Volume 133 — Arkansas Reports

The court erred in its instructions to the jury. The verdict is contrary to the law and the evidence. There w,as no evidence that defendant transported, shipped or delivered any liqnor to any one, or that he sold or offered to sell any liqnor. No violation of the act was proven. The act prohibits the importation of liquor by any person in any manner whatsoever or for any purpose except the two purposes named in see. 17. 69 So. 652; 219 IT.

The demurrer should have been sustained. The indictment charges more than one offense. Kirby’s Digest, sections 2525, 2522, 2526, 2528, 5492; 22 Cyc. 376; 64 Ark. 231; 100 Id. 591; 83 Id. 244; 45 Id. 62. See also 21 Ark. 183; 34 Cyc. 1782. 2. The verdict is contrary to the law and the evidence. Defendant’s instruction No. 1 should have been given. Mere lawful picketing is not unlawful. Martin Mod. Law of Labor Unions, § § 168-9; 105 Ark. 32. 3.

G. Trimble, Judge; 1. The verdict is against the evidence. 79 Ark. 608; 123 Id. 428. 2. The verdict is excessive. 117 Ark. 47; 106 Id. 177. 1. The verdict is sustained by the evidence. 2. The verdict is not excessive. The damages awarded are indeed moderate. 95 Ark. 310. STATEMENT OF FACTS. The appellee brought this action against the appellant to recover damages for alleged personal injuries.

The record fails to show that defendant was present at each substantive step of the trial. 110 Ark. 523. 2. It was error to limit the time of the argument. 58 Ark. 367; 2 E. C. L. 407-8. 3. Incompetent testimony was admitted. Heflin, Dildoy and King, without having qualified as experts, or showing such an intimate acquaintance, etc., as to qualify them to testify as nonexperts, were allowed to testify. This was incompetent. 120 Ark. 311; 106 Id. 362.

Francis Chancery Court; Edward I), lloberison, Chancellor; 1. The act embraces territory outside the district. 2. The act was not properly passed. 3. Benefits were not properly assessed. ' The action of the commissioners was arbitrary and unequal. 1. The act is valid. No lands outside the district were included. 130 Ark. 70; 92 Ark. 99. 2. The act was properly passed by both Senate and House. The journals show this. 3.

Cowling, Judge; 1. Argue the law and facts citing many cases. The instructions given are the law, those asked by appellant were erroneous. 2. An exception in gross to the instructions is not sufficient and will not he considered on appeal. 75 Ark. 181; 84 Id. 73; 87 Id. 614; 114 Id. 415. STATEMENT OE EAOTS.

M. Jackson, Judge; 1. It was error to direct a verdict. The evidence showed that appellant was the granddaughter of Henry Watson. Reputation or hearsay was admissible. 15 Ark. 555; 24 Id. 586; 16 Cyc. 1223-4-5. 2. Decedent’s own declarations were admissible. 39 S. W. 507; 63 N. E. 701; 59 Miss. 588; 32 N. C. 185; 57 L. R. A. 548. The court properly directed a verdict. The burden was on appellant to prove title. She failed.

The demurrer should have been sustained. No public offense was charged nor proven. 52 Ark. 90; 118 Fed. 757-9. 2. A verdict should have been directed for appellant. No offense was proven. 3. The court erred in its instructions.' 13 Ark. 718; Act No. 13, Acts 1913, section 6. 4. The court erred in its action and remarks as to Mr. Covington, appellant’s attorney, in the presence of the jury. Its action was prejudicial. Oglesby, Cravens é Oglesby, of counsel. 1.

The demurrer should have been sustained. The indictment is void for duplicity and uncertainty. 37 Ark. 408; 22 Cyc. 338, 380, section 5 and note; 41 S. W. 809 j 67 Id. 397; 6 Id. 388. 2. The’manner of the selection of the jury was unlawful. Kirby & Castle’s Dig., § § 2518, 5238. 3. The verdict is against the evidence. The court erred in its instructions. 1. The indictment was good under the language of the act.

<p>Appeal from Garland Circuit Court; Scott Wood, Judge;</p> <p>The act is not unconstitutional. 130 Ark. 116. The will of the Legislature is clearly expressed and there is no ambiguity. 24 Ark. 487; 46 Id. 159; 20 Wendell 562; 47 Ark. 404; 59 Id. 237; Southerland on Stat. Constr. 315-16, § § 238, 283; 87 Ark. 400; 106 Id. 517; 123 Id. 68. The act must be clearly unconstitutional. 32 Ark. 144; 99 Id. 1; 102 Id. 166; 100 Id. 175; 112 Id. 342; 114 Id. 155; 92 Id. 309; 86 Id. 412; 130 Ark. 52. See also 72 Ark. 195.</p> <p>The act does not contravene the Constitution. Cases supra.</p> <p>The act is unconstitutional and void. 130 Ark. 116; Const., Art. 16, § 1.</p> <p>STATEMENT OE EACTS.</p> <p>James Gould filed a petition for mandamus against Charles H. Davis, as treasurer of Garland County, to compel the payment to him of a county warrant of which he was the owner. His petition alleges that the county treasurer has in his hands sufficient funds with which to pay said warrant, but refused to pay the same.</p> <p>The defendant stated in his answer that Garland County was indebted in the sum of $180,000.00 and that the Legislature of 1917 passed a special act for the funding of its indebtedness. (Acts of 1917, vol. 1, p. 846.)</p> <p>. The answer further alleged that pursuant to this act the county made a contract with James Gould to take up its warrants and hold them for a specified time in the future without presenting them for payment and in consideration therefor it agreed to pay said Gould a specified amount for his indulgence in not presenting said warrants for payment until the time specified in the contract ; that the' warrant in question shows on its face that it was issued to James Gould pursuant to said contract with him for the funding of the indebtedness of the county. It was also alleged in the answer that the act of the Legislature under which the warrant in question was issued is unconstitutional and void.</p> <p>The plaintiff filed a general demurrer to the answer and also specifically demurred to that part of his answer which alleged that Act 158, of the Acts of 1917,, was unconstitutional.</p> <p>The circuit court was of the opinion that section 8 of Act 158, being a special act regulating the payment and issuance of warrants by Garland County, was unconstitutional and thereupon overruled the demurrer to the second paragraph of the answer. It appearing that the warrant attached to the petition for mandamus was issued under the provisions of this section, the court dismissed the petition for mandamus at the cost of the plaintiff. The case is here on appeal.</p>

