—In determining the preponderance of the evidence the jury may consider the number of the witnesses. (Page 76-)</p> <p>2. Instruction — preponderance oE evidence. — The court in a civil case instructed the jury that “the preponderance of evidence does not mean the greater number of witnesses, but it means the evidence that appears to you as most probably true, and which, after a careful consideration of all the facts and circumstances in the case, appears to you of greater weight than the evidence offered on the other side.” Held not objectionable, in view of other instructions to the effect that the jury should not arbitrarily disregard the testimony of any witness. (Page 76.)</p> <p>3. Carriers — relation of passenger — instruction.—In an action for the death of an alleged passenger, where there was evidence that deceased came into a coach having in. his hat a check similar to that given to other passengers, it was not error to submit to the jury the question whether he was a passenger. (Page 77-)</p> <p>4. Same — contributory negligence — emergency.—In an action against a railway company for the negligent killing of a passenger it was not error to instruct the jury, in effect, that if the decedent was negligently placed in a position of danger, and was injured in attempting to escape therefrom, the carrier was liable if deceased used such care as a prudent man would have used under the same circumstances. (Page 78.)</p> <p>5. Evidence — expectancy of life. — A person’s expectancy of life may he proved, not only by the mortuary tables, but also by showing the person’s age, health, habits and other facts which -affect its probable continuance. (Page 80.)</p> <p>6. Carriers — passenger riding on platform. — It was error to refuse to instruct the jury, in a suit against a carrier for the negligent killing of a passenger, to the effect that if the deceased passenger was riding on the platform at the time he was killed the verdict should be for the defendant; hut such error was not prejudicial where the law was properly declared in another instruction. (Page 80.)</p> <p>7. Same — contributory negligence — -white passenger in colored coach. ■ — -It was not error, in an action against a .carrier for negligently killing a white passenger, to refuse to charge the jury to find for defendant if the deceased passenger was in the colored coach, a place not provided for the use of white passengers, as the statutory provisions for the segregation of the races have no reference to the safety of the passengers. (Page 81.)</p> <p>8. Same — derailment of coach — evidence.—In an action against a carrier for negligently killing plaintiff’s intestate in the derailment of a coach in which he was riding, it was competent to prove that the flanges of the engine’s wheels had become much worn. (Page 85.)</p> <p>9. Trial- — -improper statement. — Where, in an action against a railroad company for .the killing of a passenger, defendant’s counsel asked a witness, “Did you ever know any one in your life, who is now dead?” to which he answered, “Yes, sir,” a remark by plaintiff’s counsel, “I guess he knows lots of people the Iron Mountain has killed,” was not á statement of fact, but a bit of railery, and not misleading. (Page 83.)</p>

The -corn-plaint alleged -that appellant was in possession of all the l-ands and enjoying the rents and profits, to the exclusion of the other owners. Mere possession, it is true, by a co-tenant cannot defeat partition; but when it is admitted that the other owners have been “excluded,” then the co-tenant in possession'has all the rights that would accrue, to a stranger.

<p>1. Assault and battery — definition of battery. — A battery is any violence to the person of another with intent to injure, and, if unjustified, it is unlawful. (Page 91.)</p> <p>2. Same — instruction—objection.—If an instruction, in a prosecution for assault and battery, which told the jury to convict if they found that the defendant did. strike the prosecuting witness, was objectionable in omitting to state that the battery must be unlawful, such objection must be pointed out specifically. (Page 91.)</p> <p>3. Same — DEFENSE OF child. — A parent can defend his child against unlawful assault by the other parent; but to justify a battery in such defense it must appear that force was necessary. (Page 91.)</p>

There is no proof whatever that the building was owned, used or occupied by Till Shaw, nor that the object of the intended larceny was his property. The variance therefore is double; first in respect to the ownership of the premises entered, and, second, as to the ownership of the goods intended to be stolen. Bishop’s New Crim. Proc. § 137; 6 Cyc. 227 ; 88 Ala. 113; 16 Am. St. Rep. 23; 77 Miss. 370, 78 Am. St. Rap. 527;; 86 N. Y. 360; 40 Am. Rep. 548; 8 Cent.

Robertson, Chancellor; The testimony on the part of appellant presents a clear case of desertion by the appellee without cause, and the court erred in dismissing his complaint. 66 Ark. 16.

H. Evans, Judge; The judgment .ag’ainst the garnishee should not have been for a greater amount than be had in his hands at the time of the service of the writ. Hence it was error to adjudge against him the costs of the original action. It was also error to allow against him interest on the judgment at ten per cent, from March 5, 1909.

■ Appeal from Pulaski Chancery Court; John B. Martinean, Chancellor; 1. The same principle is involved 'in this case as in the case of Craig v. Russellville Waterworks Improvement District, 84 Ark. 390, and should control. I-t is too narrow a construction of sec. 27, art. 19, Const., in that case enforced, to say that it applies only to improvements made within the city or town.

H. Evans, Judge; STATEMENT BY TITE COURT. Appellee instituted six actions against 'appellant before a justice of thé peace in Saline County, and -recovered judgment in each case. On appeal to the circuit court, these cases were consolidated for the purpose of trial, and were .tried before the court sitting as a jury upon an agreed statement of facts. The cause of action alleged in each case is on an overcharge in an interstate shipment of lumber.

<p>Appeal from Logan Circuit Court, Southern District; Jeptha H. Uvans, Judge;</p> <p>statement by ti-ie court.</p> <p>Ed Box brought this suit against the Chicago, Rock Island & Pacific Railway Company to recover damages for injuries sustained by him on account of the alleged negligence of said Railway Company. According to his own testimony, he was hurt on the night of November 18, 1909, while walking across one of defendant’s railroad bridges in the town of Hartford, Ark. He was on his way to watch one of defendant’s engines, and had been hired by the regular night watchman. The bridge was in the railroad yards, and was about 100 yards west of the depot. Four tracks were laid across the bridge, and it was floored. The railroad' employees usually walked across the bridge while engaged in or going to and from their work. On the day in question Box had been working as pumper in the water service of the railroad company. On that night the regular night watchman employed him to take his place because of the sickness of his child. Box -had been employed by him as a substitute on other occasions previous to this time. On his way to the engine, he was walking across the bridge between the main and house, tracks, and fell into an open space left there by the workmen, who were repairing the bridge. Box did not know this, and there was no light or other signal there to warn him of the danger. Other evidence in his behalf tended to show that the bridge was used as a crossing both by the employees of the company and by the public generally.</p> <p>L. A. Bronson, the regular night watchman, was a witness for the defendant, and testified that he had employed Box to take his place for him that night and expected to pay him for it. He said that he had used Box several times to watch the engine, and that there was a kind of custom for a regular man to call a man in his place in an emergency; that he did not know that any of the railway officers knew about him getting Box to take his place. On cross-examination, he was asked this question: “What were your instructions about when you had to be off?” and that there was a kind of custom for a regular man to call a understood the work.”</p> <p>Other evidence will be referred to in the opinion.</p> <p>The jury returned a verdict for the plaintiff, and defendant has duly prosecuted an appeal to this court.</p> <p>1. There is no negligence shown on the part of appellant. There is no proof that the rules of the company required any warning of danger to be given to employees when repairs to its tracks and road bed are being made, nor any evidence that appellant was accustomed to place a light or danger signal where it had torn up a portion of one of its bridges in repairing it, nor to give warning in any manner to employees where it had torn up any part of its tracks while repairing them. Even if appellee’s duties required him to pass along the place where' the accident occurred (which is not admitted), appellant was not an insurer of his safety in doing so. 61 Atl. 359. Appellee is not entitled to recover for injuries received while following a route to his work that was more dangerous than either of several other routes he might have chosen. 93 Ark. 205; 87 Ark. 471; 86 Ark. 507; 82 Ark. 534; 54 Am. Rep. 5.</p> <p>2. The proof shows that appellee was not employed by the appellant; and there is no presumption that one employee of a railroad company has authority to employ another so as to make that other a servant of the company. 96 Ark. 558; 104 S. W. 382; 51 Am. & Eng. R. Cas. (N. S.) 213.</p> <p>3. The court erred in admitting testimony to the effect that the public generally at Hartford used this portion of appellant’s yard in going from one side of town to the other.</p> <p>Since the bridge had always been covered and used by the employees of appellant, appellee had the right to assume, in the absence of knowledge or warning of its actual condition, that it was still covered and safe for passage. A railway company is not, it is true, an insurer of the safety of its premises anid roadway, but it is its duty to provide for its employees a reasonably safe place and reasonably safe appliances; and in this case it was appellant’s duty to provide appellee a reasonably safe way of travel to the point where he was to perform his duty.</p> <p>The danger in this case may be classed as hidden. It was a dark night, the bridge -was left uncovered, and no light provided nor barriers erected. 87 Ark. 471; 65 la. 224; 54 Am. Rep. 5; 86 Ark. 507; 82 Ark. 188.</p> <p>2. The question whether or not the relation of master and servant existed between appellant and appellee was one of fact to be determined by the jury from the evidence under proper instructions of the court. 2 Labatt, Master & Servant, 1867; 26 Cyc. 971. The jury’s verdict settles this question in favor of the appellee.</p>

