Volume 121 — Arkansas Reports

E Martinecm, Chancellor; Under section 851 of Kirby’s Digest,- .appellant was given the same power as a natural person to acquire and hold property, .and taxes have been, land- are, collected from it on that theory. The Act of 1913, while not denying to the appellant the right to -enjoy the common property, attempts to charge more than is charged other tax payers and other persons who are similar in every respect, so far as the reason of the act is concerned, except in name.

S. Maples, Judge; • 1., Appellants were entitled to offset the amount of the warrants held ¡by the bank against any judgment rendered. Kirby’s Digest, § 6098 ; 32 Cyc. 231-2; 46 N. W. 210; 44 Minn, 61; 20 Am. St. Rep. 543; 25 Am. & Eng. Enc. Law (2 ed.) 540; 59 N. Y. 533; 24 N. W. 602; 44 Pac. 362; 53 Pac. 187.

F. Oautney, Judge; STATEMENT BY THE COURT. A petition was filed in the Mississippi circuit court for the Chiekasawba District for the organization .of a drainage district, to be designated as the Keystone Drainage District, embracing something more than 237,000 .acres of land in Mississippi, Craighead and Poinsett counties. The petition was filed under the general laws as contained in the act of May 27, 1909, as amended by the acts of April 28, 1911, and March 13, 1913.

W. Smith, Judge; STATEMENT BY THE COURT. Appellant was indicted for the crime of murder in the first- degree in the killing of Doss Avery. He was convicted of murder in the second degree, sentenced to 21 years in the State penitentiary, and duly prosecutes this appeal. The 'testimony for the State was substantially as follows: Pool and Avery were sons-in-law of George Kelley.

F. Read, Special Chancellor; STATEMENT BY THE COURT. This suit was instituted ;by ‘appellant against the appellees to recover $5,050, alleged to be due on the purchase price of 270 acres of land sold by appellant to appellees.

Barker, Chancellor; STATEMENT BY THE COURT. Appellee brought this suit to quiet his -title to >a tract of land in Ouachita County, lalleging that he was the owner thereof, that he and those under whom he claimed • had paid the taxes on the lands, which were wild and urn occupied, for seven consecutive years, under color of title, •and alleged that the tax title under which defendant claimed it was void.

W. Smith, Judge; STATEMENT BY THE COURT. Appellant was” convicted of -manslaughter under an indictment regularly charging him with the murder of Joe Hunter 'by shooting him with a pistol, ¡and from the judgment brings this .appeal. It appears -from the testimony that appellant on the night before the hilling, in the town of Tinsman, was severely beaten in a fight. The town marshal, Wallingford, Johnson, the deputy sheriff, Joe Hunter, and another man assaulted him.

C. Knox, Special Judge; . 1. On the former appeal this court approved as correct an instruction to the effect that if the plaintiff purchased of defendant his entire planing ¡mill outfit and lumber on hand, entered into ia written contract as to the entire transaction and thereafter, without any new or additional consideration, the defendant signed the obligation sued on, such obligation was void, and defendant was entitled to a verdict. 112 Ark. 126.

B. Baker, Judge; STATEMENT BY THE COURT. Appellant brought suit against appellees for damages for wilful trespass in cutting timber from certain lands.

F. Gautney, Judge; 1. Before the passage of the act of 1913, this court has held that a stipulation to pay an attorney’s fee was invalid. 96 Ark. 105; 63 Id. 225. But since the passage of that act the stipulation is valid and should be enforced. Acts 1913, p. 270; 77 -S. E. 468; 6 Leigh (33 Ya.) 517; 85 Ya. 621; 8 >S. E. 483; 168 & W. 796; 82 S. E. 332; 97 N. E. 372; 135 Pac. 454; 104 Ark. 500; 111 Id. 123; 53 Id. 545; 113 Ark. 555. 1.

T. Humphreys, Chancellor; 1. The commissioners were not sworn before or after they entered upon their duties .as such, and they did not swear to their report as required by law. Kirby’s Digest, § 5781. 2. Commissioners must conform strictly to the orders and judgment of the court. Kirby’s Digest, § § 5778, 5779, 5780 .and 2726; 24 Am. & Eng. Enc. of L. (2 ed.), 229, 230.

104 Ark. 136; 35 L. R. A. 852; '28 Montana 27. Where a change of grade from the established one is made so as to damage abutting property, the city is liable to the owner for such damages. Art. 2, Sec. 22, Const.; 45 Ark. 429; 98 Ark. 206; 104 Ark. 136; 89 Ala. 182; 43 W. Ya. 62; 3 Tex. Civ. App. 537; 83 Tex. 239; 7 Tex. Civ.