Robertson, Chancellor; The rights of the licensed ferry were infringed by this company ferry, and injunction should issue. Kirby’s Digest, § 3575; 20 Ark. 561; 44 Id. 184; 56 S. W. 167; 49 L. R. A. 248; 33 Id. 536; 17 S. W. 884; 65 Am. Dec. 535; 94 Ark. 190.

Martillean, Chancellor; 1. There was no ground for setting aside the decree of April 23, 1910. Before a collateral attack can be sustained it must be shown that the court was without jurisdiction, or that there was fraud or mistake. 91 Ark. 525; 101 Id. 390. The fraud must be in the procurement and not in the case itself. 94 Ark. 588. All parties were before the court, the minors by guardian ad litem. A full and fair hearing was had and decree rendered.

The note was plain and unambiguous. A written contract can not be altered, varied or explained away by parol testimony. 4 Ark. 154; 20 Id. 304; 19 Id. 690; '24 Id. 210; 40 Id. 120; 49 Id. 285; 50 U. 393; 73 Id. 431; 131 Ark. 501; 43 Pac. 681; 207 Id. 101; 60 Iowa, 727; 73 Id. 53. ' See 63 Fed. 377. 1.

B. Priddy, Judge; 1. The contract was void as against public policy, as being an agreement not to compete at the sale or stifle bidding. 40 Ark. 251; 111 Id. 158; 53 Id. 351. 2. The court erred in its instructions. A court should not single out facts and emphasize them. 105 Ark. 467; 62 Id. 312; 57 Id. 520; 43 N. Y. 147. STATEMENT OE EACTS.

T. Wood, Chancellor; 1. The demurrers should have been sustained and the complaint dismissed. Act No. 116, Acts 1915, expressly repealed all prior acts and became the sole law of this case. This act fixes the area and boundaries of the district, the lands to be taxed, and determines the benefits to the extent of ten cents per acre. It is a plain legislative determination of the benefits to the lands and is conclusive.

Martineau, Chancellor; 1. Under the decision in 68 Ark. 39-63, the title to all land north of the Statehouse square is in the city of Little Bock. Fed. Cases No. 12153, Hempstead, 704; 13 Wall. 92. 2. Neither the .statute of limitation nor laches can be pleaded against the city. The possession was not adverse. Kirby’s Digest, § 5648; 88 Ark. 533; 2 C. J., § 547, p. 249; 72 Ark. 498; 42 Id. 118; 78 Id. 71; 2 C. J. 264; 1 R. C. L. 730; 14 How. 377.

W. Hendricks, Judge; When appellant tendered a reasonable fee he had the right to demand possession and replevin would lie. One.dollar was a reasonable fee; the demand for $5 was unreasonable, and the possession of the horse became unlawful. Replevin was proper when the impounder failed to comply with the law. Kirby’s Digest, § § 1407-8-9; 9 Ark. 389; 17 Id. 85; 94 Id. 54. See also 65 Ark. 448; 70 Id. 348. The court erred in its instructions. 1.

Elliott, Chancellor; 1. This is the second appeal of this case. 116 Ark. 155. The bank was a party and had notice of appellant’s claim. It is bound by the determination of this court. 13 Ark. 103; 16 Id. 168; 26 Id. 17; 29 Id. 173; 99 Id. 484; 12211.491. The matter is res judicata. 4 C. J. 1204; 86 Ark. 86; 29 Id. 85; 34 Id. 569; 54 Id. 239; 29 Id. 85. Restitution must be made. Kirby’s Digest, § 1240; 81 Ark. 274; 96 Id. 150; 101 Id. 416.

H. Dudley, Judge; 1. Judge Dudley’s statement of fact to the jury was incorrect and contrary to the evidence. The misstatement was material and prejudicial. 2. The conduct of Judge Dudley in entering the jury room and his 'conduct there was reversible error. . Kirby & Castle’s Digest, § § 2594-5; Archibald, Cr. Pr. & PL 555; Bishop, New Cr.

The purpose was to get everything said or done at the time of the supposed admission before the jury and the testimony was competent. It was error to compel defendant to testify to a previous conviction in Federal Court. The prosecuting attorney’s remarks in his closing argument were prejudicial and erroneous. 1. Morehead’s testimony was incompetent as hearsay evidence. No foundation was laid. Kirby’s .Digest, Í 3139; 37 Ark. 324. 2.

