render inexpedient to further prosecute the business for which it was formed. Therefore, be it resolved that this corporation be dissolved and retire from business, and that its board of directors (3) be authorized and empowered to sell, either at public or private sale, as it shall seem best to them, all of the rights, privileges, franchises, choses in action, real and personal property of any description, belonging to this company, upon such terms as to credit and security as to them shall seem right and proper, and to apply the proceeds thereof to the company liabilities, so far as the same shall extend. Resolved, further, that, upon said sale being duly and properly made according to the instructions of these resolutions, the president of the board of directors of this company be authorized and empowered to execute and deliver bills of sale and deeds of conveyance for said property to the purchaser or purchasers thereof." It is unnecessary to discuss the question as to whether or not a corporation at that time had the power to dissolve itself, as this one by these resolutions attempted to do, except in so far as the attempt to do so throws light on the intention of the stockholders, and aids in the construction of the language of the resolutions as to the disposition of the proceeds of the sale thereby authorized to be made. In pursuance of these resolutions the directors about January, 1893, sold all the property of every description to one L. E. Gibney; giving him time to make arrangements to pay the $20,000 he was to pay for the same. At the expiration of 10 or 12 months from this sale, it was found that Gibney could not pay said purchase price, nor any part thereof, and then he and McNutt (one of said directors, and the president of the insolvent company) arranged so that McNutt should take his place as the purchaser of said property at the same price, and this was accordingly consummated. At this time, and when the dissolution resolutions were adopted, the cotton-mills company owed the local bank a large amount of money,-equaling, as we infer, the amount for which the said property sold, and for which the company had executed and delivered to it (the bank) its promissory notes or other obligations indorsed by McNutt and its other directors individually; McNutt being also the president of the bank. Some time thereafter (it is not known when) McNutt paid the $20,000 by simply indorsing proportionate credits upon their indorsed notes of the bank against the company, thereby settling the same as far as might be, and thereby also, in effect, preferring said bank as one of the creditors of said company, and indirectly preferring himself and his co-directors of the company, as possible future creditors, had this settlement of the notes not been made. Although there was no formal ratification of this procedure by McNutt on the part of his codirectors, yet, by their silence, it may be presumed that they approved of it. The stockholders never had another meeting after the adoption of the dissolution resolutions, doubt less thinking that they had thereby done all they could towards winding up the business of the concern, and so gave no sanction to this mode of distribution, as far as the record shows. The language of the resolutions of the stockholders in reference to the distribution of the proceeds of the sale of the property manifestly meant that the directors having the matter in charge, should distribute the fund derived from any sale that might be made pro rata among the creditors of the concern; and the directors had no authority to make a different distribution of these assets, for in this they were acting under direct instructions from the stockholders. At the time these resolutions were passed there was no statutory provision as to the dissolution of private corporations, nor statutes prohibiting insolvent corporations from making preferences among their creditors; but statutes to these ends were passed on the 12th and 14th of April, 1893, before the payment of the bank's claims was made as aforesaid, and at that time the whole spirit of the law was opposed to anything but an equal division in such cases, with a few specified instructions, and this gave emphasis to the manifest intention of the stockholders as expressed in their resolutions. It is contended that, while the statute at this time forbade preferences, yet this could only be made an objection within 90 days from and after the time the preferences should be made. If this was a preference in fact, it was made in secret, so far as this record shows, and there was no point of time from which to measure the 90 days, so far as outsiders were concerned, and no showing is made that plaintiffs had notice of the distribution or payments made as aforesaid. We are of opinion, therefore, that the decree of the court below dismissing plaintiffs' bill for contribution should be reversed, and the appellants should have judgment against appellees in such amounts, respectively, as will give them pro rata shares with the plaintiffs; and the cause is remanded, with directions to decree accordingly. BATTLE and HUGHES, JJ., dissent, ATKINSON et al. v. BURT. (Supreme Court of Arkansas. May 14, 1898.) CHATTEL MORTGAGES - POSSESSION-STATEMENT OF DEBT-USURY-EVIDENCE -ACCOUNT BOOKS. 1. A mortgagee who acquires possession without having, before the action, delivered to the mortgagor a verified statement of his account, as required by Sand. & H. Dig. § 5110, does not forfeit the mortgage or lose the debt thereby. 2. A mortgage given to secure an existing debt as well as future advances will stand as security for one, if it is free from usury, though the other is usurious. 3. A mortgagor who is entitled to possession, and takes it under an order from a justice who had no jurisdiction, does not hold unlawfully because the manner of taking possession was unlawful. 