, construing this clause as givingappellee the right to hold the land indefinitely after -the expiration of five years simply by paying taxes on thé land.

Appealed from Crawford Circuit Court; Jeptha H. Evans, Judge; reversed as to Sanders; 1.

There was no larceny. Kitby’s Dig. § 1898. In an indictment for larceny the ownership of the property must not only be alleged, hut it must also be proved as alleged. 132 S. W. 918. . 1. The allegations as to ownership of the property and as to the essential ingredients of the crime are sufficient if the proof shows that any one hog -belonging to Mabry was marked and was killed by appellant.

<p>Appeal from Columbia Circuit Court; George W. Hays, Judge;</p> <p>STATUMUNT BY THU COURT.</p> <p>The defendants were jointly indicted at the February term, 1911, of the Columbia Circuit Court for stealing 'hogs. They were duly charged in the indictment with the offense except the date upon which the offense was committed was left Wank, it being alleged “the said defendants on the-day of-, 190 — , in Columbia County, Arkansas, did unlawfully,” etc. A demurrer was interposed to the indictment and overruled by the -court.</p> <p>The trial occurred in March, 1911, and the testimony tended to show that the defendants killed and cleaned two hogs, the property of Ed Copeland, the last Sunday in December before ■the trial, at the back of Ed Walter’s field about three miles from where Andrew Threadgill, one of them, lived, and that they were seen carrying the hogs away after dark by two witnesses, as stated by Will Smith, “Tom Balter and I were coming down the road and saw the fire, and we saw both the defendants with a hog apiece going down the road; we followed them down there, anil went in -and saw Jerry, but they said Andrew was out. We told Mr. Joiner about what we had seen. It was about 9 o’clock at night that we saw them with the hogs.” The -hogs had been killed and butchered in a very marshy place, and most of the hair had been burned;</p> <p>Andrew Threadgill admitted that he had killed the hogs, but claimed that they were his; that he had raised them; that he owned about 35 head, and some of them ranged in the Emerson deadening near the Walters field; that he got Jerry Sherman to go with him and help get them up to kill. That when they got down there they tried to toll the hogs through -the field, and could not, and concluded it ms best to kill them there.</p> <p>The court in instructing the jury told them if they found that the defendants bad committed the offense “within three years before the return of the indictment herein into court, which was on the 22d day of February, 1911, “they would find them guilty.” The jury returned a verdict of guilty against them, and they filed a motion in arrest of judgment; and, it being overruled and judgment entered, they appealed.</p> <p>The indictment was fatally defective because no time was alleged therein when the crime was committed. 18 Am. Dec. 46; 33 Id. 90; 34 Id. 121; 56 Id. 418; 96 Am. St. Rep. 801; 27 Cent. Dig. paragraphs 244-259; 22 Cyc. 313-320; 4 Cur. Daw 9; 6 Am. & Eng. Ann. Cases, 851-853; 81 Me. 271; 2 D. R. A. (N. S.) 251; 6 Bax. (Tenn.) 605; 34 Ind. 436.</p> <p>The indictment which this court, in 65 Ark. 559, held sufficient alleged an impossible future date, and was .so held because of clerical error. The Grayson case, 92 Ark. 413, was a misdemeanor, and the courts do not exact as strict rules of procedure in such cases as in charges of felony. 19 Ala. 526; 8 Rob. (Da.) 590; 14 Mo. 398 ; 22 Cyc. 320.</p> <p>The indictment was sufficient. 92 Ark. 413.</p>

Humphries, Chancellor; Injunction against a party creating or maintaining a nuisance is not a matter of absolute right, b-ut lies within the sound discretion of the court, having due regard for not only the strict nights of the plaintiff and defendant but also the surrounding circumstances. Wood on Nuisance (3 ed.) 1182; 20 Am. St. Rep. 124; 29 Id. 132. Wrongs already committed cannot be corrected by injunction. 42 Kan. 368. See also 8 Am. & Eng. Erne, of L- 700; Id. 722.

<p>1. Criminal law — indictment—sufficiency on appeal. — An indictment which is good in substance and upon which judgment could have been rendered against the defendant is sufficient on appeal. (Page 134-)</p> <p>2. Instructions — repetition.—The repetition of instructions to the same effect is unnecessary. (Page 135.)</p> <p>3. Venue — proof by circumstantial evidence. — Where all the testimony in a criminal case showed that the transactions involved took place in the county of the venue, the jury may infer that the crime was committed there. (Page 136.)</p>

Elliott, Chancellor; STATRMRNT BY THR COURT. This suit was brought by appellant against appellee to quiet title to a certain tract of land in Prairie County. The appellant set up a tax deed which was executed by the county clerk July I9> I9°5- The deed was given for lands that were sold for the nonpayment of the taxes for the year 1902.

• It is not the part of the trial court to assist the prosecuting attorney in developing a case for the State.

43 Ark. 209. The act of Congress providing for the authentication of judicial records does not apply to •judgments of justices of the peace. The judgment of the justice of the peace was admissible. Art. 4, § 1, Const. U. S.; Rev. Stat. U. S. § 905; 48 Ark. 54, 55; 5 Ohio Rep. 545; 13 Id. 217.