H. Humphreys, Chancellor; 1. This is an action for deceit. The allegations are not sufficient to state a cause of action. To make McClelland liable for fraud his misrepresentations must have been false as to a past or present fact, material in nature, which operated to deceive, .and which were relied upon.

Kirby’s Digest, § 2318; 85 Ark. 536. The court should have instructed the jury ¡to return a verdict of not guilty. The court erred in its instructions to the jury. The argument of the prosecuting attorney was prejudicial. The court did not err in denying the petition for change of venue. 98 Ark. 139. There was no error of the court in refusing to instruct the jury to return a verdict of not guilty. 96 Ala. 24; 13 Tenn. (7 Yerg.) 259.

J. Driver, Judge; 1. Tbe granting 'clause in this 'deed is sufficient, both at common law and under tbe statute, to convey a fee simple estate. 'Subsequent clauses must be ®o construed as to yield to the grant. If tbe clause iu tbe habendum or concluding portion of 'the deed, relating to the use to which the land is to be put, can not stand consistent with the clause in the premises granting 'an estate in fee simple, the latter must yield. 82 Ark. 211; 82 Me. 562.

Shaver, Chancellor; 1. Plaintiff’s property being within the district, the presumption is conclusive that benefit will result, unless there is fraud or demonstrable mistake. 52 Ark. 107; 81 Ark. 208; 84 Ark. 257. Fraud ,and demonstrable mistake can only occur when assessments are levied on lands in disregard of benefits and by reason of manifest prejudice against the owner or in total disregard of his rights. 98 Ark. 543, 550. 2.

Falconer, Chancellor, statement by the court. Appellants brought these suits, which were after-wards consolidated, against appellees, upon two promissory notes, for $1,590 each, given in payment for stock of the .Sebastian County Bank, of the face value of $1,000.

M. Jackson, Judge; STATEMENT BY THE COURT. Appellee recovered judgment against the appellant in the sum of $1,000 damages for mental anguish which she alleged accrued to her by reason of the negligence of the .appellant in delaying the transmission and delivery of certain telegrams. One of these telegrams was from appellee’s mother, delivered to appellant’s agent at Hot Springs about 8 o’clock on the morning of October 26, 1913.

The Arkansas mental .anguish statute is void as to interstate messages. 114 Ark. 193, 174 S. W. 232; 115 Ark. 564; 174 S. W. 552.

The theory on which this case was tried as embodied in the instructions is in direct conflict with 73 Ark. 1. No private action lies on account of an act obstructing a public and common right, for damages of the same 'kind as those sustained by the general public, but an action will lie for peculiar or special damages of a kind different from that suffered by the general public. 45 Ark. 433; 92 P,ac. 953; 22 Id. 814. 2.

W. Hendriclts, Judge; STATEMENT BV THE COURT. W. G. Nothern sued A. M. Allen to recover damages for an -alleged breach, of -contract for the sale of bay. The defendant -denied that -any binding contract -for the sale of hay had been entered into between the parties.

J. Driver, Judge; 1. Under the circumstances of this cáse, it was an abuse of discretion to -overrule appellant’s motion for a continuance. 60 Ark. 664.

Cowling, Judge; STATEMENT BY THE COURT. This suit was instituted ¡by the .appellant against the appellees in the justice court on .six promissory notes. Five of the notes were for $70 each 'and the other for $50. The notes were dated June 30, 1913, and were in form as follows: “For value received, we promise to pay to the order of Bernard Manufacturing Company, seventy dollars at Iowa City, Iowa, payable as below, five months afterdate.

These suits were instituted by the appellant, a Missouri corporation, to recover upon certain promissory notes. The complaints in each case were substantially the same, the only difference being as to the amounts, dates 'and time of maturity .of the notes, and the notes were executed by different sets of makers, who are the appellees herein. The notes were the same in form and it will be sufficient to .give substantially the provisions of one of them.

Francis Circuit Court; J. M. Jackson, Judge, STATEMENT BY THE COURT. The National Americans is a fraternal ¡benefit association organized under the laws of the State of Missouri, and on the 13th day of March, 1912, issued a benefit certificate to Mrs. Martha E. Johnson, of 'Colt, Arkansas, in which Charles Hitch, her son, was named as 'beneficiary.

W. Hendricks, Judge; 1. The letters should have been revoked and the proceedings dismissed on account of laches. 56 Ark. 633; 63 Id. 405; 73 Id. 445. A revocation of letters is proper when it appears that the letters should not have been issued. 18 Cyc. 151; 74 Ark. 168. 2. The administrator should have been removed. 18 •Cyc. 159-60; 1 Ga. 78; 83 Ind. 501; 88 Cal. 302; 39 N. J. Eq. 332.

admits signing the note, but he was subsequently released from liability thereon because of a contract, based upon .a valuable consideration, between .this .appellant, L. S. Joseph and appellee. This constituted a novation and .appellant was thereby discharged from liability. 22 Pac. 673; 35 S. W. 444; 37 S. W. 1019; 59 Ind. 508; 3 Ark. 216; Chitty on Contracts 581; 24 Ark. 356; 61 Ala. 155; 33 111. App. 534; 104 Ind. 180 ; 36 Tex. 76.