4. The rendering of an account may be considered by the jury for what it is worth as an admission, but is not a prima facie proof that it is correct. 5. Before allowing account books in evidence, defendant should have been required to lay a foundation by showing the books were correctly kept, and that the entries were contemporaneous with the facts recorded. Appeal from circuit court, Lincoln county, Star City district; John M. Elliott, Judge. Action by one Burt against J. G. Atkinson and others. Judgment for plaintiff, and defendants appeal. Reversed. Burt sued Atkinson and others for taking from his possession some cotton, corn, two horses and a wagon, and other personal property. Atkinson answered, denying that he wrongfully took the property, but said that he had a mortgage upon it to secure a debt of $484.49, and that Burt delivered the property to him voluntarily. The other defendants filed general denials. Burt replied, setting up that the debt was usurious. After hearing the testimony in the case, the court gave to the jury, at the instance of the plaintiff, the following instructions: "(1) The court instructs the jury that if they find from the evidence that defendant J. G. Atkinson had a mortgage on the property in controversy, and obtained possession of said property under and by virtue of the order of delivery issued by defendant Adams as justice of the peace, without first having rendered to the plaintiff, Burt, a duly-itemized account of all the transactions under said mortgage, and between them, verified by the affidavit of said Atkinson, the jury will find for the plaintiff, and assess his damages at such sum as they may believe to be the value of the property so converted. (2) If the jury find from the evidence that any portion of the debt secured by the mortgage and account made thereunder was usurious, and more than ten per cent. interest per annum was demanded, received, or charged by the defendant Atkinson, they will find for the plaintiff, and assess his damages at the value of the property alleged to be converted. (3) If the jury find from the evidence that the suit instituted in the justice court was for the recovery of property of a greater value than $300, and the defendants obtained possession of said property under the writ of replevin issued in said suit, then such writ could not justify the defendants, or any one of them, in taking possession of such property, and their possession was unlawful and wrongful. (4) If the jury believe from the evidence that the defendant Atkinson rendered plaintiff an itemized and stated account of the transactions between them, then the burden of proof devolves on the defendant J. G. Atkinson to show by a preponderance of the testimony that there was a mistake or fraud in the statement so rendered." Rose, Hemingway & Rose, for appellants. D. H. Rousseau, for appellee. HUGHES, J. (after stating the facts). The first instruction is erroneous. By failing to furnish Burt, the appellee, with an itemized, verified statement of his account before bringing suit, the appellant Atkinson did not forfeit his debt secured by the mortgage given by the appellee, Burt, to secure its payment. The statute imposes no such forfeiture for such a failure. The statute is as follows: "Before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust, or to replevy under such mortgage, deed of trust or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due. Provided if the mortgagor disposes, or attempts to dispose, of any of the property mortgaged, or absconds, or removes from the county, such statement shall not be necessary." Sand. & H. Dig. § 5110. This might have been pleaded to a suit to foreclose, or to a suit for the possession of the property. But it could not work a forfeiture of the appellant's mortgage, or cause the loss of the debt secured thereby. The second instruction is erroneous, because it told the jury that, if any part of the indebtedness secured by the mortgage was usurious, the entire mortgage was void. The mortgage was made to secure future advances, as well as a note given for advances prior to its execution. They were distinct and separate debts. One might be usurious, and the other free from usury. The mortgage would stand as security for the debt unimpeachable for usury. Riggan v. Wolf, 53 Ark. 538, 14 S. W. 922; Lund v. Fletcher, 39 Ark. 326. The third instruction is erroneous, because by it the jury were told that, if the justice had no jurisdiction, the writ could not justify the seizure, and Atkinson's possession was unlawful; thus ignoring Atkinson's right to possession under his mortgage, because the manner of obtaining it was wrong. He was entitled to possession, and, though the manner of obtaining it may have been wrong, his possession itself was not unlawful. Kannady v. McCarron, 18 Ark. 166; Whittington v. Flint, 43 Ark. 504, 519; Jones v. Horn, 51 Ark. 19, 9 S. W. 309; Cocke v. Cross, 57 Ark. 87, 20 S. W. 913. The fourth instruction is erroneous, because it told the jury, in effect, that the account furnished Burt by Atkinson was prima facie correct, and that the burden was on Atkinson to impeach its correctness. The merely rendering an account might be considered an admission that it was correct, to be considered by the jury for what it was worth, but it does not make prima facie proof of its correctness. An objection was made to the introduction of Atkinson's mercantile books as evidence, which was overruled, but should have been sustained, because no foundation was laid for their introduction. This, however, was in favor of the appellant, and he could not complain of it. But, as the case must be reversed and remanded for errors in the instructions as above indicated, we mention this. Before allowing the entries in the book to be read, the court should have required a showing that the book was correctly kept, and that the entries therein were contemporaneous with the facts recorded. Railway Co. v. Murphy, GO Ark. 342, 30 S. W. 419. For errors in giving the instructions as above set out, the judgment is reversed, and the cause is remanded for a new trial. KANSAS CITY, FT. S. & M. R. CO. v. (Supreme Court of Arkansas. June 17, 1899.) 