<p>Statutes — amendment—constitutional limitation — rule—school DISTRICTS. — The Act of 1907, p. 962, organized a certain school district, and Act 341, Laws of 1917, undertook to add certain lands thereto. Held, the latter act was valid. Where the new statute is complete in its face and sufficiently definite, so that its meaning can be ascertained without the necessity of examining the prior statute on the subject to ascertain the effect of the amendment, then it does not violate the provision of the Constitution.</p>

.Appeal from Woodruff: Chancery Court, Northern District; Edward D. Robertson, Chancellor; 1. The complaint alleges no ground of divorce under our statute. Kirby’s Digest, § § 2672-2678. The court had no jurisdiction. 2. The testimony is insufficient. 105 Ark. 196; 9 Id. 507; 38 Id. 98; 104 Id. 384; 53 Id. 484. 3. The property is not mentioned in the pleadings or testimony and the court had no jurisdiction.

If there were any defects in the complaint they were waived. The injury falls within the definition of “accidental,” external and violent. Kirby’s Dig., § § 6093-4; 14 R. C. L., § 418, pp. 1238-9; 8 Ark. 74; 44 Id. 205; 43 Id. 230; 104 Id. 79; 92 Id. 297; 14 B. C. L. 1433; 1 C. J. 489, § 240; 89 Cal. 170; 23 Am. St. 455; 97 Ark. 508; 77 Id. 1; 60 7(7. 70; 1 C. J., § 337, p. 508, and many others.

M. Jackson, Judge; The court erred in setting aside the judgment and granting a new trial. It was an abuse of discretion by the court. The rule of this court is well settled. 98 Ark. 334; 100 Id. 596. There was a conflict in the evidence and this court will not disturb the finding of the court. 125 Ark. 488; 94 Id. 566; 98 Id. 304, 334; 120 Id. 99; 130 Ark. 374; 196 S. W. 477.

Cochran, Judge; 1. The evidence does not support the verdict. It does not connect defendant with the crime. 68 Ark. 529; 97 Id. 156. 2. - Nothing was carried away. No larceny was proven. 3. Instruction No. 4 is bad and misleading. 41 Ark. 479; 79 Id. 333; 34 Id. 158; 110 Id. 606; Kirby’s Digest, § § 1821, 1825. The larceny was not complete. Only an attempt was shown. 4. A new trial should have been granted for newly-discovered evidence. 1. The evidence is sufficient. 2.

Colemcm, Judge; The court erred in sustaining' the demurrer. The mortgagee can sue at law in replevin, foreclose in chancery or bring action for conversion. 97 Ark. 434; 11 C. J. 592; 5 R. C. L., § 108, p. 473. Appellant elected to sue for conversion. The complaint stated a good cause of action. Actual and wrongful conversion was proven as alleged and damages alleged. 38 Cyc. 2071. The complaint is defective.

Cowling, Judge; The verdict is against the evidence. The great preponderance shows a case of suicide and not of external, violent and accidental injury. The case falls squarely within the-rule in 95 Ark. 456. It is entirely different from 128 Ark. 155. See also, DeCosta Modern Surgery, 1914. All the physical facts point to suicide conclusively. The verdict is supported ‘ by the evidence.

Martineau, Chancellor; 1. It was error to consolidate the two actions. The bank had no right to intervene. Mrs. Brown was not a party; she was only a purchaser. 8 Cyc. 591; lb. 594; 65 Ark. 216. 2. The motion to strike the exceptions should have been granted. The bank could not intervene. 97 Ark. 480'; 119 Id. 238. 3. The receipt from Brown for the purchase money should have been accepted and the sale .confirmed without a lien on the land. The bank had a right to intervene.

Appellant obtained by purchase at judicial sale of the assets of the Pine Bluff bank under Act 113, Acts 1913, page 642; 125 Ark. 17. This was a judicial sale. Rover on Judicial Sales, page 1. The court was the vendor. 23 Ark. 39. The assets of the bank were in custodia, legis. 24 Cyc. 6. Appellant is not an assignee under § 118 Kirby’s Digest; 53 Pac. 70; 96 Ala. 501; 31 Ark. 643; 79 Atl. 647. The only affidavit required was made by Triplett.

Lalce, Judge; 1. The message was' not the acceptance of an offer to bind a contract, or the offer of terms for a contract. 37 Cyc. 1762c, 1761b, 1760. 2. It was merely a step in the negotiation for a contract.

Cowling, Judge; The petition is fatally defective. It is not alleged in what court the judgment was obtained. No copy of the judgment was filed. It is not alleged that the judgment was- founded upon a debt for the payment of which the school funds were liable or that there was money on hand on which a warrant could be drawn. 85 111. 484; 31 L. R. A. 350; 26 Ark. 482; 54 Id. 446; 16 Id. 193; High on Ext. Legal Rem. >(2 ed.) 278, 286, 295.

<p>Appeal from Fuiton Circuit Court, J. B. Baker, Judge;</p>

C. Trimble, Judge; 1. The sanity or insanity of the prosecutrix was material to the defense. It was error to refuse to allow defendant to introduce testimony to show the insanity of the mother and sister of the prosecuting witness. The court’s remarks were prejudicial. 54 Ark. 489; L. It. A. (N. S.) 1917 E. 857; Ann. Cas. 1917 B. 1054; 62 Ark. 126; 51 Id. 147. 2. It was error to adjourn court to the hotel. 3. The court erred in its instructions to the jury. 1.

The redemption was not valid because the receipt from the treasury was never filed with the clerk. 80 Ark. 43-48; 73 Id. 27; Kirby’s Digest, § § 7099, 7100-2. 2. Appellee failed to pay enough money to redeem. Blackwell on Tax Titles, pages 506-7. 1. rThe treasurer’s receipt was filed within the meaning of the law.

