SUPREME COURT RECORDS

Supreme Court Records (Part 2)

Transcribed by : Tina Easley

tinaeasley67@hotmail.com

http://genealogytrails.com/ark/greene/

http://www.usgennet.org/usa/ar/county/greene

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Mr. Justice Day - Depositions of Crowley , Seely , Hodges , - A.A. Knox- H. H. Sitterding, Sr.- St. Francis River Seamboats  - Established 1851 Postoffices -

Floating Logs on Cache River - Established Postoffices 1846 - County Salaries for 1881 - G. M. Ivy - Norman vs. Bertig - Crowley vs. State -

 Rosson v. Carroll - Alvin Newbanks and B. M. Grambling - Floating of Logs-

 

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Source - The Supreme Court Reporter , Vol. 33 - 1913

Argued January 21, 1913. Decided February 24, 1913.

IN ERROR to the Supreme Court of the State of Arkansas to review judgments which affirmed convictions of the Greene Circuit Court of violating the peddling statute. Reversed and remanded for further proceedings.

See same case below, — Ark. —, 144 S. W. 211.

The facts are stated in the opinion.

Mr. A. C. Lyon for plaintiffs in error.

Mr. Charlee  Reid, Mr. Hal L. Norwood, Attorney General of Arkansas, Mr. William H. Rector, Assistant Attorney

General and Mr.  Mehaffy for defendant in error.

 Mr. Justice Day delivered the opinion of the court:

The plaintiffs in error were convicted of peddling buggies in Greene county, Arkansas, without having paid the license or privilege tax required by an act of the Arkansas legislature approved April 1, 1009, regulating the sale of lightning rods, steel stove ranges, clocks, pumps, and vehicles in the counties of that state. (The provisions of such statute are set out in the case just decided, Crenshaw v. Arkansas [227 Ù. S. 389, 57 L. ed. —, 33 Sup. Ct. Rep. 294] ). The supreme court of Arkansas affirmed the judgments upon the authority of Crenshaw v. State, 95 Ark. 464, 130 S. W. 569 (— Ark. —, 144 S. W. 211), and the cases are here upon writ of error.

The cases were submitted upon an agreed statement of facts, the gist of which is that the Spaulding Manufacturing Company, a partnership, with its principal place of business and factory at Grinnell, Iowa, manufactures buggies and automobiles which are sold directly to the consumers throughout the United States. It has no permanent place of business in Arkansas, but sends a force of salesmen or canvassers, in charge of a superintendent, into Greene and other counties of Arkansas, who travel about exhibiting their sample buggies and taking orders for future delivery. Where orders are taken, a memorandum is signed by the purchaser, stipulating for the delivery of the vehicle within a certain time, and a note for the purchase price is secured. The orders are turned over to the superintendent, who, if he finds the financial responsibility of the customers satisfactory, transmits the orders to an agent of the company at Memphis, Tennessee, where vehicles of the company of various grades and kinds are stored. Vehicles to fill the orders are selected, tagged with the name of the purchaser, and shipped in carload lots to a place near where they are to be delivered, consigned to the company. An employees of the company, usually a different person  from the salesman, called a delivery man, receives the vehicles and delivers them to the respective purchasers, no storage house being maintained at that point. It was further agreed that no vehicles, save the samples, which are never sold, are brought into or stored in Arkansas, except for the purpose of delivery upon orders previously taken; and no vehicles are sold other than upon orders taken before they are brought into the state. The plaintiffs in error were salesmen and transacted the business above described.

The manner in which the business of soliciting orders for and delivering vehicles was done by the Spaulding Manufacturing Company differs in no practical or material particular from that employed by the Wrought Iron Bange Company in the case just decided (Crenshaw v. Arkansas). In fact, the only difference is that the ranges were shipped to the company, bearing no marks to identify the purchasers, and were delivered to the purchasers by the delivery men without distinction, while the vehicles were tagged at Memphis, and upon arrival in Arkansas were delivered by the delivery men to the purchasers whose names appeared upon the tags attached to the vehicles. This is merely a matter of detail in the manner in which the business is conducted, and does not affect its character. The decision in Crenshaw v. Arkansas, supra, has dealt with precisely the same statute and substantially the same facts, and controls the present cases.

The judgments of the Supreme Court of Arkansas must therefore be reversed, and the cases remanded to that court for further proceedings not inconsistent with this opinion.

Reversed.

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Source - Misc. Documents from The House of Representatives - 1874

Little Rock, May 9,1873. To the Hon. Asa Hodges : Sia: Having failed to take depositions at Gainesville, in Greene

Commity, under my notice heretofore served upon you for that purpose, on account of the failure of the witnesses to attend, this is to notify you that I shall proceed on the 16th day of the present month, between the hours of 0 o'clock a. m. and 5 o'clock p. in., at the county clerk's office, in the town of Gainesville, in the county of Greene, before J. P. Culver, notary public, to take the depositions of Ezekiel R. Seely, Benjamin II. Crowley, Littleberry, L. Mack, and Thomas H. Wyse, and the taking of said depositions to be continued from day to day, if not completed on that day, until completed.

L. C. GAUSE.

Came to hand at the hour of 4 o'clock p. m., May 9, 1873. I have executed the within by delivering to Asa Hodges a true and correct copy of the same, in person, at his place of residence, Little Rock, Ark., Mav'9, 1873.

ISAAC C. MILLS, United States Marshal E. T). A.

By JNO. It. WALKER, Deputy United States Marshal.

No. 07.—Deposition of B. H. Crowley.

The depositions of various witnesses, taken on the 16th day of May, 1873, at the clerk's office of the county of Greene, in the town of Gainesville, to be read as evidence in the contested-election case between L. C. Gause, contestant, and Asa Hodges, contestee, for a seat in the Forty-third Congress of the United States from the first district of the State of Arkansas.

(Objection by R. A. Burton, attorney for contestee, Hodges.)

The contestee objects to the taking and reading of any testimony in this contest.

1st. Because the contestant, Gause, did not commence his contest, or give notice of his said contest, within the time prescribed by law.

2d. Because the contestant, Gause, has not specifically set forth the grounds of his said contest.

3d. Because the time allowed contestant by law to take testimony under his pretended notice has expired.

B. H. Crowley, a witness produced by contestant, being duly sworn, deposeth as follows:

(Objection by R. A. Burton, attorney for contestee, Hodges.

The contestee objects to the taking and reading of the deposition of the witness Crowley—

1st. Because the notice to take said deposition was not given in time.

2d. Because said notice does not state the State in which said depositions are to be taken.

3d. Because the residence of said witness is not set forth in said notice.)

B. H. Crowley, first witness in behalf of Lucian C. Gause, contestant in the contested election case of L. C. Gause against Asa Hodges, contestee, after being duly sworn deposes and says:

That he was present at.the election in Cache Township, in Greene County, on the 5th day of November, A. D. 1872, and that at said election L. C. Gause received inauy_votes, and do not think that Asa Hodges received any votes ; if any, very few, not more than four or five. I was also present at Gainesville, the county-site of said county, and saw many poll-books come in from several townships in the county—think about ten townships —and saw several taken into the clerk's office and there deposited by the judges of said election in the respective townships; afterward I obtained the supervisor's reportsof election of the different townships, of, I think, ten townships, and think that they footed up the vote of L. C. (Jause for Congress, first congressional district of Arkansas, at between six and seven hundred, and that of Asa Hodges for the same office was about twenty-five or thirty, as I believe. I was present and saw the vote canvassed, when Clerk E. K. Seely gave Cause his certificate of the vote of said county, marked Exhibit A, and a copy of which made a part of this deposition and herewith attached. I believe the same was a true copy of the original, and that I believe the certificate was a true statement of the result of the election for Congressman of said county held on the 5th day of November, 1872. And 1 was informed by E. K. Seely, clerk, that the poll-books were stolen or taken out of his office either the third or fourth night after the election.

(Objection by 14. A. Burton, attorney for contestee, Hodges. The contestee objects to the reading of the above deposition of the witness, Crowley, because the same was not taken in legal form, no interrogatories being propounded.

2d. To all that part of said deposition which states the opinion of the witness, as illegal and irrelevant.

3d. And to all that part of said deposition which relates to the number of votes cast for any candidate, as secondary, no grounds being laid tor the introduction of the same.

4th. To the introduction of the paper marked Exhibit A, as illegal and incompetent testimony.)

Cross-examination by R. A. Burton, attorney for contestee : Question 1. You state that in Cache Township Cause received many votes; state if you know of your own knowledge how many votes he received, who were the parties whom you know voted for Cause; give their names, and do you know of a single voter who at the time he cast his vote declared his intention to vote for Cause ? If so, name him.— Answer. I do know of votes cast for Gause; voted for him myself; also did J. It. Gramling, B. A. Johnson; think Gause got about seventy votes, probably a few more or a few less, but am very certaiu'that he got sixty votes, think more; am very certain I heard Dr. G. B. Croft say he intended to vote for Gause, and think J. P. Willcoxon said he intended to vote for Cause. 1 did not see Mr. Gramling put his ballot in the box, or Johnson either, as I remember, but heard them say that they intended to vote for Gause before they put^their ballots in the box, and think I heard them say immediately afterward that they did vote for Gause. We voted printed tickets which had L. C. Gause's name on them. Of my own personal knowledge, do not know of any person voting for Gause other than myself, only from their statements and from the tickets distributed, which I done mostly myself and saw them counted out.

Question 2. Who were judges and clerks of election of said township, by whom appointed, and by whom qualified?—Answer. Judges Win. li. Gregory, Jarrid Erwin, Lawrence T. Dennis, and Clerks W. A. Witcher and Dauiel Owen, as my recollection serves me now; think they were appointed by the president of board of registration, and I think they were qualified by Jno. W, Smelser, a justice of the peace of said township. Cannot say that I know that of my own knowledge, but that is my best recollection.

Question 3 Were the judges who held the election referred to qualified electors ?—Answer. I presume they were. 1 know nothing to .the contrary.

Question 4. Were you an officer of election ; and, if not, by what authority did you receive what purported to be the supervisor's report of the election, and did you examine the said returns specially to determine the vote cast for Gause and Hodges ?—Answer. I was not an officer of the election. I received the supervisor's reports of election because I was personally interested, being a candidate for representative, and sent round and gathered them up in the various townships in the county, save two. I think I showed them to Gause, and wrote him the result of the election. I did examine the returns in the matter of the election of Gause and Hodges, in connection with Gause and Col. E. G. Shaver.

Question 5. You say you were present when the vote was canvassed, and E. E. Seely gave Gause his certificate. What returns were so canvassed, and from whom received ; where are they now ; by whom were they furnished to the clerk I—Answer. The reports of the supervisors of election. They were received from me ; do not know where they are now. I turned ihem over to E. A. Burton, secretary of central committee, at Little Eock. They were canvassed in the presence of the clerk, and furnished by me.

