Volume 125 — Arkansas Reports

■ 6 R. C. L. 644; 86 Ark. 97; 70 Id. 568; 23 Id. 63; 100 Id. 510; 5 Am. St. 103; 7 Am. and Eng. Enc. Law (2 ed.), 114; 90 Ark. 504;‘64 Id. 398. The .contract was sufficiently definite to be enforced. On the strength of the contract plaintiffs equipped themselves to do the work, and expended their money on the faith thereof.

Francis Circuit Court; J. M. Jackson, Judge; 1. The information is defective in that it does not describe or show how the defendant committed the offense. It does not charge any offense in law or in substance or in the language of any statute.

M. Jackson, Judge; statement by the court. Appellee Machine Company brought suit upon three promissory notes signed by James Elkins, W. D. Ray-winkle, C. C. Edwards and H. E. Watson for the aggregate amount thereof. The notes were given for machinery to be used for ■ the erection of an ice plant by a partnership known as the Kensett Ice & Gin Company, composed of said individuals.

App'eal from Franklin Circuit Court, Charleston District; James Cochran, Judge; STATEMENT BY THE COURT. This suit was instituted by the appellant to recover on three certain promissory notes aggregating $2,800, the amount thereof less credits of $200.00. The notes are dated June 10, 1910, and due and payable in equal amounts on the 1st day of September, 1912, 1913and 1914.

G. Thweatt, Special Judge; An incorporated town can not pass a valid ordinance licensing either billiard or pool tables. The only authority vested is to suppress when used for gaming. The agreement of facts shows that the tables were not used for gaming. The right to tax or license billiard tables is not delegated and does not arise by implication. Kirby’s Digest § 5438 is the only delegation of power- that Des Arc assumes.

D. Shaver, Chancellor; STATEMENT BY THE COURT. The Citizens Bank & Trust Company, of Prescott, Arkansas, on the 27th day of July, 1915, went into liquidation under the Bank Commissioner, under the provisions of Act 113, approved March 3, 1913, Acts of 1913. Thomas C. McRae, Jr., was designated as special bank commissioner.. He applied to the chancery court for an order as to the disposition of certain of the bank’s assets.

F. Gautney, Judge; STATEMENT by the court. This is an appeal from a conviction against the appellant for an assault and battery on the person of one Mrs. Ida Turner. Mrs. Turner testified substantially as follows: That she lived in the country; that'on January 20, 1916, at about 9 o’clock in the morning, she went to visit her sister, who lived about a half mile away by the path or field road over which she was traveling. No one was with her except her baby.

H. Mann, Special Judge; 1. A note executed for the purpose of facilitating a divorce is void. 9 Cyc. 519; 14 Ark. 276. The consideration is illegal, 53 Am. Dee. 208; 29 Ind. 139; 92 Am. Dec. 345; 80 Id. 407; 6 R. C. L. 772; 11 Am. Cas. 354. 2. A court may allow alimony where the wife is at fault, and there are mitigating circumstances, but she is not so entitled, as a matter of right, without a decree of court. Kirby’s Digest, § 2694. 3.

D. Shaver, Chancellor; The transaction is, in equity, at least, a mortgage. Certainly it was not intended as a sale. 13 Ark. 112-117; 96 IT. S. 332; 13 Ark. 112-117, 118; 2 J. J. Marsh. 471; 1 Jones on Mortg., § 162, 167, 168. Once impressed with the character of a mortgage, it must so remain. 3 Pom. Eq. (3 ed.), § 1193. A court of equity wilb always relieve the mortgagor from the consequences of his failure to perform the condition. 129 111. 72; 2 Jones on Mortg., § 1039.

B. Priddy, Judge; 1. This prosecution is under Acts 1911, 263. -Penal statutes, * * * strictly construed — nothing will be taken as intended, not clearly expressed. 79 Ark. 517; 107 Id. '450; 6 Id. 131; 43 Id. 415;. 87 Id. 411; 64 Id. 271. A failure to properly block all the frogs, constitutes only one offense.. All omissions are only one continuing offense, and a conviction in the first case is a bar to further convictions. 107 Ark. 450.

Little, Judge; statement by the court. Appellant prosecuted this appeal from a judgment of conviction for the unlawful sale of intoxicating liquors. The indictment charges that he “unlawfully and feloniously did sell vinous, malt, fermented, • alcoholic and intoxicating liquors, etc.,” without naming any person to whom they were sold. A demurrer was interposed to the indictment and overruled and exception saved.

Elliott, Chancellor; 1. The cross-complaint was not responsive to the complaint; did not plead matters germane thereto and presented no defense; nor did it ask any equitable relief. It was simply a complaint in ejectment. The demurrer was waived. 98 Ark. 553; 90 Id. 117; 95 Id. 405; 27 Id. 235. • The question cannot be raised here for the first time. 79 Ark. 499,; 74 Id. 102; 57 Id. 589; 52 Id. 411; 23 Id. 746. 2. The evidence shows appellant owned the land in 1906.

F. Gautney, Judge; 1. . The verdict is contrary to the law and the evidence. To support, a verdict the evidence must show clearly and conclusively that malice existed, and that there was no probable cause to justify the prosecution. It is not sufficient that malice alone be shown, but want of probable cause must also appear - affirmatively. 11 - Ind. 45; 56 Mo. 89; 50 W. Va. 581; 42 111. App. 254; 103 Mich. 131; 26 L. R. A. 627; 122 Ark. 382.

'Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor; 1. To allow the assessment on the property in the annexed territory to stand, would be taxing property beyond the limit permitted by law. 109 Ark. 90; 86 Id. 21; 97 Id. 341; Kirby’s Dig., § 5683. 2. The annexation is invalid; the petition did not pray that the cost be assessed and charged upon the annexed territory or the original district. Kirby’s Dig., § 5667; Acts 1909, § 2; 115 Ark. 163. 3.