Evans, Judge; The statute under Which appellant was indicted relates solely to the sale of drugs, nostrums, ointments or applications by itinerant vendors, and requires of them as vendors the qualifications ■of practicing physicians, whereas local vendors are not required to have -any such qualifications. The statute is therefore -class legislation and unconstitutional and void.

Robertson, Chancellor; STATEMENT BY THE COURT. Appellant brought suit to quiet his title to the southwest quarter and east half of northeast quarter of section 33, and the southeast quarter of section 35, township 1 north, range 1 east, in Lee County, and to cancel certain tax deeds of appellees as a cloud upon his title.

H. Evans, Judge; 1. The description in the affidavit and warrant of the property to be searched for is insufficient. It is not described with that particularity required by the Constitution. Art. 2, § 15, Const. 1874; 13 Mass. 286; 7.Am. Dec. 151. 2.

Bvans, Judge; The court should have directed a verdict for appellant, because of appellee’s contributor}'- negligence shown in the evidence. This is a case, according to the uncontradicted evidence, of a traveler approaching a railroad crossing with nothing to obstruct his view or to prevent his seeing an approaching train for three-quarters of a mile in the direction from which it was coming.

<p>1. Counties — effect of reversing order of allowance. — Where a claim was allowed against the county in the county court, and a warrant therefor was issued, and subsequently an appeal to the circuit court was prosecuted by a citizen and taxpayer, and the claim was disallowed in the latter court, the warrant previously issued under the judgment of the county court was rendered invalid. (Page 174.)</p> <p>2. Same — calling in warrants. — Under Kirby’s Digest, § 1179, providing that “when the (county) scrip or warrant, so called in, shall be presented to the court, it shall be the duty of said court thoroughly to examine the same, and to reject all such evidences of indebtedness as in their judgment their county is,not justly and legally bound to pay,” it is the duty of the county court, upon calling in the county warrants, to refuse to allow a county warrant which, after its issuance, was invalidated by the order of the circuit court on appeal. (Page 175.)</p>

The court’s modification of instruction 2 requested by appellant was erroneous in that it limited appellant to showing specific acts of unchastity, whereas chastity may also be impeached by proof of indecent conduct or improper familiarities with men prior to the alleged seduction. 21 Am. & Eng. Enc. of E. 1048, note 1; 78 la. 123; 51 S. W. 910; 48 Ga. 192. 2. There was no corroboration of the promise of marriage.

Shaver Chancellor; statement by the court. This suit is by appellant, hereafter called the Company, against appellee, called the City, to enjoin the enforcement of an ordinance of the City, fixing rates to be charged by the Compan)'' for electricity furnished consumers.

Appellant, was convicted of involuntary manslaughter upon an indictment charging Gus Ivey, Glenn Reyburn and himself with the murder of Jay Kagg, committed as follows: “The said defendants in the county and district aforesaid on the 15th day of June, 1910, unlawfully, willfully, and of his malice aforethought and with premeditation and deliberation, did assault, kill and murder one Jay Kagg in the peace of the State by striking him, the said Jay Kagg, with some deadly…

Grace, Judge; Under the facts shown appellants had the right to forfeit the lease. Appellees covenanted in the contract to keep the house at all times “in a good habitable condition,” and further it was agreed that if it should be destined by fire, so that the same cannot be occupied without rebuilding, “either party should have the right to forfeit the lease.” The destruction need not be complete. 11 Pa. Super. Ct. 564; 3 Words & Phrases 2031, 2032; 6 Pa. 379; 47 Am.

V. Bourland, Chancellor; STATEMENT BY THE COURT. This proceeding is to review the action of the Sebastian Chancery Court in releasing from the custody of Sid Johnson, the chief of police of Fort Smith, Nat Wheeler upon his petition for a writ of habeas corpus.

<p>Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge;</p> <p>The local scribes in collecting assessments from members did so as agent of the members, and not as agent of the National Grand Scribe or National Grand Treasurer of the order. Not only were the officers of the local lodge enjoined by the laws of the order from collecting dues for the members except as agents of the members, but there was a different method provided for the collection thereof. It is also provided in the policy of Anna Anderson that she would pay the various dues, at the times stipulated in the policy, to the National Grand Scribe of the appellant. The constitution and laws of a society are parts of its contract with its members or policy holders. Bacon, Ben. Soc. § 144. Equally as elementary as the above is the rule that a contract should be construed as a whole. 21 Utah 239; 50 L. R. A. 371; 60 Pac. 1100; 55 O. St. 581; 60 Am. St. Rep. 711; 36 L. R. A. 236; Page on Contracts § 1112.</p> <p>The scribe of the local lodge was the agent of the Grand Lodge, and was so recognized by the receipt of funds paid by members to him for the Grand Lodge. The course of dealing between the Grand Lodge and the scribe of the local lodge was a holding out of the scribe to the members as agent of the Grand Lodge; and when she received the quarterly endowment assessments from the members, her act was binding upon the Grand Lodge to the same extent as if the money had been sent direct to the Grand Scribe.’ 177 U. S. 260; 67 Ark. 506.</p>

Hays, Judge; The county is not liable. The statute making it the duty of the sheriff to deliver to judges of election notice of their appointment does not provide or allow a fee for that service. Kirby’s Dig. § 2765. See also Kirby’s Dig. § § 3508, 2843, 2845. Constructive fees cannot be allowed, but only such fees as are specifically allowed by law. Kirby’s Dig. § 1458; 61 Ark. 71; 25 Ark. 236; 57 Ark. 487.

Lea, Judge; 1. The ruling of the court in refusing to permit appellant’s counsel to argue to the jury the responses of the witness, Sykes, to questions propounded by the State’s attorney as to the reputation of the witness, Gordon, for truth and morality, and in excluding same from the jury, was materially prejudicial to appellant. 8 Enc. PI & P'r. 115 ; Id. 116; 11 Cush. (Mass.) 245; 132 Ind. 539; 97 Cal. 171; 88 Ala. 26; 99 Ind. 290; 30 Am. & Eng. En-c. of L. 1077. 2.

<p>Appeal from Lawrence Chancery Court; George T. Humphries, Chancellor;</p> <p>The payment made by McBride to Ward on September 28, 1908^ after the making and recording of the Wadley mortgage, was not sufficient to keep alive the lien of the Ward mortgage and make it superior to appellant’s. 92 Ark. 195; 30 Ark. 407; 31 Ark. 85; 69 Ark. 301; Kirby’s Dig. § 5399.</p> <p>The record dearly shows that appellee kept within the requirements of the statute to make the payments he had received operative against the rights of all third parties. Kirby’s Dig. § 5399-</p>

<p>1. Pleading — exhibits to bill in equity. — 111 suits in chancery the exhibits which are the foundation of the action become a part of the record and will control the averments of the complaint and the nature of the cause of action; and all other allegations in the complaint are matters which are only explanatory of the cause of action which is founded upon such exhibits. (Page 221.)</p> <p>2. Appeal and error — conclusiveness of judgment on former appeal-—The principles of law determined and announced upon a former appeal are binding, and stand as the law of the case. (Page 222.)</p> <p>3. Evidence — written contract — parol proof of consideration. — It is competent to prove by parol testimony the consideration upon which a written contract is founded, and to show that the consideration has not been paid as recited in the written instrument, or that other consideration was agreed upon; but this can be done only in cases where such parol testimony would not contradict the terms of the written contract. (Page 223.)</p> <p>4. Same — parol evidence to vary written contract. — Where a written contract is plain, unambiguous and complete in its terms, parol evidence is not admissible to contradict or to vary or add to its. terms, as by providing that the contract is not to .take effect until the performance of certain conditions. (Page 223.)</p> <p>5. Appeal and error — trial in equity de novo. — As hearings upon appeal in chancery are de novo, evidence that was improperly received, whether objected to below or not, will be disregarded, and the case will be decided here solely upon competent evidence. (Page 225.)</p>