Question (i. By whom were you furnished the paper which you mark as Exhibit A, and file as a part of your own testimony ? Bo you know of your own knowledge that the statement of the vote contained in said paper is true, or do yon merely file it as a statement furnished you, and purporting to be the vote cast for said parties ?—Answer. I was furnished the certificate which I present, marked Exhibit A, by J. M. Johnson, secretary of state. I file it as a statement furnished me by the secretary of state, believing, as I do, that it is a correct statement of the vote cast in said election.

Question 7. At whose suggestion did you apply for and get such paper f—Answer. At the suggestion and request of L. C. Gause.

Question 8. Were you a candidate for office at the election of November 5, 1872; if so, ou what ticket; who was caudidate for Congress on the ticket with you from first district Arkausas ?—Answer. I was a candidate for representative on the reform or democratic ticket. L. C. Gause was a caudidate for Congress ou the same ticket for first district of Arkansas.

Question 9. Who made the canvass referred to by you ?—Answer. I think it was mostly done by E. G. Shaver, in presence of L. C. Gause, M. McAnany, and myself. I think E. E. Seeley was present, examined the reports, and compared the most of them in the north room of Snodgrass's hotel, after which he came off down town to put the county seal, as he said, to them certificates.

Question 10. You state that said supervisors' report was canvassed in the north room of Snodgrass's hotel. How far is that from the clerk's office ? Who is E. G. Shaver ? Where does he reside; or who is M. McAnany, and where does he reside ? Are either of them officers of election, or had they any authority to canvass or determine the vote cast for any party ? Is the L. C. Gause named the contestant in this contest, and was he an election officer ?—Answer. I suppose the room to be about one hundred and fifty yards from the clerk's office. The last time I saw E. G. Shaver he was in Little Eock ; do not know what he follows. M. McAnany is a general of Arkansas and, I think, private secretary of the governor. He resides in Little Rock, as I believe. Do not know whether they were election officers or not. The L. C. Manse mentioned is the contestant in this contest; do not know whether Gause was an election officer or not; am very certain he was not of this county.

Question 11. Did any of the parties mentioned by you as being present at said cauvass, except Seely and yourself, reside in Greene County— this couuty ?—Answer. No.

Re-examined : Question. Is what you state in your examination-in-chief before crossexamination all that you know about the returns of the election for Congressman held in Greene County on the 5th day of November, 1872!—Answer. Yes.

B. H. CROWLEY.

Benjamin H. Crowley, a witness on behalf of said Lncian C. Gause was recalled to the witness stand, and further deposed, in addition to his former deposition herein, as follows :

(The contestee enters the same objection to the taking and reading of this deposition of B. II. Crowley as to the witness Seely.)

Question 1. State what Seely said to you about filing said supervisors reports in the clerk's office after he had given Gause the certificate of election spoken of and referred to in your examination ; also what Seely said about giving you a certificate, aud if the said Seely, who was sworn as a witness herein, was a candidate for clerk at the last general election ; if he was one of the registrars at the registration for said county previous to said election; also if Thomas H. Wyse was present at the time said certificate was made by Seely.—Answer. Seely asked me in the elerk's office, in a very short time after Gause left—the same day—to file the supervisor's report, as he had nothing to show for what he gave his certificate. I told him if be would give me my certificate I would do so. lie told me he would, but he wanted to see Judge Ilayledine first; that he would be here on the following Monday. I saw him after Judge Ilayledine came, and he told me he could not; that it was not essential in my election: that I was elected anyway, throwing out this county. Seely was a candidate, as 1 thought, for clerk. He was with us at Scaterville, the precinct of Concord Township, and made a speech there, but as to what he said I did not know; have heard him say he was a candidate for clerk ; think I have heard him say he was not a candidate. lie was one of the registrars at last electiou. Do not remember for certain whether Dr. Thomas H. Wyse was present at the time Seely signed the certificate or not.

Cross-examination by R. A. Burton, for contestee : Question I. What do you understand was the object of McAnnauny's visit to Gainesville referred to in said deposition?—Answer. I believe now, and did when McAnuauny left here, that he was in the interest of Gause.

(Objected to by R. A. Burton, attorney for contestee. The contestee objects to question No. 1, because the same is illegal, irrelevant, and not competent; because it seeks to elicit testimony not raised by the issues in this contest; also because it seeks to elicit secondary testimony without first laying a foundation, and because the same is leading, and, suggests to the witness the answers desired.)

Question 2. Were not all the parties referred to as being at the room in Snodgrass's hotel the personal and political friends of L. C. Ganse, the contestant in this contest, except E. R. Seely ?—Answer. All were but McAnany; do not think he was.

B. H. CROWLEY.

No. 68.—Exhibit A.

State Of Arkansas,

County of Greene.

I, Ezekiel K. Seeley, county clerk and ex-officio clerk of the county court within and for said county and State, do hereby certify that at the general election held in the several voting-precincts in said county, on Tuesday, the 5th day of November, 1872, the following-named persons received the number of votes set opposite their respective names for the office of Congressman of the United States from the first congressional district of Arkansas, viz:

Lucian C. Gause, received 734 votes.
Asa Hodges received 25 votes.

In testimony whereof I have hereto set my hand and affixed the seal of said court, this 11th day of November, 1872.

[seal.] E. R. SEELEY,

County Clerk of Greene County, Arkansas.

Office Of Secretary Of State, Arkansas.

I certify that the above is a true copy of the original paper left in this office by Mr. Smithee, and purporting to be election-returns for Congressman, first district, said returns not having been counted in the canvass of total votes.

Witness my hand and official seal, at Little Rock, this 25th day of April, 1873.

[seal.] J. M. JOHNSON.

Secretary of State.

No. 09.—Deposition of Ezekiel R. Seeley.

Ezekiel R. Seeley, being first duly sworn, as second witness, on behalf of L. C. Gause, contestant, vs. Asa Hodges, contestee, for Representative in the Congress of the United States of America, from the first congressional district of Arkansas, deposes and says as follows:

Question 1. State your name, age, residence, and your occupation, and what office you have held in the last twelve months; and if you have been the county clerk of Greene County in the State of Arkansas, how long and when did the term of your office as such clerk expire?

(Objection by R. A. Benton, attorney for contestee. Contestee enters the same objection to the taking and reading of the deposition of the witness Seeley as to the witness Crawley.)

Answer. My name is Ezekiel R. Seeley; my age is fifty-three years old ; residence, Gainesville, Ark.; occupation, county clerk; I was duly elected and qualified as such clerk March, 1808, and have held it ever since.

H. Mis. 125 11

Question 2V State if you, as county clerk, ever made a certificate of the returns of the general election held in Greene County, on the 5th day of November, 1871', for Congressman for the first district in the State of Arkansas, and is the paper marked Exhibit A, and attached to the deposition of 13. II. Crowley, a true and correct copy of the certificate of said election made by you as such county clerk .

(Objection by K. A. Burton, attorney for contestee. The contestee objects to the last above question because it seeks to elicit illegal aud secondary testimony.)

Answer. This is not a copy of the paper that I signed, as I understood at the time of signing. I never read the paper before signing aud sealing the same, as I put all confidence in the parties presenting the same from the recommendation he had from Judge Hazlediue and others. I frequently put my name and seal to papers at the request of friends without reading or knowing their contents, and that is the way I done that.

Question 3. Was the paper read to you before you sigued and placed the seal to it as the certificate of said election-returns, or did yon, in the faithful and honest discharge of your official duty as county clerk of Greene County, certify, sign, and affix the seal official of your office as such clerk without knowing what said paper contained, and for what purpose it was to be used ?

(The contestee enters the same objection to question 3 as to question 2.)

Answer. The paper was not read to me before I signed and affixed the seal, to the best of my recollection, because I believed the parties were doing what was right, because I put all confidence in the parties: yes, because it was customary for me to do so with men with whom I was acquainted and had confidence in.

Question 4. Were there any returns of the said election held on the 5th day of November last made to the office of the county clerk of Greene County ; and if so, are said returns now on tile in said office?— Answer. There was men came in here and deposited papers, after the election, they said was poll-books, but I did not kuow what they contained. They were put in a certain box in the clerk's office by the parties that brought them in. I had nothing to do with the papers; never examined them. The night before the 3d day after the election, at which time I, as clerk, was to report on the election, but knowing as I did that the governor had set aside the registration of this county, and no legal election could be held, therefore 1 did not believe it to be my duty to report from said books, and on the said night the box and papers were taken, and not to be found next morning in the office, and are not now any election-returns on file in my office of that election.

Question 5. How did you kuow that the governor had set the registration of Greene County aside?—Answer. Because the proclamation of the governor is now on file in my office setting said registration aside.

Question C. Who were the registrars of Greene County for the year 1872?—Answer. E. R. Seeley, Jno. C. Fite, and David A. Smith were the registrars of Greene County for the year 1872.

Question 7. Was the various voting precincts of said county visited by the registrars, and the voters legally registered by the registrars, according to law. ?—Answer. The registrars visited every voting precinct in the county. I was president of the board, and could not attend to the business on account of my office. John C. Fite being second on board, aud undertaken to register the county, and commenced his duties, and reported to me that he could not register the county, as the law directed, without a large posse of men, and we thought it was best to register all that came up to save trouble in our county.

Question 8. Was the registration of said county completed; and after the board of review passed upon the registration-books of said county, was said books returued and tiled in the office of county clerk, as provided by law ?—Answer. The registration was, and could not be completed according to law, to the best of my knowledge and belief. The registration-books were returned to the clerk's office, and were taken out at the same time the poll-books were, or I never could find them in iny office after the door was broken open of my office.

Question 9. Which made return of their work first, the registrars or the judges of election, to the county clerk's office ?—Answer. The registrars made their report first, and was put in the box with the pollbooks!

Question 10. Did you, as county clerk, make and send out poll-books to various precincts after you received the governor's proclamation setting the registration aside ?

(The contestee objects to the last question, because illegal and seeks to elicit illegal testimony.) Answer. No, sir.

Question 11. At what time did you receive the. proclamation, and when did you send out the poll books . —Answer. I received the proclamation on the 1st day of November, 1872, setting aside the registration of Greene County, on account of the illegality. I sent out the poll-books before the 1st, .all but one township. ,

Question 12. Were you a candidate for any office in Greene County at the last general election ?

(Objected to by coutestee, because the same is illegal and irrelevant.)

Answer. I was no candidate, and never declared myself one, but my friends voted for me.

Question 13. At whose instance and request was the registration set aside by the governor 1—Answer. By the registrars and thirty or forty good citizens of Greene County.

Question 14. How many voters were registered in said county by said registrars in said year 1872 ?

(Objected to by contestee. The coutestee objects to the last question, because the same seeks to illicit secondary testimony.)

Answer. About eight hundred registered, and about twenty-five or thirty scratched off.

Question 15. Have you not declared, previous to the electiou, that if you were not elected clerk of this county, and Wright elected sheriff, that there should be no electiou held f

(Objection by R. A. Burton, for contestee. The contestant objects to the last question, because the same is illegal and seeks to introduce illegal testimony.)