D. Frierson, Chancellor; 1. The judgment of the Circuit Court is conclusive as to the amount due. It was a valid judgment and constituted an adjudication of all matters in controversy. None of the provisions of Sec. 4431, Kirby’s Digest, are alleged as cause for setting aside the judgment. Our statute does not require service of summons on all the stockholders of a corporation. Kirby’s Digest, §§ 6045-6048. 2.

W. Hendricks, Judge; STATEMENT BY THE. COURT. Appellant instituted this suit January 25, 1915, against the apellee to recover damages for the alleged debauchery by him of appellant’s daughter.

This suit was instituted by Satterfield against one V. E. Dacus, Claud Fulton and Lillie Fulton to recover judgment and to foreclose a mortgage which the latter had executed to Satterfield to secure a promissory note for borrowed money in the sum of $1,800. The note and mortgage were, executed February 11, 1913.

R. Haynie, Judge; 1. The policy here is indivisible, the contract being entire. 52 Ark. 257; 63 Id. 187. Any breach which renders the policy void as to part of the property renders it void as to all. Ostrander on Insurance, § 23 et seq., p. 80; Ib. pp. 55, 59, 60 and 62 for illustrations. 2. The introduction of a new person without permission voids the policy. Richards on Insurance, p. 351, and No. 1. Taking in a new partner is a change of title. Ostrander on Ins., p. 313.

<p>1. Game and fish commission — appropriation to pay salaries. — ■ Act No. 124, Acts of 1915, creating the State Game and Fish Commission, held, not to provide any appropriation of funds for the expenses of the commission.</p> <p>2. Public funds — appropriation thereof — constitutional limitations. — All funds required by statute to be paid into the State treasury are money within the meaning of the constitutional requirements relating to appropriations thereof and no money coming • into such treasury by operation of such laws, can be legally drawn therefrom or paid out of the treasury, except in pursuance of specific appropriations made in accordance with said constitutional requirements.</p> <p>3. Public funds — “appropriation” defined.- — “Appropriation denotes the setting apart or assigning to a particular use a certain sum of money for a specified purpose in such a manner that the public officials are authorized to draw and use the sum so set apart and no more, for the purpose specified and for no other.”</p>

M. Jackson, Judge; The trial court misconstrued the case of Geary v. Parker, 65 Ark. 521. There was no condition of forfeiture in that case and it was based on a construction of a statute. Here the rent was not paid when due and the lease declared forfeited and notice to quit served before the tender of rent. The contract is unambiguous and the contract was forfeited. 41 Ark. 532; 57 Id. 301; 24 Cyc. 1352, 1339. The court erred in its instructions. Supra.

C. Trimble, Judge; A verdict should have been instructed that the State failed to prove the charge and to find for defendant. Kirby’s Digest, § 2028. There is not a syllable of’ testimony as to the manner of the alleged “felonious, wilful- and of malice aforethought,” assault, nor. of an assault at all. There must be force or intimidation. Ib., § 2026. There was no evidence of assault, or ill feeling or malice. 99 Mich. 336.

L. Davis, Judge; 1. It was error to direct a verdict. When there is any evidence tending to establish an issue in favor of the party against whom the Verdict is directed, a trial court should not take the case from the jury. 89 Ark. 3; 84 Id. 57; 77 Id. 556; 63 Id. 94. On appeal this court will take that view of the evidence most favorable to the party against whom the verdict is directed. 89 Id. 372; 73 Id. 561; 76 Id. 520.

Circuit Court, Third Division; G. W. Hendricks, Judge; STATEMENT BY THE COURT. Appellant seeks by mandamus to compel appellee Allnutt, as constable of Big Rock Township of Pulaski County, Arkansas, to appoint him a deputy constable for said township. He also makes the county judge of Pulaski County a party defendant that he may be required to confirm the appointment so prayed to be made by said constable.

P. Henderson, Chancellor; 1. Special Act-113, Acts 1911, was unconstitutional and void. 117' Ark. 190. Special Act No. 212, Acts 1915', was also void. 185 S. W. 440. The City of Benton was never even a de facto city of the second class. 55 Pac. 103; 106 Okla. 61; 92 N. E. 778; 175 Ind. 332; 136 111. App. 606; 88 N. E. 349; 43 Ind. App. 634; 73 N. E. 727; 35 Ind. App. 65. 2. There can be no de facto officer where there is no office to fill. 118 IT.

Barker, Chancellor; 1. Appellee bank acquired no lien on the securities under the written instrument. There was neither a pledge nor notice of one. To constitute a pledge there must be a delivery. 31 Cye. 799-800; 81 Fed. 439; 103 U. S. '352; 135 Id. 478; 96 Id. 467; 133 Id. 233; 98 Ark. 384; 31 Cye. 807. 2. The instrument, at most, was an unrecorded mortgage, good between the parties, but unavailing against third parties.. 71 Ark. 517; 77 Id. 57; 97 Id. 432; 105 Id. 242. 3.

F. Gautney, Judge; Tbe questions here are almost entirely of fact and to be determined upon tbe weight of tbe evidence, tbe burden of proof being on appellee. Tbe principal one is: Did Matthews inclose tbe $6,000 in scrip, and did Cargill receive it? Tbe evidence of appellant and bis witness is ' clear and convincing, while inconsistencies and contradictions appear in tbe evidence offered by appellee.

Francis Circuit Court; J. M. Jackson, Judge; STATEMENT BY THE COURT.

D. Frierson, Chancellor; STATEMENT BY THE COURT. Baker & McGrew, a partnership, composed of R. L. Baker and W. R. McGrew, was engaged in a general mercantile business and operated a cotton gin at Success,' in Clay County, until February 1, 1912. On that date, a stock company composed of R. L. Baker and W. R. McGrew, and seven others, was organized, with a capital stock of -$20,000, $13,500 of which was paid in.

