mistake in judgment. Appellant was at least entitled to an instruction defining the difference between a felonious lack of knowledge and skill, on the one hand, and a mere mistake of judgment, on the other. In other words, the jury should not have been left in a position to confuse a mistake of judgment with gross ignorance or lack of skill. (1-2) The second instruction asked by appellant and refused by the court correctly presented the law applicable to the theory advanced by appellant, and to which he is entitled upon the whole record. That instruction is as follows: "Involuntary manslaughter is the involuntary killing done without design, intention or purpose of killing, but in the commission of some unlawful act, or in the improper performance of some lawful act. "For a mere mistake of judgment in the selection and application of remedies resulting in the death of his patient, a physician is not criminally liable, and whether one who assumes to practice medicine is grossly ignorant of the art or the selection of remedies or their application, or inapplicable or rashly applied, are all questions to be determined by the evidence." It is insisted that the court committed error in declining to give instruction No. 9, on the presumption of innocence, requested by appellant. This subject is fully covered in the instructions given by the court to the effect that the burden of proof was on the State to prove defendant's guilt beyond a reasonable doubt. It is also insisted that an error was committed because the prosecuting attorney referred to the fact that appellant did not have a license to practice medicine. The court indicated that it was an improper argument, as that issue was not involved in the case. It is unnecessary for us to comment upon it, as the prosecuting attorney will not likely repeat the statement on a new trial. It is insisted that the court committed an error in using the words "unlawful act" in the first instruction. It is pointed out by appellant that he was indicted for the commission of a lawful act "without due caution and circumspection." The court in giving instruction No. 1 defined involuntary manslaughter, and it is apparent that that portion of the instruction referring to a killing in the commission of an unlawful act was not intended as a direction to the jury in the instant case. It was merely used as a part of the statutory definition of manslaughter. It may have been just as well and perhaps better to have left it out, but no prejudicial error was committed by the court in the use of the words in the manner in which they were used in the instruction. (3) It is strenuously insisted that the court erred in refusing to permit appellant to read excerpts to the jury from a book entitled "McFadden's Physical Culture." This court said, in the recent case of Scullin et al. v. Vining, 127 Ark. 124, 191 S. W. 924, that it is proper to read extracts from standard medical authorities upon the subject matter involved to an expert witness and to ask him whether he agrees or disagrees with the authorities to test the knowledge of the expert and to ascertain the weight of his testimony; and in that case clearly approved the rule that excerpts from such books can not be read to a jury as original and affirmative evidence. It is insisted by appellant that instruction No. 13, given by the court, in effect told the jury the extent of punishment they should inflict if they found appellant guilty. Appellee concedes that the instruction was unfortunately worded. The court should have told the jury that in case they found appellant guilty, as charged, they should fix his punishment at some period in the penitentiary not to exceed one year. As the case will be tried again, it is unnecessary to go into the question of whether the instruction given by the court was so worded as to direct the jury to fix a certain punishment. For the error indicated, the cause will be reversed and remanded for a new trial. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY Opinion delivered April 30, 1917. 1. ATTORNEY AND CLIENT-AGREEMENT FOR FEES. - Appellees, attorneys for plaintiffs, brought suit against appellant, appellees and plaintiffs agreeing that the former's fee should be one-half of whatever was recovered above $500. Without appellee's knowledge, plaintiffs settled the case with appellant for $5,000. Held, under Act 293, Acts 1909, appellants were entitled to $2,250 as their fee, and that they had a lien on appellant's property for that sum. 2. ATTORNEY AND CLIENT-LIEN FOR FEES ENFORCEMENT.-Under the facts as set out above, under § 2, Act 293, of Acts 1909, appellees may enforce their lien against appellant without service of process upon appellant. The act creates a lien upon the cause of action in favor of the attorneys and requires the defendant to take notice of the lien. 3. ATTORNEY AND CLIENT-RIGHT OF A CLIENT TO SETTLE. -The parties to a suit have the right to settle it, but in making the settlement, the act requires that they shall take into consideration the fact that the attorney has a lien upon the cause of action and provides for its enforcement in the action, to the end that the parties may not ignore his lien and deprive him of his rights under his contract with his client. 