Volume 126 — Arkansas Reports

an.cery Court, Southern District; John M. Élliott, Chancellor; STATEMENT BY THE COURT. Appellant filed his petition in the chancery court of Prairie County to confirm title to certain tracts of land therein described. The appellees asked to be made, parties, and contested the petition as to certain tracts of the land. To these tracts it appears that appellant and the appellees deraigned title from one Jesse Martin, deceased..

The United Mine Workers of America, District 21, is a voluntary unincorporated association, composed of many members. The appellees were members of that organization and appellee Douglas was its secretary and treasurer. We will hereafter, for convenience, designate the organization as the district.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. Appellee, -which is a corporation organized and doing business under the laws of the State of Kentucky, instituted this action in the chancery court against appellant to recover an amount alleged to be due on a promissory note and to foreclose a mortgage on real estate situated in Marion County, Arkansas, given to secure it.

W. Smith, Judge; In construing a contract executed on a printed-form, if there are printed and written words in the contract differing in meaning, the written words will control. Bishop on Contracts, § 413; Lawson on Contracts, § 389; 9 Cyc., § 584; 11 Cent. Dig., tit. Contracts, 745; 112 S. W. 332. “Where there are two clauses of a contract in any respect conflicting, ‘that which is specially directed to a particular matter controls in respect thereto.’ ” 72 Ark. 633.

W. Hendricks, Judge; 1. Pleadings must be filed within twenty days after service by summons. Kirby’s Digest, § 6037, Act 290, Acts 1915; Kirby’s Digest, §§ 6038, 6111. Appellee was in default and judgment by defauli; should have been rendered against it. 79 Ark. 252; 28 Id. 204; 102 Ark. 205; 97 Id. 38. 2. The Act does not attempt to deprive the trial judge of his discretion when a good cause is shown. Kirby’s Digest, §§ 6111, 6188. But it does fix a limit on such discretion.

Trimble, Judge; 1. The peremptory instruction given by the court was erroneous. The amount of the counterclaim was stoutly denied by plaintiff. The sole right of the defendant to recover on the counterclaim was based on the plaintiff having forfeited the contract. This was a question of fact for the jury. When plaintiff took a non-suit there were two questions remaining, both of which were questions of fact for the jury. First.

Grace, Judge; Instruction No. 2 asked by appellant should have been given. Prohibition was established on January 1, 1914. 117 Ark. 50, and appellee’s right to cancel the lease arose' on that date. Notice of an intention to terminate the lease should have been given before that date, as appellee knew that the contingency was bound to happen at that time.

Barker, Chancellor; STATEMENT BY THE COURT R. O. Beene, Y. D. Sanders, E. C. Wynne, et al. Mrs. M. A. Tomlin, et al., instituted separate suits in the chancery court against Fred Polzin to cancel and set aside certain timber deeds executed to him. Beene and Sanders each deraigned title by mesne conveyances from T. S. M. Jordan. The immediate deed to Beene was from Henry Stevens and was executed on January 18, 1912.

D. Robertson, Chancellor; STATEMENT BY THE COURT. Appellants instituted this action in the chancery court against appellees, G. W. Cooper and Arthur Cotter, trustees, to' restrain them from selling certain lands under the power of sale contained in a mortgage. Appellants allege that they were the children and sole heirs at law of Georgia Ann Harrington, born Wood, and that by the terms of the will of Dr. Geo.

Whether one acts as a broker or agent, his duty to the principal is the same, and the compensation, when not expressed, is the same. 42 N. E. 298; 47 N. E. 717. , Plaintiff, in order to recover, must show that he was defendant’s agent, and, as a condition precedent to such recovery, he must show a faithful discharge of his duties. He cannot advance his own interests at the expense of the principal.

Coleman, Judge; 1. In order to entitle appellee to a default judgment it was essential either that the account and affidavit filed in the circuit clerk’s office be exhibited with the complaint, or introduced in evidence upon the hearing. Neither was done. 21 Ark. 186. 2. The complaint does not allege that appellant contracted with appellee in person for installing the bath and closet, but that it was done with the request and consent of appellant.

D. Frierson, Chancellor; STATEMENT BY THE COURT. On February 10, 1914, Mary C. Culver instituted this action in the chancery court against the Hughes Manufacturing & Lumber Company, a corporation, the Culver Company,, a corporation, H. A. Culver, D. R. Roberts and C. L. Flack, to cancel on the ground of fraud a deed executed by the Culver Company to the Hughes Manufacturing & Lumber Company.

M. Elliott, Chancellor; The question for this court is simply the proper construction of the clause in the contract that should appellee be unable to put down a well, etc., suitable for raising rice, he shall pay the reasonable value of the plowing and levee fixing. 1.

T. Wood, Chancellor, 1. Appellee can prevail only on the strength of her own title, not on the weakness of the appellants. 89 Ark. 289; 90 Ark. 420; 97 Ark. 368; 8 Michie’s Ene. Dig., Ark. Rep., 403, § 6. Where it can be gathered from the whole record that a sale of land of an estate pursuant to an order of the probate court had the approbation of the court, no formal order of approval was necessary. 72 Ark. 339, 342; 76 Ark. 146, 149. 2. Appellee’s claim is stale.

D. Frierson, Chancellor; It was the duty of the court, in the absence of fraud, irregularity or mistake affecting the validity of the sale, to confirm the same and to approve the deed made to the appellant. Ill Ark. 165; 108 Ark. 366; 77 Ark. 216: 66 Ark. 490: 86 Ark. 255. It is the settled law of this State that a tax sale of lands en masse is void. 83 Ark. 174; 87 Ark. 428; 88 Ark. 395; 94 Ark. 221; 61 Ark. 414.