<p>1. Railroads — damage by running of train — burden of proof — In suits against a railroad company to .recover damages done to property by the running of its trains, the burden of showing due care upon its part is cast upon the railroad company by virtue of the statute of this State (Kirby’s Digest, § 6773) making railroad companies responsible for all damages done or caused by the running of their trains. (Page 228.)</p> <p>2. Instructions — general objection. — In an action against a railroad company for injury to property by the running of a train, an instruction that “if you find from a preponderance of the evidence that ■the defendant company, by its agents, while operating its trains, negligently ran into or against plaintiff’s wagon or team, and thereby injured or killed plaintiff’s property, then you 'Should find for the plaintiff such sum as will justly compensate plaintiff for such injury, if any is shown.” Held that a general objection was insufficient to - point out the error in using the word “preponderance.” (Page 231.)</p> <p>3. Appeal and error — harmless Error. — The Supreme Court will not reverse for an erroneous instruction if it appears that it could not have misled the jury. (Page 230.)</p> <p>4. Railroads — leaving team near track. — One who leaves his team of mules standing near to a railroad track shoald keep them in control on the approach of a .train; and if he fails .to do so, and they become frightened, and injury is caused thereby, he will be guilty of negligence barring a recovery unless the animals are frightened by some wanton or wilful act done by the railway employees. (Page 231.)</p> <p>5. Same — duty toward team left near track. — A railroad company is not liable because animals left in close proximity to its tracks are frightened by the approach of the trains if there is no negligence in the operation of -the train or in the failure to exercise due icare to avoid the injury. (Page 232.)</p>

Appeal f-rom Hempstead Circuit Court; Jacob M. Carter, Judge; statement by the court.

Evans, Judge; Under the testimony this- case falls clearly within the exception to the statute and within the ruling of this court in such cases. 45'Ark. 359; 55 Ark. 181.

This suit was commenced before a justice of the peace, and on .appeal to the circuit court there was a trial de novo before the court sitting as a jury. The note sued on was for $65, given by appellant to appellee for his interest in a co-partnership known as the Corning Opera House Company.

Guy Fulk, Judge; STATEMENT BY THE COURT. J. P. Steen died in the city of Little Rock, in Pulaski County, leaving a will. When the will was offered for probate, appellants appeared in the probate court as contestants. The will was admitted to probate in common form, and the contestants duly prosecuted an appeal to the circuit court. The case was tried before a jury in the circuit court, and there was a verdict in favor of the proponent of the will.

Shaver, Chancellor; statement by ti-ie court. Burton Parker instituted this suit against Cullen Parker in the chancery court, and in his complaint alleged that he had conveyed to defendant certain lands in Pike County by a deed in which was excepted the fee to a private road over said lands. That defendant is asserting title in the soil of said road, and is interfering with plaintiff’s use of the same.

<p>1. Carriers — duty as to stopping trains. — ■'While it is the duty of a railroad company, as a carrier of passengers, to stop its trains at stations which it has, by its regulations, noted for stopping, a company has a right to determine what trains shall stop at its stations; and if a particular train does not stop at a passenger’s destination, he cannot require the trainmen to stop it there. (Page 250.)</p> <p>2. Same — inducing passenger to alight. — Where the .trainmen induce a passenger reasonably to believe that the train has stopped, and invite him to alight, and he is injured in alighting, without negligence on his part, .the company is liable. (Page 251.)</p> <p>3. Same — passenger negligent in alighting. — Where, on approaching •a station, the engineer gave a signal which a passenger supposed to be a stop signal, and the passenger told the brakeman that he desired to get off if the train made a stop, and the brakeman answered, “All right,” and opened the vestibuled door; but the train never stopped, and the passenger jumped off while the train was in motion and was injured, he was guilty of contributory ’negligence, as a matter of law, and was not entitled to recover. (Page 253.)</p>

<p>1. Negligence — hole in street. — Proof that defendant, operating an electric light plant, dug a hole in a street of a town for the purpose of setting a pole, and left the hole uncovered and unguarded, was sufficient ito warrant a submission to the jury of the charge of negligence on defendant’s part. (Page 256.)</p> <p>2. Appeal and Error. — invited error.- — -Appellant can not complain of error in instructions asked by appellee if the same error was repeated in instructions asked by appellant. (Page 256.)</p> <p>3. Negligence — contributory negligence. — -Failure of a pedestrian to discover a hole in the sidewalk will not constitute contributory negligence as matter of law, though she was momentarily inattentive, and though she could have seen the hole had she been looking at the sidewalk. (Page 257.)</p> <p>4. Same — contributory negligence. — It was not error, in an action for injuries occasioned by falling in a hole negligently left in'a sidewalk, to refuse to charge that if the plaintiff knew at the time she walked along a certain sidewalk “that said walk was rough or washed out in places then it was the duty of the plaintiff to look before she-stopped, and if she fell and was injured while not looking of paying attention to where she was walking your verdict should be for the defendant;” as the rough condition of the sidewalk had nothing to do with the injuries complained of, and plaintiff’s failure to look for known defects would not convict her of negligence in failing to look for unknown dangers. (Page 250.)</p>

V. B our land, Chancellor; statement by the court. On the 25th day of June, 1908, G. Cctldarera conveyed by warranty deed to C. N. Geren six lots in block 518 of the Reserve Addition to the city of Fort Smith, Arkansas. The consideration was $12,000, $5,000 of which was paid in cash. The deed contained a covenant against incumbrances except a mortgage on one lot.

Bvans, Judge; 1. The court erred in refusing to grant a continuance. 66 Ark. 278; 59 Ark. 169; Pomeroy, Rem. Rights, § 554; 75 Ark. 3^9; 372; 74 Ark. 159; 85 Ark. 334; 67 Ark. 142. 2. The depositions of Doctors Bentley and Barlow should have been suppressed. 3. The evidence was not sufficient to sustain a verdict against appellant.

V. Bourland, .Chancellor; statement by tiie court. Appellee, Nakdimen, entered into a contract with one Charles Miller, doing business as the Miller Construction Company, for removing a three-story brick building on a certain lot in the city of Fort Smith, and for the erection of a six-story fireproof building thereon. The contract price was $51,900. Miller removed the old building, for which work he was allowed $681.50. He sold the material in the old building for $415.50.

This suit was brought by appellee as administratrix to recover damages for the widow and next of kin, and the estate of the .deceased, her husband, Joseph Hodge, for his -wrongful death, caused, it was alleged, by negligence of appellee company through its servant, Ab. Edwards, in giving said Hodge misleading information and lowering him into a mine filled with inflammable gas.

This suit was brought by Fleetwood Morris against Coffee Williams, appellant, and C. L,. Sloat and Newt. Reed on the following promissory note: “$500.00.