The right of trial by jury extends to proceedings of this kind. The word “court” includes a trial by jury. The court is about to act beyond its power and in excess of its jurisdiction and prohibition will lie. 19 Nev. 332; 36 N. E. 237; 22 Nev. 280; 39 Pac. 570; 86 Minn. 140; 60 Neh. 773; 84 N..W. 262; 61 S. W. 252; 50 Am. Rep. 741; 17 Ark. 290; 16 Id. 601; 21 Id. 229; 39 Id. 82; 32 Id. 241; 65 S. W. 981; 33 L. R. A. 341; 38 Id. 554; 39 Ark. 211; 24 Cyc. 151; 11 Am.

J. Driver, Judge; The labor performed on the Sabbath was a work of necessity. Kirby’s Digest, §§ 2030-2032; 61 Ark. 216; 72 Id. 167; 75 Id. 188. The fines were in excess of the „ statutory penalty. Kirby’s Digest, § 2030. The work- done does not fall within the exception contemplated by the statute. The burden was on appellants to prove unavoidable necessity. 56 Ark. 116; 61 Id. 216; 118 Ind. 248; 97 Mass. 411; 190 Id. 578; 112 Id. 467; 85 Ark. 135; 76 Ind 310; 112 Mass. 112.

T. Humphries, Chancellor; STATEMENT BY THE COURT. Appellant is a land owner in what is designated as “Murray Creek Drainage District.,” Randolph County, Arkansas. The Legislature attempted to create the above district by Act 330 of the Acts of 1909.

H. Coleman, Judge; STATEMENT BY THE COURT. •Phillips & Ferguson Agency, hereinafter for convenience called Agency, was a corporation, located at Newport, and were agents for the Connecticut Fire Insurance Co. As such agents, on the application of one J. U. Ard, they insured in the name of Alice S. Ard, his wife, some household goods.

R. Haynie Judge; STATEMENT BY THE COURT. Appellee brought this suit for damages for the rental value of certain farm lands which he was denied the right to cultivate during the year 1915. He rented different tracts of land for cultivation during 1914, on the Candler farm, in Miller County, at a stipulated price and certain new ground to be cleared by him, which he was to have rent free for two years.

J. Lea, Judge; STATEMENT BY THE COURT. Leonard Moore was indicted for murder, for killing John Lee, Jr., and from a judgment of voluntary manslaughter, brings this appeal. The killing occurred eight or ten miles north of Little Rock, about 5:30 o’clock in the morning, on November 23, 1915. Moore wa's driving along the pike, towards Little Rock, in a one horse wagon at the time he was overtaken by the deceased, who was riding a mule, and the killing followed.

H. Humphreys, Chancellor 1. Where property is held adversely, or where the ' title is in dispute, a Court of Chancery has no jurisdiction to award partition. 27 Ark. 96-7;. 1 Watts & Serg., 185; 42 111., 473; 3 Grant’s Cases, Penn. 177; 97; 40 Ark. 156; 91 Ark. 29. Tenants in common can establish title against another co-tenant by adverse possession 1 Cyc. 1072. Plaintiff was only a tenant in common. 91 Ark. 30.

H. Coleman, Judge; 1. The statements of Brickie made after the accident, and the court’s statement in the hearing of the jury that defendant would be bound by such statements were highly improper, incompetent and prejudicial. 82 Ark 432 440; 176 Id. 430, 434; 99 Id. 558; 105 Id. 247; 58 Id. 168; 66 Id. 494; 78 Id. 381; 100 Id. 269; 97 Id. 422. 2.

E. Martineau, Chancellor; 1. The accountant Hennegin erred in the manner in which he estimated the amount due upon the stock and loans. He also failed to give credit for numerous payments made, and the court erred in following his findings and report as to the amount due. The accountant did not make the estimate in accordance with the rule laid down by this court as to delinquent borrower's. 62 Ark. 572. The amount due upon loans totaled $7,510.73.

T. Cowling, Judge; STATEMENT BY THE COURT. Appellee instituted this suit on account before a justice of the peace to recover the sum of $76.50, the amount claimed to be due for certain goods sold by the appellee to the appellants on what is termed in the record a signed order “for a premium deal.” It appears from the correspondence between the parties that the appellants gave to the agent of the appellee a written order for some goods.

D. Frierson, Chancellor; STATEMENT BY THE COURT. C. B. Hall instituted this action in the chancery court against the Belleclair Planting Company and A. J. Peifer to recover the amount of taxes paid by him on lands belonging to the defendant corporation which he alleges he paid under an agreement with the representative of the defendant.

J. Driver, Judge; 1. Incompetent, irrelevant and immaterial evidence was admitted. The statements admitted were not “dying declaration,” nor admissible as suck. 21 Cyc. 976; 2 Ark. 229; 20 Id. 36; 81 Id, 417; 126 111. 81; 69 Kans. 767; 1 Wharton Cr. Ev. 556 et seq; 74 Ala. 9; 11 Ga. 353; 63 Ind. 548; 50 Mo. 370 ; 21 Cyc. 979; 98; and cases cited, etc.; 164 S. W. 275; 8 R. C. L. 8. 2. Guilt is never presumed — it must be proven. The court erred in its charge as to murder. 3.

W. Smith, Judge; I. 'The indictment does not allege the name of any person, firm or corporation to or upon whom the alleged false instrument was uttered’ or passed. Unless excused by an allegation that such person was to the grand jury unknown, this is a fatal omission. 120 Ark. 170. . 2.

<p>Appeal from Garland Circuit Court, Scott Wood, Judge;</p>

Appeal'from Pulaski Circuit Court, Third Division; O. W. Hendricks, Judge; STATEMENT BY THE COURT. The appellee is a corporation engaged, among other, things, in the manufacture of brick, at Little Rock, Arkansas.