Cowling, Judge; 1. There is no corroboration of the prosecuting witness either as to the promise óf marriage or the intercourse. 77 Ark. 16, 23, 468; 95 Id. 555; 92 Id. 421. 2. Prejudicial evidence as to other acts was admitted. 1. 'The evidence is clearly corroborative of the testimony of the prosecutrix. 77 Ark. 472; 40 Id. 482; 92 Id. 421. 2. No prejudicial evidence was admitted. The evidence complained of was excluded.

T. Wood, Chancellor; 1. The possession of appellee was only permissive. It was never adverse and the burden was on him to prove adverse possession for the required length of time and the quantity of land so held. 79 Ark. 109; 82 Id. 51. 2. The land was the homestead of Moman. His wife has never joined in any deed to appellee. Kirby’s Dig., § 3901; 57 Ark. 242. 3. One cannot homestead land from the government for another.

J. Driver, Judge; 1. The wagon bought by Ballard was properly chargeable as supplies furnished, and appellant had a landlord’s lien. Kirby’s Digest, § 5033; 79 Ark. 427; 80 Id. 218. 2. The purchase price of the horse was secured by a lien on the crop. The mortgage did not extinguish the lien; it was merely cumulative. 36 Ark. 96; 56 Id. 499. 3. It was error to instruct the jury to find for the defendant at all.

The act is not unconstitutional because it prohibits the working of employees more than ten hours per day, without providing for cases of emergency.

Cochran, Judge; STATEMENT BY THE COURT. Appellee brought this action against the appellants, C. D. Shoop and W. S. Shoop. Appellee testified that the defendants below were, indebted to him in the sum of $75 and interest, for money loaned; that Simon Shoop wanted to borrow the money, but appellee would not loan to Simon unless C. D. would sign with him. C. D. Shoop said to go ahead and let Simon have the money, and he (C. D.) would mortgage his mules for it.

<p>Liquor — illegal manufacture — sufficiency of the evidence. — The evidence held sufficient to sustain a conviction of defendant for being interested in the manufacture of intoxicating liquors, contrary to Act 30, p. 98, Acts of 1915.</p>

<p>1. Municipal corporations — construction op sidewalk — liability por personal injuries. — A municipal corporation will not be liable in damages for an injury to a pedestrian who fell from a sidewalk, which was constructed at a level higher .than the adjacent property.</p> <p>2. ' Torts — personal injury — falling from sidewalk — negligence. Defendant constructed a concrete sidewalk in accordance with the directions of the city,'said construction having the walk somewhat higher than his adjoining property. Plaintiff fell from the sidewalk onto defendant’s property and was injured. Held, the defendant was not liable in damages for the injury.</p>

Coleman, Judge; 1. The court, in sustaining the motion to quash could only act on the record of the justice, and the authority must appear from the face of the transcript. The court erred in sustaining the motion. 21 Ark. 457. 2. Appellee waived his right by failing to file motion to quash, or other plea. 3 Ark. 436; 7 Id. 100; 48 Id. 100; 56 Id. 45. 3.

R. Haynie, Judge; 1. The court erred in refusing to permit appellant to read the deposition of S. R. Wood. Kirby’s Digest, § 3190; 75 Ark. 422. 2. No objection to the bill was made until after ten days. 80 Ark. 438; 1 Rui. C. L. 213.

J. Driver, Judge; 1. The language of § 859, Kirby’s Digest, is restricted to debts incurred ex contractu, and does not include obligations incurred ex delicto on torts. 180 Fed. 543; 113 U. S. 452; 14 Wend. 58; 137 Mass. 516; 9 L. R. A. 187; 68 Ark. 433; 36 L. Ed. U. S. 1123; 28 Id. 1038. The judgment should be reversed and the cause dismissed. 1. A judgment merges the original obligation and becomes a debt by contract, and appellant is liable under § 859 of Kirby’s Digest.

The demurrer should have been sustained. , The circuit court was without jurisdiction, because: A. The action of the board was administrative and not quasi judicial, and therefore not reviewable. 19 Am. St. 88, 94; 62 Ark. 186; 70 Id. 589; 61 Id. 605; 73 Id. 606; 109 Id. 100. B. The board is created the tribunal to decide as to the necessity of removal of the Superintendent and its finding is not reviewable. 109 Ark. 250; 96 Id. 424; 61 Id. 497.

Henderson, Chancellor; The loan was usurious and void. 1. Tombler was the agent of the bank, an officer and member of the discount board. 2. A bonus or commission was paid him as agent of the bank. 3. Plaintiff had knowledge of the payment of the bonus to Tombler, or under the circumstances knowledge will be presumed. 4. The bonus paid Tombler when added to the interest to be paid constitutes a clear ease of usury. 1.

F. Gautney, Judge; STATEMENT BY THE COURT. Appellees brought suit in ejectment, claiming to be the owners of certain lands in Clay county, of which it was alleged appellant was in the wrongful possession. They deraigned title from a deed from their father, Wm. Stephens, executed on the 21st day of July, 1898, and alleged that defendant claimed through and under a deed of later date from the same grantor.

M. Elliott, .Chancellor; 1. The decree was rendered on constructive service and every fact necessary to jurisdiction must affirmatively appear. 48 Ark 246. The publication of the warning order did not comply with the statutes. The last three insertions were after the proof, was filed and two of them after the decree. Kirby’s Digest, § 6188 as amended by Act 290, Acts 1915.

D. Block, Special Chancellor; I. The petition was for the improvement of certain streets while the ordinance limits the improvement to a portion or part of such streets. This is inconsistent and not uniform. 115 Ark. 594; 86 Ark. 21; 59 Id. 354;-108 Id. 141; 115 Ark. 88; 105 Ark. 65. • 2. The boundary line is indefinite and not “easily distinguished.” Kirby’s Digest,- § 5665.