Answer. No, sir; I never said auy such thing, to my recollection. I am sure of that.

Question 16. Have you not frequently said, before the election, to H. W. Glasscock, K. H. Gardener, and others, that if the people would elect you and Wright, that there would be no trouble about the registration and election in this county f

(The contestee objects to the last above question, because illegal and irrelevant aud leading.) Answer. I have no recollection of making any such suggestion. Question 17. Did you have any iuterest in preventing an election from being held in Greene County last fall .

(Objection by A. Burton, attorney for contested. The coutestee objects to the last qaestion, because leading.)

Answer. No, sir; I had none.

Qaestion IS. What difference did it make to you about the registration or election, if you had no interest in them !

( Contestee objects to the last question, because as illegal.)

Answer. I wanted the people to have their rights.

The further taking of these depositions are adjourned until to-morrow morning at 9 o'clock.

J. P. CULVER,

Notary Public.

 

 

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GREENE COUNTY.

 Paragould, Ark., September 21, 1888. Hon. Wood E. Thompson, State Superintendent of Public Instruction.

Dear Sir: Enclosed I send you my annual report for the year ending June 30, 1888. You will see that the report is defective, for the reason that the directors failed to make complete reports from their districts. I am glad to state, however, that they are making grand improvements in this matter, and a majority of them manifest a desire to do their duty as well as they know it.

The interest in public schools is rapidly growing, as the people are beginning to realize that by this means the masses of the people must be educated. We have fifty-nine districts in the county, most of which voted a tax this year. I am satisfied that in a few years there will be few dissenting voices to the public school system in Greene county. There is also a marked improvement in the class of teachers in our public schools. As to the changes in the school law, I would offer an opinion on one, which seems to me to be an important one, but which the Legislature of our State in its wisdom seems to regard with indifference : that is in regard to a county superintendency. No organization without an executive head can be a perfect success. The plan has been tried with grand success in many of our sister States.

Very respectfully,

A. A. Knox,
County Examiner.

Source - Biennial Report of the State Superintendent of Public Instruction - 1888

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(April 26, 1909.)

APPEAL by plaintiff from a decree of the Chancery Court for Greene County dismissing a complaint filed to recover possession of certain land and quieting title in defendants in accordance with the relief demanded in their cross complaint. Reversed.

Statement by Wood, J.:

In 1885 H. H. Sitterding, Sr., died, owning and occupying a certain lot in the town of Paragould, Greene county, Arkansas. He left a widow and two minor sons. George and Herman. The widow intermarried with one Thomas, and soon afterward moved to Oklahoma, taking her son George with her. Herman was sent to live with relatives in Indiana. On the 23d of January, 1892, the present guardian and curator of George and Herman, under orders of the probate court, leased the lot in controversy to appellees for a period of eleven years, for the sum of $300 per year. Under the terms of the lease, all the improvements made on the lot by appellees would remain personal property, and when the lease expired appellees were given the privilege of removing same. The appellees took possession under the lease and erected on the leased lot and on another lot adjoining, which they owned, a two-story brick business house, at an expense of between $9,000 and $10.000. .

On the 28th day of August, 1899, under the orders of the probate court, the guardian and curator executed another lease on the lot mentioned to appellees for a period of ten years, upon substantially the same terms as the former lease. Under the last lease, appellees were given six months from the expiration of the lease to sell or remove the improvements made thereon, and during such time they were to pay rent at the rate of $25 per month.

On the 3d day of May, 1904, the district, court of the territory of Oklahoma rendered a judgment removing the disabilities of nonage of George and Herman Sitterding, specifically authorizing them to sell the lot mentioned above, which is described in the judgment. On the 5th day of May, 1904, a deed was executed by Emma Thomas (formerly Sitterding), George Sitterding, and Herman Sitterding, in which, for the consideration of $3,000, they did "grant, bargain, sell, and convey" unto Bertig Bros, (appellees) the lot, describing it, and covenanted with them to forever warrant and defend the title against all lawful claims. The deed was duly recorded in Greene county on June 6, 1904.

George Sitterding came of age July 30, 1905. Herman reached his majority March 15, 1907. On the 6th day of April. 1907, George and Herman Sitterding. for the consideration of $3.000, duly executed to appellant, D. G. Beauehanip, a deed in which they did "grant, bargain, sell, and convey" unto Beauehamp, and unto his heirs and assigns forever, "all their right, title, and interest in and to" the lot mentioned above. The deed contained no specific covenants to warrant und defend the title.

On the 8th of June, 1907, appellant brought suit in the circuit court of Greene county against appellees for the lot in controversy, claiming the title and right to possession of same under his deed from George and Herman Sitterding, which he made an exhibit. The complaint, after describing the lot and deraigning the title thereto, alleged that the appellees were in possession of said property under and by virtue of the deed of conveyance executed by George Sitterding and H. H. Sitterding, Jr., on May 5, 1904, while the parties were minors; and it charged that they avoided and repudiated the same afterwards by executing a deed to appellant. It was alleged that appellant had tendered to appellees the sum of $1.720, the amount paid by them to the Sitterdings, which the appellees refused to accept; that appellees were liable to him for rentals on the lot in controversy for a period of three years and one month at tne rate of $100 per month. Appellant prayed judgment for possession, and for damages in the sum of $2,500, and for all proper relief.

The answer and cross complaint of appellees set up title to the lot sued for, under the deed from Emma Thomas and George and Herman Sitterding of May 5, 1904, denied that either of said heirs was under any disability when they executed the deed, and denied that appellees only paid $1.720 for the lot, but alleged that they paid $4,100,— that is, $3,000 to the grantors themselves, and discharged their obligations for $1,100 more. The proceedings of the district court of Oklahoma were set forth in extenso, and the duly authenticated copy of that judgment was properly pleaded ; and it was alleged that under that judgment George and Herman Sitterding had the power to make the deed under which appellees claimed the same as if they had been of full age, and that under the Constitution and the Revised Statutes of the United States full faith and credit must be given to that judgment here. The terms of the lease were set forth, and the possession of appellees thereunder and the improvements made by them, and it was alleged that the appellant had notice of appellees' rights under the lease. The lease was pleaded in bar of appellant's right to recover possession of the premises. The cross complaint contained the further allegation "that on April 6, 1907. the plaintiff, well knowing the contract aforesaid and of the payment by defendants of the purchase money for said premises, for a consideration of $250, acquired from said George  Sitterding and H. H. Sitterding a deed of conveyance to said premises, which has been recorded in the office of said recorder of Greene county;" and they charged that whatever title he may have so acquired he held in trust for the defendants.

It was further averred that no dower had ever been assigned to said widow, Emma Thomas, and that by said conveyance she had assigned to them all of her dower rights in the said premises, and that they were the owners thereof. And they further averred that the premises consisted of a lot 50x100 feet, entirely covered by the two-story brick business house erected by defendants under said lease, and that it, was indivisible, so as to carve out said dower interest without prejudice.

There was a further allegation that the plaintiff procured George W. Sitterding to join in the deed to plaintiff for the premises in controversy by representing to him that the plaintiff represented defendants and wanted said deed from him (the said Sitterding) in order to affirm and make valid the deed which he, Sitterding, had previously made to defendants, and that said Sitterding agreed, for the sum of $100 paid by plaintiff to him, to make a new deed affirming and ratifying his previous conveyance, and that he executed said deed to the plaintiff, with the intention and for the purpose of thereby confirming and ratifying the title previously conveyed to defendants.

They prayed that the deed from George Sitterding to plaintiff be taken as a confirmation and ratification of the previous conveyance made to defendants; also, that whatever title was acquired by plaintiff be decreed to belong to them and be devested out of him and vested in them, or, failing in this, that the said dower interest be adjudged to them, and that a He be imposed upon said premises for the value of such improvements, or that the right to remove the improvements be otherwise protected; and for other relief.

The answer of appellant to the cross complaint of appellees contained allegations of fact to show that the district court of Oklahoma had no jurisdiction to render the judgment removing the disabilities of George and Herman Sitterding, and such jurisdiction was denied. Appellant denied that more than $1,720 was paid to the Sitterdings by appellees, denied that he held the title in trust for appellees, denied that the lease to appellees was of any value, or that appellees had the right to remove the building from the lot in controversy. He denied that appellant had procured the deed from George Sitterding by representing himself to be representing appellees for the purpose of procuring a deed affirming or making valid the deed previously made to appellees, denied that the deed was made by George Sitterding to appellnnt for the purpose of ratifying the deed made by George Sitterding to appellees, but alleged that George made the deed to appellant for the consideration of $125 paid him by appellant, and that he knew when he executed the deed tlmt it was not to confirm any previous deed. The appellant further denied "that he procured an execution of said deed for a consideration of $250, but says that the actual consideration for said execution was the money that the said George  Sitterding and Herman H. Sitterding had received from the defendants herein, together with the further sum of all the indebtedness that was probated against the estate of Herman H. Sitterding, Sr., and the further sum of $500."

Source - Lawyer's Report - Book 23 - 1910

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Sunk Lands, June 23, 1886.

Letter of Mr. W. A. May

Dear Sir : Your favor of the 24th ultimo was received some time ago. You request me to furnish you prior to July 1 "as complete statistics of the commerce upon the Saint Francis River as I may be able to secure," & etc.

I will state here that owing to the present condition of said river, much of the produce of the country is hauled to the railroads, thereby depriving, to a great extent, the steamboats of an immense amount of freight.

If work should be properly done on Saint Francis Lake and River, such as deepening, straightening, and removing stumps and logs, so as to enable boats to run tbe entire year, except perhaps the months of June, July, and August, the freight that goes out in other ways would be carried out by the boats, thus giving shippers easier and better facilities for removing their products, and at the same time add from one-third to one-half to the commerce upon the Saint Francis.

You will bear in mind that this is one of the best timbered sections in the Southwest, and that each year vast quantities of walnut, cypress, gum, &c, are floated and boated out of said lake and river, aggregating in value at least a quarter of a million of dollars. Remember, this is only from the (now) head of navigation down.

The head of navigation now is Lester's Landing, in Craighead County, Arkansas.

You cannot scarcely imagine the amount, much less compute the value of the additional timber and other products that would be boated or floated out, if the Saint Francis should be made navigable from said Lester's Landing up to the Saint Francis crossing of the Narrow Gauge Railroad in Missouri.

In addition to this, large quantities of various kinds of staves are being carried out when the water will admit.

G. M. Rosengranz, of Paragould, Greene County, Arkansas, had from two to four steamboats running from Lester's Landing to Mark-Tree during most of the last fall and winter, carrying out staves, but this work is suspended now on account of the low stage of the water. This alone was high up into the thousands.

Many others would engage in similar enterprises if facilities for getting to market were better.

Besides all this, we must take into account at least 5,000 bales of cotton that are produced by the farmers in this section; also, the thousands of bushels of corn and the many other products, such as potatoes, onions, cabbage, & etc, which the rich land produces in abundance.

