Volume 115 — Arkansas Reports

8. Evans, Special Judge; STATEMENT BY THE COURT. This suit was instituted by appellant against the appellees September 2, 1912, to recover certain lands.

Martineau, Chancellor; STATEMENT BY THE COURT. Julia T. Badgett made a will, which, omitting the merely formal words of opening and conclusion, reads as follows: “I, Julia T. Badgett, do make, declare and publish this to be my last will and testament, and I hereby revoke all former wills or testaments.made ¡by me of any other -character or description whatsoever. “In furtherance -of my wishes, I most earnestly desire that my -dear husband, O. K. Badgett, shall be my sole…

Evans, Judge; 1. The company had no notice of any draft. The goods were shipped on an open bill of lading, -with ho conditions as to notice, draft or other conditions. The instructions asked should have been given. The trust ■company, as the agent of the shipper, could not stand by with full knowledge of all the facts, essential to protect defendant, and then after a year advise it of a wrong delivery. 33 Ark. 465. 1.

8. Maples, Judge; STATEMENT BY THE COURT. This w-as an action by T. H. OaMey against tbe Kansas City & Memphis Railway Company to recover damages for -alleged negligent delay in an interstate shipment -of apples.

W. Wells, Judge; 1. Tbe .cause sboul-d have been transferred to equity. Equity abhors a forfeiture and will not declare a forfeiture for failure to pay rent. 59 Ark. 405-411; 75 Id. 410; 77 Id. 305; 87 Id. 393 ;' II. 600; 89 Id. 195; 91 Id. 133. An equitable defense entitles -one to a transfer to equity. 71 Ark. 484; 73 Id. 464; 76 Id. 423; 95 Id. 118. 2. The forfeiture was waived by act of the landlord. 93 Am. Dec. 303; 40 Mo. 449; 59 Ark. 405-411. 1.

Shaver, Chancellor; STATEMENT BY THE COURT. Appellant instituted this suit against the appellee in May, 1913, alleging that they were married in 1902, and lived together until January, 1913, at which time the appellant abandoned the appellee.

E. Patterson, Judge; STATEMENT BY THE COURT. C. W. Harrison brought suit for $250 against the Morgan-Curry Company upon a promissory note made by them to the Puritan Manufacturing Company on August 6, 1909, in which they agreed to pay to the order of said company $250 on February 1,1910, and $250 on September 15, 1910, a copy of which note was exhibited with the complaint endorsed as follows: “Bank of Stephens, at Stephens, Ark.: “Pay Johnsion County Savings Bank, Iowa City,…

On the 25th day of May, 1912, Joe Marshak instituted an action of divorce against Gustie Marshak on the ground of desertion. The facts, as shown by the record, are substantially as follows: Joe Marshak is thirty years of age, and is the son of a farmer residing near the town of Dardanelle, in Yell ■County. On the 6th day of February, 1910, he married Gustie Lucas, the daughter of a neighboring farmer. She is twenty-four years of age.

This is an action on a bond given to the St. Louis, Iron Mountain & Southern Railway Company by the Brook-Raueh Mill & Elevator Company, as principal, and the Bankers’ Surety Company, as surety, to obtain deliveries of 'shipments of goods in advance of a surrender of the bills of lading therefor.

Tbis is an action on a bond given to tbe Cbicago, Rock Island & Pacific Railway Company by tbe BrookRauob Mill & Elevator Company, as principal, and tbe Title Guaranty & Surety Company, as surety, to secure deliveries of shipments of goods in advance of a surrender of the bills of lading therefor.

. Henderson, Chancellor; 1. The effect of the sale was merely to dispose of the estate’s equity of redemption. The agreement between the primary administrator and the purchaser of the land, for the purchaser to offset his debt against his bid was void, and the purchaser should be required to pay his bid. Kirby’s Digest, § 202; 53 Ark. 358; 2 Woerner, Am.

Martmecm,. Chancellor; STATEMENT BY THE COURT. Twelve suits were brought by the commissioners of Improvement Districts Nos. 1, 2, 3 and 4 of Pulaski Heights to subject certain lots, the property of Louise B. Hamwell, to the payment of the assessments and liens for improvement taxes in said districts.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellee sued the appellant for personal injuries.

Cowling, Judge; ' The court should have directed a verdict in favor of the appellant.