Haynie, Judge; 1. The court should have directed a verdict of not guilty, because, the most that can be said of the evidence is that it shows that appellant aided the buyer in procuring the whiskey, confining his participation in the transaction exclusively to the buying, and not to the selling. Wilson v. State, MS. Op. June 19, 1916; 114 Ark. 391; 101 Ark. 569; 90 Ark. 579; Id. 589; 68 Ark. 468.. 2.

Haynie, Judge; The prosecuting witness being the wife of the defendant was incompetent to testify for or against him. Kirby’s Dig., § 3095. She does not come within the exception provided by the statute.' Kirby’s Dig., § 3092. 148 S. W. '328; 71 S. W. 20; 75 S. W. 497; 126 S. W. 591; 79 N. W. 518; 98 N. W. 510; 37 So. 156; 43 S. E. 720; 4 Utah 499; 137 Cal. 534; 59 L. R. A. 588.

' Appeal from Miller Circuit Court; George R. Haynie, Judge; STATEMENT BY THE COURT. Sol Henry brings this appeal from a judgment of conviction of the crime of maiming, by biting off the nose of one John Robinson. It appears from the testimony that appellant’s mules had broken into the field of Jno. Robinson, a tenant on his place and. had torn down some corn.

J. Driver, Judge; 1. Instruction No. 1, asked by defendant, was the law of this case and should have been given. 127 Ala. 240; 28 So. 665. As to collateral undertakings, see 12 Ark. 174; 31 Id. 613; 88 Id. 592; 102 Id. 435. As to original undertakings, see 40 Ark. 429; 76 Id. 1; 93 Id. 277. 2. Instruction No. 1 as given by the court was erroneous. It disregards the statute of frauds; it assumed that the statement of accounts was correct and is not the law of the case..

<p>Appeal from Greene Circuit Court; J. F. Gautney, Judge;</p> <p>1. It was error to sustain the demurrer to the indictment. 110 Ark. 549; 91 Id. 200; 124 Ark. 38.</p>

If the power to pass this ordinance is not given by Kirby’s Digest, §§ 5438, 5450 and 5453, the ordinance is void. A municipal corporation has no powers except such as are specifically delegated to it. 3 Ark. 114; 45 Id. 454; 27 Id. 467; 31 Id. 462. 2. A cotton gin is not per se a nuisance. 93 Ark. 362. A city has no power to prevent the sale of fresh pork within its limits. 64 Ark. 424. The running at large of fowls is not a nuisance per se. 70 Ark. 12. 3.

Appeals from Garland Circuit Court; Scott Wood, Judge; 1. The evidence of Reamey as to shipments of “Whiskey and Beer” over the Rock Island Railroad and consigned to other parties was improperly admitted. It was wholly incompetent and immaterial. So was the testimony of Sovett and Henderson, as to hauling “liquor” consigned to others. 2. Halliburton’s testimony does not connect appellants with any sale of liquor. 3.

R. Haynie, Judge; 1. The court erred in giving that part of its oral instruction as follows: “Possession of recently stolen property is evidence of guilt, ” etc. This was an expression of opinion by the court as to the weight of evidence and is forbidden.by our constitution. 81 Ark. 189; 83 Id. 195; 55 Ark. 244; 34 Id. 443; 44 Id. 39; 85 Ark. 138. 2. There was no evidence that defendant, at any time, had any of the stolen property in his possession.* 3.

R. Haynie, Judge; 1. The court erred in compelling defendant, after his peremptory challenges were exhausted, to accept as jurors persons who served as jurors on a former trial. 2. It was error to refuse instruction No. 4. The State must show beyond a reasonable doubt that the fear of punishment was removed before a confession of defendant is admissible in evidence against him, and not by a mere preponderance of evidence. 3. The evidence is insufficient.

Court; Geo. R. Haynie, Judge; 1. There was no prejudicial error in the acceptance of the jurors, whom defendant claimed sat on the trial of Dick Mitchell. See authorities cited in Hall v. State, ante; Pa. Sup. Ct. 38, 65; 120 S. W. 419; 36 Wash. 358; 145 Pa. 451; 40 S. E. 308; 129 S. W, 141. His peremptory challenges were not exhausted. 91 Ark. 585; 97 Id. 133; 91 Id. 576; 45 Id. 165. 2. No proper exceptions were saved. 29 Ark. 99; 63 Id. 527.

S. Maples, Judge; 1. It was error to refuse a continuance. The application was based upon sufficient and legal affidavit. 99 Ark. 394; lb. 547; 110 Id. 409; 94 Id. 538; lb. 169; 21 Id. 460; 60 Id. 564. 2. The testimony of Dr. Christian and Sam Fink was incompetent and prejudicial. 62 Ark. 562; 57 Id. 402, 416; 65 Id. 316; 60 Id. 333; 94 Id. 183, 190; 111 Id: ■596; 2 WigmoreonEv. §§ 1521-3-5-6; 66 Fed. 522; 70 N. W. 1023. 3.

J. F. Gautney, Judge; 1. The verdict is contrary to the evidence. It fails to show intercourse or that the girl was under the age of sixteen years. Her own testimony shows her to be unworthy of belief — she was simply a prostitute. 2. The court erred in refusing instructions 1, 2 and 3 asked for by defendant, and in refusing to strike out the affidavit of Mrs. Gray in applying for letters of guardianship, as incompetent. 1.