As above stated, much of the cotton—from one-third to one-half—goes to the railroads.

But little corn is shipped, and the reason of this is that the boats cannot run until it is almost winter, and 12 to 20 miles is too far to haul a wagon-load of corn of only 15 or 20 bushels.

Up to now I would say that each year the commerce on Saint Francis Lake and River has been as follows, as nearly as can be approximated, viz: Timber of all kinds, $250,000; staves of all kinds, $150,000; cotton, corn, and other products, $250,000.

This will be below rather than above the aggregate amount of commerce on tho Saint Francis Lake and River, from Lester's Landing to Mark-Tree, for any ono year during the past five.

While it is slowly increasing, it would almost double itself in one year, in my judgment, if the river and lake were improved so as to enable parties engaged in getting out timber, staves, and other products to enjoy better and easier facilities. I remain yours, very respectfully,.

Will A. May.

Source : Annual Report of Sec. of War - 1886

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GREENE COUNTY  - January 1 , 1851 - Postoffices Established =

Chalk Bluff
Gainesville
Greensborough
Lorado

Oak Bluffs
Oak Ridge
Walcott

Source - Table of Postoffice established 1851

******

CENTRAL CLAY DRAINAGE DISTRICT, Appt,

v.
GEORGE A. BOOSER et al.

Arkansas Supreme Court —March I8, 192O
(— Ark. —, 219 S. W. 336.)

Water — right to close navigable stream — floating of logs.

1. A stream navigable only for floating logs during a portion of the year may be closed by the legislature, where the closing will effect a reclamation of a vast area of rich agricultural land and benefit the health of the community.

[See note on this question beginning on page 1025.]

Constitutional law — police power — authority of states.

2. The states may, under their police power, regulate within their lira

its all matters which tend to promote the peace, health, convenience, and prosperity of their people. [See 6 R. C. L. 203.]

Appeal by plaintiff from a decree of the Chancery Court for Clay County (Wheatley, Ch.) in favor of defendants in a suit brought to restrain them from erecting booms or floating logs in a certain river or in the ditches constituting a part of plaintiff's drainage system. Reversed with directions.

Statement by Hart, J :

Appellant is a drainage district, duly organized under the laws of the state of Arkansas for the purpose of reclaiming lands for agricultural purposes by drainage. Cache river runs through Clay county, Arkansas, and its course was straightened by the drainage commissioners, and as straightened it was used as the main drainage ditch. Appellees claim that Cache river is navigable, and as such is one of the public highways of the state, on which they have a right to float logs and to erect booms to be utilized in floating logs. The general assembly passed an act closing Cache river to navigation in Clay county, Arkansas. Appellant brought this suit against appellees to restrain them from erecting booms in Cache river or floating logs in it, or in the subsidiary drainage ditches in Clay county, Arkansas.

According to the testimony of the civil engineer of the Central Clay Drainage District, it was formed under the general laws of the state of Arkansas, and Cache river runs

through the central portion of Clay county. In the central portion of the county Cache river flowed into a large area of sunk lands, and is called Cache lake. The main drainage ditch has been dug through Cache lake, and on down into Greene county, where it again connects with Cache river. The waters of Cache river have been diverted into this main drainage ditch, so that Cache river, as straightened by the drainage ditch, drains and reclaims large areas of agricultural land which, before the drainage ditch was constructed, were not susceptible of cultivation. There are one main ditch and twenty-six subsidiary ditches; 90,000 acres of land are drained by the ditches. Appellees have erected booms in one of the subsidiary ditches, and are engaged in floating logs down the subsidiary ditch, as well as the main drainage ditch. The booms obstruct the flow of the water in the drainage ditches, and the banks of the ditches are injured by rolling logs down them into the ditches. The main injury to the ditches is done by obstructing the

flow of the water, and thereby causing them to fill up,.and thus defeat the object'for which the drainage district was formed.

According to the testimony of appellees, Cache river is a navigable stream in Clay county, although its principal navigable use of late years has been to float logs. About thirtyfive years ago a small steamboat, 10 or 12 feet wide and 25 feet long, plied its waters in Clay county. It was principally used in towing logs. After its use was discontinued, float roads have been cut through Cache lake into the main channel of Cache river, and logs have been floated down it every year. Cache river can be used for floating logs about six months in the year, and it will take appellees about eight years to . finish cutting and floating their logs. They state that their use of the river in floating logs does not in any manner impair its use as a drainage ditch.

The chancellor found the issues in favor of the appellees and dismissed the complaint of appellant for want of equity, upon condition, however, that appellees execute a bond that they will repair all damages to the ditches or banks thereof, and remove any logs that sink and tend to obstruct the channel, during the period of time they are engaged in floating logs. The case is here on appeal.

Messrs. L. Hunter and B. B. Holifield, for appellant:

If any artificial means are necessary to condition a stream or body of water for floating purposes, or for purposes of navigation, then it cannot be navigable or floatable.

Little Rock, M. R. & T. R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378; Ligare v. Chicago, M. & N. R. Co. 166 111. 249, 46 N. E. 803; 1 Farnham, Waters, 103,124.

Messrs. Lamb & Frierson, for appellees:

Cache river and Cache lake are navigable, or floatable, streams and highways of commerce.

17 R. C. L. 1120-1125; Willow River Club v. Wade, 42 L.R.A. 305 and note, 100 Wis. 86, 76 N. W. 273; Gaston v.

Mace, 5 L.R.A. 392, and note, 33 W. Va. 14, 25 Am. St. Rep. 848, 10 S. E. 60; Hot Springs Lumber & Mfg. Co. v. Revercomb, 106 Va. 176, 9 L.R.A. (N.S.) 894, 55 S. E. 580; Blackman v. Mauldin, 164 Ala. 337, 27 L.R.A. (N.S.) 670, 51 So. 23; Carlson v. St. Louis River Dam & Improv. Co. 41 L.R.A. 371, and note, 73 Minn. 128, 72 Am. St. Rep. 610, 75 N. W. 1044; Idaho Northern R. Co. v. Post Falls Lumber Co. 20 Idaho, 695, 38 L.R.A. (N.S.) 114, 119 Pac. 1098, 2 N. C. C. A. 464; Henderson v. Donipha7i Lumber Co. 94 Ark. 370, 28 L.R.A. (N.S.) 144, 127 S. W. 459; Little Rock, M. & T. R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; McKinney v. Northcutt, 114 Mo. App. 146, 89 S. W. 351; Kregar v. Fogartv. 78 Kan. 541, 96 Pac. 845.

The fact that obstructions must be removed in order to float logs does not prove Cache river and Cache lake nonnavigable.

Idaho Northern R. Co. v. Post Falls Lumber Co. 20 Idaho, 695, 38 L.R.A. (N.S.) 114, 119 Pac. 1098, 2 N. C. C. A. 464; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641.

Since Cache lake and Cache river were navigable and established as navigable highways by prescriptive use, then the artificial channel or ditch which diverts and cuts off the established waterways is also to be treated as a navigable stream; hence these ditches are navigable.

Source : American Law Reports 1920

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Source - Table of Arkansas Postoffices for October 1 , 1846

GREENE COUNTY

Delaware Hill
Gainsville
Oak Bluffs
Walcott

********

Source : General Assembly of the State of Arkansas - Acts 1881

AN ACT To Amend Section (1), of an act entitled "An act to fix the salaries of the County and Probate Judges, in the counties therein named, approved November 30th, 1875."

Section

1 Fixes salaries of County and Probate Judges as follows:
Drew county, $600.
St. Francis, $700.
Franklin, $600.
Desha, $900.
Johnson, $500.
Chicot, $750.
Greene, £400.
Carroll, $500.
Baxter, $400.
Perry, $400.
Logan, '500.
Bradley, $500.
Crawford, $400.
Poinsett, $400.
Jackson, $1t00.
Columbia, £600.
Miller, $500.

Section

Mississippi, $600.
Boone, $400.
Clay, $500.
Dallas, $300.
Ashley, $500.
Union, $800.
Yell, S600.
Sharp, $500.
Randolph, $600.
Lawrence, $600.
Pope, $600.

Garland. 810 00.
2 Repeals conflicting laws; when in force.

Be it enacted by the General Assembly of the State of Arkansas:

Section 1. That section (1) of an act, entitled "An act to fix the salaries of the County and Probate Judges, in the counties therein named, approved November 30th, 1875," be so amended to read as follows ;

That hereafter the salary of the County and Probate Judge, for the county of Drew, shall be six hundred dollars, ($500 00)

County and Probate Judge of St. Francis county, seven hundred dollars, ($700 00).

County and Probate Judge of Franklin county, six hundred ^dollars, ($600 00).

County and Probate Judge of Desha county, nine hundred dollars, ($900 00).

County and Probate Judsje of Johnson county, five hundred dollars, ($500 00).

County and Probate Judge of Chicot county, seven hundred and fifty dollars, ($750 00).

County and Probate Judge of Greene county, four hundred dollars, ($400 00).

County and Probate Judge of Carroll county, five hundred dollars, ($500 00).

County and Probate Judge of Baxter county, four hundred dollars, ($400 00).

County and Probate Judge of Perry county, four hundred dollars, ($400 00).

County and Probate Judge of Logan county, five hundreds dollars, ($500 00).

County and Probate Judge of Bradley county, five hundred dollars, ($500 00).

County and Probate Judge of Crawford county, four hundred dollars, ($400 00).

County and Probate Judge of Poinsett county, four hundred dollars, ($400 00).

County and Probate Judge of Jackson county, nine hundred, dollars, ($900 00).

County and Probate Judge of Columbia county, six hundred dollars, ($600 00).

County and Probate Judge of Miller county, five hundred dollars, ($500 00).

County and Probate Judge of Mississippi county, six hundred dollars, ($600 00).

County and Probate Judge of Boone county, four hundred dollars, ($400 00).

County and Probate Judge of Clay county, five hundred dollars, ($500 00).

County and Probate Judge of Dallas county, three hundred dollars, ($300 00.)

County and Probate Judge of Ashley county, five hundred dollars, ($500 00).

County and Probate Judge of Union county, eight hundred, dollars, ($800 00).

County and Probate Judge of Yell county, six hundred dollars, ($600 00).

County and Probate Judge of Sharp county, five hundred dollars, ($500 00).

County and Probate Judge of Randolph county, six hundred dollars, ($600 00).

County and Probate Judge of Lawrence county, six hundred dollars, ($600 00).

County and Probate Judge of Pope county, six hundred dollars, ($600 00).

County and Probate Judge of Garland county, one thousand dollars, ($1000 00).

Sec. 2. That all parts of said act, inconsistent with this act,. be, and the same are hereby repealed, and that this act shall be in force from and after the first day of April next.

Approved, March 21st, 1881.

****

WESTERN UNION TELEGRAPH CO. v. IVY.