Ob tbe 6 th day of July, 1912, tbe county court of Sebastian County entered an order directing that a new courthouse be -erected upon certain portions of (block 515, which particular portion of the ¡block was described by metes and 'bounds.

Reed, Judge; STATEMENT BY THE COURT. This was a suit by the appellee against the appellant, for special -damages growing out -of the .alleged negligent failure -of the appellant to properly -deliver a certain piece of machinery.

Elliott, Chancellor; 1. The testimony dearly -establishes the fact of the trade between 8. M. Branstetter and A. 0. Branstetter, and that the former took possession -of the property after the trade was made and the execution by him of the deed to the latter for the 80 acre tract; that he 'collected rents thereof -and made improvements thereon, some -of the improvements being made during the life of A. 0. Branstetter.

E. Martineau, Chancellor; STATEMENT BY THE COURT. This suit was brought by a property owner within the limits of proposed improvement district No. 6, East Pulaski. -Heights Addition.

F. Gautney, Judge; STATEMENT BY THE COURT. The appellee, a corporation organized under the laws of Minnesota and maintaining its principal place of business at Winona, in that State, brought suit against the appellants to recover the price of certain medicines and articles of merchandise furnished by it to them under the terms of a written contract.

P. Henderson, Chancellor; 1. The will was republished by the codicil and made to speak as of the date of the codicil, and will and codicil must he construed as one instrument. (2) The will and codicil so construed as one will be so construed as to prevent intestacy, or even partial intestacy; the devise did not lapse.

A. Falconer, Chancellor; STATEMENT BY THE COURT. I. H. Nakdimen instituted this action in the chancery court against the Fort Smith & Van Burén District and the Fort Smith Light & Traction Company to cancel and set aside a contract made by the commissioners of the bridge 'district with the Fort Smith Light & Traction Company. The record in the case is very voluminous and we do not deem it necessary to abstract it at length.

<p>Appeal from Saline Circuit Court; W. II. Evans, Judge;</p>

.Reed, Judge; 1. Tbe certified copy of tbe judgment of the justice of the peace should have been admitted as evidence, because it was necessary for the plaintiff to show that judgment had been rendered against the defendant before he could ask for judgment against the garnishee. Kirby’s Dig., § 3055; 33 Ark. 485; Arkansas Justice, § § 377-8-9; 18 Ark. 357. 2.

W. Wells, Judge; 1. Delivery to a common carrier, made pursuant to •an order to ship, is delivery to the consignee. 105 Ark. 57; 91 Ark. 422; 90 Ark. 161; 78 Ark. 123. Appellant was not á proper party defendant. 2. The Pennsylvania Railroad Company tendered the car to the Pennsylvania & Reading Railroad Company for the consignee who wrongfully refused to accept it.

Cowling, Judge; STATEMENT BY THE COUBT. Appellant instituted this suit against the appellee on a promissory note for $374.70, payable in installments of $62.45 each, due respectively in two, four, sis, eight, ten and twelve months after date. Appellee denied liability ■on the note sued on. The appellant introduced the note, which was for value received and made payable to the order of the Equitable Manufacturing Company, and was endorsed as follows: “Pay to the order of J. 0.

Frierson, Chancellor; STATEMENT BY THE COURT. On May 28,1913, appellants, as holders of first mortgage bonds -of the Blytheville Water Company, instituted this action in the chancery court against that company and others to foreclose a mortgage on the properties of said company, and, on the same day, a receiver was appointed to take charge of its property and assets.

Wells, Judge; STATEMENT BY THE COURT. Mrs. Zella Crutchfield brought suit for damages for personal injuries received in a wreck of appellant’s passenger train, upon which she was a passenger, in April, 1913, and the railroad company admitted she was a passenger; denied that its negligence caused the wreck and injury; that she wa.s injured as claimed; and set up, as a further defense a full release, signed by Zella Lawson, who, it alleged, was Zella Crutchfield.

Appeal, from Garland Circuit' Court; Galvin T. Gotham, Judge; Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor; STATEMENT BY THE COURT. The appeals in the above styled cases come from different courts, but involve the same questions and are, therefore, considered together.

