of Boley Langley's age, and as to that he thus testified, in part: "I have known Boley Langley ever since we were children together. I could not say just how old he is, but my best judgment is he is 21 or 22 years old. I base that on my own age." Boley Langley testified: "I am seventeen years of age, and a little over; the date of my birth being May 26, 1887." Joe Langley, a brother, testified "Boley is seventeen years old the 26th of last May. He was born in 1887." Hiram Langley, the father, testified: "Boley Langley was 17 years old on the 26th of May, 1904." Emiline Medline, an aunt by marriage, testified that Boley Langley was a "little baby," "just crawling around”—“a sucking baby-in the spring of 1888." Mrs. Joe Langley, sister-in-law, testified: "He [Boley Langley] is now about 17 years old." A. J. Hughes testified that Boley Langley was about 16. Mrs. Hughes, to the same effect. The force of the testimony quoted was not materially weakened by cross-examination or otherwise, and we think it entirely improbable that any qualified juror would have been influenced to disregard it by the testimony of Frank Langley, which was very indefinite, and at best a matter of opinion, even though unimpeached. We therefore conclude, as before, that the error was harmless.

The statement in our original opinion that "we fail to find even a contention that the proof failed to show that Boley Langley was not permitted to enter and remain in appellants' place of business, within the meaning of the law," is also assailed. The contention now is that the evidence only shows that Boley Langley remained in appellants' saloon long enough to drink the beer sold to him. A careful re-examination of appellants' brief fails to disclose a single assignment of error that calls in question the sufficiency of the evidence to support the verdict or judgment, and, as the transcript presents the evidence, we think no such contention can be reasonably made. Boley Langley testified that he, with four other boys or young men, was in appellant's saloon twice-in the morning and evening-on the day charged. In the morning the party drank no beer, remained 10 or 15 minutes, had no business, but, in the tongue of the witness, "just sot there awhile," and went out. In the evening the party returned, bought two one-half gallon buckets of beer, and "just stood 'round there

and drank it." Was there on this occasion also some 10 or 15 minutes. On cross-examination he seemed inclined to deny the imputation of being drunk in the morning. His language is, "I don't think I was drunk when I was in there the first time that day." Joe Langley testified that he was passing in front of the saloon, saw the party named "in there," and went in and talked with them, "I guess, ten or fifteen minutes," when he went out, leaving the "boys" in the saloon. He, further testifying, said: "I had no business in there, and just went in only because I saw the boys in there as I was passing along the street, and I went in there just to pass the time. I did not want to see them about anything in particular, and I do not remember what we talked about. I think I asked them what they were doing in there, and they said they were just having a time. I think they had been drinking some, and I thought I could smell it on their breath, and they acted like they were drinking. I sat down in there on a beer keg or on a plank there in the back room. I don't remember which. I think Jess Smith was sitting on a plank in there. Bob and Hez and Boley and Jess Smith were the only ones in there, and we were all talking-just gabbing like other people would-but I don't remember what we talked about. All I remember is that Jess wanted me to go in with them on the purchase of another bucket of beer, and I would not do it." Loftin Brewster, the barkeeper, testified that he was in charge during the entire day in question, and, "if I sold Boley Langley any beer on or about the 21st day of June, or at any time, I do not remember it. * * Never saw these boys in the saloon at any time, to remember it now. If he had come into the saloon, would have taken him to be 21 years old. As to this particular transaction, I do not remember anything about it. * * I do not say that Boley Langley was not in there." The appellant H. D. Brewster, the proprietor, testified: "I do not recollect of ever seeing Boley Langley in the saloon there. If he was in there, I do not remember it." We find no other witnesses testifying on the point under consideration, and think it is thus made perfectly apparent that the evidence not only supports the verdict and judgment, but justifies our original conclusion.

*

The motions for certiorari and rehearing are overruled.