Elliott, Chancellor; The trial court erred in finding that a verbal agreement between cotenants is enforceable in this State, where one uotenant does not take possession under the agreement. 68 Ark. 534. If the defendant is to be allowed for the improvements, then plaintiff should have an accounting for the rents of the land for the time he held same. 52 Ark. 473; 77 Am. St. R. 502. A verbal agreement for partition between cotenants can not be enforced in this 'State.

Gotham, Judge; 1. The peremptory challenge of the juror Webb should have been allowed. A juror is not to be excluded merely because he is indebted to one of the parties, but where he is at that party’s mercy, or has been treated with peculiar indulgence, he is disqualified. 17 Am. & Eng. Enc. of Law (2 ed.), 1127; 29 S. W. 926; 35 W. Va. 337, 13 S. E. 1015; 37 Neb. 435; 55 N. W. 943. 2.

Trimble, Judge; STATEMENT BY THE COURT. Appellant w-as committed March 28, 1915, to await the -action of the August, 1915, grand jury on a charge of manslaughter. He gave bond for his appearance. On April 19, 1915, an -adjourned day of the regular February term of the Lonoke circuit court, .a special grand jury was oalled by Gí. W-. Hendricks, judge of the third division of the sixth district, with whom the regular judge had exchanged circuit courts by agreement.

Trimble, Judge; 1. The demurrer should have 'been sustained because the indictment charges in a single count two separate and distinct… Held: construing this statute, where a president of an incorporated insolvent bank was charged with having knowingly received and accepted deposits, knowing the .bank tobeinsolvent, that, “in order to sustain a conviction the proof must show that the defendant had some direct, personal connection with the receipt or acceptance of the…

87 Ark. 168; 104 Id. 274; 100 Id. 71; 92 Id. 321; 101 Id. 409 ; 56 Id. 50, 255. The ease was properly submitted to the jury. Ill Arik. 604; 80 Id. 190; 82 Id. 89. The evidence fails to show possession, open, continuous, hostile, exclusive, and coupled with cm intent to hold adversely to the true owner. 97 Ark. 33, 36; 95 Id. 144.

Evans, Judge; A new trial should have been granted for newly dis- • covered evidence. 41 Ark. 229; 66 Id. 619, 620. The court properly refused a new trial. The newly discovered evidence was at most cumulative merely. 100 Ark. 203, 206; 2 Ark. 346.

Co. was a mutual company, without capital stock, and appellee is liable for the entire amount of his .premium. 151 S. W. 1030; 30 N. E. 212; 56 iS. W. 823; 66 Atl. 1072; 91 N. E. 380; 105 N. W. 1031; 52 N. W. 774-5; 119 Mass. 45; 72 Am. Dec. 773. The case in 130 S. W. 574 is not applicable. 112 Mass. 116. 2. Under the terms of the contract the entire premium was earned. 74 Ark. 507, 510; 19 Mich. 451.

Haynie, Judge; 1. A verdict should have been directed for the defendant. The rules of the company provided that the office at Thornton should close at 6 P. M. The reasonableness of this rule was ,a question for the court. 73 Ark. 205. It was a reasonable rule. 108 Ark. 92. It was not the duty of the company to notify plaintiff of the rule. Hendricks, plaintiff’s agent knew of the regulation. That was notice to plaintiff. 102 Ark. 607; 24 ¡S. W. 86; 48 So. 712 ; 66 'Mo.

M. Jackson, Judge; 1. The instrument sued on Was a negotiable bill of exchange. 33 Ark. 47; 94 Id. 100. It was purchased for value before maturity .and appellant was an innocent purchaser. A verdict should have been directed for the plaintiff. 94 Ark. 100; 8 Cyc. Law & Proc. p. 233; 166 S. W. 953; 170 Id. 578. Appellant was not an innocent purchaser for value without notice, within the rule. 79 Ark. 149; 86 Id. 201; 90 Id. 97.

W. Smith, Judge; The court erred in refusing to give appellant’s requested instruction No. 2, to the effect that it was the duty of appellee, the landlord, to construct and maintain the coal hole on his leased premises in a safe condition. 82 S. E. 363; volume 6 N. C. C. A. 455. Appellee’s instruction No. 1 was not applicable.