Source - Supreme Court of Arkansas. Jan. 1, 1912

1. Telegraphs And Telephones Action For Damages — Question For Jury.

In an action for nondelivery of a message relating to arrangements for the shipment of the body of plaintiff's son from another state, held, that refusal to direct a verdict for defendant was error.

Plaintiff's son died at Terre Haute, Ind., and his body was taken to the undertaking rooms of one "Sinclair," and plaintiff, on information of his son's death, telephoned to another undertaker at that place, and was informed that the body was not in his possession, and a message was then sent to "St. Clair" directing him to ship the body to plaintiff, and indicating that there were $30 for expenses, but this message was never delivered. On the same day Sinclair, who had been informed by the undertaker first telephoned to, called plaintiff up by long-distance telephone, but plaintiff, not knowing the name of the person who had called him or that he had arranged to pay for the message, and having no money to pay for a message, refused to go to the telephone. The body was buried by Sinclair the next day. Held, that plaintiff had neglected to use reasonable effort to lessen the damage from failure to deliver the telegram, and he was entitled  to nominal damages.

Breach Of ConTract.

Where a party can save himself from a loss from breach of a contract at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Action by G. M. Ivy against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment for plaintiff for nominal damages.

This was a suit for damages growing out of the failure to deliver the following telegram : "Hot Springs, Ark. August 30th, 1907. B. V. St. Clair, Terre Haute, Indiana: Ship body of Leo Ivy to Traskwood, Arkansas. Thirty dollars for expenses. H. McCafferty, Undertaker."

Leo Ivy was the 15 year old son of the appellee by his former wife, and for whom he had a very great affection. The boy died in Terre Haute suddenly, and the first information his father had of his death came from a report of it to him by a neighbor, to whom it was telephoned. She could not remember the name of the undertaker, who had the remains In possession in Terre Haute, but thought it was Hickman. Appellee, greatly desiring to have the body of his son Interred In the family burying grounds near Traskwood. and prevent its burial In the potter's field in Terre Haute, among paupers and strangers, endeavored to communicate with the undertaker in charge of the remains, who was E. V. Sinclair. He called Hickman. an undertaker in Terre Haute, over the long-distance phone, who Informed him that he did not have the remains, and asked if he should get them. Appellee told him "No," that he would communicate with the undertaker who had them in possession. He then consulted McCafferty, the undertaker at Hot Springs, told him the situation, and that he only had $25. McCafferty told htm not to worry, that he would get the body, and they both went to the telegraph office, where MeCafferty told the agent in charge of the conditions and of the desire to bring the remains to Arkansas. The agent wrote out the message sued on, and it was forwarded without any information given by him at that time, relative to the strike existing on appellant's lines, which fact was known by MeCafferty in a general way. After sending the message, he went back to Mrs. Parvins, the lady who had received the information of the death over her phone and advised him of it, to telephone his daughter. Mrs. Parvin then told him of a long-distance telephone call for him from Terre Haute, not giving the name of the party who desired to talk with him. He refused to go to the telephone to answer the call, as he had no money to pay for it, admitting that he knew the message must be about the body of his son, and said to Mrs. Parvin that he had made all arrangements, had wired for the body through the telegraph company, and got MeCafferty to take the matter up for him, and was resting on McCafferty's judgment, and depending on the telegram. He had given MeCafferty all the money he had, either $23 or $25, and MeCafferty had guaranteed the balance, but he might have made arrangements to borrow money to pay for the long-distance message if he had tried to. He thought the telegram was sufficient, and was disgusted with Mrs. Parvin's service, who had forgotten the name of the undertaker in the first instance, and caused him to expend $4 in phoning to Hickman.

It was E. V. Sinclair, who had the body in charge, who called appellee over the longdistance phone, and, being advised that Ivy would not accept the message and pay for it, he told the operator to get him, and that he (Sinclair) would pay for the message, and received the reply that Ivy would not come to the phone. He also stated that he would not have shipped the body for $30 had the telegram been delivered to him, as it would have required $65 to cover the expenses ; the express charges alone amounting to $35. Neither would he have shipped the body had he received the telegram and it had said $65 until the money was put up with the express company, and he would have notified them to deposit it with the express company first; stated, also, that there was no undertaker in Terre Haute named St. Clair, and that his name and address was in all of the telephone directories of the city as a funeral director and in the undertaker's list, and also in the city directory under the head of undertakers, and also in the classified list of business firms ; that he would have probably gotten the telegram had it reached Terre Haute ; that he received the body of Leo Ivy on August 28th, and buried it on the 31st about 4 o'clock in the afternoon, in the Lighland Lawn Cemetery, in the paupers' section; that the paupers from the poor farm were died in the city prison were buried in the same section ; that there are persons there whose graves are paid for, and that the negroes have a separate place set apart from them; that there was no undertaker by the name of E. V. St. Clair in the city, and that he did not know of any one of that name there; that he did not receive the message sued upon ; that he did receive a message after the burial directed the same way; that the expense of disinterment and shipping the remains after burial would be about $125.

Mrs. Parvin testified: That on the morning the message was sent there was a phone call at her house from Memphis for Mr. Ivy. She went to Mr. Newcomb's house, and found Mr. Ivy there, and told him that she had a message that his son, Leo, was dead in Terre Haute. That she had forgotten the name of the undertaker. They got an undertaker in Hot Springs to call over the names of two or three of the undertakers in Terre Haute, and she thought Hickman sounded like the name given. They decided to call up Hickman, and he told them the body was at Sinclair's. She called Mr. Ivy and told him the name of the undertaker. "After this, a telephone call came for Mr. Ivy from Terre Haute." They called at her house. Mr. Ivy was there, and she called him to the phone. He answered the phone, and she heard him say: "I haven't any more to do with it. I have turned it over to MeCafferty." She did not know what was said at the other end of the line. That was in the afternoon of the 30th.

The plaintiff and his family went to Traskwood on the next morning, Saturday, August 31st, and they incurred about $40 expense in railroad fare, board, and making arrangements for the burial of the body. In the afternoon, about 4 o'clock, he telephoned MeCafferty in Hot Springs to know if he had heard from the message, and McCafferty told him that he had not, but to be patient. He waited until Sunday afternoon and phoned McCafferty again, who urged him to wait. He took the train back to Hot Springs about 10 o'clock Sunday night on September 1st, and could not get communication over the phone with Terre Haute.

The testimony shows that the printed words stamped on the message, "subject to indefinite delay," were not put there by the clerk at the receiving office, when the message was taken for transmission, but at the general office, after it had been sent in. The defendant offered to prove that a strike was in effect on its lines, that the message upon its receipt was immediately forwarded to St. Louis, and sent from there to Terre Haute, after that office had been called and had answered, but had not in fact been received at the place of destination, and it was thought that some striking employé or some employé in sympathy with the strikers had answered the call and diverted the message court refused to admit because the plaintiff had not been notified of the strike at the time of sending the message. This case was tried In the federal court and is reported in 177 Fed. 63, 100 C. C. A. 481, and It was stipulated that the evidence Introduced In the trial in that court, as shown by the printed record, should be used on the trial in this, subject to objections for incompetency and irrelevancy.

The court instructed the jury, giving certain instructions requested by the plaintiff over defendant's objections, declined to give defendant's request for a peremptory instruction and certain other instructions requested by it. The jury returned a verdict for $1,000 for the plaintiff, and from the judgment thereon the defendant appealed.

Geo. H. Fearons and Rose, Hemingway, Cantrell & Loughborough, for appellant. Whlpple & Whipple, for appellee.

KIRBY, J. (after stating the facts as above). There are several assignments of error, but such only will be noticed as we regard necessary to consider in the determination of the cause.

 It is insisted strongly that the court erred in not directing a verdict for the appellant, and we agree with this contention. The damages proven in this case and resulting aside and separate from mental anguish amounted to about $40, and the remainder of the verdict must have been allowed on account of mental anguish. If it be conceded that such damages would have resulted from the failure to deliver the telegram, which is not altogether certain, since the undertaker having the body for interment stated that he would not have forwarded it for the amount mentioned in the telegram, nor for the larger amount he would have charged until it was secured by being put up with the express company, all of this presupposes that negotiations would have continued from the receipt of the telegram by Sinclair until satisfactorily concluded by the depositing by appellee of the amount necessary to procure a shipment of the body with the express company, but we do not deem it necessary to pass upon this question.

 The testimony Is undisputed, however, that the undertaker, to whom the message was intended to be sent, and who had the body in charge, after the telegram was sent from Hot Springs, called the appellee over the long-distance phone at Hot Springs, having been advised by Hickman, who had previously been called up on the phone by appellee and inquired of concerning the body of his son, about which he had telegraphed to Terre Haute, and also sent the message, that he declined to answer the call and talk with the undertaker, giving as his reason that he did not have the $4 to expend in payment for the call, and that he relied upon the telegram that he had already sent.

It is further undisputed that Sinclair instructed the telephone operator at Hot Springs upon being advised that appellee had no money to pay for the message that he would pay for it, and that she then advised him, Sinclair, that appellee refused to come to the phone. Appellee does not deny that he talked over Mrs. Parvin's phone to the central office, after being notified of the longdistance call from Terre Haute for him after his telegram was sent, and told the operator: "I haven't any more to do with it. I have turned it over to McCafferty although he did say that he had no notice that the person desiring to talk with him would pay the expense of the message.

It cannot be doubted that appellee could have secured all the information he desired by answering the telephone call of Sinclair, and have had ample opportunity to make any arrangement within his power to procure the shipment of the body of his son for burial or interment in the family burying grounds, and thus prevented all damage resulting from the failure of the delivery of his telegram by so doing. A slight exertion on his part in merely answering the phone, and in any event a trifling expenditure of $4, and remaining a little while at the phone, over which he declined to receive the long-distance message from the central office at Hot Springs, would have prevented all but nominal damages. It was clearly his duty to use reasonable effort to lessen any damage that might result from defendant's breach of its contract and negligence in failing to deliver the telegram.

The rule is "that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from the breach of It at a trifling . expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.  And It makes no difference whether this case be regarded as one arising out of contract or tort, since the principle that the injured party must reasonably exert himself to prévent damages applies alike to cases of both kinds.

Appellee insists, however, that the jury was properly instructed as to contributory negligence, and that it was a question for them, and, having found in his favor, the judgment should be affirmed. As already stated, the evidence is undisputed, and we do not think it can be said that the minds of reasonable men would differ as to the duty of appellee to answer the long-distance call which could have been in reply to his telegram and which he knew was about the same matter, and receive information of everything he desired to know, and which was necessary to secure the shipment of the body of his son for burial and thereby prevent any but nominal damages resulting from plaintiff's failure to deliver the telegram, and, such being the case, It was not a question for the Jury.

Plaintiff having failed to perform this simple duty Is not entitled to recover more than nominal damages, and the judgment is reversed, and judgment will be entered here for such damages. It is so ordered.

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NORMAN v. BERTIG BROS. Source - (Supreme Court of Arkansas. May 16, 1916.)