<p>1. Liquor — illegal sale — sufficient proof. — The evidence held sufficient to warrant a conviction for the illegal sale of whiskey in ' violation of Act 30, Acts 1915.</p> <p>2. Liquor — illegal sale — sales after finding the indictment.— In a prosecution for the illegal sale of liquor under Act 30, Acts of 1915, testimony showing sales of whiskey made at defendant’s place of business subsequent to the date of the finding of the indictment held admissible, where the trial court charged the jury that a conviction could not be had for sales made after the finding of the indictment, and where such testimony as admitted might aid in showing that the transaction relied upon by the State was a sale, by proving the character of business conducted at the place where the sale was made.</p>

The instructions of the court were proper and covered every instruction requested by the appellant. 2. There was no error in excluding or admitting evidence. The depositions taken in the examining trial were admissible. 29 Ark. 22; 47 Id. 185; 60 Id. 400, Evidence as to the general character of a place of business, the kind and character of patrons and the presence of drunken people is always admitted in cases like this. 8 Ruling Case Law, 205; 24 Am. Rep. 69; 1 Greenl.

Defendant was not formally arraigned and did not waive nor enter a plea of guilty. 2. The court erred in admitting the testimony of Holt, Jordon, Bryant and Ed. Goff, as to conversations in the absence of defendant. There was no evidence to show a sale of liquor by defendant, or that he was interested in the sale thereof. 3. The court erred in its charge to the jury. There was no evidence upon which to base those given.. Those refused correctly declare the law. 1.

J. Lea, Judge; 1. Appellant was clearly beyond the jurisdiction of the court while serving his sentence in the State penitentiary and had made no request to have his sentence set aside or modified. 110 Ark. 251; 7 A. & E. Ene. L. 36; 60 N. Y. 559; 19 Am. Rep. 211; 30 Tex. App. 566; 70 Mich. 324 79 Id. 320; 44 N. W. 615; 42 Id. 1123; 70 Mich. 320. 2.

Wood,- Chancellor; statement by the court. This action was instituted in the chancery court by W. C. Kulbeth against the Drew County Timber Company and had for its purpose the cancellation of certain deeds to the defendants as a cloud upon the plaintiff’s title. The material facts are as follows: John Clark, Sr., died in 1890, leaving surviving him his wddow, Laura J. Clark and three minor children, viz.: John Clark, Allen T. Clark and Cora Clark.

No motion for a new trial was necessary, as all errors appear on the face of the record. 46 Ark. 17, 21; 111 Id..468, 474. 2. If the contract was eyer within the statute of frauds, it was taken out by acts of the parties. Kirby’s Digest, '§ 3656; 15 L. R. A. (N. S.) 654; 125 Am. St. 397; 77 Ark. 364. The contract might have been performed within one year. 93 Ark. 1; 111 Id. 598; 138 A. S. R. 588. 3.

P. Whittington, Special Chancellor; STATEMENT BY THE COURT. This is a proceeding to review the decree of the • cbancery court, committing J. H. Hall to prison for contempt in refusing to perform tbe decree of tbe court for tbe payment of alimony to bis divorced wife, Eliza V. Hall. • Tbe decree for divorce recites, “And it appearing to tbe court that the defendant in bis cross-complaint prays that a reasonable allowance be made for tbe. maintenanee of the plaintiff, Eliza V.…

L. Davis, Judge; 1. The verdict in this case is so greviously wrong as to shock one’s sense of justice. 70 Ark. 386; 34 Id. 632; 10 Id. 492. Hairston’s evidence was evidently false and untrue as shown by all the evidence in the case. 2. The verdict in this case was the result of the ' improper and prejudicial remarks and argument of counsel. The admonition of the court did not cure the error or remove the prejudice, nor did the withdrawal of the improper remarks do so.

<p>Improvement districts — right op board op assessors to appeal prom decree op chancery court. — The members of the board of assessors of an improvement district, are without authority to appeal from decrees of the chancery court cancelling certain assessments, and declaring the organization of the district invalid.</p>

D. Shaver, Chancellor; 1. The legislature has attempted to give jurisdiction and control to the commissioners over such public roads as they may select not exceeding 60 miles in length, etc. This attempt is in conflict with § 28, Art. 7, Constitution. It is an usurpation of the jurisdiction of the County Courts. 89 Ark. 513; 118 Id. 294. 2. The five roads and bridges do not constitute a single improvement.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. The appellants, plaintiffs below, instituted this suit against the appellee to enjoin him from trespassing upon an acre of land which appellants claim to own, and to quiet and confirm appellants’ title. They prayed judgment against the appellee for damages on account of alleged trespasses.

<p>1. Carnal abuse — proof of more than one criminal act. — Where an indictment charged but one offense of carnal abuse, proof of the act of carnal abuse at any time within the period of limitation for the prosecution of such offenses (three years) is admissible .and will sustain the charge.</p> <p>2. Evidence — carnal abuse — questions propounded to prosecutrix. —In a prosecution for the crime of carnal abuse, questions asked the prosecuting witness as to the details of the alleged crime, held admissible.</p> <p>3. Appeal and error — improper testimony elicited on cross-examination- — invited error. — Where counsel for appellant, on cross-examination of one of appellee’s witnesses asked questions eliciting incompetent testimony, it is not prejudicial error for the trial court to permit counsel for appellee to interrogate the witness further upon the matter, and place the whole transaction before the jury.</p> <p>4. Evidence — identification of letters — jury question — In a prosecution for carnal abuse, where the prosecutrix identified certain letters as having been sent by the appellant to her, and the appellant denied their genuineness, a question is made for the determination of the jury.</p> <p>5. Evidence — criminal prosecution — evidence of compromise.— In a prosecution for the crime of carnal abuse, testimony offered by the appellant that the father of the prosecutrix offered to drop the prosecution for a certain money consideration, is irrelevant and inadmissible.</p> <p>6. Appeal and error — argument of-counsel — failure to object.,— It is too late to object to improper argument of counsel, for the first time, after the jury has retired to consider their verdict.</p> <p>7. Criminal law — verdict—duty of jury. — In a criminal prosecution it- is the duty of the jury merely, if they find the defendant guilty, to so state, and to assess the punishment, and if they cannot agree on the latter, they may leave its assessment to the court.</p>

' The act is unconstitutional and void. It delegates legislative powers to the board as well as police power and creates permanent State officers. 29 Cye. 1370; 72 Ark. 195; 6 Rui. Case Law, p. 164, § 165; 16. 70 to 74; 135 Cal. 466; 52 L. R. A. 287; 26 Id. 715 28 Id. 609; 40 Md. 273; 50 Fed. 406; 63 Cal. 21; -156 Pa. St. 539; 51 S. W. 1126; 77. N. E. 321; 74 Pac. 598. 2. See. 10 providing for payment of the local registrar by the county is clearly unconstitutional.