A. Falconer, Chancellor; 1. Appellant had the right to prove that the $350.00 note was executed for a separate consideration for the Sp'ringtown lots, and that the $475.00 note was not a lien on the 40-acre tract, and that the bank had notice. A vendor’s lien does not arise from an exchange of lands. The-40 acre tract was not subject to the lien. Pom. Eq. Jur. (3d ed.), §§ 1251, 1255; 36 Barb. 195; 13 Aik. 112; 99 Id. 218, 350; 54 Id. 195; 75 Id. 89.

T. Humphries, Chancellor; 1. No defense for the minor defendants was made as required by law. The record does not show that a guardian ad litem was appointed before the proof was taken. Kirby’s Digest, § 6058; Act 290, Acts 1915; Kirby’s Digest, §§ 6023-4; 22 Cyc. 636; 107 Ark. 1; 42 Id, 227; 97 Id. 589-613; 69 Id. 350; 43 Id. 521. 2. The complaint does. state a cause of action.

H. Evans, Judge; 1. The indictment is bad and the demurrer should have been sustained. 110 Ark. 318; 111 Id. 214; 114 Id. 310. 2. The testimony is insufficient to sustain a case of pandering. 3. The instructions for the State were erroneous. 1. While the time and place of some crimes must be alleged and proved the general rule is that neither need be done, provided only, that the felony must be alleged. 34 Ark. 321; 102 Id. 393; 92 Id. 413; 99 Id. 126.

This is an action of replevin instituted in the circuit court by Noah L. Bethea against W. H. Jeffres to recover two bales of cotton, 1,500 pounds of the cotton in the seed, 2,000 pounds of cottonseed and 60 bushels of corn. The case was tried before the court sitting as a jury.

. Appeal from St. Francis Chancery Court; E. D. Robertson, Chancellor; This is the second appeal in this cause. Ill Ark. 362. 1. Under the recognized rule for application of payments upon running accounts, all credits, subsequent, as well as prior to February 2, 1910, should be applied to the oldest items of the account, which if done would overpay the account of 1909. In running accounts, the debtor only has the election to apply payments.

Cowling, Judge; 1. The defendant was forced to give testimony against bimself. His testimony before the grand jury could not be used against him. Const., Art. 2, § 8; lié Ark. 391; Kirby’s Digest, § 3087; 84 Id. 88; 66 Id. 33,53. 2. The fourth instruction was improperly refused. It is the law. 1. The testimony of the foreman of the grand jury was admissible by way of impeachment and as affecting the credibility of the witness.

S. Maple, Judge; 1. The oral testimony as to tbe contemporaneous agreement was inadmissible to contradict, vary or affect the terms of a written contract. 75 Ark. 55, 58; 75 Id. 206, 210. A solicitor is a special agent whose authority is limited, and if McNutt exceeded his authority appellant was not bound. 81 Ark. 202, 204; 84 Id. 224-227. One who deals with a special agent is bound to ascertain the nature and extent of his authority. 74 Ark. 557.

Baker, Judge; 1. A judgment without notice is void. Kirby’s Digest, § 4224; 3 Ark. 532; 5 Id. 424; 2 Id. 149; 20 Id. 12; 34 Id. 529. Want of service, or notice may be shown by parol evidence. 33 Ark. 778; 50 Id. 458. A personal judgment can not be rendered on constructive service. 64 Ark. 137; 42 Id. 268. A meritorious defense is not necessary when an attack is made to quash by certiorari. 50 Ark. 458; 52 Id. 80. 2.

J. Driver, Judge; 1. No appeal Vas granted to the circuit court. Kirby’s Digest, § 1487. 2. There was no authority for any one to incur this expense in behalf of the county. Kirby’s Digest, § 1458; 102 Ark. 144.

Cowling, Judge; 1. The indictment is bad. It does not allege the facts with sufficient certainty. 133 Fed. 337; 126 S. W. 797; 12 Ene. of Proc. 327; 98 Ark. 575; 93 Id. 81; 10 Am. St. 169; 10 Ind. 404; 90 S. W. 852; 126 S. W. 797; 43 Ark. 93; 95 Id. 48; 114 Id. 310.' 2. The proof must conform to the charge. Proof of receiving money is not proof of receiving gold, silver and paper money. 60 Ark. 141; 105 S. W. 361. 3. It was error to admit evidence of other crimes.

The widow only took a life estate with remainder in fee to the heirs. 95 Ark. 18; 72 Id. 336; 67 Id. 517; Kirby’s Digest, § 735; 111 Ark. 58; 112 Id. 527; 51 Ark. 61; 105 Id. 571. 2. The sale was not made as executrix as required. Kirby’s Digest, § 173; 34 Ark. 151; 109 S. W. 890; 77 Id. 182. 1. Power to sell absolutely was given by the will. 112 Ark. 527. 2. She properly exercised the power. 31 Cyc. ■1150; 108 Pa. St. 129; 27 Atl. 1082; 86 Ark. 399; 53 Id. 185.

J. Driver, Judge; The law of this case is Kirby’s Digest, Ch. 35, §§ .1009-12-14-17 to 1024. While only one commissioner is authorized, the fact that three were appointed is not material, except that no additional compensation can be paid. 68 Ark. 340. Instead of performing the duties, they employed others to do so, and they were paid. To pay the commissioners would be double compensation. Gladish is not entitled to any pay for his services. Kirby’s Digest, § 1486.

Cowling, Judge; 1. There is nothing in the record to show when or where defendant sold the whiskey. 2. It was error to refuse instructions 2 and 4. 1. The date of the sale and place was sufficiently established. 125 Ark. 47. 2. There was no error in the court’s refusal of instructions. 34 Ark. 649; 52 Id. 180; 58 Id. 472; 84 Id. 607.

