Volume 123 — Arkansas Reports

B. Satterfield, Special Judge; • 1. Appellants are not liable for any damages resulting from the filling up of the alleged ditch. No land owner has any property rights such as will warrant him in insisting upon the maintenance of an artificial water course for surface water. 39 S. E. 752; 80 N. E. 420; 9 Oh. Dec. 120; 29 Wis. 515; 197 Mass. 568; 14 A. & E. Ann. Cas. 907; 93 Ark. 47. 2.

■ Appeal from Jackson Circuit Court; Dene II. Coleman, Judge; STATEMENT BY THE COURT. This appeal is prosecuted from a judgment of the circuit court, confirming the probate court’s judgment of disallowance of the claim against the estate of Laura J. Dills, deceased, for a balance claimed to be due as attorney’s fees. Appellants were employed by deceased to collect her claim against the United States for property taken during the Civil War.

H. Humphreys, 'Chancellor; 1. Where a landlord leases land and afterwards conveys it in fee without reservation of the growing crops, his interest in the crops passes to the purchaser. *10 Ark. 9; 14 Id. 286; 16 Id. 511, 520; 92 Id. 315; 50 Am. Dec. 233; 18 A. & E. 280, note 2. Where the deed contains no reservation of the growing crops it can not be established by parol evidence. 10 Ark. 9; 20 Mo. 457; 64 Am. Dec. 196; 56 Me. 126; 96 Am. Dec. 438; 89 Minn. 380; 99 Am.

F. Gautney, Judge; 1. The court erred in holding that the receipt had any binding force or effect as to the rights of appellant as against Polk or the bank. If the receipt is not a fraud then it is a mistake and evidence is always admissible to show that a receipt is a fraud or mistake. 93 Ark. 383. It did not at least bind the appellants. 2.

L. Davis, Judge; 1. The demurrer to the indictment should have been sustained. (1) The indictment indefinitely charges two offenses. Kirby’s Digest, § § 1689, 2231; 96 Ark. 237; 50 Id. 427; 26 Id. 323; 94 Id. 226; (2) it charges no value. Kirby’s Dig., § 1689; 94 Ark. 242; 38 Id. 555; (3) it is vague indefinite and uncertain. Kirby’s Dig., § § 2227-2243. 2. The court should have required the State to elect. Kirby’s Dig., § 2230; 36 Ark. 55; 32 Id. 203; 48 Id. 94. 3.

Francis Chancery Court; Edward D. Robertson, 'Chancellor; STATEMENT BY THE COURT. The plaintiffs, John Duncan, a minor whose disabilities had been removed by an order of court, and James Duncan, a minor by his next friend, brought suit for the possession of certain lands in .St. Francis County, conveyed to them and their mother by their father Elijah Duncan, in August, 1902.

Davis, Judge; 1. The circuit court was without jurisdiction, for the justice of the peace had none. The claim of plaintiff was largely in excess of $300. 57 Ark. 531; 43 Id. 101; 57 Id. 257; 52 Id. Í03; 108 Id. 541; 33 Id. 31; 24 Id. 177; 35 Id. 287; 43 Id. 230. A plaintiff can not separate the items of his claim and sue on one or more items less than the whole so as to confer jurisdiction. 24 Ark. 177; 35 Id. 287. Jurisdiction may be proven by testimony. 43 Ark. 230. 2.

R. Haynie, Judge; 1. The Texas court was a superior court and had complete jurisdiction. 1 Black on Judgments (Ed. 1891), § 286, p, 358; 52 Tex. 603; 70 Id. 115; 80 S. W. 872; 149 Id. 1073.- The judgment is entitled to full faith and credit and can not be attacked collaterally. Supra; 2 Black on Judg., § 937, p. 1118; 1 Id., § 287, 859, 861, 890. - 2. Judgments of a sister State are conclusive. 48 Ark. 50. 3.

Eaynie, Judge; 1. The only question in this case is the sufficiency of the evidence to sustain the verdict. Our contention is that it is not for several reasons. (1) The jury erred in the amount of their verdict. Jones could only recover his interest in the cotton. There is no dispute as to the value of the cotton; it brought $452.97 at seven cents. It was certainly error to allow appellee more than he claimed which was $216.81.

B. Eaynie, Judge; 1. It was error to direct a verdict. Railroads are' responsible for damages caused by their negligence in running trains. Art. 17, § 12, Const.; Kirby’s Digest, § 6773; 48 Ark. 467. Defendant was operating a railroad. Kirby’s Dig., § 6596; Acts 1907, p. 336; 124 S. -W. 903. 2. The release was no defense. 94 Ark. 27-37.

E. Martineau, Chancellor; The decree does not do justice to the parties inasmuch as it denies to appellant its right to exoneration from the widow’s dower out of the lands retained by Mary Z. Patrick when she conveyed to John R. Harshaw.

B. Baker, Judge; STATEMENT BY THE COURT. At the December term, 1912, of the probate court for the Southern District of Sharp County, appellee, as administratrix of the estate of James Norris, deceased, filed for annual settlement her account current number 1, and same was continued until the next term. ' At the December term, 1913, of the probate 'Court, appellants, heirs of James Norris, deceased, filed exceptions tó the account and the cause was continued to the next term,…

M. Jackson, Judge; 1. Plaintiffs are not entitled to maintain this suit. The title was in the consignee. ' 115 Ark. 221. The case of Gibson v. Inman Packet Co., Ill Ark. 521 does not apply in this case. 2. Plaintiffs show no title to the property before shipment. 1. The undisputed evidence shows that the title remained in the plaintiffs until the seed were delivered in good condition. The case dn 115 Ark. 221 does not apply to this case.

R. Eaynie, Judge; The statute does not prohibit the sale of wild ducks. Kirby’s Digest § 3618. General words following specific terms ejusdem generis should be limited by reference to the specific words, and should be construed only with all other articles, things, etc., of like nature and quality, etc. 61 Ark. 502 ; 54 Ark. 611; 102 Id. 218; 101 Id. 596. The word “game” does not refer to “fowls.” The statute makes no exception of fowls.

