One witness testified that in the year 1915 WOOD, J. (after stating the facts as Maynard got some hay from Kirby. Another witness testified that Maynard got a black mule from Kirby in 1915, that Kirby lent Maynard the mule, and the mule died while in Maynard's possession. The testimony showed that the mule was worth $100.

above). [1-3] The court was correct in excluding the testimony of Kirby concerning his alleged transactions with Maynard, and the statements alleged to have been made by Maynard to him concerning his account. But after excluding this testimony there was testimony making it an issue for the jury to determine whether or not the estate of Maynard was indebted to Kirby, and the amount, if any, of such indebtedness.

T. C. Wooten testified that he was administrator of the estate of Maynard; that he took possession of Maynard's books, and the books showed a balance of $359.70 due from Kirby to Maynard. He exhibited the con- Wooten, who was present when the note tract already referred to between himself, and mortgage were executed by Kirby to Kirby, and Shapard. He had no conversa- Maynard, testified that he heard Maynard tion with Kirby before the contract was tell Kirby that he would give him credits drawn up with reference to credits. The cred- later on in the fall in settlement for what its were not mentioned until about a month was owing to him (Kirby) and directing Kirafterwards. Kirby paid witness, on Novem-by to make up a list. This was competent ber 2, 1916, $121.90. Kirby did not owe the full amount of $500; he had not taken up the full amount of the $500 when Maynard died, and the sum of $200 was released. The note bears this indorsement:

"Balance due on this note under contract between W. F. Kirby, T. L. Shapard and T. C. Wooten, administrator, dated April 24, 1916, $410.55."

Kirby testified in rebuttal that he had paid to the administrator the difference between the amount of his claim against the estate of Maynard and the amount due by him to the Maynard estate, but the administrator had not released the papers.

testimony, and tended to show that at the time the note and mortgage were executed Maynard acknowledged that Kirby had an unsettled account against him for which Kirby was entitled to credit. Then the testimony of other witnesses tended to prove that Kirby, as late as the spring of 1915, had furnished Maynard hay and a mule.

Even though Maynard's estate may not have been indebted to Kirby in the full amount of the account claimed by him, the above testimony tended to prove that he was indebted to him in some amount. The peremptory instruction by the court deprived the appellant of the right to have the jury determine whether or not the Maynard

The court gave certain instructions, and estate was indebted to him in any sum. As the record recites the following:

"Thereupon, while the case was being argued to the jury, and at a time when Mr. Daggett, of counsel for plaintiff, was making the closing argument to the jury, the court requested that such argument be suspended, and thereupon gave to the jury the following instruction, to wit: 'Gentlemen of the jury, under the law and the evidence in this case, you will return a verdict for the administrator for the value of the property described in the complaint. Thereupon W. R. Satterfield, counsel for W. F. Kirby, objected to the giving of such peremptory instruction, which objection was by the court overruled, to which ruling and action of the court counsel for Kirby duly excepted."

The court further instructed the jury, over the objection of appellant's counsel, that the defendant's claim "will be disallowed." The court then excluded from the jury all the testimony of W. F. Kirby regarding any statements or transactions with the deceased, H. C. Maynard, regarding the items mentioned in the account of W. F. Kirby, and thereupon instructed the jury, peremptorily, under the law and the evidence of the case, to return a verdict for the plaintiff for the possession of the property described in the complaint, and to disallow the claim of the defendant, W. F. Kirby.

Moore, Vineyard & Satterfield, of Helena, for appellant. D. S. Plummer and Daggett & Daggett, all of Marianna, for appellee.

to whether or not the estate of Maynard was indebted to Kirby, and, if so, the amount of such indebtedness, were issues, under the evidence, to be submitted to the jury under proper instructions.

The court therefore erred in its ruling directing the jury to return a verdict in favor of the appellee. On appeal from a directed verdict, the evidence must be given its strongest probative value in favor of the party against whom the verdict is directed, and if there is any evidence tending to es

tablish an issue in his favor the court should allow the issue to go to the jury. Williams v. St. Louis & San Francisco Rd. Co., 103 Ark. 401, 147 S. W. 93; Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328.

For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.

Kirby's Dig. § 8029, giving one year to appeal from probate court orders admitting or denying the probate of a will, is unaffected by Acts 1909, p. 956, amending Kirby's Dig. § 1348, requiring heirs, etc., to appeal from the probate to circuit court within six months, since

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the prior specific statute is not repealed by the [ lie from the court of probate to the circuit later general one.

