Volume 105 — Arkansas Reports

1. The judgment failed to direct imprisonment. Kirby’s Digest, § 2443; 11 A. & E. Ann. Cases, 812; 36 Ark. 74; Acts 1909, p. 63; Castle’s Digest 89. 2. The plea of guilty was only entered conditionally and the judgment was thereupon conditionally suspended 12 Cyc. 779; 51 Kan. 700; 33 Pac. 620; 2 Mich. N. P. 239. • 1. The proper practice is by certiorari (45 Ark. 158; 48 Id. 283) and not by appeal. 2.

1. The judgment, which shows affirmatively that no defense was made for an insane person, that no guardian was appointed to defend for her, that default was made, etc., was no bar to this suit. The judgment was void. Kirby’s Dig., § 6050; 11 Ark. 519; 47 Id. 431; 49 Id. 397, 411. 2. The condemnation proceeding was a special proceeding, and the law was not followed. The judgment is open to collateral attack. Kirby’s Dig., § § 2947, 2949; 1 Lewis on Em.

<p>Appeal from Pulaski Circuit Court, First Division; Robert J. Lea, Judge; affirmed.</p>

96 Ark. 13; 90 Ark. 461; 51 Ark. 115; 50 Ark. 534; 43 Ark. 371; 45 Ark. 539; 36 Ark. 117. See Kirby’s Digest, § 1562. Whether or not the witness Alice Walls was an accessory after the fact or accomplice was a mixed question of law and fact to be submitted to the jury under proper instructions, unless the testimony shows conclusively that she was an accomplice. 51 Ark. 115. Appellant’s requested instruction should have been given.

Robertson, Chancellor; STATEMENT BY THE COURT. G. W. Simmons presents his petition for a writ of certiorari to this court, asking it to quash a judgment committing him for contempt for violation of an injunction order.

The appellee sued the appellant for personal injuries, alleging in substance that she was a passenger on appellant’s train from Memphis, Tenn., to Jericho, Ark.; that while the train was stopped at Jericho she proceeded with due diligence to the platform of the coach in which she was riding for the purpose of alighting from the train, and when she had reached the platform, but before she had reasonable time to alight, defendant’s servants negligently caused the train to…

H. Evans, Judge; affirmed. , 1. Penal statutes are strictly construed. A laborer must request, at the time of his discharge, that his check be sent to a certain place. 2. Morrison was the foreman or keeper of appellee’s time when he was discharged. 91 Ark. 122-127; 88 Id. 281; 87 Id. 132; 82 Id. 377. 3. There is no proof that a regular agent was kept at Malvern.

Lea, Judge; reversed. STATEMENT BY THE COURT. The appellant was convicted of embezzlement on an indictment which charges as follows: “The said W. W. Tally, in the county and State aforesaid, on the 10th day of May, A. D. 1912, one horse of the value of one hundred and fifty dollars and one buggy of the value of one hundred dollars the property of Reinman’s Stables, a copartnership composed of Louis Reinman and L. Wolfort, and being then and there the bailee of said Louis…

The defendants, Pennewell, Lacey and Jamigan, were indicted for nonfeasance in office alleged to have been committed by failing and refusing to arrest or cause to be arrested certain persons who had riotously assembled in the city of Fort Smith for the purpose of lynching a prisoner confined in jail.

Carter, Judge; affirmed. The court erred in refusing to allow defendant to prove the false representations of plaintiff’s attorney and agent and in instructing a verdict for plaintiff. It is not necessary that the fraudulent representations be made by word of mouth.

Robertson, Chancellor; affirmed. Suit by the Board of Directors of White and Cache River Levee District No. 1, of Woodruff County, for the sale of land for delinquent taxes. There was a decree of sale, and a sale was made to W. A. Keene, Jr., and from the decree confirming the sale and directing the execution of a deed the owner, E. W. Groves; appeals.

Martineau, Chancellor; affirmed. The preponderance of the evidence shows that appellee was of sound mind and discretion when the deed was executed and delivered, and the chancellor’s findings and decree should be reversed, 92 Ark. 359; 41 Ark. 292; 42 Ark. 521; 43 Ark. 307; 55 Ark. 112; 75 Ark. 72; 77 Ark. 216.

H. Evans, Judge; STATEMENT BY THE COURT. Appellant petitioned the county court to annex contiguous territory to a single school district. Appellees, who are directors of the common school district from which the contiguous territory was to be taken, intervened to resist the application on the ground that the petitioners had not complied with section 7540, Kirby’s Digest, in regard to the giving of notice of the proposed change.

P' Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; STATEMENT BY THE COURT. Appellant sued appellee for $108.16, for one year’s service for advertising cuts and type, upon the following written contract: “To the Outcault Advertising Company, Order No. 544. “334 Dearborn Street, Chicago, 111. Date, 3-11-10. “Ship us at our expense your ‘ Little House Maid furniture ad.’ service to cover a period of one year, beginning April, 1910.

J. Driver, Judge; STATEMENT BY THE COURT. The plaintiff, Dr. N. H. Grady, brought this suit in the circuit court against the Roberts Cotton Oil Company, a corporation organized under the laws of the State or Arkansas. The complaint alleges: 1. That in the fall of 1910 the plaintiff sold and shipped to Robert B. Brown Oil Company of St. Louis, Missouri, twenty-five tons of cotton seed at the value of twenty-five dollars per ton.

Appellant was indicted and tried for a felony. He was convicted of a misdemeanor of the same generic class, and, in default of the payment of the fine and costs, it was adjudged that he be committed to jail. The costs in the case amounted to $239.25.

Appellant was charged with selling liquor without license, upon the following indictment, the formal parts omitted. “That the said Andy Zaccanti, in the county, district and State aforesaid, on the 17th day of November, 1911, unlawfully did sell and give away and unlawfully was interested in the selling and giving away of ardent, vinous, malt, spirituous and intoxicating liquors without first having procured a license from the county court of said county, authorizing the…

<p>1. Appeal and error — abstract—STjEircrENCX.—Rule 9, requiring appellant to furnish, “an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision,” is not complied with by filing a printed copy of the entire transcript. (Page 64.)</p> <p>2. Same — abstract—amendment.—Where attention to the insufficiency of the abstract is called before the case is submitted, and the delinquent party has in good faith attempted to comply with the rule, but failed, and offers to do so, further time is usually given, for that purpose; but where the case goes to submission, and the defective condition is subsequently discovered, the case will be affirmed for noncompliance with the rule. (Page 64.)</p>

V. Bourland, Chancellor; The improvement district having been duly and legally constituted for the purpose of paving the street, all things necessary to construct an adequate pavement are incident to the power conferred to pave. .

Instruction No. 11 should not have been given, as there was no proof of a conspiracy. 74 Ark. 554. When the conspiracy is established, the act of one is the act of all in furtherance of the common object. Wharton on Cr. Ev. §698; 59 Ark. 430. But the conspiracy must first be established prima facie and exclude every reasonable hypothesis except that of guilt. 97 Am. St. 776. 2.

Shaver, Chancellor; affirmed. STATEMENT BY THE COURT. This suit was instituted by W. W. Milwee, and others, to enjoin the school board and the members thereof of the Horatio Special School District of the town of Horatio from borrowing money for the erection of a school building in the town and executing a mortgage to secure the payment thereof.