Evans, Judge; STATEMENT by the court. Appellee, who was the plaintiff below, alleged in his complaint that on October 26,1913, a telegram was delivered to defendant at Casa, Arkansas, directed to him at Booneville, Arkansas, care of sanitarium, advising him that his wife, then at Nimrod, Arkansas, was very ill, not expected to live, and if he wanted to see her he must come at once; that the message was not delivered by defendant within a reasonable time, or at any time; that…

Appellee sued to recover dam-ages for injuries sustained by Mm while a passenger on one of appellant’s trains, and tbe evidence wbicb be offered in support of Ms suit was substantially as follows: Appellee testified tbat be was twenty-tbree years old, and was returning from a picnic wbicb bad been given at Hartford on tbe 1st day of September, 1913, -and tbat be came from Hartford on tbe Bock Island train and changed ears at Mansfield.

Lea, Judge; 1. Under the statute appellant could not be sued in-Perry County,■ but -only in the county where, it is situated and has its principal office or place of -business. Kirby’s Dig., § 6067. Act 98 of the Acts of 1909, p. 293, does not change the rule. The facts show that appellant does not keep or have in Perry County a branch, office or other place of business within the meaning of that act. The principal office and place of business is at Plaánview, in Yell County.

R. Evans, Judge; 1. The assault was not in furtherance of the master’s business, nor within the scope of the servant’s employment. It was an independent tort. Wood on Master and Servant, § § 279, 307; 75 Atl. 277; 60 Yt. 427; 13 Atl. 569; 93 Ark. 402; 97 Id. 24; 60 Yt. 427; 13 Atl. 569; 162 Mass. 319; 75 Ark. 579; 77 Id. 606; 20 Tex. 191; 95 Id. 534; etc. Snyder and Bronsell were vice-principals, charged with the duty -of superintendence.

Elliott, Chancellor; STATEMENT BY THE COURT. E. M. Taliaferro instituted this action in the chancery court against Josephine Boyd to compel specific performance of a contract for the exchange of real estate..

Meeks, Judge; The court erred in holding that the venireman Cravens was a competent juror. ■ Kirby’s Dig., § 2363; 12 Am. & Eng. Enc. of L. (1 ed.), 352; 31 Am. Digest, col. 603; 24 Cyc. 278; 102 Ark. 180;-69 Ark. 322; 91 Ark. 582; 98 Ark. 327. It was not error to hold Cravens to be competent. 43 Ark. 271-277; 10 la. 308; 226 U. S. 1; 108 Ark. 191. '

Reed, Judge; The evidence does not justify the giving of instruction 2. It was improper to submit to the jury the question whether the rule had been openly, continuously and habitually disregarded for a number of years, when the proof shows it had been in operation only a little over a year when Sharp was injured.

Prohibition to Pulaski Chancery Court; John E. Martineau, Chancellor; petition sustained as against the chancellor; STATEMENT BY THE COURT. One Arthur Hedges was convicted ef murder in the first degree in the Clark Circuit Court. He appealed to this court and the judgment of the circuit court was affirmed.

J. Driver, Judge; STATEMENT BY THE COURT. Appellants sued to recover $718.07, the amount of a certain draft which had been 'drawn on, and paid by, them.

Appellee sued to recover damages to compensate ' an injury sustained by him and at the trial testified that on the 3d day of January, 1914, while proceeding with due care to drive his team across the appellant’s road on a public highway the employees of appellant in charge of a motor car negligently ran into appellee’s wagon in which he was riding, threw him out of it and seriously injured him.

Luther Schultz was -in the employ of the appellant -as an apprenticed -electrician. He was fatally injured while engaged in cleaning globes of arc lights -attached to the east and west sides of a coal chute in the shop yards of appellant in the -city of Argenta. About forty feet from the ground on the east and west sides of the chute there was a running board or platform forty-six inches wide, which sloped slightly to turn water.

Humphries, Chancellor; STATEMENT BY THE COURT. Appellants brought suit to quiet their title to one hundred and eighty acres of land, the northwest quarter, and twenty acres off of the southwest quarter, section 4, township 20 north, range 1 east, in Randolph County. These lands were conveyed to James Martin by a patent in 1837. He died in 1862, intestate.

P. Henderson, Chancellor; STATEMENT BY THE COURT. F. H. Olmstead and wife, Louisa Olmstead, conveyed certain lands by warranty deed on December 1, 1906, to W. S. Mackey, for a consideration of $3,500, the deed reciting $500 paid in cash and the balance evidenced by 150 notes for $20 each, dne monthly, and a vendor’s lien reserved therein to secure the payment of the notes.

