Wood, J., 1 overcharg-eor Sue!by “1S' (after stating the facts.) Construing the first clause of the section of the act above quoted in its own terms, and with reference to the language employed in the second, we conclude that the legislature did not intend to hold corporations liable under the act :or an amount above the maximum fare received by their agents unintentionally. Should the conductor, in any case, demand, charge, or receive more than the lawful fare, the presumption would be that he intended what he did. The corporation, of course, must be held to know the distances over its line between different points; and whenever an excessive amount is received, it is firima facie liable. The presumption of intention which follows the mere act of taking or receiving may be overcome by proof to the contrary. Hence, the above instruction was the law applicable under the facts, and should have been given. In view of a rehearing, we suggest that it would be in better form to make the latter clause read: “An honest mistake by a conductor in making change, without the intention of taking an amount greater than was lawful, will not make defendant liable;” eliminating, “and without his attention aeing called to it by the passenger. ” If the conductor ntends to receive the excess, the company is liable, whether the passenger calls his attention to it or not. Under the facts of this case however, this clausfe was nerely surplusage, and not prejudicial.
After pieatmfg'is not evideilce' The court also erred in permitting the appellee to ■ead the original answer of appellant as an admission titer same had been withdrawn. Holland v. Rogers, 3 Ark. 251 ; Greenleaf on Ev. Vol. 1, sec. 171, note 1 (a), and authorities there cited ; also authorities cited in brief for appellant.
Reversed and remanded.