Lea, Judge; 1. There is no fatal variance between the allegation and the proof. The name “Nowlin” and “Nolan” are idem sonans. 72 Ark. 618; 1 Ark. 503; 20 Ark. 97; 12 Ark. 128; 62 Ark. 516; 35 S. W. (Tex.) 173; 91 Va. 808; 29'Cyc. 272 et seq. 2. There is no error in admitting the testimony touching the identification of the defendant at the city hall by the prosecuting witness.

Carter, Judge on exchange; 1. On appeal by the plaintiff, where the lower court has directed a verdict for the defendant, the evidence will be considered in the light most favorable to the plaintiff in determining whether the court erred in directing the verdict. And, if there was any testimony whatsoever on which the jury could have found a verdict for the plaintiff, the judgment will be reversed. 96 Ark. 394; 146 S. W. (Ark.) 497.

Martineau, Chancellor; 1. The demurrer should have been sustained.

Evans, Judge, on exchange; 1. A claim against a deceased person must be verified by affidavit. Kirby’s Dig., § 114. Such affidavit must be made prior to the commencement of suit, and where none is produced it is the duty of the court, on motion praying therefor, to enter judgment of nonsuit against the plaintiff. Kirby’s Dig., § 119.

<p>1. Taxation — tax deeds — conflicting presumptions. — Where the plaintiff in a suit to remove a cloud upon his title held under a deed from the State Land Commissioner conveying land forfeited for taxes, and the defendant under a clerk’s tax deed, each deed constitutes prima facie evidence of a valid tax sale, but neither is conclusive against the other. (Page 99.)</p> <p>2. Corporations — right of foreign corporation to sue in state.— The act of May 29, 1907, requiring foreign corporations to pay a franchise tax as a condition of doing business in the State, does not prevent a foreign corporation fiom suing in the courts of the State if it is not transacting any business in the State. (Page 100.)</p> <p>3. Taxation — sales to state — certificate.—Under the revenue law in force in 1877, the only certificate of sales of forfeited lands to the State which the clerk was required to make was a certificate to the State Auditor after the date of expiration of the time for redemption. (Page 100.)</p> <p>4. Same — necessity of warrant. — A sale of land for taxes made in 1901 for the taxes of the preceding year was void where the county clerk issued no warrant authorizing the collection of such taxes. (Page 100.)</p>

Driver, Judge; STATEMENT BY THE COURT. Fanny Johnson sued the Metropolitan Life Insurance •Company upon a policy issued upon the life of her sister, Hattie Bentley. No controversy is made as to the issuance of the policy and the death of the assured, but the payment of the policy is resisted on the ground that the insured made certain false answers in response to questions asked her in her application, and that said answers were warranties.

D. Frierson, Chancellor; reversed. ' 1. A contract entered into with two of three directors of a school district at a special meeting of which previous notice had not been given, and which meeting the third director did not attend, is invalid. 69 Ark. 159; 90 Ark. 335; 52 Ark. 511; 67 Ark. 236. 2.

<p>Appeal from Boone Chancery Court; T. Haden Humphreys, Chancellor; appeal dismissed.</p>

62 Ark. 33,40; 92 Ark. 315, 320; 94 Ark. 301, 305; 102 S. W. 1066,1069. The alleged contract was not within the apparent scope of authority of the agent. The duty of a travelling salesman is to solicit and transmit orders for goods, and extends no further. 46 Ark. 210, 214, 215; 43 Pac. 383; 86 Pac. 845; 6 Am. &Éng. Ene. of L., (2 ed.) 224; 53 Am. Rep. 745; 18 L. R. A. 667, note; 102 S. W. 1068.

Reed, Judge; reversed. 1. Giving the testimony its strongest probative force in favor of appellee, it fails to establish a gift. Thornton on Gifts and Advancements, 105-8; 44 L. R. A. 208; 18 L. R. A. 170; 23 L. R. A. 184; 1 Ark. 83; 79 Ark. 69; 72 Ark. 307; 43 Ark. 307; 59 Ark. 191; 60 Ark. 169; 20 Cyc. 1209, 1211 Id. 124, 125; 8 Am. & Eng. Enc. of L. (1 ed.) 1314; 122 N. E. 747. 2.

Hutton, Judge; 1. Amicable family settlements are encouraged, and when fairly made, strong reasons must exist to warrant interference by a court of equity. 15 Ark. 275; 41 Id. 270; 64 Id. 19;.84 Id. 610; 98 Id. 98. The cause was improperly transferred to the law court. 2. Proof of seizin and actual possession and “descent cast” makes a prima facie case for relief unless a better title is shown. 94 Ark. 59; 31 Id. 334; 40 Id. 108; 62 Id. 51.

,W. Wells, Judge; reversed. 1. It was error to overule the demurrer to the amended and. substituted answer. Cammack was barred. Kirby’s Dig., § 6220; 83 Ark. 161; 16. 454. 2. Instruction No. 3 for defendant was erroneous. The question of no consideration was not in issue.

Reed, Judge; STATEMENT BY THE COURT. Appellees brought suit in unlawful detainer against appellants for the possession of a certain storehouse in the town of Marshall. The facts' substantially are that W. A. Lindsey, at the time the owner of the property, in July, 1910, rented it to appellants, who went into possession thereof on August 1, 1910, and were to pay rent therefor at the rate of $25 per month.

S. Maples, Judge; STATEMENT BY THE CGURT. The appellee alleged that on the 30th day of June, 1910, he delivered to the appellant at Pettigrew, Arkansas, two sacks of ginseng roots of the weight of twenty pounds and one sack of golden seal of the weight of eight pounds for transportation to New York City, consigned to himself.

W. Reed, Judge; STATEMENT BY THE COURT. Appellant brought suit against W. S. Johnson, I. R. Goodman and others, alleging that they were indebted to the State of Arkansas in a certain amount, on a note given for the payment of fines adjudged against W. S.'Johnson; that they purchased of said bank the sum of $400 in Searcy County scrip at ninetjr-five cents on the dollar, with which to pay said note; that the other defendants, except Goodman, came to the bank on the 16th day…

T. Cowling, Judge; 1. The certificate of the society forms a part of the contract, and the court erred in holding that it was in conflict with the constitution and by-laws of the order, and in entering judgment in accordance with such holding. 73 Ark. 470; 75 Ark. 435; 76 Ark. 410; 79 Ark. 266; 96 Ark. 113; 80 Ark. 108; 88 Ark. 243; 19 Tex. Civ. App. 18; 83 U. S. 610; 74 Ark. 1, 8; 80 Ark. 419; 81 Ark. 512, 514; 94 Ark. 499, 502.

V. Bourlcmd, Chancellor; STATEMENT BY THE COURT. This action was brought by Bruce Brothers to recover ninety dollars and interest, the contract price for installing a water service in a certain building in the city of Fort Smith, at the time the property of B. C. Bates, now owned by appellant and to have a mechanics’ lien against the property foreclosed.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. This is an action by an assignee of a note and mortgage against the maker to recover judgment upon the note and to foreclose a mortgage given upon real estate to secure the same. The maker relied upon the defense of payment to defeat the action.