Amendment No. 5 to the Constitution authorizes the county court to levy a county road tax for the exclusive purpose of making and repairing public roads and bridges in the county, when authorized by a majority vote of the county. Kirby's Dig. § 7351, requires the road tax to be expended upon the roads of the district where it is collected. Section 7358 provides that at least one-fifth of the tax collected within the limits of first-class cities shall be expended on roads outside of such cities. Held, that while no part of the tax collected outside of first-class cities can be expended in such cities, yet four-fifths of that collected in a city can be expended on roads or streets in the city.

Appeal from Miller Chancery Court; James D. Shaver, Chancellor.

Suit by the city of Texarkana against John C. Edwards, county judge of Miller county, and others. From a decree dismissing the complaint, plaintiff appeals. Affirmed.

Pratt P. Bacon and Scott & Head, for appellant. John N. Cook and W. H. Arnold, for appellees.

RIDDICK, J. This is a suit in equity by the city of Texarkana against the collector of taxes for Miller county to restrain him from paying certain road taxes collected by him into the county treasury, and to compel him to pay four-fifths of the road tax collected on property within the limits of said city into the treasury of the city, to be expended by the city for the improvement of its streets, and further to enjoin the county judge of that county from expending such part of the tax on roads outside of the city limits. The defendants appeared, and filed a demurrer to the complaint, which was sustained by the chancellor, and the complaint dismissed.

The questions raised by the appeal from this judgment are, first, whether any portion of this road tax can be properly expended on the streets of a city, and, if it be lawful to do so, whether it should be expended by the county judge, or should be turned over by the collector to the city authorities to be expended by them. After due consideration of the matter we are of the opinion that, as the law now stands, the road tax, when collected, is a fund belonging to the county, and that it should be paid into the county treasury to be expended under the orders of the county judge. As the city has control of its streets, it is probably true that the county court could not carry out a system of street improvement against the wishes of the municipal authorities. To avoid conflict in juris

diction between the county and city officers in such matters, further legislation may be required. As the law now stands, we think the expenditure of this fund is under the jurisdiction of the county court, which, so far as street improvement is concerned, must act in conjunction with the city authorities having control of the streets.

On the question as to whether the county judge had the right to expend any part of this road tax fund on the streets of the city there is more room for doubt. In some of the counties of the state a large portion of such tax is paid by residents of cities of the first class on property located in such cities. If the law did not allow any portion of the tax to be expended on roads within the city limits, it is not unlikely that the result would be that many of these taxpayers would refuse to vote for the tax, and the collection of the tax might in that way be defeated. Although the purpose of the tax is to improve the public roads and highways of the county, still a street is a public highway, and while, ordinarily, in speaking of public roads and highways, one does not include streets, yet such language may include streets as well as other highways. Now, as this tax is paid by owners of property in cities as well as by those who live outside of cities, the presumption should be that it was intended to be used for the benefit of all the property owners and citizens of the county, without regard to whether they live within or without the limits of a city, and that the discretion of the county judge in that regard is unfettered unless the law is plainly to the contrary. We see nothing in the amendment (No. 5) to the Constitution which permits the collection of a county road tax that prevents such an equitable distribution of the fund. The Legislature seems to have adopted this view of the amendment, for in the act of 1899 (section 7351, Kirby's Dig.) it requires this road tax to be expended upon the roads of the district where the tax was collected, though some of the towns and cities of the state have been constituted separate road districts. In a subsequent act (section 7358) it directs that at least one-fifth of such tax collected within the limits of cities of the first class shall be expended on roads outside of such cities, leaving the place or places in the county where it is to be expended to the discretion of the county judge, from which it may be clearly implied that the remaining four-fifths may be expended in the city.

Now, the facts in this case show that Garland township, of Miller county, is one of the road districts of that county, and that the city of Texarkana is situated in that district. Under the acts of the Legislature above referred to, we think that the county judge may expend the road fund collected in that district upon the roads of the district as in his discretion may seem best, except that one-fifth of that part of the tax collected in the city of Texarkana, a city of the

first class, must be expended on roads outside of the city, and such fifth may be expended in any portion of the county where the county judge may deem that it can be used to the best advantage. In other words, under these statutes the amount of the road fund collected in cities of the first class which can be expended within the city is limited to four-fifths of the tax collected in such city. No part of the tax collected outside of the city can be expended in the city, and but four-fifths of that collected in the city can be expended on the roads or streets in the city limits, for the Legislature, which has full control over public highways, has so enacted.