1. Appeal - AppealLaw Of Case.

The opinion of the Supreme Court upon the former appeal was the law of the case.

2. Bailment Loss Of Property— Negligence.

In an action to recover the value of a bale of cotton, which, after it was ginned, was placed upon in public platform and tagged with defendant's . which was removed when the bale was demanded by a third party, evidence held not to sustain plaintiff's burden of proving that it was lost by the defendants' negligence.

Appeal from Circuit Court, Greene County; W. J. Driver, Judge.

Action by Joseph Norman against Bertig Bros. Judgment for defendants, and plaintiff appeals. Affirmed.

W. W. Bandy, of Paragould, for appellant Block & Kirsch, of Paragould, for appellee

HART, J. This was an action Instituted by Joseph Norman against Bertig Bros, to recover the value of a bale of cotton. The right to recover is based on allegations that the defendants had received, as bailees, a bale of cotton belonging to the plaintiff, and that it was sold or shipped by the defendants, and that they had refused to pay the plaintiff therefor. This is the second appeal. The opinion on the former appeal is reported in 101 Ark. under the style of Bertig v. Norman. In the former appeal the court held that the rule that a bailee for hire must explain the loss of goods which came in his possession does not obtain where the bailee does not have exclusive possession of the property at the time of its loss. Under the facts as stated in the former appeal, the cotton after it was ginned was placed upon a public platform, without any agreement made between norman and Bertig Bros, that they should have charge thereof. The tag of Bertig Bros, was placed upon the bale by their weigher for the purpose of identifying it and to keep it from being shipped with the other cotton on the platform. Some one else demanded the cotton, and Bertig Bros, took their tag off of it. So that when the bale disappeared, there was no tag of Bertig Bros, thereon. The court held that the court erred in telling the jury that it was the duty of Bertig Bros, to explain the loss of the cotton, saying that under the undisputed facts Bertig Bros, did not owe any greater duty than that of ordinary care in regard to the bale of cotton, and that they were liable only in event it was lost by reason of their negligence. The court further said that the burden of proving such negligence was upon the plaintiff.

[1,2] The opinion of the court upon the former appeal Is the law of the case. The material facts as testified to by Joe Norman are as follows :

I owed Clarke Grocery Company a $20 note. I had a bale of cotton and wanted the seed out of it. I hauled it to the gin and Mr. Westbrooke came out, and after examining the cotton, said he had a gin full like it. He told me that I would have to take it to the ginyard in another part of the town and store it until he was able to gin it. He told me that I would have to have the cotton hauled back. I had to stop at Bertig Bros, store to get the key to the other ginyard. Mr. Bertig gave the key to one of the boys, and told him to unlock the gate. I hauled the cotton in there, and that was the last that I saw of it. I told Mr. Hall, of the Clarke Grocery Company, that I had a bale of cotton, and whenever it was ginned to ship it and take out the $20 I owed it and give me the balance. I afterwards had a conversation with Bertig about the bale of cotton. He stated that after the cotton was ginned he hauled it over there on the platform, numbered it, and placed it under insurance ; that somebody told him to keep his hands off ; that it belonged to the Clarke Grocery Company ; that he then took his tag off of it.

On cross-examination he stated that this conversation with Mr. Bertig occurred the next summer after the cotton had been left to be ginned ; that until the cotton was lost he thought Mr. Hall had it He also admitted on cross-examination that he testified on the former trial that a Mr. Lambert hauled the cotton to the gin and presented his bill to some one in Bertig's store, and they refused to pay him ; that one of the Bertigs named the matter to him; and that he went and paid Lambert for the hauling. Plaintiff also stated that this testimony was true. At the conclusion of the plaintiff's testimony, the court, at the request of counsel for the defendants, directed the jury to return a verdict in their favor. The correctness of the court's ruling in this respect is the sole question presented by this appeal. On the former appeal we did not pass upon the question as to whether the evidence was legally sufficient to support the verdict. We could not then know but that the testimony might be different on a retrial of the case. As before stated, the judgment was reversed because the trial court erred in telling the jury that it was the duty of Bertig to explain the loss of this cotton. The court said the burden was on the plaintiff to show that the cotton was lost by reason of the negligence of the defendants. On this appeal the record shows that after the cotton was ginned, Bertig Bros, hauled it over on the platform, numbered it, and placed it under insurance. Then somebody notified him that the cotton belonged to the Clarke Grocery Company, and Bertig took the tag off of it. The plaintiff himself admits that he thought the cotton was in the possession of the Clarke Grocery Company until after it was lost. He had not discharged the burden placed upon him, by the opinion on the former appeal, of proving that the cotton was lost by the negligence of the defendants.

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Source - Act of Congress 1861

AN ACT to incorporate the Pocahontas and Gainesville Male and Female Colleges.

Certain named persons incorporated

as the trustees of " The Gainesville Male and Female College," to be located in or near Gainesville, and provisions of foregoing sections to apply to them.

Be it exacted by the General Assembly of the State of Arkansas, That R. A. Oaks, E. Little Urmston, W. R. Cain, J. B. Kelsey, John P. Black, B. F. Payne, J. F. Harrison, W. R. Hunter, L. Hanauer, D. D. Douthit and William Evans, and their successors, be, and they are hereby created a body politic and corporate, under the name and style of " The Pocahontas Male and Female College," and henceforth shall be known by that name, and by that name and style shall remain and have power to appoint their successors; to sue and be sued; plead and be impleaded in any court of law or equity in this State; to have a common seal and the same to alter at pleasure; to make and alter, from time to time, such by-laws, rules and regulations as they may deem necessary for the government of said institution, its officers and servants; Provided, such bylaws, rules and regulations shall not be inconsistent with the constitution of this State or of the United States.
Be it further enacted, That L. C. Province, T. H. Wyse, W. Wall, H. W. Glasscock, J. B. Williamson, R. C. Mack, G. D. Byers, W. R. Shackleford, L. L. Mack and J. F. Davies, junior, and their successors, are hereby incorporated as the trustees of the Gainesville Male and Female College, to be located and constructed in or near the'town of Gainesville, in Greene county, Arkansas, and that' the provisions of the-foregoing sections shall apply to them as fully and effectually, to all intents and purposes, as if they were incorporated by a definite and special act.
Approved, December 17th, 1860
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Source - Southwest Reporter 1912

CROWLEY v. STATE.

(Supreme Court of Arkansas. April 29, 1912.)

1. Homicide Murder In The Second DegreeEvidenceSufficiency.

Evidence Acid to support a conviction of murder in the second degree.

2. Homicide Harmless ErborErroneous Admission Of Evidence.

The error, if any, in permitting a witness to testify to an alleged dying declaration of decedent, is not prejudicial to accused, where several witnesses testified without objection to the same facts.

3. Homicide Dying Declarations Admissibility.

Where a person who had received a fatal injury, and who believed that he could not recover, made statements to the effect that accused had shot him, the statements were admissible as dying declarations.

4. Criminal Law Evidence

The statement by a person, made immediately after he was shot, that a person named had shot him,

Appeal from Circuit Court, Greene County; Frank Smith, Judge.

Louis Crowley was convicted of murder In the second degree, and he appeals. Affirmed.

B. H. Crowley, of Paragould, L. C. Going, of Harrisburg, and Block & Kirsch, of Paragould, for appellant. Hal. L. Norwood, Atty. Gen., and Wm. H. Rector, Asst Atty. Gen., for the State.

McCULLOCH, C. J. The defendant, Louis Crowley, appeals from a Judgment of conviction of the crime of murder In the second degree, alleged to have beeu committed on the streets of the city of Paragould on Sunday morning, May 14, 1911, by killing one George Smith, who was a police officer of that city.

Someone shot Smith with a shotgun In front of the post office about 3:30 o'clock in the morning. One of the witnesses, Albert Bain, was at work In the post office, and testified that he heard the shot, and immediately thereafter heard someone at the door uttering a cry of distress and saying, "Let me in ; Louis Crowley has shot me ; my name is George Smith, and Louis Crowley has killed me; for God's sake let me in ;" that he (witness) climbed up on a table and looked over the partition, and saw George Smith In the lobby on his hands and knees, and that he then opened the middle door, and Smith crawled in far enough for him to shut the door, aud that Smith asked him to send for a doctor. A physician was called, and Smith was removed to a sanitarium, and died the following Tuesday morning. He stated to the physician while still at the post office, and also stated to a number of other persons between that time and his death, that Crowley was the man who shot him. He said that he was standing in front of the door, and started to step inside, when Crowley came out from the side of the post office building with a shotgun and shot him, stating positively that at the time he recognized Louis Crowley as the man who fired the shot. Witness Bain expressed some uncertainty as to whether Smith at first seen that Crowley had shot him or had killed him. After the physician came, Smith stated, according to the testimony of Bain, that he was killed, and, in answer to a statement made by persons suggesting that perhaps he was not hurt as badly as he thought, he replied that he had a fatal wound. Smith asked the physician If his bowels were wounded, and, being told that his question could not be answered positively, replied, "If they are, I cannot live; and If they are not, I may." Subsequently, at the sanitarium, he said to his father, "I guess I am killed," and stated that Louis Crowley did it, and pulled two rings off his fingers, one of his own and the other the ring of the young lady he was visiting, and handed them to his father to keep. Still later he said to a friend, who lived out in the country, "George, I don't think I will ever be in your settlement again," and followed this by a statement that Crowley was the man who shot him.

There is some evidence of previous ill feeling between the two men. In the early part of the night of the killing, Smith and the chief of police went to a bawdyhouse by instructions of the mayor to take observations of the men who visited the house, and a little after 12 o'clock defendant was there and had a difficulty with Smith, in which he drew his knife and Smith drew his pistol. Defendant was arrested by Smith and the chief of police and taken to police headquarters, where a charge was lodged against him ; but he was released without bond, on his plea that his wife was about to be confined and that he wanted to go to her. Another witness, Langley, testified that, about 8 or 10 minutes before he heard the shot fired, he met defendant on the street about a block from the post office and took a drink with him, and that as he walked away he met Smith within a block going In that direction, and in a few minutes thereafter heard the shot fired. Defendant did not testify in his own behalf, but introduced numerous witnesses to establish the fact that he went home about 12 o'clock, and remained there until he was arrested about 5 o'clock In the morning. Members of his family testified that he came home at that time and remained there, and other witnesses testified as to seeing him go home about 12 o'clock, and finding him at home and in bed about 3 o'clock.

 It is argued with much earnestness that the verdict should be set aside, because it is not supported by sufficient evidence. We are of the opinion, however, that the evidence is quite sufficient to sustain the verdict.

 It Is contended that the testimony as to the alleged dying declarations is incompetent, for the reason that the statement was not made in extremis. The testimony of only one witness who testified as to the dying declarations was objected to, and, even if we should hold that the testimony was incompetent, no prejudice resulted, for the reason that several other witnesses were permitted to testify without objection to the same facts. However, there was sufficient evidence to warrant the court in admitting the testimony as to dying declarations. The law on this subject is discussed at length in Rhea v. State, 147 S. W. 463, and need not be repeated here.