Humphries, Chancellor; 1. This was a trust fund and the claim of the county was entitled to a preference. Plaintiff having settled with the county was subrogated to its rights as a preferred creditor. 41 Ark. Law Rep. 351; 97 Ark. 374; 116 Id. 410, 472; 114 Id. 344 ; 55 Pac. 858; 59 Id. 929; 80 Miss. 755; 8 A. & M. E. Ann. Cas. 114; Kirby’s Digest, § § 1990, 1, 2, 3. The funds were deposited for “¡safe keeping” and-was a special deposit or trust fund. Cases supra. 16.

Humphries, Chancellor; 1. The demurrer to the complaint should have been sustained. This suit was based upon Kirby’s Digest, § 1990. There was no liability to the county and hence no subrogation. 82 Ark. 407. 2. No demand was made for payment. 97 Ark. 374; 59 Id. 356. 3. Kirby’s Digest, ■§ 1990 was repealed by Act No. 116, Acts 1913. The whole subject was taken up and the entire ground of the subject matter covered. 105 Ark. 79; 88 Id. 324.' 1.

Pulaski Chancery Court; Jno E. Martineau, Chancellor; STATEMENT BY THE COURT. This appeal comes from a judgment of the chancery court, enjoining appellants, assignees of a certain judgment of the American Insurance Company against McG-ehee Liquor Company, and their attorneys from the collection thereof’ from A. B. Poe, one of the parties against whom the judgment was rendered.

J. Driver, Judge; STATEMENT BY THE COURT. Appellee, the constable of Grleghorn Township, Clay County, levied an execution, issued upon the 22nd day of October, 1914, upon a judgment in the justice court obtained by J. P. Pugsly against Charles Harper, upon a cow, the property of Harper, which he took into possession and advertised for sale on the 7th day of November, 1914.

Appellee brought suit to recover the value of timber taken from certain lands in Dallas County. The lumber company purchased the timber on the lands in question in 1908 from appellants- and the same was conveyed to them by a warranty deed granting twenty years in which to remove the timber. On July 11, 1913, appellant Koonce conveyed his one-half undivided interest in the lands to appellant, McKee, by deed without reserving or excepting the timber therefrom.

Martineau, Chancellor; 1. It was error to refuse to enter a decree for plaintiff for possession of the land. Time was an essential of the contract and payments at the times specified were conditions precedent. Hence a forfeiture 'should have been declared. 78 Ark. 574-578; 48 Id. 413; 87 Id. 593; 76 Id. 578; 4 Id. 413; 50 Am. Dec. 669-677. 2. The court erred in its findings of facts. The burden of showing payments was on the appellee.

F. Gautney, Judge; 1. The proof was not sufficient to show négligence on part of defendant. 2. Defendant’s negligence was not the proximate cause. 66 Ark. 68; 87 Id. 576; 51 L. R. A. (N. ,S.) 892; 95 U. S. 439; 40 Ark. 322; 45 S. E. 886; 62 Ark. 170; 76 Id. 13. 3. It was error to give instruction No. 3. It entirely ignores the question of deceased’s negligence. Also in giving No. 5. It is abstract. Ill Ark. 135.

J. Driver, Judge; STATEMENT BY THE COURT. At a regular term of the circuit court of Mississippi County, the prosecuting attorney petitioned the court for an order impaneling a special grand jury to inquire into the killing of one Johnny Bryeans which occurred after the regular grand jury had adjourned.

J. Driver, Judge; 1. There is a fatal variance between the indictment and proof. Wood and Woods are not idem sonans. 5 Ark. 72; 21 Am. & Eng. Enc. Law, 313; 21 Tex. App. 320; Defendant was entitled to have the indictment drawn definite enough to notify him of the crime. 7 Ark. 70; lb. 394; 24 Id. 574; 68 Id. 244. ,1. The variance was not fatal. The names are idem sonans. The proper party was convicted.

H. Evans, Judge; 1. The defect in the floor was open and obvious. A servant assumes the ordinary risks and hazards incident to the service, including all risks known to him and those which are open and obvious. 82 Ark. 16; 90 Id. 387; 68 Id. 316; 57 Id. 505; 172 S. W. 822; 61 Id. 53; 103 Ark. 103; 87 N. E. 571; 120 Am. St. 562; 107 Ark. 528; 53 N. E. 137; 65 Id. 810; 105 Ark. 434-174 S. W. 150; 108 Ark. 377; 93 Id. 208; 100 Id. 465; 95 Id. 560; 57 Id. 76. 2.

C. Trimble, Judge; 1. The sale of the timber by Morgan’s agent was valid. 92 Ark. 213; 90 Id. 301; 83 Id. 202. 2. Defendant was in actual possession of the land when plaintiff purchased and this was notice of his rights; she was not an innocent purchaser. 76 Ark. 27; 82 Id. 455; 101 Id. 163-9; 95 Id. 512-19. It was error to direct a verdict, -as the evidence was sufficient to raise an issue for the jury. 3.

J. Driver, Judge; 1. Administrators are not allowed to sell personal property and take as surety the mere retention of the title to the property. Kirby’s Digest, § 85; 12 Ark. 378. 2. John Keith should have been made a party. He was the original purchaser. 1. The retention of title by the adminsitrator was not wholly void. Credit sales are allow'ed. Kirby’s •Digest, § 85. The retention of title was good and sufficient security. 23 Ala. 377, 389. 2.

E. Humphrey s, Chancellor; STATEMENT BY THE COURT. W. F. Boyd died on the 2d day of April, 1912, leaving surviving him his widow, g. J. Boyd, and his son, C. A. Boyd, and his grandson, Haco Boyd a youth about ten years of age. This suit was instituted by S. Gr. Daniel, as administrator of the estate of W. F. Boyd, and by Haco Boyd, through Ms mother as next friend.

G. Trimble, Judge; statement by the court. Appellant brought this suit against the appellee to recover the possession of certain livestock, machinery, etc.,- described in the complaint, alleging that it was the owner of the same, and that the’ appellee wrongfully detained it under a false claim of ownership, with all the necessary allegations for a complaint in replevin. The value of the property was alleged to be $1,652.25.