Reed, Judge; STATEMENT BY THE COURT. Appellee brought suit against appellant for treble damages for the unlawful cutting and removing of certain timber from his lands. It was alleged that it unlawfully and wilfully entered upon his lands in June, 1911, and cut and removed 28,456 feet of white oak timber therefrom, of the value of $300, and damaged and caused a waste of other timber, growing thereon, of the value of $200, and prayed judgment for treble damages.

Meeks, Judge; STATEMENT BY THE COURT. This is an action by appellant against appellee to recover damages for personal injuries received by him in the course of his employment. The material facts are as follows: Appellee is a corporation engaged in erecting, maintaining and operating an electric power plant in the town of Mammoth Spring, Fulton County, Arkansas, and in September, 1910, appellant was in its employ assisting in the work of repairing its lines.

Gotham-, Judge; In 95 Ark. 580 it was held that appellee could not recover the price paid on the blocks and hold the blocks too, but only the damages sustained. No approximate amount of damages to the $1,500 awarded was shown, nor the lots proved to be worthless. No damages were shown, and the findings of the court are totally unsupported by any evidence. Plaintiff amended his complaint and prayed to rescind on remand of this cause. 95 Ark. 580.

' Appeal from Randolph Circuit Court; John W. Meeks, Judge; 1.

Meelcs, Judge; . STATEMENT BY THE COURT. B. B. West was convicted of a misdemeanor, charged to have been committed by disturbing a public school in Randolph County, Arkansas. Gussie Tiner, for the State, testified: “My name is Gussie Tiner. I was at the school house on the 14th day of July, 1911, where Miss Amanda Stevens was teaching when the difficulty occurred between the Wests and Segraves.

H. Evans, Judge; 1. It was error to admit Dickson’s testimony as to the order by the train master. There is no proof that the company was negligent; but, if there was, the proof is so flimsy that appellant should have had a verdict, but for this error. The jury may well have argued that the company had violated its own orders. 77 N. W. 433; 135 Ala. 450; 79 N. Y. 1043; 71 Minn. 438; 47 Pa. St. 300; 70 Ark. 179; 68 Id. 606. 2. The first instruction is erroneous.

J. Lea, Judge; 1. Direct contempt can only be committed in the presence of the court or so near thereto as to obstruct the administration of justice. Insolent conduct toward the court or judge, to constitute contempt, must occur while the court or judge is engaged in the discharge of a judicial duty. 9 Cyc. 19. Certiorari is the proper remedy to bring into the circuit court for correction void proceedings of inferior courts.

<p>1. Divorce — evidence—sufficiency.—In an action of divorce general statements of witnesses that defendant was rude or contemptuous towards the plaintiff are not sufficient; the witnesses must state specific facts and conduct upon which their opinion is based, so that the court may be able to determine whether such acts and conduct were of a nature to justify the conclusion or belief reached by the witness. (Page 196.) . .</p> <p>2. Same — cruelty and indignities. — Mere want of congeniality and consequent quarrels do not amount to cruelty or indignities to the person constituting grounds for divorce. (Page 196.)</p>

Frierson, Chancellor; 1. “Wholesale cost” does not mean the wholesale price with 10 per cent, added, but the invoice price at wholesale. 45 Am. St. 280. 2. There was fraud and deceit shown, or at least concealment. 16 L. R. A. (N. S.) 818; 17 Id. 284; 128 U. S. (32 L. Ed.) 383, 439; 90 U. S. 420; 143 Id. 79; 135 Id. 582, 33 (L. Ed.) 384; 74 Ark. 46; 77 Id. 261; 81 Id. 234. 3.

T. Humphries, Chancellor; 1. A deed will not be reformed unless the evidence of mutual mistake is clear, unequivocal and decisive. 85 Ark. 62; 89 Id. 309. 2. Banks & Company were not innocent mortgagees for value. There was no new consideration for their antecedent debt. 27 Ark. 557; 55 Id. 542; 35 L. R. A. 1174; 25 S. W. 805; 89 N. Y. 446; 16 A. & E. Ene. L. 831; 49 N. Y. 286. A mutual mistake justifies a reformation. There is ample proof of the mistake.

E. Jeffery, Judge; STATEMENT BY THE COURT. This was a suit by appellee for damages for personal injuries sustained, it was alleged, on account of the negligence of the railway company in furnishing defective appliances with which to perform his work. The answer denied the allegations of the complaint and pleaded appellee’s contributory negligence and assumed risk as a bar to the action.

Wood, Chancellor; STATEMENT BY THE COURT. The appellant, as treasurer of Drew County, applied to the chancery court for a temporary injunction restraining the county judge of Drew County from establishing a depository for the funds of the county under the provisions of act No. 181, approved April 12, 1911, the enacting clause of which is as follows; “Be it enacted by the General Assembly of the State of Arkansas.” The appellant executed a bond and obtained a temporary…