 The testimony of witness Bain as to what was said by Smith immediately after the shooting was clearly competent as part of the Evidence . It occurred immediately after the shooting, and was undoubtedly a part of the transaction. Even without the dying declarations, this, together with the other circumstances in the case, was sufficient to warrant the verdict.

Judgment affirmed.

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Source - Albany Law Journal 1891

NEGOTIABLE INSTRUMENTS DEMAND, PROTEST AND NOTICE LIABILITY OF INDORSER AFTER MATURITY.

TENNESSEE SUPREME COURT, APRIL 11, 1881.

Rosson v. Carroll.

The time within which notice of demand and non-payment of a negotiable Instrument must be given to an indorser after maturity is the same as lu case of an indorsement before maturity.

APPEAL from Chancery Court, Gibson county; Henry J. Livingston, Chan.

 for appellant.

Cooper for appellee.

Caldwell, J. This is an aotion tn the Chancery Court by au indorsee against the indorser of an overdue promissory note. His bill being dismissed by the chancellor, complainant appealed. The substauce of the pleadings is well stated in the assignment of errors and brief by complainant's counsel, as follows: "On the 29th day of October, 1887, the complainant, M. Rosson, filed his bill in the Chancery Court at Trenton against the defendant, John R. Carroll, In which bill he charged that on the 26th day of December, 1886, the Paragould Stave Manufacturing Company of Paragould, Arkansas, exeouted to the firm of Ware, Bittick & Co., a promissory note for the sum of $2,087, with interest at ten per cent per annum, and payable one day after date. That Bald Ware, Bittiok & Co., on the 1st day of April, 1887, indorsed and transferred said note to the complainant, and that he was the holder and owner of the same. That on the 12th day of April, 1887, the said note was duly presented for payment to the said Paragould Stove Manufacturing Company by John M. Davis, a notary public, and payment refused, and due protest thereof made by said notary; and on the same day due notice was given to said Ware, Bittick & Co., and to all the parties. That the said Ware, Bittiok & Co., at the time of said indorsement and said demand and notice and these transactions, was a partnership composed of Wore, Frank Bittick and John R. Carroll. That Bittick died insolvent in Arkansas, and the residence of Ware was unknown to complainant, and that he sued the defendant, John R. Carroll, alone. That said John R. Carroll had due notioe of said protest and of said demand and failure to pay, both as a member of the firm of Ware, Bittick & Co. and otherwise, and that he is bound upon said indorsement personally and as a member of the firm of Ware, Bittick & Co., and that he is bound in solo to the complainant. That said defendant, John R. Carroll, likewise received reasonable notioe of said demand and failure to pay outside of and in addition to said protest and notice thereof by said notary. That the said note was overdue when indorsed to oomplainant; and the home of the Paragould Stove Manufacturing Company was in the town of Paragould, Arkansas, aud complainant's home was in Obion county, Tennessee; and demand was made and notice given within a reasonable and lawful time. That said note was an Arkansas contract, and bears ten per cent by ' special stipulation upon its face, and that such was the lawful rate in Arkansas. That John R. Carroll was a citizen of Gibson county, Tennessee." The prayer was for judgment, etc., in the usual form, and the oath to the answer was waived.

______

On the 21th of February, 1888, the defendant filed his answer. In this answer he admits that complainant is the holder and owner of the note described in the bill, and also admits the indorsement, and also admits that the home of the maker was in Paragould, Arkansas, and also admits that the note bears ten per cent, as charged; but insists that the maker was a corporation, aud submits the question to the oourt whether the note would be usurious for that reason. He denies that on the 12th day of April, 1887, demand aud notice aud protest were made, as charged iu the bill; denies that either he or Ware, Bittiok & Co. received any notioe; denies that due demand was made and notice given; denies that be received legal notioe in any manner; denies that "demand was made and notice given iu a reasonable and lawful time," as charged; aud avers " that the first that respondent ever heard of the fact that the maker thereof had failed to pay the said note was some mouths after it was indorsed to complainant," etc. He admits that the members of the firm of Ware, Bittiok & Co. were correctly set forth in the bill, and states his own residence as at Kenton, Tennessee. The answer also pleads as au offset a note of $60, which he held against the complainant, which he asks be set off against complainant's recovery if oomplainant shall suooeed in holding him, defendant, liable as indorser, eto. The note was payable to " Ware, Bittiok 4 Co. or order," and when indorsed was three months and five days past due. The transfer was negotiated aud made by the defendant for his firm, in these words: "For value received, we transfer this note to M. Rosson. This 1st day of April, 1887. [Signed] Ware, Bittick & Co."

Before referring further to the facts of the case, the principal legal questions involved will be considered. What duties, with respect to demand and notioe, does the indorsee of no overdue note owe to his indorser or what legal steps must he take to convert the conditional liability of the Indorser into an absolute obligation to pay the debt. The distinguishing feature of the liability of an indorser of any negotiable paper is that such liability is contingent upon due presentment for payment and notioe of dishonor. Though a note transferred after maturity " oomes disgraced to the indorsee " , and is, in his hands, subject to all equitable defenses attaching to it and existing between the maker and payee at maturity, it is nevertheless negotiable; and in order that the indorser may be held liable, demand must be made of the maker and notice of non-payment given. Yet the same strictness as to time of demand and notice is not in all particulars required with respect to such a note as must be observed in case of one indorsed before due. As between indorser and indorsee, a note transferred after maturity is deemed equivalent to a note payable on demand, and is subject to the same rule of diligence in the matter of presentment for payment and notice of dishonor. To due the indorser in such a case it is incumbent on the indorsee to see that due demand is made in a reasonable time and that notice it promptly given, if payment be refused.

________

No. 196.

AN ACT for the relief of Alvin Newbanks and B. M. Grambling, of Green county.

Preamble.

Section 1. $2,000 appropriated, to be paid from swamp land fund.

"whereas, Alvin Newbanks and B. M. Grambling, under contract of tlie 11th of September, 1860, to ditch and drain Sugar Creek lake and Swan pond, in Cache township, in Green county, performed labor to the value of two thousand dollars, which have not been paid, therefore,

Be it enacted by the General Assembly of the State of Arkansas, That the sum of two thousand dollars be, and the same is hereby appropriated out of any moneys in the treasury, belonging to the swamp land fund of the Jacksonport district, not otherwise appropriated, to pay the said Alvin Newbanks and B. M. Grambling, for the work done as aforesaid.

Approved, March 21st, 1867.

________

CENTRAL CLAY DRAINAGE DISTRICT, Appt,

v.
GEORGE A. BOOSER et al.

Arkansas Supreme Court —March I8, 192O.

Water — right to close navigable stream — floating of logs.

1. A stream navigable only for floating logs during a portion of the year may be closed by the legislature, where the closing will effect a reclamation of a vast area of rich agricultural land and benefit the health of the community.

Constitutional law — police power — authority of states.

2. The states may, under their police power, regulate within their lira

its all matters which tend to promote the peace, health, convenience, and prosperity of their people. Appeal by plaintiff from a decree of the Chancery Court for Clay County (Wheatley, Ch.) in favor of defendants in a suit brought to restrain them from erecting booms or floating logs in a certain river or in the ditches constituting a part of plaintiff's drainage system.

Statement by Hart, J :

Appellant is a drainage district, duly organized under the laws of the state of Arkansas for the purpose of reclaiming lands for agricultural purposes by drainage. Cache river runs through Clay county, Arkansas, and its course was straightened by the drainage commissioners, and as straightened it was used as the main drainage ditch. Appellees claim that Cache river is navigable, and as such is one of the public highways of the state, on which they have a right to float logs and to erect booms to be utilized in floating logs. The general assembly passed an act closing Cache river to navigation in Clay county, Arkansas. Appellant brought this suit against appellees to restrain them from erecting booms in Cache river or floating logs in it, or in the subsidiary drainage ditches in Clay county, Arkansas.

According to the testimony of the civil engineer of the Central Clay Drainage District, it was formed under the general laws of the state of Arkansas, and Cache river runs

through the central portion of Clay county. In the central portion of the county Cache river flowed into a large area of sunk lands, and is called Cache lake. The main drainage ditch has been dug through Cache lake, and on down into Greene county, where it again connects with Cache river. The waters of Cache river have been diverted into this main drainage ditch, so that Cache river, as straightened by the drainage ditch, drains and reclaims large areas of agricultural land which, before the drainage ditch was constructed, were not susceptible of cultivation. There are one main ditch and twenty-six subsidiary ditches; 90,000 acres of land are drained by the ditches. Appellees have erected booms in one of the subsidiary ditches, and are engaged in floating logs down the subsidiary ditch, as well as the main drainage ditch. The booms obstruct the flow of the water in the drainage ditches, and the banks of the ditches are injured by rolling logs down them into the ditches. The main injury to the ditches is done by obstructing the flow of the water, and thereby causing them to fill up,.and thus defeat the object'for which the drainage district was formed.

According to the testimony of appellees, Cache river is a navigable stream in Clay county, although its principal navigable use of late years has been to float logs. About thirtyfive years ago a small steamboat, 10 or 12 feet wide and 25 feet long, plied its waters in Clay county. It was principally used in towing logs. After its use was discontinued, float roads have been cut through Cache lake into the main channel of Cache river, and logs have been floated down it every year. Cache river can be used for floating logs about six months in the year, and it will take appellees about eight years to . finish cutting and floating their logs. They state that their use of the river in floating logs does not in any manner impair its use as a drainage ditch.

The chancellor found the issues in favor of the appellees and dismissed the complaint of appellant for want of equity, upon condition, however, that appellees execute a bond that they will repair all damages to the ditches or banks thereof, and remove any logs that sink and tend to obstruct the channel, during the period of time they are engaged in floating logs. The case is here on appeal.

Messrs. L. Hunter and B. B. Holifield, for appellant:

If any artificial means are necessary to condition a stream or body of water for floating purposes, or for purposes of navigation, then it cannot be navigable or floatable.

According to the record the main drainage ditch consists of Cache river, as straightened by the ditch which was dug through Cache lake, and extended southward into Greene county, where it again joins Cache river. This artificial channel is about 100 feet wide and 10 or 12 feet deep. Counsel for appellees contend that where an artificial channel is cut for the purpose of straightening a navigable stream, and the stream as straightened is navigable in fact, the public have the same right to navigate it as they did before the artificial channel was cut. Hence they claim that, Cache river being a navigable stream before the artificial channel was cut, the main ditch became a part of the channel of Cache river, and that they have a right to navigate it just as they did before the drainage ditch was created.