Appeal1 from -Cross Circuit Court; W. J. Driver, Judge; 1. .The property reverted to plaintiff under the provisions of her dedication deed when the alley ceased to he used by the public. 24 Ark. 105; 91 Ark. 407; 99 Id. 404; 35 Id. 70; 34 Id. 534; 103 Id. 425; 28 Id. 282; 98 Id.. 570; 13 Cyc. 611. 1. Where it affirmatively appears that certain evidence was used at the trial is not in the record, it is conclusively presumed that it warranted the judgment.

Martineau, Chancellor; STATEMENT BY THE COURT. Appellee brought suit in ejectment against appellants, the widow and children of Gabe Williams, deceased, alleging that she was the owner of the lands described, which had been conveyed to'her by a warranty deed executed by Gabe Williams and Lincy Ann Williams on the 14th day of March, 1908.

In this case appellee, as administratrix of the estate of D. J. Young, sued appellant for the ¡sum of $1,000 for rent of a certain building in the city of Ft. Smith under a lease executed by the said Young to appellant on November 15, 1910.

H. Humphreys, Chancellor; 1. The court erred in finding that Ann Swift was incompetent and not capable of knowing the nature of the transaction at the time she signed the deed. The court should have dismissed the bill because Ann had reasonable capacity; she received a valuable consideration and there was no allegation nor proof of fraud, and she had never been adjudicated non compos. All the testimony tends to show sufficient capacity.

Martineau, Chancellor; 1. There was never a dedication of the alley to the public; but there was a reservation that the alleys might be closed. Dillon on Mun. Corp., § § 631-6; 9 How. 10; 77 Ark. 570; 91 Id. 350; 84 Id. 520; 111 Ark. 548; 112 Id. 202. There was nothing more than a mere license to pass. 59 Ark. 35. The alley had been fenced for twenty-five years. The dedication must be to the public. 69 Md. 346.

Kirby’s Digest, § 5133 has no application to sales made out of the State. If it did the act is void. Soliciting orders for a dealer out of the State is not a violation of the statute. 24 L. R. A. 270; 78 S. W. 951; 82 Ark. 405; 99 Id. 563. 1. The liquor laws are cumulative. Defendant was tried under section 5133, Kirby’s Digest and Acts 1907, Act 135 which changes the common law rule as to agency. The solicitation of orders for liquor makes out an offense. 114 Ark. 149.

D. Shaver, Chancellor; STATEMENT BY THE COURT. L. R. Martels instituted this action in the chancery court against Jeff McKinnon to foreclose a vendor’s lien, on a quarter section of land in Polk County, Arkansas. Caesar Wyss filed .an intervention claiming the land under a tax deed executed to one R. P. Harris. Harris deeded the land to Wyss. The land was sold at a tax sale on the second Monday in June 1911: that beinar the 13th day >of the month.

- Appeal from Madison Chancery Court; T. H. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellant instituted this action in the chancery court against appellees and set up two causes of action. 1. Appellant- seeks to set aside a decree of foreclosure of a vendor’s lien on real estate made in the Madison chancery court several years ago in a suit wherein the Madison 'County Bank was plaintiff and Percie and Geo. Thos. Oliver were defendants on the -grounds that it is void.

Worthington, Judge; STATEMENT by the court. This appeal is from a judgment in favor of appellee for the penalty under the law, requiring telephone companies to supply applicants for telephone connection and facilities without discrimination or partiality. It .appears that E. Gr. Fendley, appellee, a physician, was a subscriber for telephone service in his residence at Leslie and had paid his rent in advance for the last quarter to the first of January, 1914.

M. Jaclcson, Judge; STATEMENT BY THE COUBT. Appellants, children of P. T. Baugh, brought this suit to recover possession of 2 2-20 acres of ground in the village of Turner, alleged to have been the homestead of the deceased, their father, and occupied by them as such at the time of his death.

J. Driver, Judge; ‘The act is void. 92 Ark. 93, 621; 118 Ark. 119; 115 Id. 88; 115 Id'. 594; 116 Id. 167. Other questions are argued but as they are not decided by the court they are not abstracted. I. The act is not unconstitutional and void. Acts containing the same provisions have been' upheld. 91 Ark. 30; 91 Ark. 79. 2. The provisions of the act were fully complied with. The discretion of the court below will not be disturbed -on appeal. 102 Ark. 553.

S. Maples, Judge; STATEMENT BY THE COURT. R. D. Massey, a gentleman of considerable wealth, residing in the city of Bentonville, entered into a contract with a number of the citizens of that city by which lie agreed to erect a hotel building upon plans of modern and up-to-date architecture, the general description of which was set out in the agreement; and the citizens agreed that, in consideration of the building of such hotel, they would donate to him the lands upon which…

J. Driver, Judge; 1. Under section 859 of Kirby’s Digest, Mueller became liable for this indebtedness. This is a primary liability and the liability is to all creditors of the corporation. 90 Ark. 51; 68 Id. 433; 78 Id. 517. A surety is a creditor and the relation of debtor and creditor arises at the time of 'becoming surety. 96 Ark. 268; 98 Id. 200; 103 Id. 473; 24 Id. 511; 34 Id. 524; 40 Id. 547. 2. The statute does not run until there is some one to sue.

W. Hendricks, Judge; STATEMENT BY THE COURT. W. C. Nothern brought this suit in the justice court to recover for a shortage in weight of five tons, in a shipment of cotton seed meal purchased from appellants, and recovered in that court, and an appeal was taken to the circuit court.

<p>Appeal from Clay Circuit Court, Eastern District; J. F. Oautney, Judge;</p> <p>Tbe court erred in excludilig the testimony of Squire H. T. Hill. 88 Ark. 115; 53 Id. 395; 54 Id. 604; 2 Bishop New Crim. Law, § § 931, 1044; 21 Am. Bep. 365.</p>

A. Falconer, Chancellor; • 1. No change of circumstances was shown and the matter is res adju-dicata. 55 Ark. 286; 66 Id. 336; 96 Id. 540; 19 Id. 420; 55 Id. 536; 70 Id. 200. 2. The evidence does not support the decree. 53 S. W. 717. There was no abuse of judicial discretion. The former decree makes no provision for the support of the child and the decree is amply supported by the testimony. 140 S. W. (Tenn.) 745; 111 Id. (Mo.) 579; 42 Ark. 495; 86 Id. 473.

E. Jeffery, Judge; Appellant, Hill, was released when the new bond was given. The judgment is erroneous; clearly against all the evidence.