1. Where the duty which a master owes to his servant is imposed by law, by reason of their relation, as well as by the contract of service, the servant may, on a breach of such duty, treat the wrong suffered as a tort, and bring an action ex delicto. 2. Under Const. art. 17, § 12, providing that all railroads which are now or may hereafter be built and operated, either in whole or in part, in Arkansas, shall be responsible for all damages to persons and property, under such regulations as may be prescribed by the general assembly, a railroad company whose road is operated in part in Arkansas is governed by the statutes of Arkansas, and is liable to an employé in tort for injuries received there, caused by failure to discharge any duties growing out of said statutes, though the contract of service may have been made in another state. 3. The defect in an instruction which assumes that the step by reason of which plaintiff, an employé of defendant railroad company, was injured, was defective at some time prior to the accident, when the company inspected it, is cured by other instructions to the effect that it devolves not only on plaintiff to prove such defect, but it also devolves on him to show either that the company had notice of such defect, or that by the exercise of reasonable care it might have obtained such notice, and that the presumption is that the company has done its duty by furnishing safe and suitable appliances, and that, when this presumption is overcome, plaintiff is met by a further presumption that the company had no notice of the defect, and was not negligently ignorant of it. 4. Where an employé was injured by a defect in an appliance due to the negligence of two other employés, whose duty it was to inspect such appliance, it is no defense to an action to recover for such injury that one of them was his fellow servant. 5. Under Sand. & H. Dig. § 6249, providing that all persons who are engaged in the common services of a railway corporation, and who, while so engaged, are working together in the same department of service, and to a common purpose, neither of whom is intrusted by such corporation with any superintendence or control over his fellow servants, the inspector in a roundhouse, who is subject to the authority of the mechanical department of the railroad company, is not a fellow servant of a fireman while on the road, who is subject to the authority of the transportation department. Appeal from circuit court, Craighead county; Felix G. Taylor, Judge. Rehearing denied November 11, 1999. Action by William Becker against the Kansas City, Ft. Scott & Memphis Railroad Company for personal injuries. There was a judg ment for plaintiff, and defendant appeals. Affirmed. Wallace Pratt, I. P. Dana, and W. J. Orr, for appellant. E. F. Brown and N. F. Lamb, for appellee. BATTLE, J. This is the second time this action has been before this court on appeal. The opinion delivered when it was here the first time is reported in 63 Ark. 477, 39 S. W. 358. It was instituted by William Becker against the Kansas City, Ft. Scott & Memphis Railroad Company to recover damages for personal injuries. Plaintiff was a fireman in the employment of the defendant, and was engaged with others in running an engine of his employer from Thayer, Mo., to Memphis, Tenn., and return; Thayer being the starting point. He left the latter place about 6 o'clock in the evening on the 21st of April, 1894, and arrived at Memphis about 4:30 in the morning of the next day, and, returning, left Memphis about 6 o'clock in the evening of the 22d of April, and was injured at Afton, in this state, about daylight of the following morning. He was seriously and permanently injured by the step on the left-hand side of engine No. 30, on which he was employed, turning as he jumped upon it in order to get into the engine cab; the engine being at the time in motion. As a result of the injury, amputation of one of his legs, just below the knee, was necessary. To be more specific, we relate the cause, manner, and circumstances of the injury more at length. At the rear end of the engine, at the entrance to the cab, were two steps-one on either side-for the use of employés. The engineer and fireman rode in the cab,-the former on the right side, and the latter on the left. Each step was fastened to the lower end of an iron or steel rod. The upper end of the rod passed through an iron beam nine inches thick, and was fastened and held in place by means of a tap at the top. When in proper position, the step faced out at right angles to the side of the engine. When the rod was loose, the step could be turned out of place, but this defect could be remedied by means of the tap. A short time before plaintiff was injured, the engine on which he was acting as fireman and the train attached were moved on a side track at Afton for the purpose of allowing a passenger train to pass. While the former train was upon the side track, the plaintiff, by direction of the engineer, left the cab to put out the headlight, and while so doing the passenger train passed. About the time he finished his work the engineer commenced moving the train from the side track upon the main line, and, while it was running about as fast as a man would ordinarily walk, plaintiff attempted to get upon the engine by means of the left step, and was injured in the manner stated. The maintenance of the steps