Eaynie, Judge; 1. The verdict is contrary to law. The testimony is conflicting and irreconcilable and. there is a variance of proof. 23 Cyc. 253. It is not unlawful to sell liquor containing 1 y2 per cent, alcohol or less. 36 Ark. 258, 69 Ark. 360; 63 S. W. 801; 23 Cyc. 57, 246, 265, 283; 35 Ark. 430. It was not proven that the liquor was “intoxicating. ’ ’ 23 -Cyc. 283; 68 Ark. 468; 69 Id. 360; 63 S. W. 801. '2.

«Circuit Court; W. J. Driver, Judge; 1. The complaint -and amendment each states a. different cause of action. It is not demurrable. The striking of a name from «a negotiable note -does not always release from liability. It may be by consent or a spoliation by a stranger. The mere fact of an erasure does not per se raise a presumption of invalidity. 69 Ark. 140; 30 Id. 285; 102 Id. 302; lb. 287; 96 Id. 163; 91 Id. 400.

A. Falconer, Chancellor; 1. The count had no jurisdiction because the case was in reality never appealed. No transcript was filed as required by law. Kirby’s Digest, § 4670; 8 Words and Phrases, 7063; 72 Pac. 976; 43 Ore. 558; 19 N. W. 634; 16 Neb. 68; 57 N. W. 161; 7 Ark. 203; 16 Ark. 485; 43 Id. 233-485; 7 Id. 11; 5 Id. 474; 6 Id. 252; 73 Id. 608; ’24 Cyc. 703. 2. Default judgment was taken against appellant before default day. Kirby’s Digest, § 6188. 3.

8. Maples, Judge; 1. One can -not escape liability for negligence merely because tbe injured party was a trespasser, where bef ore the commission of the act the presence of the trespasser was known to him -or ought to have been known by the use of ordinary care and diligence, by the use of whidh the injury might have been .avoided. 29 Cyc. 443, 120 G-a. 521; 81 N. W. 333; Wharton on Neg., § 340 ; 45 Pao. 407; 75 N. W. 919; 67 N. Y. Supp, 63; 16 S. E. 4; 48 Id. 166; 80 N. E.…

Shaver, 'Chancellor; The insurance contract at issue is necessarily governed (by the by-laws of tbe order, which are a part thereof as effectively as any other part. 52 Ark. 202, 206 ; 55 Ark. 210, 212; 80 Ark. 419, 421; 81 Ark. 512, 514; 105 Ark. 140, 143; 24 Fed. 97; 110 Iowta, 642; 171 N. Y. 616; 89 Mo. App. 621; 34 Mont. 357 ; 33 Fed. 11.

Appellees brought this,suit .against the express company for damages to 100 crates of strawberries, alleged to have been caused by the negligence of the express company in failing to deliver them at the appointed time. The contract of sale was made over the telephone from Oklahoma City to Van Burén, Arkansas, and R. S. Hynes, the witness who sold the berries testified: “I sold them to Mr. Thomas, manager, for $1.85 per crate, f. o. lb. (here, to be delivered in Oklahoma City.

Coleman, Judge; STATEMENT BY THE COURT. Appellants brought suit of ejectment against appellee for the recovery of possession of certain lands in Izard County, alleging that they were the owners thereof, as heirs to their father who homesteaded the same and died in possession thereof and that the defendant was holding said lands under the claim of being the owner thereof through certain mesne conveyances from a tax purchaser at the tax sale on June 12, 1899, which it was…

J. Driver, Judge; 1. It was error to give instruction No. 2. It was abstract and prejudicial. There is no presumption of injury .against defendant in oases of damages for injuries. 67 Art. 55; 76 Id. 430; 82 Id. 289; 83 Id. 6; 111 Id. 613; 75 Id. 479; 64 Id. 613; 70 Id. 481. '2. The burden is on plaintiff to prove negligence. 34 App. Cases (D. C.) 41; 202 Mo. 576; 112 Ala. 642; 114 5. W. 186; 154 III. 5'23; 126 HI.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. The Arkansas National Bank instituted this action in the circuit court against W. L. Stuckey to recover approximately $4,500, principad and interest, alleged to he due by said Stuckey to the ‘bank for borrowed money.

I. Worthington, Judge; 1. The court abused its 'discretion in refusing ;a continuance. 113 Ark. 1-15. '2. The verdict shocks one’s sense of justice. 70 Ark. 385. A jury can not be permitted to indulge in mere conjecture. 57 Ark. 402; 76 Id. 436. 1. The question of a continuance is within the sound discretion of the court. 2. This court will not disturb a verdict where there is evidence to support it. 92 Ark. 200. There is no error.

L. Davis, Judge; 1. Appellants ’ demurrer should have been sus-' tained. Appellee’s position is 'an employment and not an office. Const. Art. 7, § 27. Appellee only held his position by contract and is not an elective officer. Acts 1911, No. 163,. § § 4 and 9, etc. 2. The power of removal from office is incident to the power of appointment. 39 Ark. 211; 15 Pac. 92; 44 Miss. 352; 7 Am.