It results from what we have said that, in our opinion, the judgment of the court refusing to enjoin the collector from paying over the tax in question to the county treasurer was right, and the same is affirmed.

McCULLOCH, J., concurred in the judgment, but was of the opinion that the city was entitled, under the law, to have fourfifths of the road tax collected on city property expended on its streets, the expenditure to be made by the county judge. In his opinion the county judge has no discretion to expend more than one-fifth of the tax collected in the city on roads outside of the city limits.

MARTIN v. BACON.

(Supreme Court of Arkansas. June 24, 1905.) 1. NONRESIDENT WITNESSES AND PARTIESEXEMPTIONS FROM SERVICE OF PROCESS.

A party cannot be lawfully served with civil process while attending on a court in a state not that of his residence, either as a party or a witness, or while going thereto or returning therefrom.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Process, §§ 146, 148–150.]

2. SAME-BAIL BOND.

Where a nonresident was attending court in Arkansas to avoid forfeiture of his bail bond, service on him of process in a civil action was void.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Process, §§ 148, 149.]

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by W. H. Martin, administrator, against C. H. Bacon. From the judgment, plaintiff appeals. Affirmed in part, and reversed in part.

Greaves & Martin, for appellant. Wood & Henderson, for appellee.

BATTLE, J. James T. Grubb in his lifetime brought an action against C. H. Bacon for damages caused by an assault and battery made upon him by the defendant. The action was commenced on the 16th of November, 1901. The plaintiff died, and the action was revived in the name of W. H. Martin, as special administrator.

The defendant moved the court to quash the summons, setting out the grounds in his motion; and the plaintiff replied, stating facts. The court sustained the motion and dismissed the action, and the plaintiff appealed.

The motion was heard and sustained upon the following agreed statement of facts:

"The alleged assault for which this action was brought was made on the 6th day of May, 1901, in the city of Hot Springs, Garland county, Arkansas. Upon said date the defendant was a visitor to the city of Hot Springs, and was not present in said city under compulsion of any judicial process, but was here voluntarily.

"Said defendant, C. H. Bacon, is, and was on the said 6th day of May, 1901, a resident of the state of Tennessee.

"That upon a preliminary examination being made and held, in which said alleged assault was investigated, the defendant was held to await the action of the grand jury of Garland county, and was permitted to, and did, give bond in the sum of one thousand dollars for his appearance on the 1st day of October, 1901, term of the circuit court of Garland county, next ensuing.

"That afterwards, to wit, on the 19th day of October, 1901, said grand jury returned a bill of indictment charging the said Bacon with assault with intent to kill, committed upon the person of the said J. T. Grubb, and on the day of 1901, an order was made by the circuit court of Garland county permitting the said Bacon to remain upon the bond already given by him until the further order of the court; and the case was set for trial on the 19th day of November, 1901, the same being also a day of said October term of said court.

"That the defendant left his home, in Tennessee, and came to the city of Hot Springs, arriving here on the 15th day of November, 1901-coming here for the purpose of being present at said trial, and of making his arrangements for said trial-and was served with summons herein on the 16th day of November, 1901, and came here in obedience to his said bail bond, requiring him to be present at said trial, and for the purpose of being tried under said indictment, and that said defendant was in this county for no other purpose than to be present and submit himself to the orders and judgment of this court in said cause."