J. Driver, Judge; The circuit court erred in its findings of fact and in rendering judgment, because the evidence does not support them. Ayers made the surveys and estimates according to the Act of 1909, p. 829, § 1, etc. He did no unnecessary work and his charges ate not excessive. 40 Cyc. 2853; 33 Ark. 651-4; 35 Am. Dee. 141; 22 Tex. 70; 9 Dana (Ky.) 358. The judgment should be reversed and a judgment rendered here for Ayers. 2 McClorin, (La.) 61. 1.

II. Humphreys, Chancellor; The evidence shows that plaintiff was an existing creditor of the husband at the time of the voluntary transfer to his wife. The transfer was fraudulent and void as to creditors. 80 Va. 423 ;'20 Ala. 732; 29 Pac. 151; 87' HI. 393; 64 Ala. 403; 119 Ga. 793; 47 S. E. 332; 64 W. Va. 522; 16 Ann.

<p>1. Bills and notes — fictitious payee. — A fictitious payee means a fictitious person, who, though named as payee in the note, has no right to it, or the proceeds of it, because it was not so intended when the note was executed.</p> <p>2. Bills and notes — fictitious payee — intent.—Whether a note is to be considered as having a fictitious payee, depends upon, the knowledge or intention of the party against whom it is attempted to assert the rule, and not upon the actual existence or nonexistence of a payee of the same name as that inserted in the instrument.</p> <p>3. Bills and notes — fictitious payee — validity.—A note is invalid when payable to a fictitious payee.</p> <p>4. Bills and notes — note payable to payee undeb assumed name.— Plaintiff, whose name was actually Storeh, loaned money to defendant, taking a note therefor payable to Krause, a name which plaintiff had, for the time 'being, assumed. Held, it was the intention of the plaintiff, when he took the note, that the same be payable to himself, and he alone had the right to collect it, and that the same was valid.</p>

<p>Appeal from Conway Circuit Court; M. L. Davis, Judge;</p> <p>1. The demurrer should have been overruled. Acts 1911, No. 163, pi 421, § 6; Kirby’s Dig., § § 7197, 7199, 7200-1; 102 Ark. 287.</p> <p>2. The court had jurisdiction. 32 Ark. 553; 50 Id. 266; 34 N. W. 186; 46 N. E. 77; 3 Ark. 285; 5 Id. 536; 13 Id. 52; 25 Id. 101; 32 Id. 140; 75 Id. 125; 82 Id. 316; 63 Id. 576; 111 Id. 120.</p> <p>1. No cause of action was stated. Kirby’s Digest, § 7197.</p> <p>2. The act is unconstitutional. Kirby’s Digest, § 7197, et seq.; 95 Ark. 618. The section is summary and highly penal. It takes away the right of trial by jury. 93 Ark. 42; 56 Id. 45; 87 Id. 405; 40 Id. 97; 59 Id. 344; 71 Id. 556; .08 Id. 443.</p>

Improper evidence was admitted to appellant’s prejudice. 58 Ark. 55; 69 Id. 558; 82 Id. 58; 99 Id. 604; 101 Id. 147; 112 Id. 589, 592-3. 2. Evidence was improperly excluded. 52 Ark. 309; 82 Id. 58. T. The testimony was admissible to how motive. Clarke, Cr. Law, 50; 25 Ark. 380; 97 Mass. 565. Also as' res gestae. 43 Ark. 99, 103; 1 Wharton on Ev. (3 ed.), § § 259, 262; 64 Ark. 121; 120 Ark. 160; 171 S. W. 867. If error was committed it was not prejudicial. 120 Ark. 236. 2.

B. Baker-, Judge; STATEMENT BY THE COURT. Appellee instituted this suit against appellant for the possession of certain personal property. The affidavit was made on behalf of the appellee by his agent, Lee Brooks. It described the property, stated the value thereof, with the other allegations necessary for an affidavit in replevin.

Appellee petitioned the probate court to allot her dower in the personal property of the estate of her deceased husband, Sam Younger. The appellants challenged the jurisdiction of the court.

L. Davis, Judge; The verdict is contrary to the law and evidence. The court erred in permitting plaintiff to recount his experiences in farming and in permitting the booklet to be read as evidence. Also in permitting witnesses to testify that the lands were not suitable for general farming purposes and in giving mid refusing instructions. There were no such representations.

The evidence shows an absolute compliance with Act 398, Acts 1907, p. 995. The samples showed a commercial value in excess of the requirements of law except one and that one only one-eighth per cent, which under the act would not allow for a reduction. Hence a verdict should have been directed for appellant. 2. The court erred in refusing plaintiffs instruction No. 1, in modifying No. 1 asked by defendant and in giving an oral instruction upon its own motion.

Shaver, Chancellor; 1. The Bulk Sale law is unconstitutional. Acts 1913, 326. It conflicts with article 2, section 2 and article 2, section 18, Declaration of Rights; 211 U. S. 295; 235 111. 40; 125 Am. St. 184,189; 236 111. 157. 2. Defendant, Stuart complied with the law, if constitutional. Am. Ann. Cas. 1915, C, p. 4.15; 140 Gra. 10; 78 S. E. 609; 45 L. R. A. (N. S.) 492; 70 Ore. 182; 138 Pac. 847. Stuart knew nothing of the bank’s debt.

Appellants brought suit in the justice court against appellees to collect certain amounts alleged to be due upon their contract of subscription made for the benefit of the Eetail Merchants Association of Hartford.

M. Jackson, Judge; 1. . The appeal of Ray and Howel affected their lands and the district remained in full force as to all property owners who did not 'appeal. Acts 1915, Act 338, § 3, etc. 24 N. E. 131, 175; 2 Words & Phrases, 536’. 2. The finding of the county court as to acreage and benefits was final and conclusive, and it appears there was a sufficient number of signers and the district was for the best interest of the county and district.

Appellee brought this suit to cancel a deed of trust of certain property made to appellant and J. D. Hunt, as trustees, for the division thereof between himself and wife.

Worthington, Judge; STATEMENT BY THE COURT. Appellant, administrator of the estate of Louis Bolen, deceased, brought suit on the bond required to be given by retail liquor dealers, to recover damag’es for his widow and children resulting from his death- alleged to have been caused by reason of liquor sold at the house or place of business of appellees.