V. Bourland, Chancellor; The time for redemption had expired. The confirmation, when made, related back to the date of sale, and made it complete and valid from that date. Kirby’s Dig. § § 5703, 5704; Rorer on Jud. Sales (2 ed.), §106; Id. §> 109; 17 Am. & Eng. Enc. of E. 993; 24 Cyc. 36; 80 Ark. 1. The right of redemption exists only by virtue of the statute, and must be exercised within the time prescribed by statute. 24 Cyc. 68.

Treating the transaction as a whole, beginning with the first purchases made and extending to the last, appellants have a lien for the purchase money on the whole amount of goods purchased, under the statute. Kirby’s Dig. § § 4966, 4967. 2.

Grace, Judge; reversed in part. STATEMENT BY THE COURT. The Hamilton-Brown Shoe 'Company filed a complaint in the circuit court against H. M. Hoffman, Gus A. Hoffman and Hoffman Investment Company. The complaint in substance alleges that .plaintiff is a Missouri corporation, and defendants are indebted to it in the sum of $1,201.98 for merchandise sold and delivered.

<p>1. Counts — jurisdiction or probate court to construe wire. — Probate courts have no jurisdiction of a suit to construe a will. (Page 339-)</p> <p>2. Same — jurisdiction or probate courts. — Where the probate court was without jurisdiction, the circuit court acquired none by appeal. (Page 339-)</p>

Humphries, Chancellor; 1. When the parties to a contract of sale of lands have stipulated to make time of payment of the essence of the contract, a court of equity cannot relieve a vendee who has made default. 87 Ark. 593; Id. 393; 76 Ark. 578; 54 Ark. 16; 61 Ark. 266; 91 Ark. 133; 1 Pom. Eq. Jur. (2 ed.) § 455. A court of equity wiil not relieve against the failure of a vendee to perform a condition precedent. 2.

<p>Stay bond — guaedian may Givg. — (Kirby’s Digest, § 3253, as amended by Acts of 1909, p. 590, providing that “no stay shall be allowed upon a judgment or decree against any* * agent for * * * failing to pay over money collected by him in such capacity,” does not prohibit a stay upon a judgment in favor of.a ward against his guardian for money collected by the guardian, a"s such, and not paid to the ward.</p>

Acts 1909, p. 99. Knowing him to be drunk, it was the conductor’s duty to protect the other passengers from annoyance by him.

<p>Appeal from Poinsett Chancery Court; Edward D. Robertson, Chancellor;</p>

Barker, Chancellor; 1. Where different debts are due from the same party, he must at the time of making a payment declare on what account he pays it; otherwise the creditor may make the appropriation of the payment, and he may exercise this right at any time before settlement. 32 Ark. 645, 665; 2 Jones on Mortgages, (1 ed.), § § 906, 908; 38 Ark. 285, 296; 76 Ark. 534. The right of appropriation can only be exercised by the debtor» or creditor.

<p>Appeal from Perry Circuit Court; Robert /. Lea, Judge;</p> <p>The admission of the declaration of Florence Brown was erroneous because by reason of her infancy she was not a competent witness and there was no showing that she had conception of the legal and moral obligation of an oath. 1 Greenleaf on Evidence (15 ed.), 504, § 367; Bradner on Evidence (2 ed.) 135, § 5; 10 Cal. 66; 28 La. Ann. 327; 10 Mich. 374; 23 Minn. 108; 68 Mo. 206; 16 S. E. (W. Va.) 803; 42 Pac. 555; 3 S. W. 757; 11 S. W. 409; 14 S. W. 760733 S. W. 809 ; 35 S. W. 174. And especially was it inadmissible because dying declarations are admissible in homicide cases only where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Bradner on Ev. (2 ed.) 450, § 10; Greenleaf on Ev. (15 ed.) 224, § 156; 21 Cyc. 98.1; 32 So. 183; 16 B. Mon. 15; 71 Ga. 128; 110 Pa. 100; 15 Johns. 280; 165 Mass. 174; 47 N. C. 41; 47 Mo. 239; 17 Ala. 587; 94 Cal. 5951 5 Col. App. 91; 139 111. 81; 46 Ind. 311; 60 Kan. 772; 9 Ky. Law Rep. 385; 75 Miss. 559; 15 Neb. 484; 35 O. St. 78; 26 S. C. 152; 41 Tex. 246; 15 Utah 480; 25 Wis. 384.</p> <p>The admission of testimony to prove the dying declarations of Florence Brown was erroneous, there ‘being no statute of this State authorizing the admission of dying declarations in a prosecution for rape. Such declarations are admissible only in prosecutions for homicide. Wigmore on Ev. (3 ed.), § 1432; 50 Ala. 459 and cases cited; Greenleaf on Ev. § 156; 21 Cyc. 981; 165 Mass. 174; 1x0 Pa. 100; 71 Ga. 128; 35 Am. Rep. 596.</p> <p>Dying declarations are not admissible if, for any reason, the declarant would have been an incompetent witness. 2 Wigmore on Ev. (3 ed., Bowlby), § 1445; 45 Pac. 650; 21 Cyc. 974; 56 L. R. A. 432; Greenleaf on Ev. (15 ed.), § 157; 39 Ark. 229; 93 Ark. 156.</p>

Cowling, Judge; statement by the court. Counsel for appellee states the facts as follows: The appellant is engaged in the manufacture of lumber at Vandervoort, Polk County, Arkansas, and owns and -operates a planer and several sawmills in that vicinity. At one of its mills Ed. Mathis was in charge and receiving for his services $5 and $5.50 per thousand feet for sawing and stacking the lumber at the mill yard, the appellant to furnish the timber.

Hudgins, Judige; STATEMENT BY THE COURT. The appellees sued appellant, alleging that appellant entered into a contract with them to deliver a carload of cattle at Kansas City, Mo., to their consignee, the.

H. Bvans, Judge; The first instruction was erroneous in the use of the words “utmost diligence which human skill and foresight can effect,” instead of the “highest degree of care which a prudent and cautious man would exercise.” 34 Ark. 613, 615; 51 Ark. 459, 466. See also 57 Ark. 287, 298. The Murray case, 55 Ark. 248, 254, contains a better'statement of the rule. See also 52 Ark. 517, 524; 2 Hutchinson on Carriers, § § 826, 827.

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

Circuit Court; Prank Smith, Judge; statement by the court. Appellants brought suit against Jade Fielder and his son Henry for damages for the malicious killing of a mare, alleged to be of the value of $200, and prayed judgment for three times the value. Defendants filed a joint answer, denying that they shot or killed the mare, and that plaintiff was damaged in-the sum of $600, or at all, and that the animal was worth $200.

Hutton, Judge; statement by the court. This suit was brought by appellee for damages for the -wrongful death of the intestate, her husband, alleged to have been negligently caused by the appellant. It was alleged that at- the time of the death of her intestate the defendant was loading logs on cars at Rondo in Ree County with a loading derrick or log loader (describing it) near railroad track.

Evans, Judge; 1. When a bank receives from the owner a bill for collection, it thereby becomes the agent of the owner for collection; and if it employs some other bank or individual to collect' the bill, the latter becomes the agent of the former bank, and not of the owner, and, in the absence of any agreement to' the contrary, is answerable to it for loss caused by its failure to discharge its duties as agent. 121 N. Y. Supp. 104; 11 N. Y. 203; 47 N. Y. 570, 7 Am.