Trimble, Judge; STATEMENT BY THE COURT. On or about the 2nd of February, 1915, appellee, a section foreman of appellant, was instructed by the roadmaster to repair some bad track on appellant’s .line between Marvell and Poplar Grove. On the 4th of February, appellee was notified that a freight train would bring out a ear of cinders from Helena which was to be used by appellee in the repair work. • Appellee resided at Marvell, in the section house of appellant.

This cause was heard below on an agreed statement of facts. The agreed statement of facts is as follows: “It is agreed by'counsel for the above named parties that this cause be tried before this court, upon the pleadings, exhibits and the following agreed statement of facts: “1. That the facts as alleged in the complaint and answer, with all exhibits thereto and proofs of publication attached, are true. “2.

T. Mays, Special Judge; 1. Plaintiff was entitled to judgment on the supersedeas bond against the sureties, when the judgment was affirmed. Kirby’s Digest, §§ 4420, 4684; 28 Ark. 483-4; 2 R. C. L., § 269; 31 Ark. 194. Judgment should be entered here against said sureties.

R. Haynie, Judge; The jury did not return a verdict responsive to the issues tried. The trial was nothing less than a mistrial, as the jury should have disposed of the whole case. The verdict is against the weight of the evidence. 209 Pa. 425; 231 Id. 332; 8 Ark. 154. The judgment is final as to the St. Louis, I. M. & So. Ry. Co., but should he reversed as to appellant.

D. Shaver, Chancellor; 1. The levy of the attachment was a substantial compliance with the statute and created a lien. Kirby’s Digest, § 355; 11 Cal. 238; 70 Am. Dec. 775; 72 Cal. 494; 42 Kans. 177. 2. The decree is valid on collateral attack. Kirby’s Digest, §§ 412-15-19; 90 Ark. 454. 3. The rights of third persons acquired in good faith under a judgment in full force are not affected by a subsequent reversal or change in such judgment. 17 Ark. 608, 682; 17 Am. & Enc.

W. Hendricks, Judge; Act 302 has appropriated the amount appellant claims, and it imposes on the Auditor the duty of issuing the warrant. 42 Ark. 233. Article 5, § 29, has no application to this fund. 94 Atl. 746; 61 Id. 253. 1. Act 302, §§ 7-9, etc., do not constitute an appropriation. Const., art. 5, § 29, article 16, § 12; Kirby’s Digest, §§ 3415, 3441, 3409. A specific appropriation must be made. 85 Ark. 171; 120 Id. 80. 2.

The account was the husband’s. The appellant was a married woman, and not responsible for necessaries furnished the family. The contract was not for her personal benefit nor for the benefit of her separate estate. 66 Ark. 437; 33 Id. 266; 48 Id. 220; 52 Id. 234; 108 Id. 153; 47 Id. 485; 27 S. C. 500; 54 Ind. 106; 69 Mich. 272; 62 Ark. 146; 66 Ky.

T. Wood, Chancellor; On appeals, chancery causes are tried de novo, and this court considers only competent testimony. 124 Ark. 74. Two witnesses testified that the “landing field” was the subject of trade, and one, Furr, stated that it was not. The great preponderance of the testimony sustains the plaintiffs. The evidence is clear and unequivocal and convincing. 45 Atl. 612; 110 N. W. 840.

D. Frierson, Chancellor; STATEMENT BY THE COURT. On September 17, 1915, appellant brought this suit to set aside a decree of foreclosure, and a sale and deed made thereunder, alleging that appellant was not summoned in said cause; that the assessment, the basis of the suit, was void; that the county court did not sufficiently define the district and that the decree was illegal on its face.

M. Jackson, Judge; STATEMENT BY THE COURT. I. W. Saxon was indebted to appellant in the sum of 884.96, and on the 22d day of March, 1915, gave an order drawn on appellees for said sum in payment of said indebtedness. This order was immediately presented to appellees for acceptance. They did not accept it in writing, but stated to the appellant that the order was all right.

Cochran, Judge; Section 6 of the Act is unconstitutional for the reason that the act is incomplete, and attempts to delegate legislative powers to the Board. Sec. 7 of the Rules of the Board is void for the reason that Sec. 6 of the Act is void and vests them with no power to declare a crime, fix a penalty and prescribe a punishment. 8 Cye. 830; Cooley Const. Lim. (4 Ed.) 151-2; 35 Ark. 69. The power to legislate cannot be delegated to individuals. 8 Cyc. 831.

D. Crawford, Special Judge; 1. The bank books were balanced from time to time and delivered to appellees with all cheeks and vouchers, and it was the duty of appellees to examine them, thus discovering any shortage, and notify the bank, so it could protect itself; but the failure to so examine and notify the bank relieved it from liability, as upon an account stated. 2.

The court erred in its declarations of law. Under the laws of California the title to the cattle-passed to the mortgagee. 5 R. C. L., § 22, pp. 927-8; Civil Code of Cal., §§ 2965-6-7, 2955 to 2972; 127 Cal. 648-652; 84 Id. 554-6; 63 Id. 4, 550; 152'Id. 488, 493; 121 Id. 8; 117 Id. 412; 36 Id. 414; 61 Pac. 84. 2. The lien attaches to the proceeds of ^ale. 131 Cal. 11-14; 144 Id. 468-470; 138 Id. 334; 37 Pac. 914. 3.

<p>Money paid — mistake—recovery.—One B. owed a school district some money; one M. suffering under an hallucination, conceived the idea that he owed the district money, and gave to B. a $1,000 bill, whichB.de- ' livered to the district to be applied on his debt. Held, M.’s administrator could not maintain an action to recover the money.</p>

The special venire should have been discharged and set aside. 2. After the defendant’s peremptory challenges were exhausted, it was error to allow the State to challenge two jurors. 3. The record of deeds is not admissible unless the originals are shown to have been lost or mislaid. No foundation was laid and the record does not show that the deed contained all the lands included in alleged forged deed. 4. Incompetent evidence was admitted. 5.