Cowling, Judge; STATEMENT BY THE COURT. Appellant filed á petition in the probate court, alleging that she was the owner of a judgment of allowance in favor of G. W. Morris, her husband, now deceased, against the estate of L. F. Tapscott, deceased, asking that the appellee administratrix be ordered to sell certain lands, describing them, which was the homestead of said L. F. Tapscott, who was survived by his widow and certain minor children, now of age, for the payment of…

Shaver, Chancellor; 1. It was necessary in order to form this special district, that a majority of all the electors residing in the territory vote for -its establishment. 103 Ark: 304; 102 Id. 411. 2. In forming the district it left -less than thirty-five children -of school age in district 25. Kirby’s Digest, § 7543. 1. A majority of those voting at the election is sufficient. Acts 1909, 947; 106 Ark. 306; 103 Id. 304; 102 Id. 411, 416. 2.

Acts 1913, p. 204; 96 Id. 175; 42 Id. 88; 103 Id. 44; 104 Id. 379; Kirby’s Digest, § 4670; 110 Ark. 2S4; 161 S. W. 201. 1. The clause in the Act of 1913, providing for the time to file transcripts on appeal is void. The object and purpose of a bill must be stated in its title. 11 N. E. 180; 68 Pac. 295. The act was void also because a general law was applicable. Const., Art. 5, § 24; 48 Ark. 370; 61 Id. ?1; 61 Id. 26; etc. Kirby’s Dig., § 4670 is still in force. 2.

Cowling, Judge; 1. A railway company is entitled to.the expense of structural changes when a city condemns a right-of-way across the company’s property. 75 Ark. 530 and 75 Id. 534, are not authority to sustain the ruling of the court below. 139 Mich. 347; 102 N. W. 947; 51 N. J. L. 428; 17 Atl. 971; 43 Id. 730; 69 Pac. 1050; 59 Atl. 1032; 63 N. E. 96; 102 N. W. 947; etc. The railway company was not entitled to the expense of structural changes when a city condemns a…

E. Lines, Special Chancellor; 1. The act attempting to validate the district is unconstitutional and void. Art. 19, § 27, Constitution; 58 Ark. 117, 121; 26 Md..l95; 79 Ind. 274; 74 Mo. 457. 2. It levies an assessment without the consent of a majority of the property holders within the district. It also attempts to divest vested rights. Cooley, Const. Lim. 238; 54 Tex. 153'; 31 Am. Bep. 218; 10 Barb. 223. 1. The act is not unconstitutional nor void.

B. Sorrells, Special Judge; STATEMENT -BY THE COURT. > This is an appeal from the judgment of the circuit court refusing to review and quash the order and judgment of the -county court of Lincoln County, establishing a public road, for want of jurisdiction in the court, it being claimed that no notice of the proceeding for the laying out of the road and the assessment of damages was given as required by law.

J. Driver, Judge; ■ STATEMENT BY THE COURT. Appellants bring tbis proceeding to review the action of the circuit court in adjudging them guilty of contempt and assessing their punishment at a fine and imprisonment in the county jail.

M. El- liott, Chancellor; 1. The conveyances were fraudulent and void as to creditors. 73 Ark. 174; 46 Id. 542; 45 Id. 520; 8 Id. 261; 14 Id. 69; 106 Id. 230; Kirby’s Dig., § § 365-8; 59 Id. 614; 110 Id. 350 ; 96 Id. 531; 55 Id. 59-64. 2. Devore was not an innocent purchaser; he had constructive notice of the .sheriff’s deed to Hattie Carpenter. Kirby’s Dig., §762; 14 Ark. 294; 16 Id. 543; 28 Id. 825. 3.

Trimble, Judge; 1. Appellee is bound by the decree and subsequent proceedings in the foreclosure suit of Hoyt, trustee, against Reinsch et al. He was a party defendant, and Dahne, his tenant, was likewise a party defendant. So far as Reinsch is concerned, the proceedings in the chancery are “res adjudicaba.” 2.

H. Humphreys, Chancellor; 1. There was no mistake in the deed from Hurst to Estes and there could be no reformation of deeds. 105 Ark. 455; 104 Id. 475; 71 Id. 185;'84 Id. 349; 75 Id. 72. The deeds are the best evidence of the intentions of the parties. 75 Ark. 72; 71 Id. 614.

8. Maples, Judge; 1. The intervener did not comply with the statute. Kirby’s Digest, § 391; 58 Ark. 446. 2. The money in the hands of the bank was J. T. Powell’s, and subject to garnishment. The relation between Routh and Powell was that of debtor and creditor, and the court erred in finding for the intervener. 70 Ark. 444:15 Enc. PI. & Pr. 733:101 Ark. 455:103 Id. 279; 104 Id. 37; 39 Cyc. 49; 57 Ark. 635; 89 Ark. 185; 63 Ark. 246. 1.

M. Jackson, Judge; 1. There was a delivery of the cotton to the company. 79 Ark. 100; 60 Ark. 333; 79 Id. 353; 89 Id. 178; 87 Am. Dec. 301; 104 S. W. 377. The shipper had done everything within his power to deliver the freight. 87 Am. Dec. 301; 104 S. W. 377. The liability attaches when the shipment is delivered for immediate transportation. 104 S. W. 377.

This appeal comes from a judgment denying a motion to vacate a judgment of the circuit court against the Knights of Honor of the World Lodge, alleged to be void as having been rendered without notice, and to dismiss a writ of garnishment issued thereon.

The summons should have been quashed. Kirby's Digest, § § 4377, 6067, 4348, etc., 4350; 104 Árk. 417; 74 Id. 1. 2. The court erred in refusing to permit appellant to amend the answer. Kirby’s Digest, § § 6145, 6149; 64 Ark. 253. 3. The policy was void for fraud. 103 Ark. 201; 74 Id. 1; 72 Id. 620; 25 Cyc. 798 to 801. Having made false answers to questions relative to his health, no recovery could be had. 103 Ark. 201; 74 Id. 1; 72 Id. 620; 25 Cyc. 798 to 801. 4.