In making this contention they have not given full effect to an act of the legislature passed in 1917, which accepts the declaration of Congress that Cache river is not navigable. 2 Ark. Acts 1917, p. 1884. This act recites that the Congress of the United States in 1916 passed an act  that Cache river, in the state of Arkansas, be declared a non-navigable stream within the meaning of the Constitution and laws of the United States, and that this provision shall become void after one year, unless within that time the legislature of Arkansas shall pass an act expressly approving the declaration. The Arkansas act further recites that Cache river is not in point of fact navigable, and that the necessity of making bridges over it drawbridges would greatly restrict the development of the adjacent country. Section 1 of the act provides that the general assembly for the state of Arkansas doth approve the declaration of the Congress of the United States in declaring Cache river to be non-navigable.

It is contended by counsel for appellees that the main purpose of this

the act has no relation to navigating the river by floating rafts and logs on it. The act must be construed according to the language used. The act of Congress plainly declares that Cache river in the state of Arkansas is declared to be a non-navigable stream within the meaning of the Constitution and laws of the United States. The Constitution of the United States  gives Congress the power to regulate interstate commerce, and under it Congress has the power to pass laws regulating the navigation of public rivers and to prevent obstructions to the navigation thereof. The evident purpose of the act of Congress was to withdraw any power Congress might have over the navigation of Cache river, so that it should pass wholly under the control of the state. This is made manifest by the language of the act, which declares Cache river to be non-navigable, provided within a year thereafter the legislature of Arkansas shall pass an act approving the declaration.

It is true the act of the general assembly, after reciting this fact, also recites that the necessity of making the bridges over Cache river with draws greatly restricts the development of the adjacent country. This, however, was only one of the reasons for legislative action. The main fact is that the legislature declared the stream to be a non-navigable one. This brings us to a consideration of the question of whether or not it had the power to do so. Numerous cases might be cited which recognize the right of states to partially obstruct navigation in cases like this, by the erection of permanent bridges without draws across the rivers, and by allowing booms to be erected in the rivers for the purpose of facilitating the floating of logs; but we do not deem it necessary to do so, and go straight to the discussion of the broader power of whether the state may entirely close a navigable river, when the power exercised does not conflict.

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Western Union Telegraph Company V. Chilton.

Opinion delivered October 9, 1911.

1. Telegraphs And TelephonesMental Anguish.—In an action against a telegraph company for failure to transmit a telegram, a recovery of mental damages will be sustained, though the contract was made in Missouri, if there was evidence that the negligence complained of occurred in this State. 2. SamePresumption Of Negligence.—Upon proof that a telegram has been received for transmission, the charges being paid, and that the telegram was not delivered, a prima facie case of negligence is established, which the telegraph company must overcome in order

to exonerate itself. Appeal from Mississippi Circuit Court; W. J. Lamb, Special Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit by appellee to recover of appellant damages for mental anguish alleged to have been caused appellee through the negligence of appellant in failing to deliver a telegraph message informing appellee of the death of his child at Campbell, Missouri. Appellee alleged that the message was delivered to the agent of appellant at Campbell, Missouri, and the charges paid for transmission to appellee, who was at that time at Chickasawba, Arkansas; that if the message had been delivered to him he would have attended the funeral of his child.

The answer of appellant denied all the material allegations of the complaint. The testimony shows that on the morning of November 1, 1909, a friend of appellee, delivered to the agent of appellant, at Campbell, Missouri, a telegram addressed to appellee at Chickasawba, Arkansas. The message was as follows: "Come home at once; your baby is dead." The witness stated that he handed the message to the agent, and paid him 25 cents, the amount charged for transmission; that, "after he handed the message to the agent, he (the agent) placed it on the table before him, and turned to the keyboard instantly, and tapped on it a few times, and turned to the witness and said,'All right,'and he marked '0. K.'on the message; that about three hours later he returned to acertain if a reply had been received to the message." The agent stated that he had not received a reply, "but" said he, "I suppose they have got it." The appellee on the morning of November 1 was at the hotel about "half of a quarter" from the telegraph station. He did not receive a telegram advising him of the death of his child. On behalf of appellant it was shown that the most direct route for handling the message in controversy was through Paragould; that Paragould was the relay station for handling such messages; and that the customary way to send them was through Paragould. There were no stations on the Missouri side of the line from Campbell to Paragould between Campbell and the line. There were three or four on the Arkansas side through which the telegraph

wires run. It was shown that the agent at Paragould did not, on the 1st day of November, or near that date, handle the message in suit. But the witness for appellant also testified on cross examination that "the two possible routes for the message would have been by way of Paragould, or Pine Bluff and Memphis. If it came by Memphis, it would have come to this Frisco office over here. If there had been some difficulty of the operator at Campbell getting the message by way of Paragould, he might and could have sent it around the other route. In that event it would have come to this office." It might have been transmitted by Black at Campbell, Missouri, and come into Arkansas, and the negligence occurred in this State for all that witness knew. "I suppose, as a matter of fact, they do sometimes send a message around the other way. In case there was some difficulty on the part of the operator at Campbell in getting the message through by Paragould, he might and could have sent it around the other way. Operators do not send messages unless they get an answer to their call from the other end of the line. It would be the duty of the receiving operator to be where he could hear the calls of his station to take the messages." The witness had no other idea but that he was in his office on the 1st and 2nd of November.

The appellant duly objected and excepted to the ruling of the court in giving and refusing instructions. Reference will be made to these in the opinion.

The verdict and judgment were in favor of appellee in the sum of $500.



 

SULLIVAN VS STATE. (Supreme Court of Arkansas. June 3, 1899.) CONFESSIONS. The owner of property stolen, and who is really the prosecutor, is a person in nuthority, within the principle that a confession obtained by an inducement held out by such a one is not admissible.

Appeal from circuit court, Greene county; Felix G. Taylor, Judge.

William Sullivan was convicted of larceny, and appeals. Reversed.

At the September term, 1895, of the Greene circuit court, the appellant, William Sullivan, was indicted for £rand larceny. At the spring term, 1899, the cause came on for trial. Appellant, waiving formal arraignment, entered his plea of not guilty, was tried, convicted, and sentenced to one year in the penitentiary, and appealed to this court. The evidence upon which appellant was convicted, In part, is as follows: B. A. Johnson, for the state: "Was acquainted with the appellant in May, 1895. About that time witness had fourteen or fifteen dollars' worth of meat stolen from him. Don't know of my own knowledge who took it Other parties found the meat. I identified it by a wire that it was hung up by. • This was In Greene county, Arkansas." O. M. Batey, for the state: "Was a justice of the peace in Greene county in 1895. At that time two men named Allen were tried before me for the larceny of some meat. William Sullivan testified before me that time. I made no promise to him to get him to make a statement. Sullivan testified that he and one of the Allen boys went to Col. Johnson's smoke house, and pried the hinges off the door, went in, and carried off a certain amount of meat; took It off a piece; met the other Allen boy there with a sack to help them carry it off. He said they took three (3) middlings and four (4) hams. I committed William Sullivan to Jail. This was some time after. I made no promise of leniency to get him to testify. I was using him as a witness against the Allen boys. I did not bind him over for stealing the meat, but for stealing the clothes." The evidence of the witness as to Sullivan's testimony before him was objected to by appellant, and proper exceptions saved, and was excluded by the court, and the Jury told not to consider It at all. B. A. Johnson, for the defense: "I lind a talk with Sullivan about stealing the meat before he went on the stand at Esquire Batey's. He came to my house not a great while after the meat was taken, and I got after him, for I suspected that he knew about

the parties. I thought he waa young, and I could get him to tell about it. He told me finally, after working with him for some time, that he would let me know the next day. He said that he thought that the meat could be found. My recollection is that he went and had a conversation with his aunt and he agreed to tell the story If we would agree to make it easy with him. I told him that I would make a state's witness of him, to help convict the others. At the examining court it was my understanding that be was not to be bound over; that, if we bound bim over, the whole thing was gone. I think I told his aunt to go and see him, and we would try and make It as U;rht on him as possible. It was our understanding that he would not be prosecuted If he would testify against the Allen boys. I was not holding any office in the county at that time, nor acting in any official capacity whatsoever. Sullivan confessed being with the Allen boys at the time they stole the meat. I simply told appellant that I would do all I could to make a state's witness of him against the Allen boys, If he would testify; that if he would tell all he knew about it that I would do what I could to make him a state's witness; that I would use my efforts to have that done." Defendant moved the court to exclude the testimony of B. A. Johnson in regard to the confession made to him. Motion overruled, and exceptions saved.

Crowley & Huddleston, for appellant Jeff Davis, Atty. Gen., and Chas. Jacobson, for the State.

HUGHES, J. (after stating the facts). After much other testimony had been given, the court Instructed the Jury "that the confession made by the defendant to Col. B. A. Johnson, together with the fact that the meat was stolen, will Justify you In finding the defendant guilty." Defendant excepted. The testimony of Col. B. A. Johnson as to the confessions of the defendant was not admissible. The proof shows that they were made by the defendant in the hope that, if he would confess, he would be made a state's witness against others, and that he would not be bound over or prosecuted "If he would testify against the Allen boys." This was promised him by Col. B. A. Johnson before he went on the stand as a witness. Col. Johnson, at the time he induced the defendant to make the confessions, was not in official position of any kind; but he was the owner of the stolen meat, the party injured, and really the prosecutor in the case, and as such was a person in authority, within the meaning of the law. In Warickshairs Case, 1 Leach, 263, Eyre, C. B., said: "A free and voluntary confession Is deserving of the highest credit because It is presumed to flow from the strongest sense of guilt and therefore It is admitted us proof of the crime to which It refers; but a confession forced from the mind by the

flattery of hope or by the torture of fear comes In so questionable a shape, when It Is to be considered as the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected." "The material Inquiry, therefore, is whether the confession has been obtained by the influence of hope or fear applied toy a third person to the prisoner's mind." 1 Greenl. Ev. § 219. Lord Campbell stated the rule to be that "if there be any worldly advantage held out, or auy harm threatened, the confession must be excluded." Reg. v. Baldry, 16 Jur. 599, 12 Eng. Law & Eq. 590. If the threat or inducement is held out actually or constructively by a person in authority, it cannot be received, however slight the threat or inducement; and the prosecutor, magistrate, or constable is such a person. 1 Greenl. Ev. § 222; Com. v. Sego, 125 Mass. 210; Knapp's Case, 10 Pick. 489; Charles v. State, 11 Ark. 408; Corley v. State, 50 Ark. 305, 7 S. W. 255; Beg. v. Moore, 16 Jur. 622, 12 Eng. Law & Eq. 583. It Is true that, the principle of law that the confession must be voluntary being strictly adhered to, the question whether It Is voluntary must be decided primarily by the presiding judge.

The instruction given by the court was clearly erroneous. It invaded the province of the jury, in assuming as a fact that the meat was stolen, and in telling them to give full credence to the testimony of Johnson, and to the confession of the defendant alleged to have been made to him, which we have shown was inadmissible. It Is error for the court, in charging a Jury, to assume facts to have been proven, when they are disputed, or to charge the jury upon the weight of evidence. This is elementary. The constitution forbids it For the errors indicated, let the judgment "be reversed, and the cause remanded for a new trial.