Appellee failed to pay tbe premium and bis policy lapsed. He had notice. He was reinstated subject to all the conditions contained in the new contract. His sickness existed, within thirty days from the reinstatement of the policy, and it was error to refuse instruction No. 1, asked by appellant. 122 Ark. 219; 64 S. E. 180; 112 Pae. 1106; 166 S. W. 17; 98 Ark. 421; 74 Id. 507; 75 Id. 25. 2. The court erred in giving instruction No. 1 asked by appellee.

Appellants instituted this action in the circuit court against appellees to recover possession of an island in the Arkansas Biver opposite the river front just below Biverside Addition to the city of Van Burén, in Crawford County, Arkansas. Appellants claim that they are the owners of the fractional west half of section 31, township 9 north, range 31 west, in Crawford County, Arkansas, and that the island is a part of the lands embraced in their deeds.

Trimble, Judge; STATEMENT BY THE COURT. The appellee instituted this suit against C. C. Whedbee, principal, and I. T. Fluhart, G. W. Persefull and J. V. Crutcher, as guarantors of a certain contract which was made an exhibit to the complaint.

Elliott, Chancellor; 1. The wife was not a necessary party to the suit. She had no dower right nor right to redeem. 14 N. E. 901-3; 13 Id. 246; 106 Ark. 79, 83; 66 Id. 49a; 107 Id. 40; 25 Id. 52-59; 29 Id. 591-6; 39 Cyc. 1859-60; 17 So. 45; 82 N. W. 892; 2 Am. Rep. 303; 76 N. E. 350-2; 2 Ohio C. C. 70; 50 N. E. 933-5; 69 Id. 523-6; 81 Am. Dec. 242; 15 Pet. 21; 22 Oh. St. 435; 66 N. E. 245, 547; 185 S. W. 1000; 60 Ark. 180. 1.

Cowling, Judge; 1. Tbe act provides for the construction of a new road and violates the Constitution. 92 Ark. 93, 621; 118 Id. 669; 115 Id. 88; lb. 594; 116 Id. 167. This point and these authorities were cited in 123 Ark. 205; Act 338, 1915. The road was not laid out and dedicated as provided by law. All facts essential to jurisdiction must appear upon the face of the record. 123 Ark. 195; lb. 211; lb. 283; 103 Ark. 446; 54 lb.. 627; 51 Id. 34. 2.

E. Martineau, Chancellor; 1.- The appellees are not authorized under the powers granted them to maintain this proceeding. 55 Ark. 148, Kirby’s Digest, § 5726; 56 Ark. 205; 53 Id. 300; Kirby’s Digest, § 5456; 97 Ark. 321; 119 Id. 166. The district has been completed and the commissioners have lost their control of the district. The city of Little Rock has succeeded to all their rights. 1.

Appeah from Hot Spring Chancery Court; J. P. Henderson, Chancellor; 1. The check received was in full payment. By retaining the check stating that it was payment in full, the creditor rendered it an accord and satisfaction of the debt. 98 Ark. 271. He is now estopped. 94 Ark. 159; 1 Corp. Jur. par. 81; 100 Ark. 251. 1. There was no accord and satisfaction. 56 Ark. 43; 100 Id. 252; 49 Mo. 556. There was no compromise 93 Ark. 353; 121 S. W. 774. 2.

1. Homicide — second degree murder — sufficient proof. — A verdict pronouncing defendant guilty-of second degree murder, held to be warranted by… Held: statements of D. were not admissible as dying declarations, at the trial of A. . 3. Evidence — declarations of third party — res gestae — Under the facts in the above syllabus, D. had been asked who had begun the shooting, and he replied that B. had. Held, such a statement was not admissible as a part of the res gestae. 4.

Martineaú, Chancellor; 1. Under the will, appellee took only a qualified fee in the lots, with a limitation over by way of executory devise. 82 Ark. 209; 55 Wise. 96; 100 N. Y. 288; 11 R. C: L. 470; 2 Jarman on Wills, 44, 485,495; 13 N. Y. 273; 19 Id. 344; 4 Kent Com. 279; 26 Atl. 770; 3 Term. (Pa.) 143; 74 Ark. 545; 105 N. W. 161; 81 Ark. 480; 2 Redfield Wills (3 ed.) 278; Page on Wills, § 684; 11 R. C. L. 476-7.

T. Wood, Chancellor; statement by the court. Prior to the 7th of March, 1913, certain territory in Phillips and Desha counties had been incorporated into the Laconia Levee District. See Acts of 1891, p. 169, and Acts of 1893, p. 253.

W. Smith, Judge; 1. The court erred in giving instruction No. 5 for the State. It was misleading. 71 Ark. 459; 21 Cye. 633; 67 Ark. 605. 2. The remarks of the prosecuting attorney were prejudicial and should have been excluded- 110 Ark. 528. 1. There was no prejudicial error in the State’s instruction No. 5. 71 Ark. 459; 71 Id. 459; 95 Id. 106; 96 I0d. 629; 76 Id. 493; lb. 517, 110, 489; 85 Id. 358; 98 Id. 436; 100 Id, 183; 109 Id. 514; 120 Id. 200. 2.

M. Jackson, Judge; 1. The first annual premium was paid-. If not, the time was extended and the time was waived. Having elected to waive, the company is estopped afterward to claim a forfeiture. 49 Ark. 216; 37 Id. 47; 112 Id. 178; 67 Id. 588; 53 Id. 500; 150 S. W. 978; 129 Pac. 865. No notice of cancellation of policy was given. 72 Ark. 47. 2. Hutchins could neither read nor write. The examining physician wrote the answers, and he knew the facts.