<p>Appeal from Chicot Circuit Court; Henry W. Wells, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>The appellees and the appellant entered into the following contract: “The party of the first part (appellees) agrees to make a deep well on the plantation of the party of the second part (appellant) at Lakeport, Ark. The party of the first part agrees that this well is to be four inches from top to bottom and are to use a thirty-foot, all brass Cook strainer. This well is to be made in the first good water-bearing white or gray sand. The outside casing to be left in. The party of the first part is to furnish all material, tools, machinery and labor in sinking this well. The party of the first part is not to advance any money on the work until the well is completed and water has been produced.”</p> <p>Then follows a provision as to the use of certain machinery and the specification of the consideration.</p> <p>The appellees sued appellant for the possession of certain machinery, a part of the consideration, and for the balance of the cash consideration alleged to be due under the contract, setting up that they had performed the contract on their part and that appellant had failed to perform the contract on his part by refusing to pay the balance of the cash consideration and by withholding from them the possession of certain machinery belonging to the appellees. They alleged that appellant accepted the well, but failed to pay the consideration agreed upon.</p> <p>Appellant in his answer admitted the contract, but denied that appellees had complied with the contract on their part,' and denied all other material allegations of the complaint. The case was submitted to a jury.</p> <p>The appellant contends that the contract called for good water in the first white or gray sand. The appellees contend that the contract only required them to get a bountiful supply of water in the first white or gray sand, and that they had complied with the contract when they obtained a good supply of water in the first white or gray sand, regardless of the quality of the water.</p> <p>There was testimony on behalf of the appellees tending to show that they had complied with their contract.</p> <p>On behalf of appellant one witness testified in part as follows:</p> <p>“Q. Do you know what sort of sand that well is resting in? Ans. I know what color it is.</p> <p>“Q. What color is it? Ans. Gray sand.</p> <p>“Q. What color besides gray is mixed in with it? Ans. There is some white and some looks like it is blue.</p> <p>“Q. Is there anything else in it besides sand? Ans. I don’t know, sir.</p> <p>“Q. How much blue was there in that deposit? Ans. I can not say positively.</p> <p>“Q. Was it pure sand, or a mixture of sand, clay and mud? Ans. I would call it a mixture.</p> <p>“Q. Mixture of what? Ans. Mud, sand and gravel.”</p> <p>Another witness testified that he saw the earth that came up from the well where they had sunk it. “It was deep gray sand with black particles in it; it looked like pepper and salt; black like pepper.” Witness would “term it a gray sand.” “If the black particles had not been in it, it would have been pure white sand. The sand was gray. It was sand mixed with black particles. The particles were gray, and some of them black, but it looked like pepper and salt. Witness was not an expert; but he said “it was a mixture of gray and white sand. It was black and gray particles of sand.” In another place witness said “it was gray sand with white and black particles in it.”</p> <p>The appellant testified in part as follows: “The well is 379 feet deep, 179 feet deeper than where they struck the first white sand. The deposit where the well was left in was fine bine looking sand. Mr. Graham brought me some pretty white sand over to the store and told me they got that where they were down there, and Mr. Maingault told me that Mr. Graham made a mistake in telling me that; that that sand didn’t come from there; that they got that out of the pipe from another depth; he said that sand didn’t come from there. They had a supply well there between seventy and eighty feet deep, a four-inch well, they used to run the machinery with. The sand that came out of that was as good sand as the well was in now.”</p> <p>The court gave, over the objections of appellant, a peremptory instruction directing the jury to find for the appellees.</p> <p>The appellant, among others, asked the court to instruct the jury as follows:</p> <p>“2. The court instructs the jury that the burden of proof in this case is upon the plaintiffs to show that they complied with their contract in all respects.”</p> <p>“3. The court instructs the jury that, unless they believe from the evidence that the well was made in the first good water-bearing white or gray sand, they must find for the defendant.”</p> <p>These, with other prayers numbered respectively from 1 to 9, the court refused. The court rules on these instructions separately, and the appellant duly saved his several exceptions to the ruling of the court in refusing the separate requests as they were presented.</p> <p>Where there is competent evidence tending to establish the issue in favor of the defendant, it is error to direct a verdict for the plaintiff. 89 Ark. 368. The contract in this case should be construed most strongly against the plaintiff, who prepared it. 90 Ark. 88; 90 Ark. 256; Id. 522. The expression in the contract, “good water-bearing white or gray sand,” is ambiguous as to whether it means wholesome water or a plentiful flow of water.</p> <p>If the meaning of a contract is ambiguous, the conduct of the parties under it may be considered in explanation, of its terms, and its meaning should be left to the jury. 88 Ark. 363; 89 Ark. 368; 94 Ark. 461; 95 Ark. 449; 97 Ark. 522; 98 Ark. 421.</p> <p>Ordinarily, the construction of a contract is a question for the court and not for a jury; and in the construction of a contract the words therein used are to be given their usual, common and ordinary meaning. Anson on Contracts, 330. Under this rule of construction, it is patent that the thing intended by the contract was the production of water, and not the quality of the water. The court was, therefore, right in holding that, if the sand was white or gray and water-bearing, and it was the first good white or gray sand that bore water, the contract had been fulfilled.</p> <p>The authorities are to the effect that the production of good, pure, wholesome water is not implied in the use of the word “well,” and if not implied in the use of that word, it would not be included in the expression “first good, water-bearing white or gray sand.” Cyc. “Wells;” Fed. Cas. No. 371; Words and Phrases; 27 Pac. 394.</p>

<p>Appeal from Pulaski Circuit Court, First Division; Robert J. Lea, Judge;</p>

<p>Abatement and revival — time.—Kirby’s Digest, section 6313, requiring an order of revival of an action to be made within one year from the time it could have been first made, applies to cases pending in the Supreme Court on appeal.</p>

This suit was brought by appellee for damages for a personal injury, resulting virtually in the loss of his left eye, it was alleged, by the negligence of the defendant. It was alleged that the injury resulted on account of the failure to properly screen or shield the glass water gauge or indicator upon the engine. The appellant denied any negligence, and pleaded contributory negligence and assumption of risk of appellee in bar of the action.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p>

Hays, Judge; Where there is any evidence tending to prove the issues in favor of either party to a suit, even though it be conflicting, or if the evidence is such that reasonable minds might draw different conclusions therefrom, it is the province of the jury to pass upon such evidence. 89 Ark. 522 ; 97 Ark. 347; Id. 353.

Shaver, Chancellor; STATEMENT BY THE COURT. The appellants, Keopple and McIntosh, and the appellee lumber company entered into a contract whereby the lumber company agreed to sell to the appellants “all the white oak and hickory timber owned by them on nine forties of land” in Pike County, of certain kinds and dimensions specified in the contract.

M. Barker, Chancellor; The mortgage was good under the Louisiana law. But the mortgage was properly acknowledged under our Arkansas statutes. 33 Ark. 600. Ollson only sold his equity. 33 Ark. 63 does not apply. 1. The mortgage was not recorded and not notice.

S. Maples, Judge; STATEMENT BY THE COURT. One Walter R. Isbell entered into a written contract with appellant, dated Fort Smith, Ark., April 30,1910, whereby he agreed to buy one hundred copies per day of the St. Louis Republic at a certain price named in the contract. The papers were to be delivered in St. Louis, Mo.

Appellee instituted this action against appellant to recover damages for personal injuries received by him while working for appellant. Appellant was engaged in the work of preventing banks of rivers from caving. It used the Gabion sjrstem. The system is patented, and is so arranged that it changes the current of the river where it is washing. As a part of the system, poles of wood bent in the form of a half circle and fastened together are used. They are called hoops.

J. Driver, Judge; STATEMENT BY THE COURT. Appellee brought suit against appellant for damages for the publication of an alleged libel, as follows: “But Mr. Johnson’s memory is very bad in some respects. “W. H. Johnson, in his communication published in The Soliphone, denies that he told certain parties that he was taking the census in May in order to get the names of those who were moving away.

<p>Appeal from Cleburne Circuit Court; George W. Reed, Judge;</p>

Frierson, Chancellor; 1. The levee board and its grantee are estopped. 82 Ark. 531; 81 Id. 244; 93 Id. 490; Kleber, Judicial Sales, §392. 2. No formal order of confirmation is necessary. 17 A. & E. Ene. L. 991; 72 Ark. 339; 76 Id. 146; Kirby’s Dig., § 6321. The fairness of the sale and its regularity were settled by the confirmation. 77 Ark. 216; 66 Id. 490; 124 Fed. 133. There was no appeal nor bill for review. 97 Ark. 314; 72 Id. 67. 3.

P. Feazel, Special Judge; STATEMENT BY THE COURT. Appellee brought this suit against appellant to recover damages for injuries received by her while embarking on one of appellant’s trains. The material facts are as follows: On the' 5th day of May, 1911, appellee purchased a ticket for herself and children from Amity to Glenwood, both being stations on appellant’s line of railroad.

J. I. Pennington brought this suit in the circuit court against Sid Johnston and John B. Williams for the conversion of two horses of. the value of $125. The plaintiff in his own behalf testified as follows: “I am the owner of the two horses involved in this controversy. On the 4th day of February, 1910, they strayed from my place at Greenwood, Sebastian County, Arkansas.

S. Maples, Judge; 1. The court erred in sustaining appellee’s motion to strike out parts of appellant’s answer. If the allegations so stricken out are true, they constitute a defense to the note sued on. 127 S. W. (Ark.) 968; 25 Cyc. 706; Id. 758; 29 Cyc. 117; 22 L. R. A. 291; 135 S. W. 807.

The objection to, and error in, the court’s modification of instruction 2, requested by appellant, is that there is no evidence that deceased was insensible of his danger or unable to avoid it.” In the absence of proof to the contrary, the legal presumption is that the man was not mentally nor physically incapacitated. 49 Ark. 257. There is no proof whatever in the record to support the allegation in the complaint that deceased was drunk.