S. Maples, Judge; 1. The jury found by their verdict that appellant was entitled to recover for a part of his wages, hence he was entitled to the penalty, as the company discharged ' him without payment in full. He made demand and the demand was refused. Kirby’s Digest, § 6649; 74 Ark. 290; Acts 1905, pp. 537-8; 66 Ark. 409. 2. The check was not received as payment in full. 74 Ark. 286.

M. Jackson, Judge; 1. Brandon and Ms successors are charged with full knowledge of all the rights the grantee, in the deed and his successors had thereunder. Actual possession is notice. 76 Ark. 25-27; 107 Ark. 319. The deed vested the right of way, fixed by statute at six rods. 99 Ark. 61 ; Kirby’s Digest, § 2903. A right of way is fixed by statute at six rods wide. Id. § 2940, 65-72; 69 Ark. 104; 99 Id. 61.

Court; F. G. Lindsey, Special Chancellor; 1. This is a chancery ease and is before this court for a trial de novo. 98 Ark. 459; 104 Id. 475; 99 Id. 128; 4 Crawford 150; 85 Ark. 101; 101 Ark. 493; 73. Ark. 187. '2. A - natural water course was diverted. The testimony is clear. 197 Mass. 568; 45 Mich. 335; 11 A. & E. 571; 93 Penn. St. 400; 56 Wise. 73; 93 Ark. 46; 95 Id. 242.

C. Trimble, Judge; statement by' the court. J. B. Henley, guardian for J. B. Henley, Jr., sued the Mutual Life Insurance Company of New York to recover $3,000.00, the amount of an insurance policy issued by it to Addie L. Henley, payable to J. D. .Henley, Jr., her minor child. The policy was issued on the 8th day of March, 1909, and Addie L. Henley died on the 17th day of March, 1915. The premium was $46 98-100 payable in advance on December'8th of each year.

H. Humphreys, Chancellor; 1. The mere fact that appellee paid off the debt to Wenzel, does not entitle him to subrogation, unless there was an agreement to that effect. 56 Ark. 480; 44 Id. 507; 47 Id. Ill; 25 Id. 129. The testimony fails to show this agreement, either express or implied. The moving consideration for the loan was selling certain lots “and getting security for an old store account. 2.

The lower court erred in holding that the shares of stock in the Oklahoma corporation were subject to inheritance tax in Arkansas. These shares are not within the terms and provisions of the Act 1913, p. 826. The intangible property must be within the State and possessed by a citizen of this State-or resident thereof.

D. Robertson, Chancellor; 1. The organization of the district is illegal, invalid and void for two reasons. (1) There is a variance between the descriptions of lands in the engineer’s report and the maps filed with his report. 113 Ark. 566. 2. The amended petition was filed and the engineer was appointed and his report filed on the same day, viz.: April 12, 1915. It is apparent that no proper or sufficient survey could have been made.

P. Henderson, Chancellor; The cause of action was not barred by the statute of limitations. The cause existed within five years next before the filing of the suit. Wilful desertion is a continuing offense. Kirby’s Digest, § 2678; Bishop on Mar. & Div., Vol. 1, § 1771-2; '43 S. W. 168; 21 A. & E. Ann. Cases, 278; 4 Am. Rep. 579; 90 Ark. 40, &c.

W. Hendricks, Judge; 1. This court has found the facts and established the law of this case on former appeal. 117 Ark. 500. The lease was only for one year and the verdict is against the law and the evidence. 2. Improper evidence was admitted as to a lease for a second year, how long it had been since the place had' been in cultivation; the improvements made by defendant and amounts expended as shown by checks.

B. Priddy, Judge; statement by the court. This is’a suit by appellant, the owner of a licensed ferry across Petit Jean River, a navigable stream, against appellees for operating a ferry without license within one mile of his ferry.

B. Sorrells, Judge; I. The first ground of demurrer is not well taken. Former adjudication can only be put in issue by plea or answer. The rule is that in actions for damages, only such as have accrued at the time of trial of the suit can be awarded. 58 Ark. 622; 78 Id. 342. • 2. This action is based upon Kirby’s Digest, § 6291 and the second ground of demurrer should have been overruled. 58 Ark. 622; 78 Id. 342; 23 Cyc. 1175. The ease 83 Ark. 545 does not apply.

R. Haynie, Judge on Exchange; There is no evidence to sustain the verdict. 101 Ark. 569. The evidence is ample to sustain the conviction. Appellant either sold, or aided in the illegal sale, and was clearly guilty. 105 Ark. 462.

Appeal frpm St. Francis Circuit Court; J. M. Jackson, Judge; STATEMENT BY THE COURT.

W. Hendricks, Judge; STATEMENT BY THE COURT. This appeal comes from judgments rendered against appellant in suits of Armour & Company and Sulzberger & Sons Company against her and Charles Lundy, which were consolidated and heard together below, the Sulzberger Company’s having been appealed from a judgment in the municipal court. ' The suits were for the balances due on account for merchandise and commodities furnished by said companies to Charles Lundy and upon the written…

F. Gautnéy, Judge; 1. The appellee, under the law, had no right to do business in the State of Arkansas, and had no right to enforce any contract made in this state. Acts 1907, No. 185, §6; Act 313, 1907, §§ 1 and 2; Act 294, §4; Acts 1904; Acts 1911, Act 87, § 14; etc. It is settled' that the Legislature may dictate terms upon which foreign corporations may do business in this state. 76 Ark. 303; 66 Id. 466; 95 Id. 389.