Haynie, Judge; STATEMENT BY THE COURT. S. P. Davis brought suit for damages, for the total loss of two carloads of strawberries, alleged to have been caused by delay in transportation and delivery. The complaint alleges that the railroad company issued two negotiable bills of lading, one for each carload of strawberries, on about the 8th of May, 1913, agreeing therein to ship from Prescott, Arkansas, via Eafet St. Louis over the Mo. Pac.

W. Dodd, Special Judge; STATEMENT BY THE COURT. Appellee sued appellant to recover damages whieli lie alleges were sustained by one of appellant’s street cars negligently colliding with a fire wagon in which he was riding. The material facts are as follows: Appellee, Leo Hendrickson, was a fireman employed by the city of Fort Smith and appellant was a corporation operating a street car line in that city.

There is no State statute exempting either local or nonresident attorneys from any legal process. Kirby’s Digest, §§ 3129, 444; 61 Ark. 504; 54 Am. St. 276. 2. The common law does not allow counsel the privilege of immunity from service of civil process. Weeks on Attorneys, § 107, p. 203; 3 Blaekst. Com., § 289. 3. The great weight of authority is against the immunity. 35 Ark. 331; 12 L. R. A. (N. S.) 942, and note; 32 Id. 931; 198 U. S. 144; 134 Am.

E. Martineau, Chancellor; 1. The note is void because of a total failure of consideration. Langdale on Contracts, § 45; 2 Black. Com. 443; 38 Ark. 127-; Leake on Contracts, 547; 9 Cyc. 369; 19 L. T. Rep. (New Series) 74; 10 Cyc. 429 e. 1. The charter of the company was appellant’s contract of subscription and purchase.

D. Shaver, Chancellor; STATEMENT BY THE COURT. On September 21, 1914, the appellant, T. J. Daly, and his sister executed a deed conveying a certain lot upon which a dwelling house was situated in the town of Arkadelphia, Arkansas. The consideration named in the deed was $820.00, to be paid on or before June 15, 1915.

D. Frierson, Chancellor; 1. This is a collateral attack. 72 Ark. 101; 113 Ark. 449; 89 Kans. 751; 133 S. W. 470, 67 S. E. 569; 152 N. C. 748; 25 Fla. 730; 6 So. 77; 61 Neb. 339; 165 (Mo.) S. W. 1050. 2.

D. Frierson, Chancellor; 1. There was no vendor’s lien retained in the deed; nothing to put appellants upon notice. But if a lien was retained the deed of release was sufficient to cancel and release same. Beard was an innocent purchaser for value without notice and had a right ,to rely upon the records showing satisfaction. Appellant has the greater equity.

F. Gautney, Judge; STATEMENT BY,THE COURT. J. W. Mullinix, who, at that time lived in Mississippi, was employed by Ira F. Twist to manage his plantation in Arkansas. After a few months Twist became dissatisfied with Mullinix as manager, claiming that he was incompetent, and discharged him. Mullinix, after his discharge, returned to Mississippi, leaving his family and household effects temporarily in a house that he occupied at Earle, Arkansas.

B. Baker, Judge; 1. The order of sale should not have been granted. No notice was given as prescribed by law. Kirby’s Digest, § 195. Mere informalities do not vitiate so long as they do not mislead. 20 Cyc. 1117. 2. No inventory of the personal estate was ever filed. 64 Kans. 254. 3. No debts had been probated against the estate. It is not necessary, Kirby’s Digest, § 187; 77 Am. Dec. 340. There was a valid lien on the land — it was due. 78 N. E. 71; 40 Cyc. 1710.

. Appeal from Pike Circuit Court, Jefferson T. Cowling, Judge; 1. Ashcraft was not negligent. 99 Ark. 537; 104 Id. 67; 116 Id. 196. 2. The risk was an ordinary one and was assumed by appellee. 90 Ark. 543-5-6, etc. 3. The court erred in giving instruction No. 1 for appellee. It told the jury that it was the duty of appellant to protect the appellee from danger. 86 Pac. 1005; Labatt on Mast. & S., § 1165. Grover was not ignorant of the risk.

B. Priddy, Judge; 1. There was strong testimony indicative of defendant’s insanity; he labored under some hallucination of an impending or existing condition serious to himself and his safety. 12 Blandford on Insanity, 103; 1 Wharton &Stelle Med. Jur., § 390; Taylor’s Med. Jur., p. 740, 784-5. 2. The court erred in refusing instruction No. 1, asked for defendant. Instruction No. 2 refused is a correct statement of the law.

R. Haynie, Judge; STATEMENT BY THE COURT. Appellee brought suit in replevin against appellant in the Clark Circuit Court for about 14 tons of cotton seed in possession of appellant, same being stored in a little house just in the rear of the livery barn of appellant in Arkadelphia.

Cochran, Judge; STATEMENT BY THE COURT. This was a suit by the appellee against appellant in ejectment to recover tbe possession of certain lands in Crawford county.

E. Martineau, Chancellor; 1. The bond was not given as required by Act No. 446, Acts 1911, p. 462. The bond was to the Redñeld School District; the bondsmen did not qualify; the sureties were not approved by the clerk nor was the bond filed according to law. It does not contain the proper recitals. There can be no recovery. 86 Ark. 212; 17 Id. 483; 79 Id. 550; 74 Id. 545; 81 Id. 235; 100 Id. 253; 109 Id. 508; 111 Id. 379; 126 Am. St. 1095. 2.

W. Hendricks, Judge; 1. The court erred in refusing a continuance. 22 Ark. 164; 21 Id. 460; 99 Id. 399; 71 Id. 182; 60 Id. 664; 8 Iowa 636; 80 Ky. 480; 1 Yeates, 20; 48 S. C. 1. Due diligence was shown and the court clearly abused its discretion. 10 Ark. 627; 42 Id. 273; 85 Id. 334; 61 Id. 142. 2.