To suspend our statute by a promise, whether before or after the bar applies, the promise or acknowledgment must be in writing. Kirby’s Dig,. § 5079; 25 Cyc. 1351; 26 Ark. 541; 66 Id. 464; 77 Id. 228. There must be an express written promise to pay. 10 Ark. 134; 9 Id. 455; 12 Id. 595; 42 N. Y. 448; 45 W. Rep. 446; 93 Id. 220; 25 Cyc. 1351; 72 Ga. 74. 2.

P. C. Lindley sued the Central Railway Company of Arkansas in the circuit court, for. $750, alleging that on the 15th of October, 1911, the defendant’s servants engaged in running a motor car and train from Ola to Plainview, so negligently ran and operated the car and train as to cause two mares to be killed and one to be injured. The answer denied negligence.

S. Maples, Judge; 1. The cause should have been dismissed ab initio by the circuit court for want of jurisdiction. Regardless of the truth of the facts upon which Lula Coleman based her appeal, her appeal was irregular, the same not having been taken within six months from the rendition of the final order or judgment of the probate court, as required by the statute. Acts 1909, p. 957.

J. Driver, Judge; Since the facts in evidence conclusively show that there was never a contract of letting, express or implied, between Ksir and Cooley, that the relation of landlord and tenant never existed between them, and that Cooley never had the “use and occupation” of the store, the action should have been dismissed. 7 Ark. 305; 10 Ark. 602; 4 N. Y. 217; 44 Ark. 444. Cooley’s liability is established by the evidence.

<p>Appeal from Jefferson Chancery Court; John M. Elliott. Chancellor;</p>

Appeal- from St. Francis Chancery Court'; Edward D. Robertson, Chancellor; An instrument, absolute on its face, is presumed by law to be what it purports to be, and to overcome this presumption the evidence must be clear, unequivocal and convincing. 88 Ark. 299; 75 Ark. 551.

Guy Fulk, Judge; The words “any corporation,” by their terms include railroad corporations as well as any others. Kirby’s Dig., § 957.

Martine.au, Chancellor; STATEMENT BY THE COURT. Appellant brought suit in ejectment against appellee for the possession of lot 4, block 94, in the city of Little Rock, claiming to be the owner thereof, and that appellee had been in unlawful possession of same since September, 1908.

J. Driver, Judge; STATEMENT BY THE COURT. J. M. McPherson, as administrator of the estate of Albert McPherson, deceased, sued the Consolidated Casualty Company and the sureties upon the bond which it gave to do business in this State, in the Craighead Circuit Court upon a certain policy of insurance set out in the complaint. It was alleged that plaintiff’s intestate was entitled to certain indemnities on account of his illness prior to his death.

Appeal iron Pulaski Circuit Court, Second Division; John W. Blackwood, Special Judge; STATEMENT BY THE COURT. The National Packing Company is a corporation of Illinois, doing business in Arkansas.

<p>Appeal and error — instruction—objection.—Where an instruction given by the trial court was objected to on a certain ground, the appellant can not on appeal insist that the instruction was erroneous upon another ground.</p>

P. Feazel, Special Judge; 1. The evidence is not sufficient to establish any causal relation between the alleged broken fifth-wheel and the injury complained of.

J. Driver, Judge; STATEMENT BY THE COURT. Appellee brought this suit against appellant to recover damages for personal injuries which he claims he suffered because of the negligence of appellant in transporting him as a passenger on one of its local freight trains.

Grace, Judge; STATEMENT BY THE COURT. Elkins Jacks, a boy a little over sixteen years of age, was in the employ of the appellant as clerk to its storekeeper at McGehee. The appellant was handling its supplies from two box cars. They were placed on its coach track, at McGehee station. The ears were in bad condition, one of them having the drawbar out, permitting the cars to come within six or eight inches of each other.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee brought suit against appellant for a balance of $329.21, due upon a contract for the building of a bungalow in Hoxie, and for foreclosure of a mechanic’s lien.

D. Patton, Special Chancellor; Where the record discloses none of the disqualifications named in the law, there is no ground for the regular judge or chancellor to refuse to preside in the trial of a cause. He can not arbitrarily and without cause hold himself disqualified. Art, 7, § 20, Const.; Kirby’s Dig., § 1526; art. 7, § 21, Const.; 48 Ark. 227; 17 Ark. 580; 43 Ark. 35; 61 Ark. 88; 31 Fla. 594; 121 Cal. 102; 97 Cal. 101.

Carter, Judge; 1. Appellants were under no obligation to tender money or deed. The extent of their duty was to furnish a purchaser ready, able and willing to buy. 91 Ark. 212. 2. Instruction 1, given at appellee’s request, was erroneous in that it is abstract and inapplicable to the facts in the case. It ignores any question of estoppel of appellee by reason of occurrences after the alleged statement that the contract expired June 1, was made.

57 Ark. 429; 59 Ark. 215; 128 U. S. 443. No negligence whatever is shown on the part of appellee; but, if negligence on the part of appellee should be conceded, the negligence of the deceased was of such nature as to preclude recovery. It was the duty of the trial court to refuse to submit the- case to the jury.

Carter Judge; STATEMENT BY THE COURT. The indictment charged appellant with the crime of murder in the first degree, alleging that he “did unlawfully, wilfully, feloniously and of his malice aforethought, and of premeditation and deliberation, kill and murder one Amanda Turner by then and there striking, beating and cutting her with a certain axe,” etc. The indictment was sufficient.

Martineau, Chancellor; The goods were not subject to assessment in Clay County, and the taxes had been paid in Pulaski County. The personal property of domestic corporations was assessable only in the county of the domicile of the corporation. 78 Ark. 187; Kirby’s Digest, § 6936; Acts 1907, No. 451, § 2; 97 Ark. 260. A corporation can not be forced to pay taxes twice on the same property. 97 Ark. 260. Kirby’s Dig., §6936, was amended by Acts 1907, p. 1226.

There is no evidence in the cause that warrants the submission of the case to the jury. Before appellee can recover under the act of 1907, it must appear that the fire originated from the operation of defendant’s trains. 97 Ark. 287.

<p>1. Constitutional law — constitutional amendments — construction. — In determining the intention in framing an amendment to the Constitution, the court must keep in mind the Constitution as it existed before it was amended, the evil to be remedied by the amendment, and the amendment itself. (Page 383.)</p> <p>2. Same — amendment—implied repeal. — Repeals of constitutional provisions by implication are not favored, and, in order that a constitutional provision may be abrogated by an amendment to the Constitution, there must be an irreconcilable conflict between the purposes of the two provisions. (Page 387.)</p> <p>3. Statutes — enacting clause. — The Initiative and Referendum Amendment, in providing that the style of all bills shall be, “Be it enacted by the people of the State of Arkansas,” referred only to bills initiated by the people under such amendment, and did not repeal section 19 of article 5 of,the Constitution, which provides that legislative bills shall be styled, “Be it Enacted by the General Assembly of the State of Arkansas.” (Page 387.)</p> <p>4. Drains — creation of drainage district — certainty.—Act approved March 9, 1911 (Sp. & Priv. Laws 1911, p. 184), attempting to create the Village Creek and White River Levee District, was void for failure to define its boundaries with certainty. (Page 391.)</p>

H. Evans, Judge; STATEMENT BY THE COURT. This is an action by a laborer against his employer to recover damages for injuries received in the course of his employment. The facts in the case are substantially as follows: The Oak Leaf Mill Company is a corporation engaged in the operation of a saw mill, and is the defendant in this action.