Knox, Special Judge; 1. The motion to quash the indictment should have ¡been granted, because the jury commissioners excluded negroes from service on the grand jury. 177 U. S. 442; 69 Ark. 346; lb. 194; 100 U. S. 339; 140 Id. 278; 100 Id. 313. 2. The petition for removal should have been granted. 69 Ark. 193; 103 TJ. S. 370; 162 Id. 596-601. 3.

Shaver, Chancellor; STATEMENT BY THE COURT. Appellants sued the appellees to recover possession of-a certain tract of land. The suit was begun in ejectment. The appellants claimed under a deed purporting to have 'been executed to them by August Staggers and Millie Staggers, his wife. The deed recites a consideration of $200, .and was acknowledged January 3, 1891, and filed for record August 26, 1895.

Frierson, Chancellor; STATEMENT BY THE COURT. This suit was instituted by the ¡appellee in the chancery ¡court against the appellant Moore 'and the other appellants as sureties on his bond as guardian of appellee to surcharge and falsify the settlements, made by tbe guardian with the probate court.

F. Gcmtney, Judge; STATEMENT BY THE COURT. Louis 'Sachs instituted this action against R. Y. Shook to recover on three promissory notes for five hundred dollars each. The defendant answered and admitted the execution of the notes, entered a plea of res adjudicata, and further pleaded that the notes had been paid. Further facts will be stated in the opinion.

W. Hendricks, Judge; STATEMENT BY THE COURT. This appeal represents three separate suits which were consolidated and tried together. All of the actions arose from the same transaction. In November, 1909, H. S. Dees leased the Dickey farm of 417 acres from Mrs. Hughes for a term of five years, beginning January 1, 1910, for an annual rental of $2,600. Dees sublet all but about ten acres to J. M. Gross for tbe year 1910.

H. Evans, Judge; statement by the court. John Armbrust -sued the St. Louis, Iron. Mountain & Southern Bailway Company to recover damages for alleged personal injuries inflicted by the latter upon the former iby its negligence.

Garland Chancery Court; Jethro P. Henderson, Chancellor; STATEMENT BY THE COURT. Elizabeth Merrill brought this isuit for the widow’s interest and dower in the estate of John D. Condon, deceased.

The written instrument constituted the entire and complete contract between the parties and no proof of prior statements or representations of appellant was admissible. No parol warranty could be engrafted upon the written contract. 83 Ark. 105; 97 iS. W. 681; 80 Ark. 505-8; 104 Ark. 488; 83 Id. 240-2 ; 73 Id. 542; 60 Id. 387. 2. The ¡burden was on the plaintiff and he was entitled to open and close the argument. 3.

Court; James M. Barker, Chancellor; Tire conveyances were not made with intent to defraud creditors. They were not without consideration. No fraud was shown. There is no equity in the hill. No credit was extended on the strength of Hernton’s interest in the lands and .all parties knew of the wife’s possession and claim. Appellee is not a creditor within the rule.

Trimble, Judge; 1. Tibe testimony is not sufficient to sustain tbe verdict. 2. Tbe indictment was by a special grand jury, when defendant was out on bail. 100 Ark. 373; 118 Ark. 310; 79 Ark. 283. 3. Tbe change of venue should have been granted as a matter of right on the showing made. 68 Ark. 466; 25 Id. 444; 54 Id. 243; 100 Id. 301; 98 Id. 139. 4.

J. Driver, Judge; 1. The damages claimed are not too remote. 8 A. & E. Enc. Law (2 ed.) 548, 568, 571; 13 Cyc. 25-32; 1 Sixth, on Lam. (3 ed.) 38, 134; 8 A. & E. Enc. Law (2 ed.) 584. 2. The damages «are not uncertain, contingent or speculative. Black, Law Diet., p. 315, “Speculative Damages;” 77 «C. C. A. 297; 8 A. & E. Enc. L. (2 ed.) 608. The loss «of a season’s crop is' equivalent to rental value. 31 111. 474; 91 Ark. 427. 3.

F. Gautney, Judge; 1. Thompson was not liable. He was county treasurer, and held the funds in good faith, under a valid judgment, believing he was the proper and legal custodian of the district funds. As soon as this court, in 106 Ark. 517, decided against him, he promptly paid over the funds. 23 A. & E. Ene. Law (2 ed.) 379; 142 U. S. 293; 137 Id. 43; 3 How. (U. S.) 87; 29 Ark. 448 ; 68 Me. 572; 8 Mo. 41; 11 Enc. PI. & Fr. 438.