Coleman, Judge; STATEMENT BY THE COURT. Tbe probate court of Lawrence County, on the 3d day of its April term, 1912, directed the appellant, Beakley, who was curator «of the estate of the minor heirs of Eugene Pickett, deceased, to purchase certain real estate at a certain price with the funds of the estate, and to take credit in his settlement for the amount paid out under the order.

Francis Circuit Court; J. M. Jackson, Judge; STATEMENT BY THE COURT. This is an appeal by an 'administrator from an order denying his application to sell the land of his intestate. The material facts are as follows: . John New at the time of his death, owned and occupied as his homestead, one hundred acres of land in St. Franeisi County, Arkansas. He was survived by his widow and a minor son, who was his sole heir at law.

M. Jackson, Judge; 1. When the appellee filed its claim in bankruptcy and accepted dividends as such it waived any lien it had upon the stock pledged to the bank. 9 Fed. 371; 5 Id. 55; 217 Id. 20; U. S. Law Ed., volume '26, p. 1042; 69 Ark. 271. Appellee made its election of remedies and is bound thereby. IT.

W, Hendricks, Judge, STATEMENT BY THE COURT. The appellee instituted this -suit -against appellant, -and -alleged in his complaint that appellant -was running for Governor of the State of Arkansas, and about eighteen day-s before the primary election in 1912 requested the appellee to manage his campaign; that appellant stated that he had plenty of money and desired appellee to come into his headquarters and handle the financial end of the campaign, and specifically told…

Under the Federal Employer’s Liability Act, as construed by the courts, under the evidence there is no liability: (1) Because no negligence was proven. (2) Because appellee assumed the risk. The ear was a bad order oar. 233 U. S. 492, 501-3; 92 Atl. 1060; 144 Pac. 762; 118 Ark. 304; 177 S. W. 875; 95 Ark. 562; 167 S. W. 128; 125 Id. 1056; 58 Tex. 434; 135 Mass. 418; 61 111. 131; 59 Kans. 72; 144 Pae. 763; 76 Ark. 69; 7 N. W. 337; 179 II.

The appellant was prevented from attending the trial by unavoidable casualty. It was the' duty of the court to set aside the verdict.and grant a new trial and its refusal was an abuse of discretion. 89 Ark. 359;. 107 Id. 415. A good defense was shown. No meritorious defense to the suit was shown and no unavoidable casualty was shown. All the evidence was not in the record. No abuse of discretion is shown. 54 Ark. 159; 55 Id. 126; 72 Id. 185.

It was error to set aside a judgment rendered at a, former term without a showing or an adjudication that a valid defense existed to the action. 102 Ark. 252; 94 Id. 347; 104 Id. 449. 2. The answer tendered states no defense to the action. 92 Ark. 535; 105 Id. 309; 84 Id. 462; 89 Id. 412; 91 Id. 212.

<p>1. Criminal law — felony cases — appeal by state. — Appeals by the S'tat.e in felony cases are not allowed except in cases where it is important to have the court correct errors which prevent the “uniform administration of the criminal law.” Appeals are not allowed merely to demonstrate the fact that the trial court has erred.</p> <p>2. Criminal law — appeal by state. — The State can not ask for a decision of the .Supreme Court on a question which is purely abstract-in its nature, and, the statute granting the State the right of appeal in certain cases does not contemplate an appeal in a ease in which the only error alleged is that the court incorrectly decided ■ that the evidence was not sufficient to warrant a submission of the issue to the jury.</p>

Martinecm, Chancellor; 1. A mistake in the description of property mortgaged can be corrected. 51 Ark. 394-5; 48 Mo. 367; etc. The description should have been reformed. The appellees had notice sufficient to put them on inquiry, tinder the facts appellant had a .mortgage on the right land, the land intended. 60 Ark. 304; 77 Id. 41; 50 Id. 179; 79 Id. 592; 83 Id. 131; 87 Id. 371; 89 Id. 259; 61 Id. 123; 92 Id. 63; 98 Id. 10. 2.

B. Baker, Judge; 1. The original judgment was against the Presbyterian Church, the corrected judgment was against Lough-ridge et al. deacons and the Presbyterian Church. These words are merely descriptio personae, and surplusage and the judgment was personal. 8 N. T. 472; 17 Abb. Pr. 59; 140 Barb. 374; 11 How. Pr. 11; 22 Id. 372; 16 Ha. 192. 2.

<p>Appeal from Izard. Circuit Court; Z. M. Horton, Special Judge;</p> <p>1. The court erred in refusing a trial by jury. Const. Art. 2, § 7, 4 Ark. 158; 8 Id. 436; 56 Id. 391; 75 Id. 443; 109 Id. 536; Const. Art. 7, § 33; Kirby’s Digest, § 1492; 32 Ark. 552; 73 Id. 462; 26 Fed. Cases, 1024, 1030.</p> <p>2. The trial court erred in its findings of fact, for the orders.and judgments of the county court were conclusive and unimpeachable in this proceeding. 96 Ark. 433; 60 Id. 155; 27 Id. 202; 10 Id. 241; 92 Id. 299; 87 Id. 438; 93 Id. 237.</p> <p>3. There was no appropriation for waterworks. Kirby’s Digest, § 1502; 54 Ark. 645; 61 Id. 74; 103 Id. 468.</p> <p>4. The script issued to the county judge by him-* self was invalid.</p> <p>1. No trial by jury was contemplated in these statutory proceedings to call in warrants for reissue. Kirby’s Digest, § 1175, 1179; 52 Ark. 502; 43 Id. 553; 26 Id. 281; 32 Id. 17; 52 Id. 330; 105 Id. 594; 38 Id. 485.</p> <p>2. The warrant was never issued to Wright & Co. The allowance was cancelled. The allowance to Hill was final, no fraud being shown.</p> <p>3. No appropriation was necessary for the waterworks. 93 Ark. 11; Kirby’s Digest, § 1020; 38 Ark. 557; 72 Id. 331.</p> <p>4. The warrants issued to the county judge were not void. They were issued to pay for necessary expenses in building the court house. The court had jurisdiction to allow these expenses. • 47 Ark. 80; 44 Id. 225; 26 Id. 461; 30 Id. 578. Mere irregularities must be corrected by appeal. 73 Ark. 523; 93 Id. 11; 102 Id. 277; 96 Id. 427. The judgment can not be attacked collaterally. 22 Ark. 595; 37 Id. 532; 39 Id. 485; 118 Ark. 524.</p>

• Appeal from. Pulasld Circuit Court, Third Division; G. W. Hendricks, Judge; 1. The court erred in directing a verdict and the verdict is contrary to the law and the evidence. Thornton was only an accommodation surety and parol evidence was admissible to show this. 76 Ark. 140; 98 Id. 200; 92 Id. 204; 128 IT. S. 590; 64 N. W. 455; 54 Ark. 97; 118 N. C. 671; 3 R. C. L. 1138, § 354. 2.