2. STATUTES 162-IMPLIED REPEAL.

court, and thence to the Supreme Court, from every order admitting a will to record or rejecting it. It further provides that the appeal to the circuit court shall be taken with

A general affirmative statute does not repeal a prior particular statute upon the same subject unless they are clearly repugnant. 3. APPEAL AND ERROR 702(1)-ABSTRACT-in one year after rendering the order of SETTING OUT INSTRUCTIONS.

Assignments of error regarding the giving of instructions cannot be considered unless all instructions are set out in the abstract, unless the instruction complained of contains incurable defects.

4. APPEAL AND ERROR 882(12) - INVITED ERROR-REQUESTED INSTRUCTIONS.

Appellants cannot complain that an instruction on undue influence was unauthorized by the evidence where they sought and obtained an instruction upon that subject.

5. WILLS 327- CONTEST - DIRECTED VER

probate, or rejection in the court of probate, and to the Supreme Court within one year after the final decision in the circuit court. This provision governs the time within which appeals may be taken from judgments of probate courts admitting wills to probate. This statute was not repealed by Act 327 of the Acts of 1909 (Acts of 1909, p. 956), as contended by counsel for appellants. There is no repugnancy between the two statutes, and it is the rule that a general affirmative statute does not repeal a prior particular statute upon the same subject unless there is an invincible repugnancy between the two. In Ward v. Wilson, 127 Ark. 266, 191 S. W.

Appeal from Circuit Court, Sebastian 917, it was held that a particular statute regCounty; Paul Little, Judge.

Proceedings by John B. Morris and others to probate the will of E. C. Brogan, deceased, contested by Mrs. Mary F. Raymond. The probate court's order admitting the will to probate was reversed by the circuit court, as to certain items, and the proponents appeal. Affirmed.

ulating appeals from county courts in road matters was not repealed by the general statute regulating appeals from county courts.

In Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 486, it was held that the special statute regulating appeals from judgments of the county court opening county roads is not repealed by the general act of later date regulating appeals from final orders and judgFred A. Snodgress, of Little Rock, for ap-ments of the county courts. So here the two pellants. Ira D. Oglesby, of Ft. Smith, for statutes may stand together. The appellee complied with the statutes regulating the time within which appeals may be taken from the probate court to the circuit court from the order admitting the will to record.

appellee.

HART, J. This appeal involves the contest of the last will and testament of E. C. Brogan, deceased. The probate court admitted the will to probate and Mrs. A. H. Raymond, the daughter of said testator, appealed to the circuit court. In the circuit court the jury found in favor of the contestants as to the two items of the will in which the proponents were chiefly interested. From the judgment rendered, the proponents of the will have duly prosecuted an appeal to this

court.

The appeal from the probate court to the circuit court was taken more than six months after the rendition of the judgment admitting the will to probate, but within less than one year from that date.

lants that the court erred in giving several
[3, 4] It is insisted by counsel for appel-
instructions at the request of appellee. None
of the instructions given except one are set
out by counsel for appellants in his abstract
It is the settled rule in this
and brief.
state that assignments of error relating to
the giving of instructions cannot be consid-
ered on appeal when all of the instructions
are not set out in the abstract unless the in-
structions complained of are so inherently
defective that they could not be cured by
Harrelson v. Eureka Springs Elec-
others.
tric Co., 121 Ark. 269, 181 S. W. 922, and
Barnett Bros. v. Western Assurance Co., 126
We find none of
Ark. 562, 191 S. W. 226.
the instructions of which counsel for appel-
lants complained to be so defective that, even
if they are considered incorrect, the defects
might not have been cured by other instruc-
tions.

[1, 2] It is insisted by counsel for appellants that the appeal was taken too late. They rely upon section 1348 of Kirby's Digest, the general statute regulating appeals from the probate court to the circuit court, and the act approved May 31, 1909, amendatory thereof. See Acts 1909, p. 956. We do not think the general statutes regulating It is next insisted by counsel for appelthe time in which appeals may be taken lants that there was not sufficient evidence from judgments of the probate court to the in the record to submit to the jury the quescircuit court are applicable to this case. tion of undue influence exerted upon the tesSection 8028 of Kirby's Digest provides the tator in the execution of the will. Counsel manner of proving wills and contesting their for the appellants are in no attitude to raise probate. this question on appeal. Instructions on the Section 8029 provides that an appeal shall question of undue influence was given to the

jury upon the request of the appellants as well as of the appellee. The objection to the instructions on undue influence was, as we have just seen, that there was no testimony upon which to predicate them. Appellants cannot complain of an instruction given at appellee's instance as abstract if they asked and the court gave an instruction bearing upon the same subject. St. L., I. M. & S. Ry. Co. v. Baker, 67 Ark. 531, 55 S. W. 941; St. L. & S. F. R. Co. v. Vaughan, 88 Ark. 138, 113 S. W. 1035; St. L., I. M. & S. Ry. Co. v. Carter, 93 Ark. 589, 126 S. W. 99; and National Fruit Products Co. v. Garrett, 121 Ark. 570, 181 S. W. 926.