B. Baker, Judge; 1. The .suit was properly brought in the chancery oourt. Kirby’s Digest, 2. The isuit was not barred by limitation. 92 Ark 167; 146 Ind. 186. 1. Appellee was in the actual, adverse, etc., possession of the land, claiming title and had the constitutional right to a trial at law. Const., art. 2, § 7; 56 Ark. 374; 65 Id. 505. 2. Kirby’s Digest, § 2754, provides a remedy for a defendant who is in possession of land, under color of title.

W. Smith, Judge; Conceding the door was locked and this, by the negligence of defendant, it was not the proximate cause, or juridical cause of the injury. 91 Ark. 262; 86 Id. 289; 87 Id. 576; 76 Id. 522. But no negligence is shown. Defendant had no notice or knowledge that appellee was off the train, nor of his peril. 54 Ark. 28; 55 Id. 428 ; 76 Id. 524; 11 S. W. 326. Appellee was a passenger. 82 Ark. 393. The law requires cabooses to be provided with closets.

3. Humphreys, Chancellor; 1. Zimmerman was not a director after April 15, 1906. We submit the following on the question of minutes as evidence. Abbotts Trial Ev. (2 ed.), 57-67; 62 Ark. 33; 7 R. C. L., § 124; 5 N. J. -Sec. 137. If he was elected, an acceptance was necessary; 2 Cook on Corp., § 624; 10 Cyc. 740. He had no knowledge of his .election and could not be held liable. 110 Ark. 39.

In this country, and in this State, it is settled that a third person may bring an action on a promise made to another for his benefit. 1 Parsons on Cont. (4 ed.) 505; 3 Elliott on Cont., § 2111; 31 Ark. 411; 46 Id. 132; 49 Id. 477; 51 Id. 205; 64 Id. 627; 91 Id. 367; 93 Id. 346; 108 Id. 442; 85 Id. 59: The beneficiary need not sign the contract. 108 Ark. 442. 2. Plaintiffs could sue in their own name. Kirby’s Dig., § 5999; 31 Ark. 411. 3.

M. Elliott, Chancellor; 1. The contract is not enforceable because the depositary bank accounts were not examined and verified. The contract between the parties warrants that the accounts of the cashier will be examined, and the cash, notes' and other 'securities claimed to be on hand verified, once every three months. As to the Exchange Bank this was not done, and such neglect avoids the ¡bond. 87 Ark. 348; 38 Col. 414,10 L. R. A. (N. S.) 323,120 Am.

Coleman, Judge; 1. Appellant did not assume the risk unless the danger was so obvious as to make a reasonable man refuse to do the work, for the reason there was a direct command (and the foreman was -present showing how the work should be done. 113 Ark. 359. He had the right to rely on the superior knowledge of the foreman, * * * unless he 'knew and appreciated the danger to which he was exposed. 95 Ark. 291; 77 Id. 458; 77 Id. 367.

B. Baker, Judge; 1. Appellee wholly failed to prove ¡a ¡breach of the warranty. 2. The ¡alleged letter, or copy, was not admissible in evidence ¡as no foundation was laid. 51 Ark. 509; 12 Id. 692; 11 Id. 504. 3. It was error to refuse instructions asked by appellant.

S. Maples, Judge, STATEMENT BY THE COURT. Appellees applied to the probate court of Benton county to probate the following instrument as the last will and testament of A. R. Rodgers, deceased, towit: “Know all men by these presents: That I, A. R. Rodgers, of Mundell in the county of Benton and State of Arkansas, being in ill health but of sound and disposing mind and memory, do make and publish this my last will and testament heréby revoking 'all former wills by me, at any…

Plaintiff, in March, 1915, brought this suit for damages against the defendant for slander and malicious prosecution, alleging the facts constituting his cause of action land that there was no probable cause for the prosecution.

Coleman, Judge; STATEMENT BY THE COURT. This appeal is in effect to test the validity of an order of removal of ¡a guardian by the probate court and disallowance of his commission upon the final settlement and statement of his account.

J. Driver, Judge; STATEMENT BY THE COURT. Sam Mauldin, the sheriff of Mississippi County was shot to death in the early morning on July 30,1915, while raiding the joint owned by Andy Crum, on Island No. 37, in the Mississippi river, for the purpose of arresting certain offenders for whom he held warrants.

Francis Chancery Court; Edward D. Robertson, Chancellor; STATEMENT by the court.

Frierson, Chancellor; The will vested only a life estate. 51 Ark. 61; 52 Id. 113; 3 Id. 147. Under the will appellee took a fee-simple estate; that was the intention of the testator and .all wills should be construed so as to effect and carry out the intention of the testator. 2'2 Ark. 567; 73 Am. Dee. 119; 61 Ark. 366; 112 Ark. 527; Page on Wills, p. 534, § 459.