in good repair and safe condition was intrusted to two employés of the defendant. It was the duty of the engineer, when his engine was on the road and away from Thayer, to examine and keep the steps in safe condition by means of the tap at the end of the rod, for which purpose he was provided with the necessary tools. It was also his duty, when he ran his engine into the roundhouse at Thayer, where the engines operated on the road between Thayer and Memphis, on their return from the latter place, were inspected and repaired, to report any defects in his engine which needed repairing, and blanks were furnished him for the purpose. At Thayer was a machinist, named Johnson, whose duty it was to inspect the lower part of the locomotives, including the steps, when they came in, as a protection against any neglect of the engineer. Johnson also made repairs. The bad condition of engine numbered 30, if attributed to the fault of any one, was due to the negligence of one or both of these employés. To prove that the defendant was liable for the culpable negligence of these employés in the failure to discharge their duties, evidence was adduced in the trial of this action tending to prove that the engine numbered 30 was taken on the 18th of April, 1894, to its shops at Thayer for inspection and repair, and that on the 21st of April, two days before plaintiff's injury, an employé of the defendant, while in the roundhouse at Thayer, discovered that the engine step on the left or fireman's side was loose, and turned halfway round, so that it projected under the engine, and that the engineer on the 22d of the same month, while at Memphis, discovered the step on the right side of the engine to be loose, and tightened it, and that the left step was loose on the next day, when the plaintiff was injured. On the contrary, evidence was adduced by the defendant to show that the steps were not loosened at the shops when the engine was there for repairs on the 18th of April, and that the inspector examined them, and did not notice that either of them was loose or turned, and that the engineer examined the left step, on the evening of April 22, 1894, at Memphis, by striking it with a hammer, the usual test,-and found it apparently "all right." The jury, before whom the issues were tried, returned a verdict in favor of the plaintiff against the defendant for the sum of $5,000, and the court rendered judgment accordingly. To reverse this judgment, an appeal by the defendant to this court is prosecuted. It is insisted by appellant that its duties to appellee were imposed and governed by the laws of Missouri, where he was employed and their contract for service was entered into, and that the risks assumed by the contract were determined by the same laws; that the relation of master and servant could be created between them only by contract; and that the duties and risks assumed grew out of that relation. It is true that the relation was created by contract, but the duty upon which the appellee relies to recover in this action, if it existed, was imposed by law, and arose from the relation, rather than the contract. For a neglect to perform this duty the appellee had the right to elect to sue upon the contract, or to treat the wrong suffered by the neglect as a tort, and bring an action ex delicto. The rule in such cases as this is correctly stated in Nevin v. Car Co., 11 Am. & Eng. R. Cas. 92, 101, as follows: "Where the duty for whose breach the action is brought would not be implied by law, by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact it has been expressly stipulated, * * * the remedy is in the contract, and not in tort, when otherwise case is an appropriate remedy." Clark v. Railway Co., 64 Mo. 440; Bliss, Code Pl. (3d Ed.) § 14; Pom. Code Rem. (3d Ed.) §§ 568-571; 4 Elliott, R. R. § 1693. The railroad of appellant is built and operated in part in this state. In regard to such railroads the constitution provides as follows: "All railroads which are now or may hereafter be built and operated, either in whole or in part, in this state, shall be responsible for all damages to persons and property, under such regulations as may be prescribed by the general assembly." Article 17, § 12. Section 6249, Sand. & H. Dig., provides: "All persons who are engaged in the common service of such railway corporations [foreign or domestic, doing business in this state], and who, while so engaged, are working together to a common purpose, of same grade, neither of such persons being intrusted by such corporations with any superintendence or control over their fellow employees, are fellow servants with each other; provided, nothing herein contained shall be so construed as to make employees of such corporation in the service of such corporation fellow servants with other employees of such corporation engaged in any other department or service of such corporation. Employees who do not come within the provisions of this section shall not be considered fellow servants." And section 6250 provides: "No contract made between the employer and employee based upon the contingency of the injury or death of the employee limiting the liability of the employer under this act, or fixing damages to be recovered, shall be valid and binding." The effect of these statutes is to limit the risk assumed by an employé on account of the acts or omissions of persons in the service of the same employer to the neglect of those who are fellow servants within the meaning of the statutes, and to impose upon the master the duty to protect him against the neglect of all other fellow employés in the discharge of their duties, and to render the employer liable in damages for injuries suffered on account of the failure to discharge this duty. The appellant was and is subject to and governed by these statutes, and