Evans, Judge; STATEMENT BY THE COURT. This was a suit by the appellants against the appellee to recover damages for loss to a shipment of peaches which appellants allege in their complaint were delivered to the appellee at Greenwood, Arkansas, for shipment to St. Joseph, Missouri, and that through the negligence of appellee in carrying out its contract, (which alleged acts of negligence are specifically set out in the complaint), plaintiffs were damaged, for which the…

Appellants instituted separate suits against' appellee to recover damages for appellee failing to furnish them cars for the shipment of peaches. These cases were consolidated and tried together in the court below. The same judgment was rendered in each case, and the issues involved in the appeal are the same.

Elliott, Chancellor; STATEMENT BY THE COURT. Appellee Walnut Lake Cypress Company was a corporation organized under the laws of the State of Arkansas on February 16, 1907. Held: and a resolution to dissolve the corporation was adopted. On October 30, 1908, a petition was filed in the chancery court praying for the appointment of a receiver to take charge of the assets of the company.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant brought this suit against appellee to recover damages for injuries sustained by her husband which resulted in his death, and which were received while he was in the employment of appellee. The facts are as follows: Appellee was a corporation engaged in manufacturing white oak heading in its factory at Paragould, Arkansas.

Humphries, Chancellor; 1. This was an adversary suit. Kirby’s Dig., § § 6005-6; 75 Ark. 88; 74 Neb. 303. 2. Chancery courts in this State have no jurisdiction to assess the fees of attorneys as costs or expenses in adversary partition suits like this. 60 Ark. 195; 61 Id. 409; 25 Id. 235; 31 Id. 266; 30 Kan. 380; 13 N. J. Eq. 365; 111 S. W. 1129; 76 Ark. 151; 30 Cyc. 278; 75 Pac. 130; 33 N. W. 676; 53 S. E. 646. 1.

Appellant, who w.as at the time a travelling salesman for appellee, receiving commissions on orders taken and accepted, took an order from the Centerville Mercantile Company, in September, 1908, for a bill of goods amounting to $118.05.

S. Simpson, Special Judge; Testimony as to one’s acts is not admissible to establish his agency, unless such acts are shown to have been authorized or accepted by the person sought to be charged as principal. 26 S. W. 383; 72 Ark. 64; 40 S. W. 506; 19 Am. St. Rep. 795; 10 Enc. of Ev. 22.

J. Driver, Judge; STATEMENT BY THE COURT. At the March term, 1912, of the Clay County Court appellee presented its petition, alleging that its property in 1911, including its entire assets, personal and real, was assessed at the sum of $9,342.43, whereas it should have been assessed at one-half that sum. It prayed that the assessment be reduced. The petition was overruled. Appellee took an appeal to the circuit court.

<p>Appeal from Union Chancery Court; J. M. Barker, Chancellor;</p> <p>1. The contract is controlled by the customs of trade. Parties are presumed to contract with reference to the known customs and usages of trade with reference to the subject-matter of the contract. 9 Cyc. 252; 69 Ark. 317; 10 L. R. A. 735; 80 U. S. 653; Jones on Ev. 576. Proof of custom is admissible to show that “timber” means merchantable timber. 51 So. (Miss.) 3; 138 S. W. 36; 12 Cyc. 1081 (e) and (b); 60 S. E. (Ga.) 297; 49 So. 248. See also 4 Cent. Rep. 689, 6 Atl. 48; 164 Pa. 51; 77 Ark. 120.</p> <p>2. If it was the specific understanding of all parties that the old-field pine was not purchased, or if Curphey wilfully misled appellants to so believe for the purpose of fraudulently obtaining title to it, appellee can not establish title under either state of facts. 107 111. 302; 69 Tex. 509 ; 51 Minn. 300; 1 De G. M. & G. 710; 21 L. J. Ch. (N. S.) 663; 77 Wis. 430 ; 37 L. R. A. 593.</p> <p>3. If the deed did not express the intention of the parties, it will be reformed. 5 L. R. A. 157 et seq., foot notes.</p> <p>1. Having admitted that they read the deed before executing and delivering it, Mr. and Mrs. Hearin are estopped to claim fraud. 71 Ark. 185; Stewart v. Fleming, ante p. 37.</p> <p>2. The rule is thoroughly established in this State that the burden is on the person claiming mutual mistake to establish it by proof that is clear, decisive, unequivocal and beyond all reasonable controversy. 14 Ark. 482 ; 66 Ark. 155; 71 Ark. 614; 72 Ark. 546; 75 Ark. 72; 79 Ark. 256; 81 Ark. 420; Id. 166; 82 Ark. 226; 83 Ark. 131; 85 Ark. 62; 84 Ark. 349; 89 Ark. 390; 90 Ark. 24; 124 S. W. 370.</p>

'Shaver, Chancellor; A servitude was imposed across the land by appellant’s grantor, thereby, establishing a private road or way necessary to a reasonable enjoyment of the tract; and seven years’ use, open, notorious and adverse, is a bar under our statutes and decisions. Kirby’s Dig., § 623; 14 Cyc. 1166; 49 Am. Dec. 94; 13 Id. 747, note; 98 Mass. 50; 59 N. J. Eq. 46; 33 Atl. 802; 190 Pa. St. 536; 35 Am. Dec. 464, note; 128 Ind. 421; Bishop, Non-Cont.

Carter, Judge; Under the evidence this case should be controlled by the case of Whitmore v. State, 72 Ark. 14. The case is controlled by the case of Josey v. State, 88 Ark. 269.

Hutton, Judge; 1. Instruction 1, for appellant, should have been given. Affidavits by either party to a- suit concerning the subject-matter thereof are always admissible as evidence for the purpose of contradicting affiant when he testifies. 89 Ark. 487; 68 Id. 587; 93 Id. 2; 55 Id. 85. 2. The opening statement and closing argument of plaintiff’s attorney was improper and prejudicial. 58 Ark. 353; 61 Id. 138; 63 Id. 174; 65 Id. 626 ; 70 Id. 306. 3.

Searcy Circuit Court; Geo. W. Reed, Judge; STATEMENT BY THE COURT. The defendant was convicted on the 6th day of October, 1911, at an adjourned term of the Searcy Circuit Court of the crime of voluntary manslaughter, and his punishment assessed by the jury at imprisonment in the penitentiary for a peried of two years.

H. Evans, Judge; The gas company was not liable for the acts of its independent contractors, or its agents or employees, even if injury resulted from their negligence. Pitts was an employee of appellant, but in opening the gates of the gas main and failing to close them or shut off the gas he was acting under the orders of the contractors’ agent, and was their agent. • 54 Ark. 424; 77 Id. 552; 156 N. Y. 75; 60 N. E. 87; 166 Mass. 268; 35 N. E. 101; 20 Moak, Eng. Rep. 469.