A. Falconer, Chancellor; STATEMENT BY THE COURT. ■ Appellants, who are electors and tax payers of School District No. 45 in Franklin County, Arkansas, instituted this action in the chancery' court against appellees, directors of said school district, and the county treasurer of said county and Travis Reece.

E. Martineau, Chancellor; At the time appellee,, was put into bankruptcy the $329.69 was past due. On March 23rd appellant was forced to accept in satisfaction of its claim 25% of the amount due, and on March 25 it notified appellee that the contract was at an end. At no _ time did appellee tender the amount due until after this notification.

P. Henderson, Chancellor; STATEMENT BY THE COURT. Appellant, a land owner, within Road Improvement District No. 1, of Grant County, brought this suit to enjoin said district from issuing additional bonds to complete the proposed improvement.

Coleman, Judge; Suit was commenced in this ease within ninety days from the time the last material was furnished. That dispensed with the necessity of giving the ten days’ notice to the owner, and of filing the account upon which the lien is claimed with the circuit clerk. 114 Ark. 464. One who seeks to avail himself of the mechanic’s lien law, must bring himself within the letter of the statute. Kirby’s Dig., § 4970; 102 Ark. 539; 119 Ark. 43.

C. Trimble, Judge; , STATEMENT BY THE COURT. The appellees instituted separate actions against the appellant alleging substantially in their respective complaints that on the ■ 31st day of August, 1914, they were in a wagon and drove up to the crossing where appellant’s track crossed Cypress street in the town of Brinkley and undertook' to stop the team of mules after discovering appellant’s engine at a distance of about 60 yards south of the crossing; that the mules became…

D. Frierson, Chancellor; statement by the court. Appellees instituted this suit against the appellant to recover a certain tract of land in Greene County, Arkansas.. They sued as the widow and children of L. E. Penny..

J. Driver, Judge; STATEMENT BY THE COURT. Appellee was the beneficiary' in a certificate of membership held by his wife, Fannie Wadley, in the appellant. The appellant was a corporation engaged in the insurance of its members. Upon the death of his wife appellee instituted suit against appellant for the sum of $225.00, alleged to be due on the certificate or policy issued by the appellant to the wife of the appellee.

M. Jackson, Judge; STATEMENT BY THE COURT. The appellee obtained a judgment against appellant in the sum of $2,424.09 and caused execution to be issued, which was levied upon a certain tract of land in Lee County as the property of appellant. Appellant filed his schedule with the clerk of the circuit court, claiming the lands as a homestead. Supersedeas was issued by the clerk. The appellee moved to quash the 'supersedeas.

Coleman, Judge; The county was not liable. The teacher’s license had been revoked for cause. The Superintendent had power to revoke the license and due notice was given. Her contract to teach was terminated. The warrant was not negotiable and there can be no innocent holder of a school warrant issued without power or contrary to law. The warrant showed on its face that it was ' not to be cashed until approved by the County Superintendent and the bank was put on notice.

Albert H. Black sued the American Surety Company of New York to recover damages for an alleged breach of a building contract. The material facts are as follows: On April 15, 1913, Albert Black entered into a written contract with Rambo & Kemp, contractors, to erect for him a residence in the city of Fort Smith, according to certain plans and specifications.

M. Jackson, Judge; STATEMENT BY THE COUB.T. Appellant prosecutes this appeal from a judgment of conviction for the crime of assault with intent to kill one F. D. Worthington. On the night of January 11, 1916, at about 8 o’clock p. m., someone shot F. D. Worthington while sitting by the fire in his home at Beebe, White County, Arkansas.

H. Evans, Judge; STATEMENT BY THE COURT. The appellee, a young man twenty-two years of age, was in the employ of appellant. His usual work was taking down what was called “strip stock” and loading same on a lumber truck, which he designated “the buggy.” On the morning of the 18th of May, 1914, the foreman of appellee ordered him to leave his usual work and go down and pull lumber off of the chains.

J. Driver, Judge; STATEMENT by the court. Appellee (a corporation) instituted this suit against .the appellant and M. M. Jennings and J. M. Turnage. They alleged that the appellant executed his promissory note, dated January 18, 1913, to his co-defendants, agreeing to pay them the sum of $2,064.12, with interest at six per cent, from date until paid, and that the payees, for value received, endorsed and delivered the note to the appellee.

H. Evans, Judge; STATEMENT BY THE COURT. Appellants, a partnership, engaged in buying bonds, brought this suit against Road Improvement District No. 1 of Grant County and the commissioners thereof, naming them, for damages claimed for the alleged breach of the contract of a sale of bonds of said district, to them. Sealed bids were advertised for and appellants submitted a bid as follows: 18---March--4915.

M. Elliott, Chancellor; The courts will not make contracts for parties who are sui generis and on an equal footing. Before the court could. have been justified in fixing appellee’s compensation on a quantum meruit basis proof should have been made, and the burden of proof rested on appellee, that there had been no contract fixing his compensation.

G. W. Hendricks, Judge; 1. The court erred in refusing to submit to the jury the duty of a traveler at a public railroad crossing or the question of his negligence in that regard. The amendatory act to the lookout statute, Acts 1911, p. 275, does not relieve a traveler from the duty to stop, look and listen for the approach of a train at a railroad crossing. 112 Ark. 542, 460; 117 Ark. 457, 463, 464; 78 Ark. 355; 118 Ark. 36,, 41. 2. The judgment is clearly excessive.