is liable to its employés in tort for injuries caused by the failure to discharge any duties growing out of them. The appellant says that the court erred in giving to the jury an instruction in words as follows: "If you find from the evidence that it was the duty of Bennett to inspect the engine for the defective step, and that by the exercise of ordinary care he could have discovered the defect, and if you find that the step was defective, and that it was also the duty of Johnson to inspect the engine for such defect, and that he, by the exercise of ordinary care and observation, would have discovered the defect, and that when the plaintiff was injured, if he was injured, he and said Johnson were not engaged in the same department or service of the defendant, and were not working together to a common purpose, and that negligence of said Johnson, if you find that he was negligent, contributed to, or was in part the cause of, plaintiff's injury, and that the plaintiff was not injured by reason of want of ordinary care for his own safety, then your verdict will be for the plaintiff." This instruction, it says, was defective because it assumes that the step was defective at some time prior to the accident when the engineer and Johnson should have made their inspection, or when they did in fact make it. If this was a defect, it was cured by the following instructions, given at the instance of appellant: “(1) Becker, by virtue of his employment, assumed all the ordinary and usual risks and hazards incident to his employment, and the railroad company was not an insurer of the perfection of the step in question, or the safety of Becker,-the railroad company being required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employés reasonably safe machinery and instrumentalities for the operation of its railroad; and it will be presumed, in the absence of anything to the contrary, that the railroad company has performed its duty in such cases, and the burden of proving otherwise rests upon Becker. And in this case, as Becker seeks to recover damages for injuries resulting from alleged defective step furnished by the railroad company, it not only devolves upon him to prove such defect, but it also devolves upon him to show either that the railroad company had notice of such de-. fect complained of, or that by the exercise of reasonable and ordinary care and diligence it might have obtained such notice; and proof of a single defective or imperfect operation of such step, resulting in injury, is not of itself sufficient evidence, nor any evidence, that the company had previous knowledge or notice of such defect. "(2) You are further instructed that although you may find and believe from the evidence that the step in question was loose, and that it turned with Becker, and he thereby received the injuries complained of, still he is not entitled to recover in this action unless he has shown by a preponderance of the evidence (that is, a greater weight of the evidence) that the defendant or its servants who were intrusted with the duty of inspection had notice of the fact that said step was loose prior to the time of the injury, or that the step was loose a sufficient length of time before the injury that its condition could have been discovered by the defendant or its said inspectors by the exercise of reasonable care, and could not have been discovered by Becker by exercise of the same degree of care; and, unless the plaintiff has so shown, you will find for the defendant. "And you are further instructed that knowledge on the part of witness Buck that the step was loose at Thayer is not knowledge to the defendant company. "(3) The presumption is that the railroad company has done its duty by furnishing safe and suitable appliances for the performance of its work, and, when this is overcome by positive proof that the appliances were defective, the plaintiff is met by a further presumption that the railroad company had no notice of the defect, and was not negligently ignorant of it. It is not sufficient to show that the plaintiff was injured, and that the injury resulted from a defect in the step, but he must go further, and establish the fact that the injury happened because the railroad company did not exercise proper care in the premises, in discovering and repairing said step." At the request of the appellant, and with the consent of the appellee, the court instructed the jury that Bennett, the engineer, and appellee, the fireman, were fellow servants at the time the injury occurred. Now, appellant's counsel says: "If we admit that Bennett, the engineer, did not inspect this step at Memphis, and did not apply the usual test to ascertain its condition, and that he was negligent, it being admitted in this case by the record that Bennett and the plaintiff were fellow servants, then we submit that there is no room for reasonable minds to differ on the proposition that Bennett's negligence was the direct and promoting cause of this injury, because, but for his negligence (admitting that he was negligent, and admitting that the step was defective at Memphis). the injury could not have happened, and his negligence, if he was negligent, was not a contributing cause, but was the direct, immediate, last moving, and approximate cause of the accident;" and for this reason they say that the instruction objected to by appellant, as before stated, was defective, and should not have been given. But this is not correct. The trial court told the jury, by this instruction, that if they found that the step by which the appellee was injured was defective, that Johnson negligently failed to discover that it was in that condition, that his negli gence contributed to the injury, and that he was not a fellow servant of Becker, to return a verdict in favor of appellee. If such |