Cowling, Judge; The scales used by the appellee were tested in the manner provided by law. Kirby’s Dig., § § 8003, 8004, 8005. Polk ¡County did not procure a set of weights and measures, tested and sealed by the Secretary of State, as provided by section 8004, supra, and, therefore, appellee had no test of weights as the law required. The purpose of Ms office failed. 30 Am. & Eng. Enc. of L., 449; Id. 459; 1 Allen (Mass.) 434; 39 Minn. 143; 109 Mass. 220; 40 Cyc. 886.

Appellant was tried and convicted under an indictment charging him with t'he offense of soliciting and receiving an order for whiskey in White County, Arkansas.

F. Gautney, Judge; STATEMENT BY THE- COURT. Appellant sued to recover damages to compensate an injury sustained by him while employed at appellee’s mill. His injury was sustained in the following manner: He was employed about a stave planer in appellee’s stave mill at Paragould, Arkansas, and his duty was to catch the staves as they emerged from the planer, and place them on a wheelbarrow standing at -hand.

W. Hendricks, Judge; The probate court was without authority to confirm the private sale made by the administrator, who could sell only after an order -of the probate court. 47 Ark. 218; 26 Ark. 257; Kirby’s Dig., § 3793.

Cowling, Judge; STATEMENT BY THE COURT. Appellant .appeals from a judgment of conviction for the crime of perjury.

W. R. Cunningham was indicted for the offense of receiving money in -a hank for the credit of a depositor with the knowledge that the hank was insolvent, contrary to section 1814 of Kirby’s Digest. The facts are as follows : Some time in the early part of the year 1911, I. H. Cunningham, brother of the defendant, approached E. A. MeEiaehin, cashier of the Bank of Midland, for the purpose of buying the bank. No agreement was reached on that date. The defendant was not present.

These suits were instituted by the appellees against the appellants for the possession of certain lands. The suits were consolidated and tried together.

8. Maples, Judge; STATEMENT BY THE COURT. Appellees were the owners of a three-story brick veneered building in the -city of Fayetteville, which was destroyed by fire on the 10th day of January, 1914. The first story wtas used for ¡business houses, the second for offices -and the third ¡as a hall or lodge room. Appellant had his law offices in the second story thereof, and brings this suit for damages for the destruction of his library and office furniture in the' fire.

Frierson, Chancellor; STATEMENT BY THE COURT. On the 18th of August, 1913, the appellee instituted an action in the Craighead Circuit Court, for the Jonesboro District, against the Young Men’s Building & Loan Association, and alleged that in the year 1902, the Young Men’s Building & Loan Association issued to C. N. Carson forty shares of stock; that after he had made several payments in monthly dues, he assigned the shares of stock to Johnson Brothers, and about the year…

Cowling, Judge; STATEMENT BY THE COURT. The Ferguson-McKinney Dry Goods Company, a corporation of St. Louis, Missouri, commenced this action before a justice of the peace against W. W. Townsend and the Kansas City Southern Railway Company to recover the value of a bale of sheeting.

Pulaski Chancery Court; John E. Martinecm-, Chancellor; STATEMENT BY THE COURT. On the 24th -day of September, 1912, appellee O. D. Tucker purchased from H. D. Parker lot 3, of block 72, in the city of Little Rock, for a consideration expressed in •the deed of “$1.00 and other considerations,” but which was in fact $7,500.

F. Gcmbney, Judg’e; 1. The court erred in limiting appellant’s recovery to the sum of $14,665.28, the undisputed evidence showing that it is entitled to recover $17,082.48, being the face of the warrants in evidence, with interest thereon for one and one-half years.

■ Appellee was employed by the appellant railroad company as a brakeman, and was injured while engaged in switching a freight train at Baker, a station in Searcy County on appellant’s road,' -on the 22d of September, 1912, by stepping into an unblocked frog, as a result of which he says he was thrown under the train and run over by it and very severely injured.

Frierson, Chancellor; The reasonable construction of the statutes, Acts 1893, p. 27, Acts 1903, p. 104, and Acts 1907, p. 492, is that as to tram roads, an assessment is authorized, not where the tram is wholly on the land owner’s own premises, hut only where, running like a railroad upon a right-of-way acquired from others for that purpose, it constitutes a distinct and separable item of real property.