<p>Insurance — fire insurance — authority of agent to waive conditions. — The agent of appellent fire insurance company, with authority to issue policies of insurance, held to have authority to waive conditions in the policy, and to have actually waived same.</p>

Worthington, Judge; 1. The defenses interposed were (1) The injury was an accident unmixed with negligence; (2) defendant contributed to his injury and (3), plaintiff assumed the risk. The 1st instruction ignores the questions of contributory negligence and assumed risk. Standing alone it is clearly erroneotis and is not cured by any other. 43 S. W. 715; 20 Id. 293; 41 N. E. 600; 35 Pac. 39; 64 Ark. 605; 74 Id. 437. No. 2 is open to the same objection. 2.

<p>1. Sales — horses—misrepresentation—remedy op buyer. — Where A. purchased certain horses from B. and it developed that the horses were not, as represented, where A. gave a note for the purchase price, three remedies are open to him: suit for rescission of the contract and cancellation of the note; suit for damages on account of fraud and deceit; or to wait until suit was brought on the- note and plead total or partial failure of consideration.</p> <p>2. Sales — note for purchase price — failure of consideration— replevin. — Where a note is given for the purchase price of certain horses, and it developed that the horses were not as represented, the buyer can not bring replevin for the note.</p> <p>3. Principal and surety — failure op consideration — discharge of surety. — Where the contract between the principal and creditor fails by reason of a want of consideration, the collateral surety-ship contract also fails.</p>

Hay-me, Judge; 1. 'The policy is void because of untrue statements • made in the application which formed a part of the contract, whether warranties or representations. 105 Ark. 105; 58 Id. 532; 121 Id. 188; 19 L. R. A. (N. S.) 93. 2. Appellant did not waive and is not estopped from declaring the policy void. 56 Ark. Law Rep. 466; 241 U. S. 623; 14 L. R. A. (N. S.) 280-4; 125 N. W. 660; 132 Id. 1067. See also, 62 Ark. 47-50.; 120 Id. 608. 3.

Martinecm, Chancellor; 1. The fraudulent conveyance should have been set aside to the extent of appellants claim, and not merely to the extent of the cash surrender value of the policy. 84 Mich. 625; 48 N. W. 159; 82 N. Y. Supp. 302; 83 App. Div. 419; 74 N. E. 1116; 80 Ala. 555; 2 So. 114; 124 Ala. 213; 12 R. C. L. par. 149; 100 Ark. .573; 33 Id. 575; Ann. Cases, 1912 B. 896; 1 Remington on Bankruptcy, 16.

Trimble, Judge; 1. The continuance should have been granted. The refusal was an abuse of discretion by the court. 42 Ark. 273. 2. The opening statements of the prosecuting attorney were highly prejudicial. 88 Ark. 581; 71 Id. 417; 66 Id. 16. 3. The demurrer to the evidence should have been sustained. It does not sustain the verdict. 4. It was error to permit John Davis.to remain in' the court room. 101 Ark. 156; 180 S. W. 275; 39 Id. 278.

Haynie, Judge; 1. The demurrer should have been sustained. Kirby & Castle’s Digest, § 6941. 2. The court erred in excluding defendant’s evidence and in instructing a verdict. The note was not endorsed at the time of the trial before the justice. The endorsement was antedated. The money was W. H. Ford’s and the due bill was his. The endorsement was in W. H. Ford’s handwriting. It was error to exclude the testimony as to the direction to pay $150 to Henry Wheeler.

A. Falconer, Chancellor; 1. There was no evidence to sustain the allegations of the bill. No judgment against Harris was shown or' offered in evidence. One not a creditor is in no position to ask that a conveyance be set aside. 58 Ark. 186; -34 Id. 291. 2. No fraud was proven. 50 Ark. 289; 64 Id. 505. Nor was there proof of insolvency. 68 Id. 162. 3. The court had no jurisdiction of lands in Polk County.

Coleman, Judge; 1. Any errors, however «light or harmless perhaps, under different circumstances, were prejudicial in this case. 80 Ark. 454; 89 Id. 556; 91 Id. 555; 105 Id. 205. Incompetent testimony was admitted. Elsie Beacham testified that she pointed out Mims to Sanderson as the person who handed Kelley the gun. This was a subsequent event and no pari of the res gestae. 66 Ark. 264; 69.

T. Humphries, Chancellor; 1. The finding of the engineer is conclusive. 48 Ark. 522; 68 Id. 187; 79 Id. 513; 83 Id. 140, 142; 93 Id. 31-41. See also 212 U. S. 18; 3 Cyc. 621. 2. The damages awarded are excessive. 33 Ark. 751; 64 Id. 35; 67 Icl. 219. 3. The sureties were discharged by modification of plans and contract. 6 Cyc. 82; 120 Ark. 527. 1. The court did not err in finding for appellees upon the merits and they were entitled to judgment.

Francis Chancery Court; Edivard D. Robertson, Chancellor; 1. The law of this case is settled by Act No. 293, Acts 1909; 128 Ark. 462. 2. Under the contract in this case appellants are entitled to $2,657.75, one-half 'of the amount recovered or saved to Walker on account and the land conveyed. Walker’s net gain-was $5,315.51. 1. The law of this case is settled. 128 Ark. 462; 120'Ark. 389; 26 S. E. 309; 68 S. W. 751; 117 Ark. 504. 2. Nothing was recovered by Walker.

H. Humphreys, Chancellor; 1. The engineer was guilty of no fraud or misconduct ; nor is any shown on the part of the board. By the stipulations in the contract, the board was to have the final decision in all matters of dispute. This provision is valid, binding and enforceable. 112 Ark. 83; 88 Id. 213; 83 Id. 140; Loyd on Buildings, § § 19 and 20 A; 79 Ark. 506. 2.

. Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge; 1. The venue was not proven. The yearling ranged in both Sevier and Little River counties. 2. To raise a presumption of guilt the possession mtist be recent and not a long time after the larceny. 17 R. C. L., § 78; 37 Tex. 202; 51 Am.

W. Smith, Judge; 1. No premeditation or malice is proven. 2. The question of self-defense was not submitted to the jury, and there was error in the court’s instructions 6 and 7. 1. The evidence is sufficient to prove malice and premeditation. Kirby’s Digest, §1764; 92 Ark. 120; 100 Id. 330; 86 Icl. 160. 2. There is no error in instructions 6 and 7.

It was error to instruct a verdict for appellee. The employer is liable for the acts of his servant. A slight detour or deviation, even for a purpose of his own, does not relieve the master from liability. The servant was acting within the scope of his authority. Ill Ark. 212.

Haynie, Judge; The instruction given by the court was not based upon the evidence., hi or is it the law. It was misleading and prejudicial. 59 Ark. 417; 37 Id. 333; lb. 593; lb. 580; 90 Id. 78; 90 Id. 278, 378; 80 Id. 260; 101 Id. 548; 70 Id. 441; 74 Id. 19; 71 Id. 518; 69 Id. 380; 78 Id. 177; 41 Id. 382; 58 Id. 324; 125 Id. 260. 1. There is no error in the instruction. It states the law. 100 Ark. 336. 2. The verdict is supported by the evidence.

I. Worthington, Judge; 1. The evidence is not sufficient to sustain the verdict. Appellee failed to meet the burden of proof. No negligence was proven and no defect in the wheel shown. Negligence is not presumed from the happening of the accident. The burden was on appellee. 69 Ark. 439; 82 Id. 372 ;• 100 Id. 467, 476; 93 Id. 153; 98 Id. 222; 79 Id. 437; lb. 80; 90 Id. 331; 87 Id. 196; 74 Id. 22. 2.

Eaynie, Judge; 1. The indictment is neither direct nor certain. It does not negative the charge nor tell who plaintiff and defendant were. It does not charge that the testimony was knowingly false. 2. It was error to refuse instructions Nos. 1 and 2. There were seven charges and only one witness and he was not corroborated by any testimony. 53 Ark. 395; 119 • Id. 408. 3. The verdict is not sustained by the evidence. 1. The indictment is good under the statute. 2.

W. Hendricks, Judge; 1. There is no liability. The statements in the application were false. They were warranties and material and binding upon him. The application was a part of the policy and there was a breach of the warranties. His answers were untrue. 146 S. W. 125-8; 84 Ark. 59; 58 Id: 528; 132 N. W. 1067; Ann. Cas. 1913 A. 847-9; 82 Ark. 400; 148 S. W. 526; 74 Ark. 1; 72 Id. 620; 81 Id. 202-6; 65 Id. 581-8; 11. 295; 122 Id. 58; 120 Id. 605. 2.

<p>1. Liquor — transporting same into the state. — An indictment charged that defendants “unlawfully did transport into and deliver in this State certain alcoholic * * * liquors * * Held, the indictment properly charged an offense against the provisions of section 1 of the act of 1917, page 41, which is directed against - the shipment, transportation or delivery of intoxicating liquors from another State or Territory or foreign country to another person, firm or corporation in this State.</p> <p>2. Liquor — transporting into the state. — Section 1, of the act of 1917,’page 41, does not prohibit a person from transporting liquor into this State for his or her own personal use, whether that use be lawful or unlawful.</p> <p>3. Liquor — delivery to another' — evidence.—The evidence held insufficient' to show a violation of section 1, act of 1917, page 41.</p> <p>4. Liquor — delivery to another — necessary allegations in indictment. — Under section 1, act of 1917, page 41, it is not necessary to name the particular person or persons to whom the transportation or delivery of the liquor has been made, but it is necessary to allege that it was done for some other person, firm or corporation, and when the allegation is that two or more persons joined in the offense of transporting and delivering liquor to some other person, it is a variance from that allegation to attempt to show a delivery by one of these parties to the other.</p> <p>5. Officers — removal—transportation of liquor. — An order removing a town constable and his deputy from office, they being charged with transporting and delivering liquor in violation of section 1, act of 1917, page 41, is void.</p>

E. Martineau, Chancellor; 1. The lien claim was not a just and true account under our lien statute. Kirby’s Digest, § 4981; 103 S. W. 518; 78 N. W. 344; 86 Mo. 277; 60 S. W. 64; 10.N. W. 338; 11 S. W. 225; 8 Mo. App. 587; 80 Ya. 573. 2. A sub-contractor should itemize his account for a lien. 2 Jones on Liens, (3d Ed.) § 1416; 59 W. Ya. 370; 44 Pa. St. 47; 12 Phil. 458; 168 Pa. St. 634; 244 Id. 6; 48 N. E. 956; &7 Pa.

There is no evidence whatever showing that defendant was guilty of criminal homicide. 2. It was error to refuse instruction “A” requested by defendant, that he had the right to forbid Chastain to come on his premises to pay court to his daughter, etc. 162 U. S. 499. 3. ■ Instruction No. 15 given by the court was erroneous, misleading and prejudicial. It assumed that defendant had made threats. No. 18 given was also prejudicial. 85 Ark. 48; 99 Id. 462. 4.

A. Falconer, Chancellor; 1. The Act had no legal existence after the two years limitation had expired, by reason of the failure to exercise the powers conferred, and the attempt to revive it in 1915 was in vain ¡and unconstitutional. It could not be amended or revived. Const. Art. 5, §, 23; 26 A. & E. Enc. L. (2d Ed.) 703; 90 Am. St. 153. The Act was passed when it was approved 'by the Governor. 101 Ark. 173; 101 Id. 166.