Frierson, Chancellor; STATEMENT BY THE COURT. On March 20,1911, the city council of Osceola passed an ordinance creating Sewer District No. 1, which included in its territory the entire city of Osceola. Bonds were issued and assessments were levied to the extent of 20 per cent, of the assessed value of the real property in the town, including interest.

Cowling, Judge; 1. A pool table is not per se a gambling device and there is no evidence whatever that gambling was allowed or permitted. Kirby’s Digest, § 1732; 86 Ark. 353; 84 Ala. 13; 116 Ark. 390. 1. The judgment should be affirmed under the decision in 120‘Ark. 450. 2. The facts proven were sufficient to prove a public offense and sustain the conviction. Kirby’s Digest, § 1732; 120 Ark. 450; 27 Ark. 360; 72 Id. 382; 101 Id. 159; 141 S. W. 493.

Robertson, Chancellor; STATEMENT BY THE COURT. This action was instituted in the chancery court by appellees against appellants to enforce an attorney’s lien. The material facts are as follows: On the éth day of April, 1899, John P. Moore conveyed to W. D. Reeves the timber, of a certain class and description upon certain designated land. The deed was not acknowledged but it was filed for record by the grantee on the 3d day of July, 1901.

Charles Miller prosecutes this appeal from a judgment of conviction of wife abandonment or desertion.

'Court, Fort Smith ■District; Paul Little, Judge; STATEMENT BY THE COURT. Appellant brought this suit against ' E. J. Wills, Stephen Brown and M. W. Murray, the sureties on hiá bond, for rent claimed to be due under a contract of lease of' the Majestic ¡Theatre Building in Fort Smith, with the property and appliances therein contained to be operated as a moving picture theatre. .

• Appeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge; STATEMENT BY THE COUET. This is a suit for damages alleged to- Have been sustained through false representations as to the value of certain bank stock, made in the sale thereof.

J. Driver, Judge; 1. To sustain the judgments it was necessary to find against both defendants. Since Malin was discharged it is evident there was no conspiracy. The acquittal of one co-conspirator operates as a discharge of the other, 117 Ark. 384; 87 Ark. 34. 2. There is no evidence to sustain the allegation that there was a conspiracy and the jury so found.

Plaintiff had a right-to sue. The order of the chancery court gave it that right. Smith on Receiver-ships, § 380; Brandt on Suretyship, § 154; 3 Ene. PI. & Pr. 640; Bliss on Code PL, § 58 (3 ed.); Pomeroy Code Pl. (4 ed.), § 79; 34 Cyc. 508; 112 Ark. 71; 58 Id: 593; 86 Id. 212; 21 Id. 140. The question of defect of parties cannot be raised by motion. Kirby’s Digest, § 6096. The motion could not be considered as a demurrer. The action was transitory. 70 Ark. 151; 103 Id. 151.

S. Maples, J udge; affirmed. - • - 1. The complaint stated no cause of action'. 47 Ark. 22; 107 S. W .170; lb. 1177. 2. It was error to sustain the demurrer to the answer. It stated good defenses. Kirby’s Digest, § § 163-4, 160-1; 55 Ark. 79; 17 S. W. 587; 57 Ark. 232; 21 S. W. 223; 97Id. 282; 17 Ark. 567; 35 Id. 137; 48 Id. 3; 57 Id. 352. 3. Family settlements are uniformly upheld.

B. . Baker, Judge; 1. The complaint was sufficient. Kirby’s Digest, § 6854. No delivery was asked. The affidavit was no part of the complaint. 34 Ark. 111. The wrongful, detention and such general or special property in plaintiff as entitles him to the immediate possession are the essential facts necessary' to, support replevin. Shipman on Common Law Pleading; 107, 34 Cyc. 1464-5. No particular form is necessary, 75 N. Y., 1.

Haynie, Judge; A verdict should have been directed for defendants. There was no evidence showing liability. The law is well settled and the court erred in its instructions. 38 Cyc. 1141; 88 Ark. 531; 101 Id. 43, 433; 105 Id. 184; Kirby’s Digest, § 6607 as amended by Act May 26, 1911.

Cowling, Judge; 1. There is no fatal variance between the indictment and proof. Kirby’s Digest, § 2233. The indictment and proof sufficiently identifies the illegal act. 32 Ark 205; 105 Id. 84; 113 Id. 112; 117 Id. 300; Kirby’s Digest, § § 2243, 2228-9; 93 Ark. 408; 157 S. W. 935. 2. There is'no error in the instructions. Kirby’s Digest, § 2384; 90 Ark. 460; 64 Id. 253; 65 Id. 547; 52 Id. 187. 3.

Elliott, Chancellor; 1. Appellant literally complied with Kirby’s Digest, § 6259 and was entitled to relief. 85 Ark. 277. No personal service was had, he had no notice and no bond was filed as provided by section 6254, Kirby’s Digest. See also lb., § 4293; 74 Ark. 477. 2. The land was sold at ah inadequate price, at a sacrifice. Until confirmation the entire proceedings are in fieri and a redemption should have been allowed a nonresident defendant, without notice.

The court erred in its instructions to the jury. There was no stipulation that the mortgagor should retain .possession of the property, and the mortgagee had the legal title and the right to' possession. Kirby’s Digest, §. 5410; 70 Cyc. 6; 18 Ark. 166. 2. There was no new consideration for the agreement to extend the time to pay the debt, and there was no such agreement. 80 Ark. 431. 3.