It is true counsel for appellants asked for a peremptory instruction at the conclusion of the testimony, but there was no error in the refusal of the court to grant this. The will was contested upon two grounds: First, that the testator did not have sufficient mental capacity to make a will; and, second, that the will was procured to be executed by undue influence practiced upon the tes

tator.

the time of his death. Jones died in 1884, and was survived by his widow and two daughters, whose names were Frances Briggs and Malissa Saunders, who were living with him on the land at the time of his death. The widow died in 1907, since which time the land has been in the possession of the two daughters named above. Lucy Jones brought this suit to recover an undivided one-third interest in the land, and for cause of action alleged that she was a child of Scott Jones born before the Civil War of a slave marriage, and upon the trial of this issue recovered judgment for the share sued for. It is now conceded that the evidence is legally sufficient to support the verdict on this issue, but it is alleged, as ground for the reversal of the judgment, that prejudicial error was committed in the argument of the case before the jury by counsel for plaintiff.

In defense of the suit it was not only denied that Lucy Jones was the child of Scott Jones, but it was alleged that any cause of action on her part was barred by the statute of limitations. It was conceded that the defendants had held the possession of the land for more than seven years, but it was contended that, inasmuch as the parties were tenants in common, their possession was not adverse. Lucy Jones testified that about three years before beginning this suit she demanded that her interest in the land be set apart to her, and, when the occupants denied that she had any interest, they had a fuss.

[5] It is conceded by counsel for appellants that there was sufficient testimony to take the case to the jury on the question of the mental capacity or incapacity of the testator. Hence it cannot be said that the court erred in not directing a verdict in favor of appellants. We need not consider whether or not there was sufficient testimony to establish the allegations of undue influence; for, as we have already seen, both parties asked for instructions on this question, and appellant cannot now complain that there was no tesThe court gave instructions correctly subtimony upon which to predicate such instruc-mitting the issues to the jury, but in his closing argument to the jury counsel for plaintiff said:

tions.

We find no reversible error in the record, and the judgment will be affirmed.

"The defendants' possession of the land was not peaceable possession within the meaning of the instructions, because Lucy Jones went down there and they had a row about it."

Objection was made to this argument, but the court refused to admonish the jury that counsel had not correctly interpreted the inThe argument structions on this subject. was well calculated to produce an erroneous impression on the jury and to have a highly prejudicial effect; for its meaning was that the row over the right of possession had the effect to break the continuity of the existing adverse possession and to form a new period

Appeal from Circuit Court; Nevada Coun- from which the statute must run before title ty; Geo. R. Haynie, Judge.

Ejectment by Lucy Jones against Frances Briggs and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

J. O. A. Bush, of Prescott, for appellants. McRae & Tompkins, of Prescott, for appellee.

SMITH, J. This is a suit in ejectment, and involves the title to a quarter section of land which was owned by one Scott Jones at

could thereafter be acquired by adverse possession. The refusal of the court to correct counsel in his argument was, under the circumstances, tantamount to the giving of an erroneous instruction on the subject. Davie v. Padgett, 117 Ark. 551, 176 S. W. 333.

That the argument was improper is apparent from a consideration of the cases which discuss the character of possession which may ripen into title. A number of such cases are found in our own reports. It is true

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that a number of these cases say this possession must be peaceable, as, for instance, in Jeffery v. Jeffery, 87 Ark, 496, 113 S. W. 27, the court said:

"Plaintiffs and their ancestors must have held the open, notorious, peaceable, continuous, and adverse possession of the lands for more than seven years to amount to an investiture of title."

ment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

This suit was instituted by the appellant against the appellee to recover damages for injuries received by him while in the employ of the appellee.