Martinecm, Chancellor; The modification asked should have been made. 127 Ark. 28. The decree is right; the modification should be denied. 127 Ark. 28.

The judgment in Griffith v. Richardson was void because it was entered by consent. The special administrator exceeded his authority. The judgment was not a hen on appellant’s ward’s interest in the lands. 2 R. C. L. 870. 2. The attachment was not levied and.was not :a lien. 44 Ark. 202; Kirby & Castle’s Dig. § 6062. See -also 45 Ark. 267; 51 Id, 361; 93 Id. 307. 3. There was no revivor in the name of the heirs of Richardson.

Elliott, Chancellor; 1. The damages allowed appellees' are speculative and no real damages were proven for the alleged breach of the contract. 57 Ark. 207. 2. The suit was, commenced within 90 days from the date of the delivery of the materials. Kirby’s Digest, § 4970; 51 Ark. 302. Plaintiff had a lien within the statute. 3. The jurisdiction of the court is settled by 126 Ark. 609. 4. In the sale of 'Second hand machinery there is no warranty as to quality. 104 Ark. 50.

Martmecm, Chancellor; 1. Whether the instrument be a deed with a condition precedent or subsequent. McAlister was not in default until a proper deed was tendered and performance demanded. 30 Cyc. 730; 73 Ark. 491; 44 Id. 492. 2. A tender was made -and a deed demanded by plaintiff and the 'chancellor’s decree is against the evidence. The testimony shows . that McAlister abandoned the trade 'and never tendered the money nor demanded a deed.

The clerk of the local camp had no authority to waive the laws of the society. Anderson could not be reinstated without filing the statement and warranty that he was in good health, nor at a time when he was sick with pulmonary tuberculosis. The society had no knowledge of the payment of assessments or attempt to reinstate until after his death. The payments made were promptly returned; The society was not estopped. 81 Ark. 512; 80 Id. 419; 104 Id. 538. 2.

Circuit Court, Third Division; G. W. Hendricks, Judge; 1. It was error to sustain the demurrers. The bank was subject to- the provisions of the Bank Act, Acts 1913, 462; 130 Ark. 128. The stockholders were liable. Section 4 .of the Act 1913 was prescribed merely for the purpose of requiring a report to the Commissioner and the liability of the stockholders arose upon a continuance of business after January 1, 1914.

<p>1. Attorney’s pees — services rendered — quantum meruit.— Plaintiff, an attorney, agreed to perform certain legal services for one R., a minor, held, even though the contract was void, that the allegations of the complaint showed plaintiff entitled to recover on a quantum meruit.</p> <p>2. Married women — infancy—right to contract. — A married female who is a minor and who has not had her disabilities of non-age removed can not make any valid contract concerning her property nor manage nor control the same.</p> <p>3. Married- woman — infancy—guardianship.—In so far as the Act of April 22, 1873, Kirby’s Digest, § 3824, upon marriage, terminates the guardianship or curatorship of minor females, it is repealed by the constitution of 1874.</p> <p>4. Guardian and ward — curators.—The term “guardians” as used in Art. 7, § 34, of the Constitution of 1874, includes “curators.”</p> <p>5. Married woman — infancy—control of estate by curator. — ■ Where a minor is under fourteen years of age at the time of her marriage, the probate court has jurisdiction, notwithstanding her marriage, to appoint for her a guardian or curator who, under the statute, has the care and management of her estate subject to the superintending control of the court.</p> <p>6. Married woman — infancy—appointment of guardian — contract with attorney. — The probate court may appoint a guardian or curator for a minor, who is a married woman, and may confirm and approve a contract made by the guardian with an attorney, thereby binding the minor’s estate to the payment of an attorney’s fee for certain definite services to be rendered, and such contract is valid.</p> <p>7. Attorney’s fees — services rendered — contract.—Appellant, an attorney, entered into a contract with the guardian of an infant married woman, to perform for her certain legal services. The claim of the infant was settled by compromise. Held, under the testimony that appellant was entitled to the fee agreed to be paid him in the contract.</p>

Elliott, Chancellor; 1. Martha Mitchell was the life tenant in possession of the lot. Her purchase at tax sale was a mere redemption from the tax siale. 70 Ark. 375. ' 2. Appellant was not guilty of laches. She is seeking no equitable relief but sets up a legal title. She is not barred by limitation, being a married woman. 70 Ark. 371; 67 Id. 320; 108 Id. 248; 100 Id. 399. 3.

- There was misconduct of the jury; the jury were improperly influenced by the argument of the juror Friedman and others. Ill Ark. 151. The income of contestant was not in issue and a collateral matter. 2. The will was- not properly executed. The witness Smart signed for a testatrix and then attested the will. The law requires two witnesses to the will. One witness can not act in a dual capacity. 13 Ark. 486; 14 Id. 675; 193 S. W. 518. 3.

D. Frierson, Chancellor; 1. Appellants have the right to pay their pro rata per .acre of the mortgage and have their lands released. 127 Ark. 577; 141 U. S. 247; 41 Minn. 14; 27 Cyc. 1415-16; 20 A. & E. Ene. L. 1070 and notes; 57 N. J. Eq. 539. This right to release may be exercised at any time before final decree. 41 Atl. 405; 41 Minn. 14; 63 N. W. 1012; 103 Iowa 301; 72 N. W. 531; 57 N. J. Eq. 539; 162 111. 426. It was not necessary to make a tender. 70 Ore.; 142 Pa. 321.