A master must exercise ordinary care to furnish his servant a reasonably safe place to work. 98 Ark. 34; 97 Ark. 180; 95 Ark. 477; 92 Ark. 138; Id. 350. It is also his duty to exercise the same care to furnish a reasonably safe place of entry and exit to and from his work, especially where this entry and exit is over the master’s own premises. 98 Ark. 259 ; 85 Ark. 503. 2.

Hays, Judge; STATEMENT BY THE COURT. Appellant, a St. Louis firm of merchants, shed the appellee, an Arkansas corporation, on a judgment obtained by appellants against appellee in the circuit court of the city of St. Louis, Missouri. The defense was that the circuit court where the judgment was obtained was without jurisdiction.

Frierson Chancellor; STATEMENT BY THE COURT. On March 9, 1911, Chas. E. Asbury and Inza Y. Asbury, his wife, instituted this action in the chancery court against Anson E. Randol, administrator of the estate of Jacob Fred, deceased, and the brothers and sisters of Jacob Fred, whose names are, George W. Fred, John W. Fred, Elizabeth Pickering and Becky Arm Apple.

Evans, Judge; Before appellant could be legally held guilty of having uttered the alleged forged instrument, the proof must not only show beyond a reasonable doubt that the instrument was in fact a forgery, but also must show beyond a reasonable doubt that he in fact uttered the instrument, knowing, at the time he uttered it, that it was a forgery.

Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; 1. Section 5473 of Kirby’s Digest does not prevent the city counsel from authorizing, without a yea and nay vote, a committee to employ an attorney, and such authority carries with it the power to agree with him as to his fee. Such agreement, if made, is binding upon the city. Dillon, Mun.

J. Driver, Judge; The general rule is that the purchaser must bear the loss due to an accidental injury to the property, between the time of the contract and the delivery of the deeds.

M. Barker, Chancellor; STATEMENT BY THE COURT. This suit was instituted by appellee against appellant to enjoin the latter from cutting and removing certain species of oak timber from certain lands in Union County, described in the petition, and also for the purpose of reforming a deed of conveyance made by J. R. Taylor, appellant’s ancestor, to appellee on the 16th day of May, 1905.

<p>Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge;</p> <p>A master owes the same duty to a foreman to provide safe machinery and instrumentalities with which to work that it owes to other employees. 98 Ark. 84. The risks and hazards incident to the set-screws and pulleys were not open and obvious, and were not risks that were known to the plaintiff. 27 Ark. 347. Where, as in this case, the plaintiff was acting under the direct commands of the master and was performing work, as the undisputed evidence shows, which was not in the line of his duty, it would be error to instruct the jury that he assumed all risks of which he knew or could have known by the exercise of ordinary care. Such being the case, it was patent error to instruct a verdict in favor of the defendant. 97 Ark. 858. A servant assumes only ordinary risks. 97 Ark. 358; Id. 486. Under the circumstances shown in evidence, it is always a question of fact for the jury to determine whether or not the complainant assumed the risk, or was guilty of contributory negligence. 97 Ark. 553; 98 Ark. 34; 89 Ark. 522; 95 Ark. 291; 93 Ark. 564; 92 Ark. 102; 92 Ark. 502; Id. 554; 91 Ark. 86; Id. 102; Id. 388; 90 Ark. 145; Id. 223; Id. 543; Id. 555; 88 Ark. 20; Id. 28; 77 Ark. 367; 78 Ark. 38; 82 Ark. 534. A servant acting under orders does not assume the risk. 67 Ark. 377; 77 Ark. 556; 71 Ark. 55. An order from the master relieves from the doctrine of assumed risk, unless it is shown that the danger is so patent that no person of ordinary prudence would have obeyed. 77 Ark. 458; 65 Ark. 138; 76 Ark. 184.</p> <p>1. The evidence does not tend to prove negligence on the part of defendant, nor that the proximate cause of the injury was any of the acts or omissions alleged as negligence in the petition. The injury itself is not evidence of negligence, and it will not be presumed.</p> <p>2. If there are any facts disclosed by the evidence which tend to prove that appellee was in any respect guilty of negligence towards appellant, it is clear that there was concurring negligence on the part of appellant which contributed to the injury. Appellant’s own testimony shows that he had been, warned and knew of the danger of attempting to put on the belts without stopping the machinery, and knew of the order not to put on the belt while the machinery was in motion. 142 S. W. 153, 154; 141 S. W. 1176, 1179; 61 N. E. 262; 32 So. 232 ; 90 Ark. 223, 119 S. W. 73; 90 Ark. 555; 120 S. W. 146; 130 N. W. 630; 96 Ark. 466; 132 S. W. 212; 84 Ark. 337; 105 S. W. 878; 120 Am. St. Rep. 74; 140 S. W. 584; 79 Ark. 437, 96 S. W. 183.</p> <p>3. Appellant assumed the risk and can not recover. He knew and appreciated the dangers incident to the work in which he was engaged. He was not relying upon a promise to repair. The dangers were open and obvious, within the knowledge not only of the master but also of appellant through the caution given him by the manager, the order forbidding that method of doing the work, and through his own observation. A safe way existed which he had been directed to use, yet he chose the dangerous way. 142 S. W. (Ark.) 1131, 1132; 73 N. W. 992, 993; 141 S. W. 1176, 1178; 77 Ark. 367, 92 S. W. 244; 92 Ark. 102, 122 S. W. 116; 90 Ark. 387, 199 S. W. 277; 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68; 97 Fed. 423, 38 C. C. A. 239; 82 Ark. 534, 103 S. W. 158, 11 L. R. A. (N. S.) 720; 95 Ark. 136; Id. 291; Id. 560; 96 Ark. 387; Id. 206; 97 Ark. 486; 135 S. W. (Ark.) 892; 140 S. W. (Ark.) 14, 21; 140 S. W. (Ark.) 587; 138 S. W. (Ark.) 469; 145 S. W. (Ark.) 562, 563; Id. (Ark.) 564, 566.</p>

H. Evans, Judge; STATEMENT BY THE COURT. . Appellee was in the employ of the appellant as a locomotive fireman. On October 17, 1911, he was engaged in firing on a locomotive engine in the Argenta yards while switching' freight cars. He had never before worked in that yard as a switch engine fireman, nor had he ever worked as a switch engine fireman on any other road. He was not familiar with the tracks in the Argenta yards.

V. Bourlcmd, Chancellor; STATEMENT BY THE COURT. This suit was brought by appellees to recover on a quantum' meruit for the maintenance and support of Ella Hare, for nineteen years, at the rate of $150 per month, and resulted in a judgment in their favor for $41,330.76, which the court declared a lien against her estate, and ordered the same sold in satisfaction thereof. From this judgment the appeal comes.

Martineau, Chancellor; 1. The court had jurisdiction, plaintiff being in possession. 50 Ark. 562. 2. On the death of the devisee, Mrs. Darby, in the lifetime of the testatrix, the devise lapsed and passed to the residuary legatee. Jarman on Wills, p. 617, 1 Am. Ed; 18 A. & E. Enc. of L. 748; 2 Redf. on Wills, 157; 2 Williams on Ex. 496. The rule is changed as to a child or descendant by § 8022, Kirby’s Dig. Mrs. Darby was not a descendant.