The appellant alleged that the appellee was a Kentucky corporation, doing business in Arkansas, its business being that of buying and selling timber, manufacturing and selling staves, and operating a stavemill; that the appellant was in the appellee's employ as a woodsman; that he was inexperienced in the operation of machinery and mill work, and that the appellee knew that fact; that on or about June 18, 1916, the appellant began work under the direction of appellee's foreman in operating an edger saw at the mill; that appellant told his foreman that he had never worked at such saw and knew nothing about the operation of same, but that the foreman nevertheless directed him to proceed with his work; that while engag

Similar language was used by Judge Battle in the case of Scott v. Mills, 49 Ark. 266, 4 S. W. 908. Each of these cases cite other opinions of this court to the same effect. But an equal, if not a larger, number of cases say the possession must be hostile. See Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, and Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945, and cases cited in each of these cases. In the common acceptation of these words, a possession could not be, at the same time, both peaceable and hostile, yet, as anomalous as it may appear to be, the words have been used interchangeably by this court in discussing the law of adverse possession. The occupancy, whether denominated peace-ed in the operation of the edger saw appelable or hostile, must be accompanied by an intent to hold adversely to the true owner, and, while it is held that there need not be a dispute in order to make the possession hostile (2 C. J. 122), it is also held that the word "peaceable," as employed by the courts in announcing the elements of possession which may ripen into title, means merely that the possession must be so undisturbed as to render it continuous. 2 C. J. 168.

The court should have told the jury that a mere quarrel over the title did not prevent the possession from being peaceable within the meaning of the instructions which had been given on that subject.

Other errors are assigned, but we do not think they are sufficiently meritorious to require discussion.

For the error indicated, the judgment is reversed, and the cause remanded for a new trial.

lant was injured by coming in contact with a cut-off saw, which was being negligently run by the appellee in close proximity to the appellant; that the appellee had negligently failed to provide a proper guard for the cut-off saw, and that by reason of appellee's negligence in failing to instruct appellant as to his duties and to warn him of the dangers, and in negligently operating the cutoff saw in close proximity to appellant while the same was unguarded, the appellant was severely injured. The appellee denied the material allegations of the complaint as to negligence, and set up the defenses of contributory negligence and assumed risk.

The testimony on behalf of the appellant was, in part, as follows:

"I was injured Monday morning, June 6, 1916, immediately after the mill started. The whistle had blown, and all the hands were at work. I had never worked in the mill before this time. Was there once before, and culled staves on the yard part of the day. My regular job was handling the teams, but on the morning I was

SALING v. CHESS & WYMOND CO. OF injured I was assigned to the edger saw. Mr.

ARKANSAS. (No. 165.)

(Supreme Court of Arkansas. Feb. 18, 1918.) 1. MASTER AND SERVANT 286(41)-INJURY TO SERVANT-SUFFICIENCY OF EVIDENCE. Evidence that plaintiff, an inexperienced servant, was injured while working near an unguarded cut-off saw in a stavemill without previous instructions or warnings held to make defendant employer's negligence a jury question. 2. MASTER AND SERVANT 289(10)-INJURY TO SERVANT-SUFFICIENCY OF EVIDENCE. Evidence that an inexperienced servant was injured while working near an unguarded cutoff saw in a stavemill held to make his contributory negligence a jury question.

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by W. P. Saling against the Chess & Wymond Company of Arkansas. Judg

I

Jim Brooks, the mill foreman, gave me my or-
ders. When I went to the mill that morning
I told Mr. Brooks that I had rather work in
the woods, for I can make good there. He then
said, 'Go on and work at the mill until we
catch up. and you can have the teams.' I had
seen a Mr. Palmer operate this edger saw part
of the day that I culled staves on the yard.
told Mr. Brooks that I had always worked in
the woods. I was running a stave through the
saw, the very first stave I picked up, when I
was injured by my left arm coming in contact
with the cut-off saw. The cut-off saw was lo-
cated just off from the front left-hand corner
of the edger table, a distance of 18 inches.
was running open. There was enough room on
the edger table for a stave 36 inches long to
lay so that it could be pushed into the edger
saw. The saw was revolving towards the opera-
The cut-off saw was not immediately in
front of me. It was to my left. It was set
obliquely 174 inches from the front left corner
of the edger table. I was standing at the same

tor.

It

A witness on behalf of the appellee testi- new trial. fied, in part, as follows:

"I remember the time the plaintiff was injured. I was foreman of the plant where he was injured and had control of all the hands. It was my business to assign them to different places to work. I employed Mr. Saling the day before he was injured, and when I employed him he said he had not had any experience with Under contract entitling broker to commisrunning a stave saw, but that he could run it. sion if he produced a purchaser ready, willing, He was at the mill when I employed him. He and able to buy on the principal's terms, and was to report the next morning at 7 o'clock. Ihe produced one with whom the principal consaw him the next morning at 7 o'clock. When tracted to sell the property, he was entitled to the mill started the next morning I was on the commission. opposite side of the shed from where Mr. Saling was at work. I had not instructed him to go in there and do any work that morning, and I was coming around to show Mr. Saling what to do, but before I got around he had been injured."

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