E. Martineau, Chancellor; 1. Parties were bound by attorney’s opinion. The understanding was, and the law implies, a marketable title. Bradshaw, the attorney, decided the title was not marketable. This was final unless fraud was shown. 48 Ark. 522; 17 L. R. A. 207; 96 S. W. 79; 36 Pac. 1039; 27 How. Pr. 327. 2. The title was not marketable. A title may be perfectly good 'and yet not be a marketable title. 85 Ark. 289; 63 Id. 549.

B. Sorrells, Special Judge; 1. This is not -an action against the iState within the prohibition of article 5, section 20, of the State Constitution. The provision that “the State of Arkansas shall never be made defendant in any of ber courts” is but a declaration .of the policy of all States, where no statute expressly authorizes the sovereign to he sued.

Wood, Chancellor; STATEMENT BY THE COURT. The appellants, the widow and heirs of T. P. Dawkins, instituted this suit in the Drew Chancery Court on November 5, 1913, against the ¡appellee to cancel a deed dated July 28, 1910, and recorded October 3, 1910. The deed appears on its face to have been signed by T. P. Dawkins, by his mark, ¡and witnessed by E. J. Petteys. The deed appears on its face to have been signed by Annie Dawkins.

W. Hendricks, Judge; 1. Appellant was entitled to an instructed verdict, for the reasons: (.a) There is a total failure of proof that the seat was an instrumentality provided for appellee’s use iand therefore no duty rested upon appellant to have it in a reasonably .safe condition, (b) There was no necessity for any such special instrumentality, and (c) Appellees violation of the rule requiring him to personally examine the scaffolding, tackle, etc., was direct and proximate…

This suit w.as instituted by the appellee to reoover damages from appellant for killing appellee’s horse.

D. Shaver, Chancellor; STATEMENT BY THE COURT. On November 17,1913, appellant exchanged with appellee .a hotel in Kingfisher, Oklahoma, for a plantation containing 883 acres of land and certain personal property in Miller County, Arkansas. There was .a mortgage on the land for $18,000, which, with interest, amounted to over nineteen thousand dollars, which the appellant assumed.

<p>Appeal from White Circuit -Court; J. M. Jackson, Judge;</p>

Martineau, Chancellor; 1. The circuit judge is without authority to issue the certificate of commitment to the asylum, and the statute conferring that authority is void. Yianfleet on Collateral Attack, § § 16, 63, 67; 5 Ark. 485; 48 Id. 308; Const., art. 7, § 34, art. 19, § 19;. Kirby’s Dig., § § 1550, 1551, 2277, 4204-7; 58 Ark. 407; 23 Cyc. 1597,1609; Odronaux on Jud. Insanity, 36. The act of April 13, 1893, is unconstitutional. Art. 2, § 10; Const. U. S., art. 7.

T. Bulloch, Special Chancellor; STATEMENT BY THE COURT. H. H. 'Childress sued Lloyd Rainwater and about 'twenty-five other persons for contribution on' a debt which he alleges he and the defendants became liable for as partners. The defendants denied liability.

D. Robertson, Chancellor; 1. The deed to the daughter, Isabel, was in fact delivered, as shown by a clear preponderance of the evideuce. It was not >a technical delivery, but ¡an actual manual delivery. 2. The conduct of Mrs. Hicks ¡and Mrs. Phillips, together with the emphatic contradictions of them by other witnesses, interested and disinterested, render them unworthy of belief.

Craighead Circuit Court, Jonesboro District; W. J. Driver, Judge; STATEMENT BY THE COURT. The appellee as administrator of the estate of Sandy Maggard, deceased, instituted this suit against H. Alfrey to recover for the benefit of the widow and minor children of Maggard for the loss of contributions .and for pain and suffering endured by Maggard from the time be was injured until his death.

H. Evans, Judge; The court erred in refusing to have summoned all the talesmen whose names were selected from a box kept by the clerk for that purpose; in admitting the testimony of Tom Arnold and G. T. Hendricks, and in refusing the testimony of ■ Dr. Kelley, also in refusing instructions No. 8, 9, 10, 14, 15 and 16, asked by defendant. Defendant was entitled to twenty peremptory challenges. 105 Ark. 613. The jury was properly selected.

B. Priddy, (Special Judge; 'STATEMENT BY THE COURT. The appellant, á corporation, was engaged in the manufacture and sale of cider in Tennessee. The Ola Bottling & Manufacturing Company was a partnership composed of Boy Garrett, E. E. Garrett and Harlow Garrett. This firm was engaged in the business of manufacturing and selling cold drinks at Ola, Arkansas.

T. Wood, Chancellor; 1. The chancellor’s finding of fact was not supported by a preponderance of the evidence on the question of the amount of land purchased by appellees. Trials in chancery appeals are de novo in this court; the finding of the chancellor is only persuasive. 41 Ark. 292; 42 Id. 521; 43 Id. 307; 55 Id. 112; 75 Id. 72; 77 Id. 216; 92 Id. 359. 2.