<p>1. Instructions — repetition.—It is not error to refuse an instruction the subject-matter of which is covered by an instruction given by the court. (Page 576.)</p> <p>2. Sales — acceptance—evidence.—The fact that the seller retained the buyer’s cheek for an unreasonable time without notifying the buyer that he only retained it pending negotiations as to the terms of the contract, or that he failed to return it within a reasonable time, was admissible upon the issue of acceptance. (Page 578.)</p> <p>3. Same — acceptance—time.—Where an offer to buy goods is made, and the time of acceptance is not limited, the offer is open until accepted or rejected, provided it be done within a reasonable time. (Page 578.)</p> <p>4. Instruction — specific objection. — Where an instruction is confusing or misleading, the objection should be pointed out specifically. (Page 579.)</p> <p>5. Sale of chattels — ’Sufficiency of acceptance of offer — instruction. — Defendants offered to sell a car of potatoes to plaintiff to be delivered at Newport, and plaintiff proposed to buy them if • delivered at Marianna at same price, and inclosed a check in part payment. The court instructed the jury that “if you find that, upon the plaintiff ordering a car of potatoes on Newport quotations delivered at Marianna, defendants notified plaintiff that delivery at Marianna would require a deposit of $100 for future delivery, and that plaintiff remitted the amount, but asked a modification to the Newport rate, and if you further find that the defendants accepted the check upon the terms and in assent to the offer set out' in plaintiff’s letter of January 6, or that, under the circumstances of this case, the defendants retained such check for an unreasonable time, then you may find for the plaintiff the amount sued for.” Held, that the instruction was not open to a general objection. (Page 579.)</p>

Appellees brought this suit in the circuit court against appellants to recover damages for the alleged breach in a • building contract with them. Appellees were contractors and house builders, and appellants were the owners of certain lots in the city of Fort Smith upon which they desired to erect a^j1 three-story business house. Appellants advertised for bids for the erection of the house on the lots according to the plans and specifications furnished by them.

Robertson, Chancellor; The court was without jurisdiction to render the decree, and it is not binding on appellant or other parties owning an interest. The title to the fee is “in nubibus; in gremio legis,” etc., according to the ancient authorities, but, according to the modern authorities, it is still in the grantor, or in abeyance. 44 Ark. 458. The court had jurisdiction.' Equity will furnish a remedy for eve- y wrong. Pom. Eq.

<p>Appeal from Randolph Circuit Court; J. W. Meeks, Judge;</p>

Robertson, Chancellor; 1. A conventional boundary, acquiesced in for many years, is binding on the parties. 71 Ark. 248; 75 Id. 395; 96 Id. 168; 96 Ark. 168. 2. Moore is estopped by his conduct to deny his acquiescence. 64 Ark. 628; 75 Id. 400; 91 Id. 148. 1. A guilty party can not raise the question of fraud or misrepresentation in a court of equity. 37 L. R. A. 593; 4 Houst. (Del.) 119; 54 Cal. 189; 107 111. 302; 69 Tex. 509; 51 Minn. 300; 21 L. J. Chy.

S. Maples, Judge; 1. The evidence does not sustain the verdict. The appellants, under the evidence, acted clearly within their rights in justifiable self-defense. 2. Instruction 8 was erroneous. While it is admitted that the law of self-defense “begins in necessity and ends in necessity,” yet such necessity need not be actual, but may be apparent only. 3.

Robertson, Chancellor; I. Wells had no authority to enter into a partnership or subpartnership with Greenhaw without Jacks’s consent, and create a liability for which Jacks would be in any manner responsible. He could not bring Greenhaw into the firm on a profit-sharing basis without Jacks’s consent.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee brought this suit against appellant to recover damages alleged to have been sustained by him in being wrongfully arrested and being ejected from one of appellant’s trains while he was a passenger thereon. Hal. C. Waters, the appellee, testified as follows: “I am the plaintiff in this action. On the 30th day of November, 1910, I left Pine Bluff, Arkansas, for Coming, Arkansas, over appellant’s line of railroad.

Wallace, Chancellor; 1. There was no such breach of the contract as entitled appellee to terminate it, unless appellants by words or acts manifested an intention not to perform. 78 Ark. 336. 2. If there was a breach by appellants, it was waived by virtue of the notice given by appellee on December 1, 1907, to proceed under the contract to remove the timber from certain parts of the land. 3 Page on Contracts, § 1494, and cases cited.

, § 3629, is solely to restore possession forcibly taken and detained. Force is the gist of the action. 38 Ark. 257; 13 Ark. 448. An instruction which ignores actual force in making the entry is reversible error. 69 Ark. 34; 41 Ark. 535. Before plaintiffs are entitled to maintain the action, they must show that either the original taking or subsequent holding was with force and strong hand.

<p>1. Contract — consideration—compromise.—A compromise of a disputed claim furnishes sufficient consideration to uphold the terms of a contract. (Page 640.)</p> <p>2. Landlord and tenant — fixtures—right to remove. — Where a landlord agreed that a tenant, upon expiration of his lease should own certain fixtures in a building, a third person to whom the building has been leased can not object to the former tenant removing such fixtures. (Page 640.)</p> <p>3. Frauds, statute of — pleading.—The statute of frauds can not be availed of unless pleaded. (Page 641.)</p>

The transactions and declarations of an agent are not of themselves evidence of his agency. 96 Ark. 510. A party dealing with an agent of a corporation must, at his peril, ascertain what authority the agent possesses, and is not at liberty to charge the corporation by relying upon the agent’s assumption of authority. 52 Mich. 87; 19 L. Ed. 173. 2.

Frier-son, Chancellor; 1. The land was the homestead of James Fletcher and, after the order of sale, but before the sale, was set apart to the widow as a homestead.

Frierson, Chancellor; STATEMENT BY THE COURT. C. A. Mack brought this suit against appellants to recover $10,642.50 on two promissory notes and interest, and to foreclose a mortgage upon lands in Greene and Poinsett counties, given to secure the payment thereof.

Wood, Chancellor; STATEMENT BY THE COURT. Ollie Carmicai, by her guardian, and Emma Drummond, brought suit against appellee to remove the cloud from their title to the west one-half, northwest quarter, section 31, township 15 south, range 10 west,74.37 acres of wild and unimproved lands in Bradley County, Arkansas, and . cancel a deed from the State, conveying same, as forfeited tax lands, to appellee.

<p>Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;</p>

Hays, Judge; Under the circumstances of the case, it was error to hold that as a matter of law the sale was illegal. Appellant had in good faith done all it could do under the circumstances, had perpetrated no fraud, and the purchaser in effect waived the question of the tags. The thing required by the act was impossible of performance by reason of the failure of the State’s representative to have on hand a supply of tags. 85 Ark. 422; 84 Ala. 93.

There is nothing in the record to show what testimony the verdict was based upon nor what testimony the instructions of the court were based upon. The purported testimony upon which appellant relies and bases its argument is not identified as a part of the record, and is not properly before the court. 100 Ark. 244; 45 Ark. 485; 101 Ark. 555.

S. Thomas, Special Judge; STATEMENT BY THE COURT. This is a suit by appellant, a real estate broker, against appellee for commission on a land sale. Appellant alleged that appellee owned 2,800 acres of land in Woodruff County; that these lands were placed for sale with him by one J. T. Black, who was the appellee’s agent; that appellant procured a purchaser who bought the lands, and that he was entitled to compensation for his services in the sum of $1,500.