It is well settled by the great weight of authority that a party cannot be lawfully served with civil process while he is in attendance on a court in a state other than that of his residence, either as a party or a witness, or while going to and returning therefrom. Murray v. Wilcox (Iowa) 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263; Powers v. Arkadelphia Lumber Company, 42 Cent. Law J. 397, and note; note to Mullen v. Sanborn, 25 L. R. A. 721. In this state a party, in civil actions and criminal prosecu

tions, can testify as a witness, and may be exempt from service of civil process in both capacities. Judge Elliott, in Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, gives the reason for the exemption as follows: "If citizens of other states are allowed to come into our jurisdiction to attend court as parties or witnesses, and to freely depart from it, the administration of justice will be best promoted, since a defendant's personal presence is often essential to enable his counsel to justly conduct his defense. The principle of state comity, too, demands that a citizen of another state who submits to the jurisdiction of our courts, and here wages his forensic contest, should not be compelled to do so under the limitation and obligation of submitting to the jurisdiction of our courts in every case that may be brought against him. While coming and departing, as well as while actually in necessary attendance at court, he should be free from the hazard of being compelled to answer in other actions. It is an evidence of respect for our laws and confidence in our courts that he comes here to litigate, and the laws he respects should give him protection. If he can come only under the penalty of yielding to our jurisdiction in every action that may be brought against him, he is deprived of a substantial right because he is willing to trust our courts and our laws without removing his case to the federal courts, or refusing to put himself in a position where a personal judgment may be rendered against him. High consideration of public policy requires that the law should encourage him to fully enter our forums by granting immunity from process in other civil actions, and not discourage him by burdening him with the obligation to submit to the writs of our courts if he comes within our borders."

risdiction of the state, or detained therein, being a nonresident, either as party to the suit, or as witness in another suit, he is not subject to service. And the reason-the main reason-is very potential, so far as our country is concerned. There are many states, stretching from Maine to Oregon, and a man who is required to go from one to the other, either as a witness or as a party to a suit, should not be pursued by writ while abroad, instead of being sued at his nonresidence; otherwise every one, as is stated in many of these opinions, would avoid as far as possible being subjected thousands of miles away to suits of this character." Atchison v. Morris (C. C.) 11 Fed. 582.

Upon the same principle of justice, good faith, and comity, and to subserve the due administration of justice, it has been held that "a person who has been brought within the jurisdiction of a court from another state upon a requisition, as a fugitive from justice, and has been tried for or discharged as to the offense against him, is not subject to arrest on a civil process until a reasonable time and opportunity have been given him to return to the state from which he was taken." Moletor v. Sinnen (Wis.) 44 N. W. 1099, 7 L. R. A. 817, 20 Am. St. Rep. 71; Blair v. Turtle, 1 McCrary, 372, 5 Fed. 394; Compton v. Wilder, 40 Ohio St. 130; People v. Judge, 40 Mich. 630; Cannon's Case, 47 Mich. 482, 11 N. W. 280.

The appellee comes within the spirit of the rule which exempts persons from service of civil process, and is entitled to its benefit. He is a nonresident of this state-a resident of the state of Tennessee and was bound to attend the Garland circuit court, in this state, to avoid the forfeiture of his bond. He was also entitled to attend as a witness in his own behalf. His attendance was compulsory. While in attendance in obedience to his bond, process in this case was served upon him. The service, on his motion, should be set aside. Murray v. Wilcox (Iowa) 97 N. W. 1087, 101 Am. St. Rep. 263, 64 L. R. A. 534.

RAPP v. ST. LOUIS TRANSIT CO. (Supreme Court of Missouri. June 28, 1905.) 1. STREET RAILROADS-NEGLIGENCE QUESTION FOR JURY.

In an action against a street railroad company for injuries to plaintiff in a collision between his vehicle and a car, held, that the question of defendant's negligence was one for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 251, 253.] 2. SAME CONTRIBUTORY NEGLIGENCE.

In an action against a street railroad company for injuries to plaintiff in a collision between his vehicle and a car, held, that the question of plaintiff's contributory negligence was one for the jury.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 255-257.] 3. MUNICIPAL CORPORATIONS ORDINANCE -REGULATIONS OF STREET RAILROAD-ACTION FOR INJURIES-PLEADING.