J. Driver, Judge; This court has repeatedly held that the transcript of the justice of the peace must be filed “on or before the first day of the circuit court next after the appeal shall have been allowed” by him, and that it is the duty of the appellant to see that the statute is complied with. Kirby’s Dig., § 4670; 31 Ark. 268; Id. 550; 32 Ark. 292; 87 Ark. 230; 112 S. W. 743; 161 S. W. 201.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellant sued to recover damages on account of an assault committed upon him by appellee, and he prayed for damages, both compensatory and punitive.

On the 16th of January, 1914, certain adult white inhabitants of the city of Argenta filed a petition in the Pulaski County Court in an attempt to comply with the requirements of Act No. 59 of the Acts of 1913.

H. Evans, Judge; 1. Appellee was a trespasser. If lie ever was a passenger lie became a trespasser when he was riding on the engine at the time of his injury. He was on the train in violation of the rules of the company, which he knew. 4 Labatt, Master & Servant, 4698, 4697; 166 S. W. 958; 27 So. 646; 17 App. Div. 116; 45 N. Y. 'Supp. 93. He had no duty to perform on the engine, and was on the train contrary to the rules. 2. It was error to modify defendant’s instructions.

Cowling, Judge; 1. The third instruction given at the request of the State is erroneous and prejudicial in that it authorizes a conviction notwithstanding the provision of the statute to the effect that the corroboration of the testimony of an accomplice shall not be sufficient unless it tends to connect the defendant with the commission of the crimé. Kirby’s Dig., § 2384.

E. Jeffery, Judge; ■ 1. The evidence is not sufficient to prove any conscious suffering on the part of the deceased. No witness testified when he died, nor any who testified that he was ■conscious after the injury. The low groans and muscular movements observed by witnesses were mere incidents of'the death.

G. Hendricks, Judge; 1. The court erred in refusing to grant the prayer of appellant Schneider. The burden of proof was on the appellant to show nothing more than that the judgment was inconsistent with the record, and what the record was. Kirby’s Digest, § 3107; 28 Cye. 15. 2.

Meeks, Judge; STATEMENT BY THE COURT. This is the second appeal of this case. Appellant was convicted on the first trial of murder in the second degree and the case was reversed for errors committed. Timer v. State, 110 Ark. 251.

; George W. Reed, Judge; STATEMENT BY THE COURT. On the 13th day of August, 1910, Mrs. B. H. Weirling was a passenger on appellee’s train. Sbe boarded the train at Aurora, Mo., and her destination was Yellville, Ark. Two or three years prior to that time she was physically broken down, but at the time she started on her journey she was apparently in good health.

Garter Judge; 1. A continuance should have been granted on the showing made. The court abused its discretion in re- x fusing. 67 Ark. 142; 85 Id. 334; 94 Id. 350. 2. Hearsay evidence is admissible when not objected to. 3. Request No. 6 should have been given. Doctor Thompson knew it was Sunday and that the Hope office was closed. 4.

J. Gaughcm, Special Judge; 1. As to the item of $396.31 set up in the amendment to the complaint, it ivas a separate cause of action, and, being such, judgment upon it could not properly be accelerated by filing it as an amendment. The rule is that where a distinct cause of action is added to the complaint, the right to proceed upon the complaint as amended, so far as service is concerned, requires service or notice after filing of the amendment. 2.

E. Jeffery, Judge; 1. It was not incumbent upon appellant to show that it did not discover appellee’s presence upon its track in time to avoid injuring Mm. The injury having occurred prior to the amendment to the lookout statute, appellant established a sufficient defense to bar recovery when it showed that he was guilty of contributory negligence, unless other facts were shown sufficient to overcome the effect of the contributory negligence.

E. Jeffery, Judge; STATEMENT BY THE COURT. A. W. Sliirey died at bis residence at Minturn, in Lawrence County, Arkansas. On July 19, 1910, thereafter, Mrs. Mai Briant presented to the probate court of that county the following claim: “Mrs. Mai Briant v. the A. W. Shirey Estate. To legal services rendered to the said A. W. Shirey during his lifetime in the suit for divorce in which he was involved, said services being rendered at his request and solicitations. ACCOUNT.