W. Wells, Chancellor; STATEMENT BY THE COURT. The appellant was indicted by the grand jury of Drew County for the crime of assault with intent to rape. He was convicted and sentenced to three years’ imprisonment in the State penitentiary. He had been tried on the same charge at a previous term of the court, and there was a mistrial.

V. Bourlcmd, Chancellor; This action was brought by appellants to foreclose a mortgage given by appellee to secure the payment of his notes for the purchase money of a stallion sold to him. Appellee admitted the purchase of the stallion, the execution of the mortgage and purchase money notes, and set up a breach of a verbal and written warranty -made to him on the purchase of the horse, and claimed damages on that account.

S. Maples, Judge; STATEMENT BY THE COURT. On the 3d day of March, 1910, John E. Beauchamp instituted this action in the circuit court against Oscar Davis, Ella Davis and E. A. Beauchamp, to recover possession of a certain tract of land in Benton County, Arkansas. Oscar Davis and L. A. Beauchamp failed to file an answer. Ella Davis filed an answer and cross complaint. She made a general denial of plaintiff’s ownership and right of possession.

Hays, Judge; 1. In assault with intent to kill, there is no presumption of malice. Where death does not result from the act, malice will not be presumed. 65 Ark. 410; 34 Ark. 280; 49 Ark. 159. 2. A new trial should have been granted on account of newly discovered evidence, the tendency of which was to show Tint Green’s predetermination to do the acts which brought on the difficulty, with intent to shoot appellant or some one in the crowd.

Curl, Chancellor; 1. The ordinance is unconstitutional and- void because it deprives the citizen of his liberty to pursue his legitimate business.

Evans, Judge; Appellee accepted the transportation, knowing the crowded condition of the coach, did not notify the conductor of any special reason why she should have a seat, nor of any reason why standing would injure her, but remained in the coach and alighted at her destination without complaint. She cannot recover. 75 Ark. ¿42. This was an extraordinary occasion, impossible to 'have been foreseen and provided for.

Evans, Chancellor; 1. The court should have directed a verdict for appellant. Appellee suffered no physical injury, and his separation from his family was caused by his volunteering to do what he was under no obligation to perform. 89 Ark. 187; 84 Ark. 42. 2.

Carter, Chancellor; Statement by the court. This suit was brought by the appellee as administratrix of the estate of Charles L,. Buckley, deceased, for the benefit of the estate and also for the benefit of herself as the next of kin.

The provision of the policy that it shall be void if'the interest of the insured is other than sole ownership, etc., applies to conditions existing at the date of the policy and not to future changes in title. 97 Minn. 98; 165 Pa. St. 298 ; 82 Miss. 674. The stipulation that the grantors would procure for appellee the interest of the minor in the land when she should arrive at maturity was not binding upon her.

<p>Appeal from Lawrence Circuit Court; R. R. Jeffery, Judge;</p>

To the extent of the $1,500.00 of the capital stock of the Southern Bank & Trust Company mentioned in the deed as a part of the consideration, -there was a total failure of consideration, and appellant was entitled to have a lien declared upon the land conveyed as for balance -of purchase -money. 6 N. Y. Ch. 324-335; 36 Barbour 195-200; 55 N. Y. 139-144.

Wells, Judge; STATEMENT by the court. Jefferson Singer died intestate at Hermitage, in Bradley County, Ark., on the 18th of November, 1873, owning about 800 acres of land on which he resided. He left surviving him his widow and seven children, who continued to reside on the land. A. J. Singer was put in charge of the land by his mother, and he managed it for five years. In November, 1878, he left Bradley County, riding a horse which he said belonged to the family.

Lea, Judge; No conviction coitld be had upon the uncorroborated testimony of an accomplice. Kirby’s Digest, § 2384; 73 Ark. 146; 47 Id. 172. The confession of a defendant, accompanied by proof that the offense was actually committed by some one, will warrant a conviction. 34 Ark. 649; 81 Id. 589; 32 Id. 727; 28 Id. 121; 22 Id. 326; 84 Id. 88; 66 Id. 506; 63 Id. 457.

Wood, Chancellor; Under the evidence in this case, the appellee’s claim is stale, and he is barred by his own laches and that of his privies in title. .72 Ark. 101, 106; 81 Ark. 352, 357; Id. 432, 438; 90 Ark. 430, 4341 93 Ark. 298, 300; 85 Ark. 372, 375; 128 S. W. (Ark.) 34§, 353- The tax forfeitures of 1868 and 1869 being void, the State acquired no title to convey; and, the lands being wild and unimproved, the possession remained with the Wilsons, the owners of the legal…

<p>Appeal from Johnson Circuit Court; Hugh Basham, Judge;</p> <p>1. No defense was made out against the note. There was no offer, to restore the horse and rescind the sale. A purchaser will not be permitted to retain the property and defend against the payment of the purchase money for want of consideration on the ground of fraud. 5 Ark. 395; 46 Ark. 33. The testimony shows that appellee was informed of the horse’s age at the time he executed the note. There can be no rescission for a partial failure of consideration. 21 Ark. 342; Benjamin on Sales, 396, 397. Where the buyer receives what he really intended to buy, although the thing bought should turn out to be worthless, there is no failure of consideration. The doctrine of caveat emptor applies. Benjamin on Sales, 395; 2 Mechem, Sales, § § 832, 1311; 10 Wall. 383.</p> <p>2. It is not material whether appellant purchased the note with knowledge of appellee’s defense or not, since the testimony is undisputed that J. B. Reynolds was a bona fide purchaser for full value. He acquired the rights of an innocent purchaser, and could transmit those rights to one with notice of the maker’s defenses. 94 U. S. 278; 132 U. S. x 17; Norton or Bills and Notes, 326 and cases cited.</p> <p>Both J. B. Reynolds and appellant took the note subject to any equities that existed between the maker and the original payee. The note sued on was made payable to the order of D. C. Reynolds, not to bearer, and could be transferred so as to cut off the defense of the maker only by his, Reynolds’s, indorsement, 101 U. S. 68; 5 Fed. 403; 56 Fed. 854; 59 Fed. 896; 118 N. Y. 355; 92 Ind. 309; 34 Kan. 230. Webster could not properly institute this suit in his own name. The mere sale and delivery of a promissory note payable to order, without indorsement or other written assignment, does not give the holder a right of action in his own name. I Dali. 369. Where the statute requires suit to be brought in the name of the real party in interest, plaintiff must show himself to be such, and mere legal title is not sufficient. 8 Cyc. 68, 70, 71; 11 Ark. 105; 65 Ark. 209; 66 Ark. 312.</p>

Steel, Judge; x. Juror Plamilton should not have been excused by the court. 76 Ark. 84; Kirby’s Digest, § 2360. 2. Defendant should not have been required to testify before the coroner’s jury without first being informed of his right to decline to so testify and thereby be given an opportunity to elect. His evidence under the conditions could not be subject to impeachment. Kirby’s Digest, § 3088. 3.

V. Bourland, Chancellor; If it were true, as alleged in the petition, that there was no written charge or information filed against petitioner in the police court, and that he was deprived of a trial by jury, these were mere irregularities which could not be corrected on a hearing of a petition for habeas corpus.