2, Sec. 18, and with the 14th Amendment of the Federal Constitution. -It is also in direct conflict with that part of Section 5438, Kirby’s Digest, which provides that “Any bona fide owner or proprietor of any hotel or boarding house may solicit patronage to his hotel or boarding house without being required to wear a badge or pay license therefor.” The statute, Kirby’s Dig., § 5438, authorizes the city council to regulate soliciting to hotels, etc., by owners and…

Cowling, Judge; 1. The court erred in permitting the plaintiff to amend his complaint so as to charge concurrent neg.ligence, after plaintiff had closed his evidence and after defendant had filed a motion to require the plaintiff to elect upon which cause of action or act of negligence he would rely.

Cowling, Judge; The court erred- in not giving a peremptory instruction in favor of the appellant. The constable’s failure to make a return on the execution rendered him and his bondsmen liable for -the amount of money specified in such execution. Kirby’s Digest, Sec. 3286. Conduct of the plaintiff which falls short of showing that the non-return of the execution resulted from his acts and instructions, is not sufficient to excuse the officer. 47 Ark. 373-8; 22 Ark. 524.

Trimble, Judge; The Act (159, Acts 1915) is not susceptible to the construction that a married woman’s estate can be subjected to the debts of her husband, because such a construction woul$ be directly in conflict with section 7,¿Art. 9, of the State Constitution. Appellee relies upon Act 159, Acts 1915.

If it is assumed that appellant agreed to take the car in the first instance, there is evidence clearly showing that he rescinded the agreement to purchase the car, and that appellee accepted the rescission. The «court therefore clearly erred in refusing to give the instructions requested by appellant based upon this evidence. Const., Art. 7, § 23; 87 Ark. 243, 280-281; Id. 531; 69 Ark. 137; 80 Ark. 454; 80 Ark. 440; 76 Ark. 233; 90 Ark. 247; 98 Ark. 17, 21-22.

The petition for change of venue should have been granted. The court abused its discretion in denying it. 36 Ark. 286; 54 Id. 243. 2. In the examination of Wm. Sumpter, the remarks of the court and its instruction were prejudicial. In making the statement and in its instruction, the court assumed facts which were solely for the consideration of the jury. 43 Ark. 289; 45 Id. 165; 53 Id. 381; 55 Id. 244; 58 Id. 108; 25 S. W. 282. 3.

The appellant, L. E. Lindsey, was convicted of the crime of murder in the second degree in killing one Josh Benedict, and he appeals. On the morning of the 26th day of July, 1914, the appellant and several others, including Josh Benedict, met at a commissary at Marion’s mill, in Jefferson County, Arkansas. They drank several quarts of eider, and some of the crowd got very drunk.

Appeal fronj Monroe Chancery Court; Jno. M. Elliott, Chancellor; The sale was void because not in substantial compliance with statutory provisions. Kirby’s Digest, § 3793. 1. The statutory bond was not executed by the guardian. Kirby’s Digest, § § 3780-1-2-3; 116 Ark. 361-8-9. 2. The probate court had no authority to order the sale for maintenance, but only for the education of the minor. Ib., § 3794. 3.

B. Sorrells, Judge; 1. The default judgment was erroneous as there were undisposed of issues before the court. The answer was in the custody of the clerk and the court refused to allow it to be filed. ' 23 Cyc. 750, 751; 17 Ark. 454. 2. The default judgment was erroneous; the complaint fails to set up a cause of action. 58 Ark. 39, 43. The complaint does not allege that the possession of its grantors was either actual or exclusive.

W. Hendricks, Judge; Nothing done to the returns after the election will affect the election or change the burden of proof. Webb v. Bowden, 141 Pac. 652. The pleadings were too indefinite. 33 S. W. 669; 83 Pae. 393; 11 Am. St. 857; 1 Brewst. 26; 49 N. E. 488; 33 S. E. 718; 95 S. W. 676. When amended pleadings setting up new facts may be filed. 6 W. Va. 713; 23 Pac. 84; 159 S. W. 632; 159 S. W. 641; 111 Ark. 398; 61 Ark. 253; 58 Am. St. 239.

C. Trimble, Judge on Exchange; 1. The court erred in instructing the jury: “If you believe any witness has testified falsely to any material fact, you can disregard that testimony altogether, or you may accept such of his testimony as you believe to be true, and disregard such as you believe to be false.” The second clause gives the jury the option of disregarding the entire testimony or only such portion as they believe to be false. 94 S. W. 47. 2.

D. Frier-son, Chancellor; Counsel review the evidence and urge that there is not a preponderance in appellees’ favor, but rather that the preponderance of the evidence is against the decree of the chancellor, citing 41 Ark. 292; 76 Ark. 282; Id. 292; 42 Ark. 522; 114 Ark. 121; 55 Ark. 116.

G. W. Hendricks, Judge; The evidence is not sufficient to show authority in Fullenwider to bind appellant by agreements with reference to either of the cars involved in this case. Neither the fact of agency nor its extent or authority is established by declarations of the agent. 80 Ark. 298; 92 Ark. 315; 90 Ark. 104.

Worthington, Judge; 1. The statutes both State and Federal, prescribe certain rules by which surveyors are to be governed in establishing land lines and in locating corners to sections, and subdivisions thereof. Kirby’s Dig., §1136; Rev. Stat. U. S. § 2395, et seq.-, 88 Ark. 37; 97 Ark. 193; 39 Mich. 60. As to regulations concerning restoration of lost or obliterated corners, see Revision of June 1, 1909, General Land Office, p'p. 22, 23.

Elliott, Chancellor; 1. Appellant is entitled to specific performance. The contract is plain and unambiguous, appellant paid the cash payment called for by it, and, as appears by the undisputed evidence, he is and has at all times been ready, willing and able to perform his part of the contract. The court’s authority to grant the relief is beyond dispute.- Pomeroy, Eq. Jur., 3d ed., § 1402; 36 Cyc. 552. There has been no default on appellant’s part.