In an action for injuries to plaintiff in a collision between his vehicle and a street car, the petition alleged negligent operation of the car, and also alleged negligence of defendant's motorman in failing to keep such "vigilant watch" for vehicles and persons as was required by a certain ordinance. Held, that it was proper to refuse to require plaintiff to elect whether he would stand on the allegations as to general negligence, or on the allegations as to the ordinance.

4. SAME-UNITING ACTIONS EX CONTRACTU AND EX DELICTO.

The petition was not open to the objection that it combined in one count a cause of ac tion ex contractu and one ex delicto. 5. STREET RAILROADS NEGLIGENCE-INJURIES-ACTION-INSTRUCTIONS.

In an action against a street railroad company for injuries to plaintiff in a collision be tween his vehicle and a car, plaintiff's evidence tended to show that, while his horses were on defendant's track, defendant's serv ants negligently caused the collision; and the defense was that plaintiff negligently assumed such position when a collision could not have been avoided by ordinary care. The court instructed for plaintiff that though plaintiff, while trying to get his wagon out of a hole in the street, got it on the track, yet if defendant's motorman saw the danger, and could, by the exercise of ordinary care, have prevented the collision, but failed to do so, plaintiff was entitled to recover, even if he did not exercise ordinary care in pulling his horses on the track. An instruction for defendant was that if the motorman saw the horses near the track, but so far away as not to be in danger, the motorman had the right to assume that they would remain there, but that if thereafter plaintiff's horses changed their position, and got in front of the car, and thereby directly contributed to the injuries, and the motorman could not have stopped the car and avoided the accident, plaintiff could not recover. Held, that the instructions, taken together, properly presented the is

sues.

6. SAME-NEGLIGENCE — DISCOVERED PERIL.

Though one may have been guilty of contributory negligence in being on a street car track, the company is liable for any injury it could have prevented by ordinary care after the discovery of the danger.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 219.] 7. NEGLIGENCE-INJURIES-DAMAGES.

In an action for injuries owing to the alleged negligence of defendant, it appeared that plaintiff was rendered unconscious, and his body bruised; that one of his feet was SO

88 S.W.-55

that

crushed that it was necessary to amputate one of his toes and a part of another one; he would always be crippled more or less: that he suffered great pain, was confined to his bed for five months, and obliged to use crutches for about six weeks, and that his surgeon's bill was between four and five hundred dollars. Held, that a verdict for $6,000 was not excessive.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 384.]

In Banc. Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by George Rapp against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. A. R. Taylor, for respondent.

BRACE, C. J. This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum of $6,000 in an action for personal injuries. The cause of action stated in the petition is as follows: "That on the 1st day of February, 1901, the plaintiff was lawfully driving a team of horses attached to a loaded wagon northward on Broadway at its intersection with Buchanan street, when the wheels of the wagon he was so driving went into a hole in said streets at their intersection, and said team were unable to pull the wagon further, and became stalled, and, in endeavoring to get said wagon pulled out of said hole, said team were upon the track of the defendant, St. Louis Transit Company, and whilst said team were so on the track of said St. Louis Transit Company on said streets at said place, and whilst said wagon and the wheels thereof were at and near said defendant's track, the defendant St. Louis Transit Company's motorman and conductor in charge of its south-bound car carelessly and negligently, and without using ordinary care to control or stop said car, caused and suffered said car to collide with said team and a part of said wagon, whereby plaintiff was thrown from said wagon to the street, and one of the horses of said team was thrown and fell upon the plaintiff, greatly and permanently injuring plaintiff upon his body, legs, and feet, causing a concussion of the brain. which rendered him unconscious. His foot was thereby crushed, bruised, and injured, and the bones thereof, and the ligaments, tendons, muscles, and flesh thereof, were fractured, ruptured, displaced, and torn, and plaintiff was permanently injured thereby. And for another and further assignment of negligence of defendant, St. Louis Transit Company, the plaintiff avers that at the time of his said injuries there was in force in the city of St. Louis an ordinance of said city, whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for vehicles and persons either on its track or moving towards it, and, upon the first appearance of danger to such vehicle