<p>Appeal from Union Circuit Cornty George W. Hays, Judge;</p> <p>1. Notwithstanding the provision in a policy requiring formal proof of loss, that requirement may he waived, as was done in this case by the acts of the adjuster in visiting the scene of the fire, examining the same “to his satisfaction” and by requesting appellant to furnish proofs of loss in a modified and different form from that required by the policy, and by his conduct leading-appellant to believe that by conforming to his request no further proofs of loss would be necessary. 61 Ark. 108; 62 Ark. 348; 63 Ark. 188; 67 Fed. 577; 32 S. W. 727; 53 Ark. 494, 500; no Ala. 201; 54 Cal. 442; 65 la. 308; 159 111. 179; 108 Ind. 270; 67-Mo. App. 66; 51 Md. 512; 41 Pa. 61; 58 Neb. 488; 67 Wis. 422; 4 Wyo. 410. The adjuster having under the law the right to waive formal proofs of loss, the question as to whether his acts, requests and promises to appellant amounted to a waiver was one of fact which should have been submitted to the jury. 14 Atl. 167; 43 Pa. 350.</p> <p>2. Any forfeiture of appellant’s rights under the policy was waived by appellee through its adjuster, and whether or not there was such waiver was a question for the jury. 53 Ark. 494 ; 67 Ark. 584, 588; 36 Wis. 67; 108 N. C. 472; 61 Mich. 635; 1 Ind. App. 411; 72 Mich. 651; 49 Wis. 89; 21 N. Y. Supp. 203; 65 la. 454; 81 N. Y. 410,; 64 Mich. 372; 67 Cal. 36; 47 Neb. 138; 53 Wis. 585; 96 U. S. 234; 59 Tex. 509.</p> <p>1. It is admitted in the pleading and shown by the proof that appellant had procured other insurance upon a part of the property insured by appellee. Under an express condition contained in the policy sued on, the procurement of the other insurance, the contract being entire, operated to render this policy void as a whole. 52 Ark. 257; 63 Ark. 187; Richards on Insurance, § 346, pp. 305-307; Id., 35-37; 2 Cooley on Insurance, 1913; 18 C. C. A. 203; hi Ga. 622; 154 Fed. 35.</p> <p>There was no waiver of this forfeiture. The policy provides that the insured “shall furnish, if required, plans and specifications of any building destroyed or damaged;” also that “the company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to any examination herein provided for; and the loss shall not become payable until sixty days after ascertainment, estimate and satisfactory proof of the loss herein required have been received by the company.” Richardson on Insurance, (3 ed.), 180, 181; 130 N. Y. 560, 566 et seq.; 65 Ark. 54, 60, 61; 118 Fed. 415, 55 C. C. A. 543; 90 Tenn. 212, 219.</p> <p>2. It is well established that there can be no recovery on a policy of insurance where proof of loss has not been furnished within the time required by the contract, unless' within the time it is waived. 72 Ark. 484. The demand of the adjuster for plans, specifications and estimates was not a waiver, and could not have led appellant to believe that no further proof was required, but was necessary, under the policy, in order to obtain them. Furnishing the estimate was a mere link in the chain of facts required under the conditions of the contract relative to proofs, and was not, in itself, sufficient proof of loss. 1 Clement on Fire Ins. 211. Moreover, the burden was upon appellant to show compliance with the “modified demand” within the sixty days allowed him under the contract in which to furnish proofs. 72 Ark. 4S4.</p>

<p>]. Mistake — effect of unilateral mistake.- — Relief will not be given in case of an executed contract on account of a mistake of one party alone, unless the mistake was induced by the conduct of -the other party, or the other seeks unconscionably to take advantage of it. (Page 484.)</p> <p>2. Same- — laches.—-Where the heirs of the vendor of land, after having received the purchase money, stood by for nearly four years while the vendees and purchasers from them were making improvements of great value to the land, and yet raised no voice in protest, and made no motion to have the contract rescinded and the deed can-celled, they will be held to be barred by laches from contending that the money was accepted under a mistake as to their rights. (Page 486.)</p>

28 Ark. 387. The conductor in refusing to accept appellee as a passenger in a drunken condition merely discharged his duty under existing law. Acts 1907, p. 290, § 1; Acts 1909, p. 100; 93 Ark. 306. The court’s instruction to find for plaintiff “in any event -the sum of $2.23,” the price of the ticket, was erroneous.

Cowling, Judge; Fraud and deceit with reference to the condition of the mill and machinery was available as a defense by way of counterclaim, and evidence outside of the bill of sale was admissible. The bill of sale, being merely an instrument for the passing of ownership, does not preclude a showing of fraud on the part of the vendor. 38 Ark. 334; 6 Enc. of Ev. 22; Id. 16; 20 Cyc. 112; 43 Ark. 439, 448; 60 Ark. 387; 156 Mass. 135; 22 Ark. 454.

Hays, Judge; STATEMENT BY THE COURT. This is an action by the widow and children of Joe F. Purifoy against the Lester Mill Company, and the Lester & Ouachita Valley Railway Company, to recover damages for his death. The Lester Mill Company is a corporation engaged in the manufacture of lumber and owns and operates a sawmill at Lester, Ouachita County, Ark.

<p>Aepeae and error — einae judgment. — A11 order sustaining a demurrer to a complaint, without further action by the lower court, is not a final disposition of the case and is not appealable.</p>

It was error to direct a verdict for the appellee, and appellant did not waive its right to a trial by a jury because it requested a peremptory instruction in its favor.

Elliott, Chancellor; 1. Appellant is not guilty of laches. That defense can be grounded only upon abandonment or long neglect of the land by a plaintiff concurring with acts by a defendant, induced by that abandonment, sufficient to raise an estoppel against the plaintiff. In legal significance, laohes is not delay merely, but delay that works a disadvantage to another.

Elliott, Chancellor; 1. While there was testimony on the part of appellee railway companies that the improvements would be no benefit to them except as to their depots, ’ cotton platforms, cars upon tracks, furnishing- water, sanitary conditions, etc., yet none testified that, even upon this basis, the assessment of benefits was excessive or inequitable. All the property of the railway companies in the district was subject to assessment of benefits. 68 Ark. 376, 380, 381.

Grace, Judge; STATKMKNT BY THR COURT. The following note was duly exhibited to the Pine Bluff Trust Company, administrator of the estate of Wiley Jones, deceased, as a demand against his estate after the end of one ■ year from the grant of letters of administration thereon. “$10,000,00 Pine Bluff, Airlc., Sept. 15, 1885. “For value received, I promise to pay to Miss Henrietta Simon, her heirs or assigns, the sum of ten thousand dollars, ($10,000), cash out of my estate after…

Elliott, Chancellor; 1. The complaint having alleged a failure on the part of the executors to charge themselves with the sum of $324.50, the value of personal property received 'by them, in their first settlement, from the confirmation of which appellant had lost his right of appeal, which failure amounted to legal, if not intentional, fraud, stated a cause of action cognizable in equity. 45 Ark. 518.