D. Frierson, Chancellor; There is hut a single question in this case: Of two special school districts, in part embracing the same territory, .sought to… Held: if the vote is favorable, the validity of the district, and its existence, relate back to the time it was filed. 102 Ark. 411; 103 Id. 298. District No. 2 therefore has no legal existence. 1. Appellant secured no vested rights by the presentation of its petition and obtaining an order, etc. 102 Ark. 411; 103 Id. '298.

afternoon of the day before the fire were smoking in the lint room, was not competent; it was too remote. - The court erred in giving instruction No. 7 for defendant .and in refusing No. 3 for plaintiff. 28 So. 438; 56 N. E. 769 ; 24 S. W. 591; 104 111.

Cochrcm, Judge; The law applicable to special school districts for cities and towns, authorizing the change of boundaries, section 7695, Kirby’s Digest, does not apply to rural special school districts. The latter are provided for and governed by the act approved May 31, 1909, Acts 1909, p. 948, sections 2 and 3.

P. Henderson, Chancellor; 1. The plea of res adjudicate/, should have been sustained. The plaintiff was not only estopped, but this suit was barred by the judgment in the attachment suit, which though prematurely brought, was a trial and judgment on the merits of the cause as well as on the attachment ■branch. The whole matter was adjudicated and the former suit is a complete bar. 74 Ark. 625; 94 Id. 519; 100 Id. 69; 23 Cyc. 1074,1151; 102 Iowa, 112; 47 L. R. A. 709. 2.

M. Jackson, Judge; 1. If appellants signed the notes under a promise or .agreement on the part of the bank or its officers that it would not prosecute Keating for embezzlement ¡or other felony, ,such notes were without valid consideration, and void. The ¡court, therefore, erred in refusing to give instruction 2, requested by appellant. 9 Cyc. 505; Id. Ill; 67 Ark. 480; 46 Ark. 136; 35 Ark. 280 ; 80 Ark. 326; 98 Ark. 274-285; 1 Story on Contracts, § 569. 2.

G. Dinning, Special Judge; 1. Prior to tbe passage of the Act of 1907 the title was in the State in trust for the whole people. 152 IT. S. 1; 53 Ark. 320; 113 Id. 150. 2. While the Act. of 1907 was a special act, it has been expressly' and impliedly repealed by the later Acts of 1913 and 1915. 88 Ark. 327-8; 82 Id. 302; 97 U. S. 546. 3.

A. Falconer, Chancellor; 1. The right or power to enact the ordinance in question was never directly or by implication delegated to the city, /and the ordinance is therefore ultra vires, and void. Art 2, § § 12, 21 Const.; Id. Art. 12, § 4; 7 Cyc. 155 and note 57; 23 Am. Rep. 502; 48 S. W. 859; 16 S. W. 913; 1 Disn. (0.) 532; 89 Pa. St. 71, 40 Md. 312. 2. The ordinance is class legislation, discriminating in its nature and in restraint of legitimate trade .and ¡business.

A. Falconer■, Chancellor; 1. Plaintiff was not barred by limitation. English’s Digest, 'Ch. 99, § § 4,13. She was a minor until she married; the disability of infancy was extended by that of coverture, lb., § 30; Act April '28,1873. She is not barred by laches. 51 Ark. 294; 102 U. S. 300; 65 S. W. 579; 17 S. W. 372; 10 A. & E. Enc. Law -654.

W. Smith, Judge; Under onr Constitution and laws, a testator has no power by will to fix the compensation of an executor, and thus divest the probate court of its .statutory power to allow commissions. The authorities are conflicting. 124 ■ Ual. 45; N. Y. fl. 523; 38 App. Div. 473; 183 Pa. 296; 1 Ashm. 317; 1 Walker 77; 150 Pa. 301; 69 Ky. 648 (6 Bush); 9 Id. 421; 140 S. W. 1056; 76 Id. 15.

Perry ’Chancery Court; John E. Martinecm, 'Chancellor on Exchange; Harris shows no title ¡at the time of the ¡tax sale. There is neither allegation nor proof that he or .any one under whom he claims had title to the property, at the time of the sale for taxes to Earl. Kirby’s Dig., § 7105. Earl’s ¡tax title is good. The recitals of ¡the tax deed are prima facie true. Kirby’s Dig., § 7104; 59 Ark. 195. Its recitals have not been overcome by the evidence.

Under the law as declared by the Supreme Court, and under the facts in this second trial, the court should have directed a verdict for the plaintiff. 112 Ark. 207. This court said that the case should be submitted to a ¿jury on the one question as to the “porte cochere.” “Extra work” refers to additional work, and not to work -contemplated in the contract.

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