H. Evans, Judge; 1. The verdict is excessive. 88 Ark. 282; 119 Pac. 810; 85 S. W. 299; 138 Id. 216; 136 Id. 2; 95.AÜ. 209. Taking into consideration all the elements of damage and the facts, the judgment's are not excessive. The cases cited by appellant are not in point.

H. Humphreys, Chancellor; 1. Appellant was not compelled to wait until court to make tender under the decision of this court in 120 Ark. 69. 3 Cyc. 491. 2. Appellant had the right to act upon the opinion at once and made a legal tender and was entitled to a judgment for the return of his money. Mays attempted to comply with the orders of court and actually tendered the balance due. The decree should be reversed. 51 Iowa[ 537; 125 Ind. 106; 85 Ark. 30. 1.

The information charges no crime. There is no such offense as “failing to dip cattle.” Acts' 1907, § 5; and Rule 7 of Board Control. Criminal Statutes are strictly construed and no case is to be brought by construction within a statute, unless it is completely within its words. 38 Ark. 519; 53 N. Y. 511; 5 Denio, 76; 3 Humph. 483; 49 Ark. 488. 2. The district is void for want of definite description. 122 Ark. 491.

Shaver, Chancellor; •STATEMENT BY THE COURT. This suit was instituted by the appellees against the appellants for partition of certain lands in Hemp-stead county. The cause was heard upon an agreed statement of facts, substantially as follows: A. B. Williams died in 1895. He owned some 4,200 acres of land and certain personal property. He was survived by it.

J. Driver, Judge; 1. The court erred in admitting evidence to show a supposed motive or intent on part of defendant for the breach of the contract. 113 Ind. 282-4; 70 Kans. 801; 70 Pac. 671; 90 U. S. (23 Wall.) 471, 480; 120 Ga. 606; 71 111. 540; 189 Mass. 124; 127 Mich. 548; 37 Hun. 519; 3 Grant (Pa.) 198; 130 Wise. 84 2. Instruction 18 as to the measure of damages was erroneous. Loss of profits cannót be recovered.

J. Driver, Judge; 1. The notice was sufficient under the Act. It contained everything required by law. Acts 1911, p. 199; 122 Ark. 418. 2. No notice was required. Kirby’s Digest, §§ 1434, 1439, 1437; Acts 1909, p. 839, § 10; Acts 1911, p. 109. ' • 3. Argues other points not decided by the court. 4. The question cannot be raised by certiorari — - only by appeal. Acts 1911, p. 199; 129 S. W. 818; 114 Id. 919; 49 Ark. 533. 1.

Worthington, Judge; 1. This was an interstate shipment. Alternate rates were not denied the shipper, but were offered him. He accepted and chose the cheaper rate and agreed to the released valuation clause in the bill of lading. That is the limit of recovery here. 241 U. S. 319; 233 Id. 97; 111 Ark. 430; 226 U. S. 491. 2. The'verdict is excessive and the cause should be reversed unless appellees remit all in excess of $100.00. 1.

The policy is an indemnity insurance policy and a liability insurance policy. 66 Ark. 562; 64 Id. 174. This court does not follow the rule in 72 N. H. 485. 2. The policy was assignable with or without the written consent of the insurer. Kirby’s Digest, § § 509, 517-18; 66 Ark. 243; 12 Idaho 653; 10 A. & E. Ann. Cas. 328; 157 Fed. 514; 85 C. C. A. 106; 138 Fed. 426; 133 Id. 816.

F. Gautney, Judge; STATEMENT BY THE COURT. L. F. Cornelison on or about November 24, 1913, began working for the St. Louis & San Francisco Railroad Company as agent at Lepanto, Arkansas.- The St. Louis & San Francisco Railroad Company required the said Cornelison to execute to them a bond.

L. Searcy, Special Chancellor; STATEMENT BY THE COURT. This suit was instituted, by the appellant against the appellee at law to recover possession of Lots 25 and 26 in the town of Magnolia. The appellant set up title by virtue of an inheritance from her father, James R. Melton, deceased.

Pulaski Circuit Court, Second Division; Guy Fulk, Judge; 1. Oral testimony to contradict the deed was not admissible. 94 Ark. 130; 95 Id. 131; 102 Id. 575; 112 Id. 1. 2. The court erred in refusing plaintiff’s instructions Nos. 1 and 7. Plaintiff had a lien under § 400 of Kirby’s Digest. It was error to give defendant’s instructions Nos. 3, 6 and 8. They are not the law. There was no consideration for the extension of time and no promise to extend the time was ever made.

J. Driver, Judge; 1. The court had no jurisdiction of appellee’s cross-complaint. His claim was in excess of $300.00, exclusive of interest. The amount of the-demand or claim governs; not the amount recovered. 44 Ark. 100; 13 Id. 40; 103 Id. 143; 95 Id. 43; 57 Id. 266; 50 Id. 380; 64 Id. 551; 77 Id. 582; 111 Id. 352. 2. The court erred in its instructions. The value of the mules was what they sold for. 86 N. W. 25. 3.

A. Falconer, Chancellor; 1. The decree of the chancellor is clearly against the preponderance of the evidence and should be set aside. 92 Ark. 359; 93 Id. 283; 94 Id. 301; 98 Id. 189; 107 Id. 372; 83 Id. 340. 2. The chancellor abused his discretion in refusing a continuance. 1. The continuance was properly refused. No abuse of discretion is shown. Appellant had new counsel and all his witnesses were present.

H. Evans, Judge; Argues the merits of the controversy which are not gone into by the court. 1. Rule 9 has not been complied with. No abstract is filed. 75 Ark. 571; 101 Id. 117. The instructions are not set out. 86 Ark. 104-9; 90 Id. 398, 406.

W. Smith, Judge; STATEMENT BY THE COURT. Appellant was indicted for murder in the first degree, the indictment, in apt words, charging him with that crime committed by the killing of one Sweetie Stacher.