Wells, Judge; 1. In giving appellee’s requested instructions Nos. 1, 2 and 5, the court in effect tells the jury that it is the master’s duty to protect the servant from all injury to life and person while engaged in his duties; that the servant has the right to expect that the master will not expose him to extraordinary danger, and that the servant does not assume any extraordinary risk attending such work, nor assume any risk resulting from the master’s negligence.

Wood, Chancellor; Vinson, the attorney for Wade, specially retained in this particular litigation, did not occupy such fiduciary relation to the appellees as to preclude him from purchasing the certificate of tax sale and acquiring deed thereunder.

S. Maples, Judge; 1. The demurrer 'to the indictment should have been sustained because .the act under which the indictment was brought applies to .banks organized or doing business under the laws of the State of Arkansas, and the indictment does not allege that the Bank of Siloam was either org-anized or doing business under the laws of the State of Arkansas. Kirby’s Digest, •§ § 18x3, 1814. This is a criminal statute, which must be strictly construed.

V. Bourland, Chancellor; In order to impress a fund in the hands of an assignee, receiver or administrator with a trust for the payment of a claim' alleged to be superior to the claims of general creditors, the identical money must be traced. 4 Cyc. 269, 270; 73 Ark. 324.

Circuit Court; R. B. Jeffery, Judge; 1. The instructions 1 and 2 requested by appellant state the law, and in view of the evidence one or both of them should have been given. If given, the jury would have understood what was meant by “forcibly and against her will,” and “with intent to commit rape” as used in the instruction No. 1 given by the court. 33 Atl. (Del.) 441; 47 la. 151; 73 la. 225; 35 Tex. 481; 8 So. (Ala.) 383; 14 So. (Ala.) 403; 16 So.

Meeks, Judge; This case is controlled 'by Foster v. State, 45 Ark. 361, and appellee is punishable as an aider and procurer of the sale of liquor to a minor. The evidence shows that appellee and the other boy were joint purchasers of the liquor, or partners in the purchase. By ordering it -in his own name, appellee was acting only for himself and as agent for the prosecuting witness, which, according to the authority relied on by appellant, is not punishable.

H. Evans, Judge; Appellee’s only excuse for not accepting the potatoes -and for abandoning them was the alleged negligent delay of appellant in delivering them at destination. This is not shown in the proof. There is no evidence to show how long it should take to carry and unload a shipment of potatoes from Malvern to Tittle Rock, nor even any testimony as to the time customarily taken to transport goods between these points.

Where it provides that one insisting on going into a waiting room to which by race or color he does not belong, it should be construed to mean where that room is occupied by persons of different race at the same time, and should not be construed to render him liable for occupying the room where it is not occupied by the other race, even if he had notice that it was set apart for the opposite race. 93 Ark. 244; 87 S. W. 262; Id. 426.

Hutton, Judge; ■ Deceased was not acting in self-defense when he stepped back and attempted to draw his pistol for the purpose of shooting appellant, because he had struck him in a sudden quarrel. 93 Aide. 414; 84 Ark. 121; 49 Ark. 543. And the mere fact that appellant in a sudden quarrel 'had struck deceased did not cause him to forfeit his right to defend his life in the event it should afterwards become necessary to do so. 62 Ark. 286, 307.

<p>Appeal from Lawrence Chancery Court, -Western District; George T. Humphries, Chancellor;</p> <p>The court properly overruled the motion for continuance because there was absolutely no showing of diligence, and appellants had ample time after the institution of the suit and before it was called for trial to procure the deposition of the witness. 71 Ark. 62; 40 Ark. 114; 24 Ark. 699.</p>

Hutton, Judge; A peremptory instruction should have been given to find for the appellants. • (a) The deceased at the time lie was injured was not in the employ of the appellants, or either of them. He was a trespasser, or, at best, a mere licensee. The only duty appellants owed him, was the duty not to wantonly injure him after discovering his peril.

Miles B. Gardner died in the early part of the year 1887, owning a quarter section of land about a mile and a half from the city limits of Hot Springs, in Garland County, on which he resided. He left surviving him, his widow, Sophronia Gardner, and Edward M, Gardner, an infant son about one year old.

56 Ark. 585; 66 Ark. 498; Elliott on Ev., § § 672, 675, 686; Greenl. on Ev. § 441b. A witness will not be permitted to state his opinion, and thus usurp the province of the jury. 24 Ark. 253. The testimony was prejudicial. 59 Ark. 111; 49 Ore. 509; 74 Ark. 328. The evidence complained of was not admitted for the purpose of serving as a legal standard, but merely as evidential. Wig. on Ev., § 461.

Guy Fulk, Judge; In testing the correctness of a directed verdict against plaintiff the facts testified to must be given their strongest probative force in his favor. 76 Ark. 522; 89 Ark. 368; Id. 222. The admission by one that he is a member of a firm is sufficient to justify a jury in finding a partnership to exist. 80 Ark. 23; 93 Ark. 301. One held out as a .partner with his own consent is liable as such. 32 Ark. 740; Parsons on Partnerships, 87, 123.

Francis Circuit Court; Hance N. Hutton, Judge; statement by the court. Appellant was indicted and convicted of the crime of murder in the first degree. The indictment in proper form charged him with the murder of B. F. Kirby. Kirby was assassinated about sundown on the evening of Friday, August 19, 1910, by some one lying in ambush. He was shot in the back with a load of buckshot while returning to his home from the town of Marianna, in Lee -County, Arkansas.

Humphries, Chancellor; statement by the court. W. M. Castleberry, a merchant at Salem, in Fulton County, Ark., on August 4, 1908, exchanged certain lands and a stone building situated thereon, in the town of Salem, with M. Kopelman, a merchant at Joplin, Mo., for a stock of goods owned by Kopelman. Kopelman at the time was financially embarrassed, his stock of goods being in the hands of a receiver.

H. Humphreys, Chancellor; If such bonus, added to the interest, exceeds the maximum legal.rate of interest, the transaction is usurious. 55 Ark. 143. Equity regards substance rather than form. 60 Ark. 595; 53 Ark. 271; 91 S. W. 24. This suit to foreclose may be maintained upon the original security. 22 Am. R. 564; 66 Me. 212; 64 Am. St. R. 471; 68 Minn. 210; 62 Ark. 491; 56 Ark. 334746 Am. S't. R. (note) 187; 55 Ark. 146; 25 Am. R. 181; 67 Ark. 425.

E. Jeffery, Judge; In a prosecution for perjury the record of conviction or acquittal of any other person, in any other case other than that in which the perjury is alleged to have been committed is inadmissible, 9 S. W. 436; 15 S. W. 1x8; 29 S. W. 1090; 40 Ark. 464; 90 Ark. 517; 58 Ark. 371; 60 Ark. 407; 33 Ark. 540; 38 Ark. 321; 47 Ark. 183.

V. Bourland, Chancellor; The acts with which appellant is charg-ed do not constitute a public nuisance. 3 McCrary, 147; 117 U. S. 791; 44 Fed. 310; 10 S. E. 297; 45 N. Y. 13; 91 Am. Dec. 783; Kirby’s Dig., § 5118; 6 How. 344; 39 Miss. 822; 91 U. S. 343; 29 Conn. 538; 63 Me. 269. The court had no jurisdiction to enter the decree against appellant. 14 Mo. App. 413; 2 Johns. Ch. 371; 78 111. 237; 99 111. 489; 102 111.