T. Humphries, Chancellor; The chancellor erred in holding the judgment void on collateral attack, as the original judgment recited, that the affidavit and bond for attachment were properly filed. 79 Ark. 16; 101 Id. 390; 105 Id. 5. The judgment was in due form and recites all jurisdictional facts necessary and is valid on its face and can not be attacked collaterally. No proper affidavit for attachment was filed before the issue of the attachment.

Martinecm, Chancellor, 1. It is conceded that the void tax sale or title under which appellees ancestor held -was sufficient interest in the land to. permit him to redeem. Redeem means to get back, just what was lost (by the tax sale. 89 Ark. 168; 39 Id. 580; 74 Id. 577; 42 Id. 221; 87 Id. 360; 92 N. E. 998; 206 Mass. 591; 57 S. E. 712; 128 Ca. 361; Cent. Dig., vol.' 45. Col. 1951-3, 1973; 14 So. 661; 71 Ark. 569. 2.

Coleman, Judge; 1. It was error to direct a verdict for the defendants. Where there is any evidence tending to establish an issue, it is error to take the case from the jury. 63 Ark. 94; 89 Id. 589; 77 Id. 556; 89 Id. 368; 33 Id. 350; 36 Id. 451; 39 Id. 413; 105 Id. 526; 35 Id. 147. 2.

Appellant instituted 'this action against -appellee to recover damages for personal injuries which he alleges were sustained by his decedent by reason of the negligence of appellee. The material facts proved by appellant are as follows: On the 24th day of August, 1915, Jim Crowe, a driver of a public taxicab received a call to go to 219 First Street, for Joe Ward, Jr. and Carroll Milton. He received them in his automobile and -started home with them.

A city of the second class has no authority to create the office of city attorney and elect an officer to said office. 53 Ark. 205; Willis v. Fort Smith, 121 Ark. 606; Kirby’s Dig., § § 5465, 5591, 5596; 103 Ark. 534; 58 Id. 494; 25 S. W. 499; 74 Ark. 194; 85 S. W. 775. 2. No affidavit nor bond for costs was filed. Kirby’s Digest, § 2490; 111 Ark. 51; Kirby’s Dig., § § 2079, '2080. 3. The court erred in its instructions.

Cross Circuit Court; W. J. Driver, Judge; i The Act No. 30, 1916, does not repeal all other laws on the subject and the penalty prescribed is cumulative.

Coioling, Judge; The county court had no discretion to refuse the petition and its only office was to grant the annexation as prayed for in the petition, and the circuit court should have made such an order as the county court should have made in the first instance.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellee instituted this suit against appellant, alleging that un June 20, 1911, appellant 'and others organized a corporation under the name of Ozark Trust Company, (having a paid-up .capital stock, according to its articles of association, of $50,000 divided into five hundred shares of the value of $100 each, of which appellant owned 239 shares), for the purpose of engaging in the business of a trust company, as provided by…

Coiuling, Judge; STATEMENT BY THE COURT. Appellants were indicted jointly for the crime of an assault with intent to kill. They were also jointly indicted for the crime of resisting an officer. By consent the causes were tried together. Appellants were both convicted on the charge of resisting an officer, and appellant Shorty was convicted of an assault with intent to kill. From these convictions appellants have duly prosecuted this appeal'.

The counter-claim set up damages for the breach of a separate and independent contract. No such right exists.' Kirby’s Digest, § 6099; 17 Ark. 245; 27 Id. 489; 3'2 Id. 281; 40 Id. 75; 48 Id. 396; 89 Id. 368; 55 Id. 312. * 2. No loss or damage is shown because the new ■dwelling and barn were not built, nor that if the ditch were dug the cultivation would have been less expensive. All these claims for damages arose out of separate and distinct contracts. 3.

<p>Appeal from Clay .'Chancery Court; Charles D. Frier-son, Chancellor;</p> <p>1. The testimony of Williams as to his understanding or opinion was incompetent.</p> <p>2. The deeds were never delivered. Devlin on Deeds, 263b; 88 Pac. 806; 100 Ark. 427, 431; 74 Id. 104; 77 Id. 89; 51 Id. 530; 63 S. E. 82; Devlin on Deeds, 275, 275b; 83 >S. W. 747; 58 N. E. 439; 90 Id. 402 ; 85 S. W. 474 ; 77 Ark. 89; 74 Id. 104; 98 Id. 466; 93 Id. 324; 84 Id. 610; 110 Id. 425; 81 Pae. 1120.</p> <p>1. The deeds were delivered. A delivery to a third party to.be held for the grantee is a sufficient delivery. 51 Ark. 530; 48 A. L. E. 136; 75 S. W. 321; 175 S. W. 623; 13 Cyc. 565.</p> <p>2. The deeds were left at the Bank of Coming to be delivered to the grantees and Watson had no-further dominion over them. 82 Ark. 492; 51 Id. 530; 96 Id. 589; 113 Ark. 289; 108 Id. 53; 134 S. W. 626; 13 Cyc. 569; 116 Ark. 487.</p>

This appeal comes from a judgment against appellant in a controversy over four bales' of cotton raised by Ed Smart and delivered to the appellant to apply upon a debt secured by a mortgage held by it. The appellee brought replevin for the property claiming the right to the possession thereof, under a mortgage executed by said Smart.

Randolph 'Circuit Court; J. B. Baker, Judge; 1. Appellee’s interest in the land is not sufficient to carry with it the privilege of exemption as a homestead. A future estate will not support the claim of homestead. 87 N. C. 79; 26 Ky. L. Rep. 157; 80 S. W. 1097; 62 Id. 381; 23 Tex. Civ: App. 87; 56 S. W. 572; 57 Id. 990; 21 Cye. 503; 74 Wis. 490; 43 N. W. 507; 20 S. E. 736; Const., art. 9, § 4. 2.

Benton Chancery Court; T. H. Humphreys, Judge; The loan was usurious and void. Cates was the agent of the lender. 62 Ark. 378; 51 Id. 544;Kirby’s Digest, § § 5390-1. To sustain the plea of usury; it must be shown that the bonus or commission was paid with the knowledge of the lender to the agent of the lender, and that such bonus when added to the interest exceeds the lawful rate. 51 Ark. 534; lb. 546; 62 Id. 370; 83 Id. 31; 91 Id. 458 ;105 Id. 653; 60 Id. '288; 98 IT.