<p>Appeal and error — appeal from judgment holding circuit court has jurisdiction — final oeder. — The dismissal toy tlie circuit court of an appeal from a judgment of title county .court entering an order nunc pro tunc, is merely a ¡holding toy the circuit court that .the order was properly made toy the county court, and an affirmance thereof, and such judgment of the circuit court not toeing a final order or judgment, it can not toe appealed from.</p>

M. Jackson, Judge; STATEMENT BY THE COURT. Mrs. Annie L. Chunn brought suit against the insurance company for $2,000 for the total destruction by fire of her home, situated in Searcy, under policy No. 7836346, insuring her in that sum against loss by fire on the dwelling and another suit for $400 damages for loss of furniture by fire under policy No......., insuring her against loss by fire upon household goods and furniture in the sum of $600.

J. Driver, Judge; 1. This was an interstate message and no recovery can be had. Western Union Tel. Go. v. Compton, ms. op.; 180 U. S. 1; 172 M 475. Western Union Tel. Go. v. Brown, 180 U. S. 1, does not determine this case. 38 L. E. A. 40. See, 100 S. W. 974; 33 Ark. 350; 79 Ark. 448; 82 Id. 96; 93 Id. 415; 37 Cyc. 1664-1669. In 50 A. L. E. 9, every contention of appellee was sustained.

Cowling, Judge; STATEMENT BY THE COURT. This is an appeal from a judgment of conviction for assault with intent to kill. The facts are substantially as follows: The .appellant had been fined in the justice court; she had failed to pay the fine and the deputy sheriff had a commitment for her. Her husband, Will Davis, had agreed to pay the fine, but failed to do so.

Humphries, Chancellor; STATEMENT BY THE COURT. Appellant brought suit against the widow and children of one J. W. Stephens, and alleged in his complaint that the said Stephens died testate on or about the 11th day of July, 1906. Mr. Stephens named his wife as the executrix of his will, but she had been adjudged insane, and on the 14th of July, 1906, appellant was appointed administrator with the will annexed, and proceeded to .administer on this estate.

Cotham, Judge; STATEMENT BY THE COTJET. Appellee brought suit against the railway company for damages for the loss of baggage, certain trunks and their contents, transported from • Marshall, Arkansas, to Kensett, over the Missouri & North Arkansas Railroad, and from Kensett to Hot Springs, over the line of the appellant company. He was moving to Hot Springs, and purchased tickets for himself and family at Marshall on the Bd day of September, 1913.

H. Evans, Judge; 1. Dying declarations are not admissible in civil cases. Nor was the so-called dying declaration part of the res gestae. It was made more than a week afterward. 87 Am. Dec. 176; 45 Id. 561; 48 111. 475; 39 Ga. 223, 99 Am. Dec. 456; 70 la. 130 ;-95 Ala. 461; 15 Johns. 286; 117 N. C. 27; Tiffany on Death by Wrong. Act, § 194; 4 Ene. Ev. 941; • 6 A & E. Ene. L. ,(1 ed.) 104; 92 Ga. 337; 56 L. R. A. 360. 2.

Frier-son, Chancellor; 1. Has the county court jurisdiction to distribute these funds? Art. 7, § 2, Const. 1874. Evidently not. 95 Ark. 194. 2. Are funds of a drainage district county funds? Our court answers No. 102 Ark. 106-108.

F. Gautney, Judge; Appellant contends, first, that there was no meeting of the minds of the parties upon the terms of any agreement for the year 1913, and, second, that there is no sufficient basis in the evidence, under the law as declared by the court, upon which the jury could base a verdict for damages. 1. As to the contract, the testimony of appellee was in direct conflict with that of appellant. The jury believed appellee’s version. Their verdict is conclusive. 2.

Francis Circuit Court; J. M. Jackson, Judge; The court had jurisdiction; it was error to dismiss. 92 Ark. 148; 89 Ark. 160; 100 Id. 63; 66 Id. 1; 72 Id. 101; 66 Id. 416. The latter case is conclusive. The court properly dismissed the appeal for want of jurisdiction. 65 Ark. 420; 65 Id. quoting from 9 Ark. Singer V. Berry; 5 Ark. 478; 9 Id. 375; 24 Id. 142; 31 Id. 725; 2 Cyc. 1025; 98 Va. 91; 36 La.

Robertson, Chancellor, STATEMENT BY THE COURT. Appellants brought this action to enjoin the collection of the assessments against their property, challenging the validity of the district because the ordinance establishing it did not conform to the petition praying for its establishment, and because the commissioners had arbitrarily and substantially changed the boundaries of the district as fixed by the ordinance.