4. ATTORNEY AND CLIENT-LIEN FOR FEES-ROADBED AND EQUIPMENT OF RAILROAD.-Attorneys brought an action for plaintiffs against a railroad company, which the parties settled without the knowledge of the attorneys. Held, under Act No. 293, Acts 1909, and Kirby's Digest, § 6661, the attorneys had a lien for their fees upon the roadbed and equipment of the railroad company. 5. ATTORNEY AND CLIENT FEES-LIEN-EXTENT. - The lien of an attorney for fees under Act 293, Acts 1909, is a lien on the client's cause of action in whatever form it may assume in the course of the litigation, and the act enables the attorney to assert his lien in the same manner as the client might assert his judgment. Appeal from Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge; affirmed. Thos. B. Pryor and W. P. Strait, for appellant. 1. The petition to set aside, quash or vacate the judgment should have been sustained. Kirby's Digest, § 4457; Acts 1909, No. 293; 117 Ark. 504; 120 Id. 393; 98 Id. 529; 74 Id. 552; 71 Id. 327; 83 Id. 210; 117 Id. 515; Kirby's Digest, § 4424. 2. A judgment without notice is void. 58 Ark. 181; 65 S. W. 108; 71 Id. 318; Ib. 565; 70 Id. 418; 50 Id. 340; 51 Id. 341; 72 Id. 107 ; 122 Id. 72; 89 Id. 160. 3. It was error to declare the judgment a lien. Kirby's Digest, § 6661., 4. The court was without jurisdiction. The statute fixes the venue. Kirby's Digest, §§ 6067-8; 77 Ark. 415; 109 Id. 77. The judgment is null and void. If appellees had a cause of action for contingent fees, it was an independent cause of action, and in effect a new suit, and no service was had on appellant. The Yell Circuit Court had no jurisdiction. The suit should have been dismissed. Hays & Ward, for appellees. 1. The judgment was a final order and appealable. No motion for new trial was filed and no appeal was taken. The court properly refused to vacate the judgment. Kirby's Digest, §§ 4431, 4434; 185 S. W. 774; 190 Id. 118. A general statement that petitioner had a valid defense is not sufficient. 102 Ark. 255. 2. Attorneys in this State have liens and the statute prescribes the manner of enforcing them. Act 293, Acts 1909, p. 893; 120 Ark. 392; 173 N. Y. App. 498. Appellees had a just lien under the act. 96 S. W. 512; 144 Id. 760; 117 Ark. 504; 120 Id. 389. It was properly enforced. Supra. 3. There is no error, as justice has been done. 97 Ark. 299; Kirby's Dig., § 6661. Appellant did not raise the question as to the lien in its petition and an issue not raised below will not be determined on appeal. 95 Ark. 593; 75 Id. 76; 81 Id. 561; 82 Id. 260; 88 Id. 189; 89 Id. 308. Absolute justice has been done and the case should be affirmed. STATEMENT BY THE COURT. Mary E. Burris, the wife of James R. Burris, was injured in a head-on collision between two passenger trains near Ozark on the 5th day of August, 1915. She employed A. S. Hays and J. B. Ward, a firm of attorneys, to bring suit for damages, for the injuries sustained, against the St. Louis, Iron Mountain & Southern Railway Company. She sued for $50,000, and her husband for $10,000. At the November term, 1916, of the Pope Circuit Court, by agreement of the parties the two cases were consolidated and treated as one cause. There was a trial before a jury which failed to agree upon a verdict and mistrial was declared by the court. The consolidated cause was continued and reset for trial at an adjourned term of the court which convened January 4, 1916. On this day the defendant filed a motion for a change of venue properly supported by affidavits which the court granted, and the venue was changed to the Yell Circuit Court for the Dardanelle District. The case was set for trial on the third Monday in February, 1916. Between the date of the granting of the change of venue, and that set for trial, a compromise and settlement of the lawsuit was entered into between the parties, and the defendant paid Mr. and Mrs. Burris, together, $5,000 in full satisfaction and settlement, and received a written order from them acknowledging the satisfaction and payment of the amount agreed upon and ordering the consolidated case then pending in the Yell Circuit Court for the Dardanelle District to be dismissed. On the day set for trial in the Yell Circuit Court, the defendant appeared by its attorney and filed its motion to dismiss the cause in accordance with the settlement and written order signed by Mr. and Mrs. Burris. On the same day Hays & Ward appeared and objected to the dismissal of the suit. They filed their intervention, alleging that they had entered into a written contract with the plaintiffs for a contingent fee, and that by its terms they were to receive one-half of the whole amount recovered over $500. They asked for judgment for $2,250, and that this amount be declared a lien upon the roadbed and equipment of the defendant. Counsel for the defendant representing it in the original suit declined to enter its appearance in the intervention of Hays & Ward. The above facts were shown by |