St. Francis Chancery Court; Edward D. Robertson, Chancellor; 1. The court erred in sustaining the demurrer. The case in 125 Ark. 141 is not conclusive here. The allegations of the complaint show a good cause of action. Turley was the administrator and the lot was assets in his hands for the payment of debts, and entitled to a lien for all expenses, taxes, etc. He was entitled to the rents, etc. Kirby’s Dig., § § 79, 186; 46 Ark. 373; 8 Id. 9. 2.

Wade, Judge; 1. The demurrer should have been sustained. The indictment is not sufficient under the statute, nor good at common law. Kirby’s Digest, § § 1617-1602; 47 Ark. 572; 93 Id. 81; 43 Id. 93; 47 Id. 572. 2. Mr. Photon’s statements before the jury that Burgeiss desired to plead guilty was prejudicial. 197 S. W. 861. 3.

T. Wood, Chancellor; The order of the county court making the chang-es was void. 123 Ark. 209; 180 111. 151; 40 Atl. 938. 1. The changes made were authorized by the act. Act 338,1915, -%%1 and 16; 130 Ark. 410. 2. The statute was literally complied with. Appellants have no right to complain. No appeal was taken. All the original petitioners were in favor of the chang-es.

W. Hendricks, Judge; The demurrer should have been overruled. The complaint stated a good cause of action. A bank must ascertain at its peril,that a person presenting a check is authorized to receive the money and endorse the check. If the endorsement is a forgery the bank becomes liable. 5 R. O. L. 566; 7 C. J. 693, § 422. Zane on Banks, etc., § § 1460-7; Morse on Banks, etc., (5th ed.) § 474; Magee on Banks, etc., (2d ed.) 351; 2 Daniel Neg. Inst., § 1663.

11. Evans, Judge; 1. This case is parallel with 126 Ark. 597, and involved an identical contract. See also 197 S. W. 1168. The relation of vendor and purchaser was created as held by these oases. 2. It was error to permit defendant to read the extracts from the books ,and pamphlets for the purpose of modifying, varying and contradicting the written contract. 64 Ark. 653; 55 Id. 352; 40 Id. 117; 108 Id. 507; 13 Id. 593-8; 83 Id. 63; 115 Id. 177; 124 Id. 542. 3.

D. Shaver, Chancellor; I. Under the provisions of the contract appellant had a vendor’s lien for the rents as p:art of the consideration for the exchange of lands. The deeds were placed in escrow, and until the performance of the conditions the title to the land was in appellant and he had a vendor’s lien. 16 Cyc. 578 D; 10 E. C. L. 640, § 21. 1. Appellant had no vendor’s lien for rents.

B. Sorrells, Judge; 1. The demurrer confesses the truth of the complaint. Bliss Code PL, § 418. There was no election under ¡act 55 Acts 1917, pp. 233-4. Plaintiffs are the legal directors. 23 Am. St. 51; 83 Am. Dec. 751; 65 Ga. 260, etc. 2. It was error to 'sustain the demurrer. The court should have waited for proof as to whose fault it was that the election was not held. 75 Ind. 518; 22 Oh. St. 340; 31 Mich. 78. 3.

Barber, Chancellor; The bond was executed for the benefit of the constable alone. It was his duty to take proper care of the property under the attachment lien. Kirby’s. Digest, § 348; 33 Ark. 70. The sureties were not liable for any lass sustained by Sorrells, the judgment plaintiff. He was not .a party and it was error to enter judgment for any loss sustained by him. 34 Ark. 542.

B. Priddy, Judge; 1. The judgment was barred. Kirby’s Digest, § 5073; 23 Ark. 169; 19 Id. 303; 38 Id. 470. 2. The credit of $2,000 did not extend the time. 38 Ark. 470. The payment was not made by appellant. 60 Ark. 497; 20 Id. 189; 65 Id. 1; 118 Id. 118; 25 Cyo. 1381; 70 Am. St. 315; 70 N. W. 867; 88 N. W. 479; 13 Wall, 256; 38 S.'W. 505; 25 Cyc. 1433; 124 Ark. 47. 2. After ten years no execution could issue. Kirby’s Dig., § 4442; Act April 8,1891. 3.

Francis Cbancery Court; Edward D. Robertson, Chancellor; 1. The two streets aré highways belonging to the State for use of the public and title can not be acquired by adverse possession and limitation. 13 B. C. L. 163-5; lb., pp. 15-17, § § 2, 3, 5, 6; 103 Ark. 529; 66 Id. 44; 19 L. B. A. (N. S.) 1173. 2. The statute does not run against the State, nor cities and towns. 41 Ark. 45; Act 426, Acts 1907; 103 Ark. 529. 2.

The complaint fails to state that appellees had a defense to the action in which the judgment was obtained. Tihe demurrer should have been sustained. 52 Ark. 80; 12 S. W. 156; 102 Ark. 252; 144 S. W. 190; 54 Ark. 541; 16 S. W. 571; 83 Ark. 21; 102 S. W. 711. 2. The judgment became final at the end of the term and could not be set aside or modified. 139 S. W. 289; 99 Ark. 433. 3.

.Appeal from Cleburne Chancery Court; George T. Humphries, Chancellor; 1. A chancellor has no authority to remove the disability of minors. He had no jurisdiction of the person or subject-matter. Kirby’s Dig., § § 1309, 1286. 2. The chancellor’s order was void. It was made in vacation and he was not sitting as a court. 2 Ark. 299; 20 Id. 77; 40 Id. 151; 96 Id. 274; 85 S. W. 633; 106 N. Y. Sup. 211, 216; 11 Cyc. 652-4; 39 Pac. 270; 22 Nev. 280; 116 Ark. 310. 3.