W. Smith, Judge; 1. A plaintiff in ejectment must recover upon the strength of his own title and must prove same before he can recover. 2. The record of surveys under the law is prima facie correct. Kirby’s Digest, § 1142; 50 Ark. 65. If the Reddin survey is correct the line is not only “full” but is almost 6 chains long. Where a line is short the shortage is prorated among the four forty acres of the section.

Worthington, Judge; 1. The services and expenses were not authorized by the general manager or superintendent, or ratified by such officials. There was no pressing emergency to give rise to implied authority in the assistant claim agent. A railroad company is not bound by the contract of its unauthorized agents, and against the rules of the company. 53 Ark. 377. 2. The authority of the agent expires when the emergency ceases. 53 Ark. 377; 65 Id. 300; 87 Id. 197. 3.

W. Smith, Judge; 1. We deny all liability on the notes because (1) the fertilizer was worthless and of no commercial value. (2)- The fertilizer sacks were not tagged nor inspected by the commissioner of agriculture or any of his inspectors as required by law. Acts of 1913, No. 183. The court erred in refusing defendant’s instruction No. 1 and in giving plaintiff’s instructions Nos. 2 and 3.

D. Frierson, Chancellor; 1. The court erred in dismissing the complaint. It alleged fraud and is sustained by proof. 63 Ark. 450; 77 Id. 351. . The case 181 S. W. 908, upon which the. chancellor relied is not decisive, as no sufficient fraud was alleged. The charges for board, clothing and doctor’s bill was not a just or legal claim. 63 Ark. 159; Id. 450. Gross frauds sufficient to wipe out the entire estate of the minor were shown. Cases supra. See also 24 Ark. 574.

J. Driver, Judge; The -demurrer was improperly sustained. The cause did not abate and the widow was entitled to rent. The cause of action was properly revived in the name of the administrator. 176 S. W. 309; Kirby’s Digest, §§77,4602. The demurrer was properly sustained. The suit abated on the death of the widow. Dower had never been assigned to the widow. Noystatute can be found allowing such a suit.

. W. Smith, Judge; 1. Hempstead was a partner. His name was used as a part of the trade , name. He signed the letter of credit and in correspondence the account was referred to as that of the Watson-Hempstead Plumbing Co. This placed Hempstead on notice that his name was being used as a part of the firm. If not a partner to the contract, he at least was a partner by estoppel. He permitted his name to be used and by acquiescence and conduct is liable as a partner by estoppel.

F. Gautney, Judge; STATEMENT BY THE COURT. Mrs. W. I. McClintock instituted this action before a justice of the peace against C. E. Skinner & Company and W. D. Polk to recover two mules which she claims they wrongfully took possession of and converted to their own use. There was a verdict and judgment for the plaintiff in the justice court and the defendants appealed to the circuit court.

H. Evans, Judge; 1. This case presents substantially the same questions as those involved in 115 Ark. 166. But the contract is entirely. different'. In the above ease the contract was ambiguous and parol evidence was admissible with letters, circulars and the conduct, etc., of parties, etc., to determine the relationship df parties.

The verdict is contrary to the law and the evidence. Appellant was the procuring cause of the sale, and the evidence shows it. 2. The instructions to the jury are erroneous. As the instructions are not set out in the abstract nor passed on by the court, it is unnecessary and useless to cite the many authorities for appellant. 3. The court erred in the admission and rejection of évidenee to the prejudice of appellant.

Elliott, Chancellor; 1. A materialman’s lien on a boat may be enforced in the chancery court of the county where the boat is situated, ■ regardless of the residence of the owner. 30 Ark. 568; 56 Id. 544; 115 Id. 230 2. The court had jurisdiction and erred in quashing the service in Pulaski county. Personal service may be had anywhere in the State. Kirby’s Digest, §§ 4983, 6072, 4970, 4976, 4987.

Haynie, Judge; 1. Kirby’s Digest, § 6904, fixes the place of taxation in the township and district where situated and not at the domicile of the corporation. 64 Ark. 513; Black, on Int-.Laws, pp. 220-1-2; 113 U. S. 571; 51 Am. St. 44-49; 64 Pae. 787. 2. The situs of personal property, for the purposes of taxation, does not follow the domicile of its owner. 80 Ark. 140; 166 U. S. 185-226; 56 Am. Dec. 522; 11 Wall. 423; 7 Id. 139, 150. 3.

B. Sorrells, Judge; 1. The court erred in refusing to allow the witness to state how old Fannie Morgan appeared to be. 78 N. W. 715; 96 Id. 186. 2. The evidence does not sustain the verdict. 61 Am. St. 751. 1. No foundation was laid for the questions propounded. The evidence in reply to the question would be an expression of opinion merely on hearsay. 76 Ark. 288; 61 Id. 241; 64 Id. 523; 103 Id. 200; 6 Conn. 9, 13; Abbott Trial Ev. (2 Ed.) 112.

One partner is the agent for the firm and Ms acts done in the course of the partnership business are the acts of the firm and the firm is bound by Ms acts. Strangers are not charged with knowledge of private agreements between partners and definite notice must be given such third parties. Instruction No. 5 hence was error. 1 Lindley on Partnership, 176; 88 Ark. 417; 114 S. W. 922; 87 Ark. 412; 76 Id. 4; 61 Ala. 143; 78 Mass. 453; 42 N. H. 269; 50 N. C. 32; 45 Vt. 43; 41 Oh.

B. Priddy, Judge; 1. No contract can be binding on a school district unless made at a meeting of the directors at which all' were present or had notice. 64 Ark. 491; 69 Id. 162. No notice was given Director Wallace. All persons who contract with school officers are presumed to know the extent of their powers. 127 S. W. 969. 2. There was no ratification by the directors. Usage cannot make a contract or effect the settled rules of law. 69 Ark. 313; 85 Id. 568. 3.