Eaynie, Judge; Instruction No. 1 asked by defendant should have been given. 130 Ark. 175; 124 Ark. 478. 1. The instruction was properly refused. 130 Ark. 322; 105 Ark. 462. 2. Defendant’s own testimony shows he was guilty. 104 Ark. 317; 100 Id. 139; 14 Id. 114.

<p>Vendor’s liens — failure to satisfy. — Kirby’s Digest, § 5402, requiring the satisfaction of a mortgage within a certain time after payment does not apply in the case of a sale with retention of a vendor’s lien.</p>

Marimecm, Chancellor; 1. The judgment was final .and conclusive, the term had lapsed, there was no appeal and it was error to set it aside at a subsequent term. 113 Ark. 237; 98 Id. 234; 89 Id. 160; 52 Id. 316; 6 Id. 92; Kirby’s. Digest, § § 4451, 4437. 2. Consent can not give jurisdiction. 90 Ark. 195; 33 Id. 106; 27 Id. 216; 14 Id. 203; 6 Id. 282; 5 1 d. 23; 2 Id. 66. 3. There was no accord and satisfaction. 1 C. J. 523, 528. There was no consideration for one.

F. McMahan, Chancellor; 1. The complaint stated an action at law merely for money had and received. A court of equity had no jurisdiction. 2. But if the court had jurisdiction it was error to render a judgment against him for the assignment so-called was revoked by Mrs. Sullivan and said revocation was encouraged and consented to by plaintiffs, and he was thereby released. Appellant never collected any of the insurance money belonging to plaintiffs. 2.

Elliott, Chancellor; Argues that the sale was void for want of proper notice. Kirby’s Digest, § § 662-3-4; 71 Ark. 211; 55 Id. 192, 213; 68 Id. 426. Appellee did not file tax receipts .showing payment of taxes for three years next before filing the petition. Ib. § 665; 68 Ark. 211; 75 Id. 180. The transcript does not contain all the evidence. The decree in the Holmes case is not set out. That decree divested appellant of all title.

Plaintiff was entitled to .an instructed verdict as for money liad and received. 101 Ark. 350; 65 Id. 222; 23 L. R. A. (N. S.) 553 and note in 24 Id. 516; 17 Ark. 599; 25 Id. 100; 31 Id. 155. Appellee was a bailee of this money to pay Fowler Commission Company or to plaintiff which was subrogated to the company’s rights by paying its debts. 9 Ark. 85; 27 A. & E. Enc.

W. Hendricks, Judge; 1. The judgment is sustained by neither the law nor facts. There was no note. Only a conditional contract and the burden was on appellee to show performance of the conditions. It was error to refuse appellant the privilege of proving his defense. 3 Ark. 222; 30 Id. 186; 9 Oyc. 699, 782. STATEMENT OE EAOTS. D. A. Brand sued U. Gr. Horn on a promissory note for $324.14.

J. Driver, Judge; 1. The record contains no proof that appellant ever transacted business in Arkansas. 2. It was error to direct a verdict. The first suit was properly dismissed without prejudice. Kirby’s Digest, § 6167; 69 Ark. 431; 122 Id. 456. After the dismissal of the first suit, appellant complied with the Arkansas laws and was entitled to sue again.

B. Haynie, Judge; I. A clear case of discrimination under the statute was made. It was error to direct a verdict for appellee. While the statute is penal and strictly construed, yet the intention is clear, .and the words, context, etc., should be, considered in their ordinary and popular signification and such construction adopted as will effectuate the intention of the Legislature.

The court erred in sustaining the plea of payment. The judgment before the justice of the peace was void, beyond his jurisdiction. 5 Ark. 214; 61 Id. 13. See also 20 Oye. 1146-8-9; 9 111. 354; 22 Ind. 244; 26 Kan. 599; 109 Mass. 313; ¡58 Mo. App. 384. 2. The appellee is not protected by the payment of the judgment It was exempt and the payment made by collusion. 20 Cyc. 1149; 34 Ala. 583; 42 N. W. 896. 3.

J. Driver, Judge; 1. A tenant who wilfully burns a house occupied by himself, but which belongs to another person, is guilty of arson. 131 Ark. 129; 2 Bish. Cr. Law, § ,8; Black, Law Diet., “Arson;” Kirby’s Dig., § § 1576-9; 131 Ark. 185; 61 Mo. 276; 25 Col. 261; 1 Wash. 345; 109. Ind. 527; 10 Oh. St. 287.

Martineau, Chancellor; 1. The testimony shows that appellant has -had more than seven years adverse possession of the strip 'and has title thereby. 100 Ark. 556; 101 Id. 409; 80 Id. 445. The judgment is unsupported by the testimony. 98 Ark. 46Í. 1. Equity having* properly taken jurisdiction, it was competent to adjudicate all the issues, legal and equitable. 84 Ark. 145. 2. Mrs. Marguth’s testimony was competent.

B. Priddy, Judge; 1. The court erred in not transferring the cause to the chancery court. 2. The judgment is not sustained by the evidence. Plaintiff was not entitled to maintain replevin. 67 Ark. 135; 82 Id. 244; 73 Id. 589. Plaintiff had no title, nor interest in the property or its proceeds. The attachment sale was, never confirmed, nor was the sale, according to law. 52 Ark. 446; Kirby’s Digest, § 385; 27 Ark. 292; 67 Id. 261; 81 Id. 147; etc. 2.